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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 65455-1-I
                      Respondent,           )
                                            )       DIVISION ONE
              v.                            )
                                            )       UNPUBLISHED OPINION
BRYAN ZACHARY ROSS,                         ) 
                                            ) 
                      Appellant.            )       FILED: April 30, 2012

       Grosse, J.   --  Evidence may be admissible under ER 404(b) to show that a 

person devised a plan and repeatedly used it to perpetrate separate but very similar 

crimes.  To be admissible for such purpose, the prior misconduct and the charged 

crime must demonstrate such occurrence of common features that the various acts are 

naturally to be explained as caused by a general plan of which the charged crime and 

the prior misconduct are the individual manifestations.  Here, the evidence of Bryan 

Ross's nonconsensual sex with the prior victim meets these criteria for admissibility 

under ER 404(b).  Accordingly, the trial court did not err in admitting the evidence.  We 

affirm Ross's conviction and remand for resentencing in light of the State's concessions 

of error.

                                            FACTS

       In March 2009, the victim was in a grocery store parking lot and heard someone 

say "ma'am, ma'am, ma'am," but she ignored the voice, which turned out to be that of 

appellant Bryan Ross.  The victim moved as quickly as she could to her car, opened  

No. 65455-1-I / 2

the door, and turned around to find Ross standing behind her.  Ross said he thought 

she was beautiful and asked if she was single or married.  She replied that she was 

widowed.  Ross said he was divorced and a Christian and lived on Camano Island.  

The victim said she was also a Christian and that her daughter lived on Camano Island.  

At Ross's request, they exchanged telephone numbers.  Ross told the victim he would 

call her, and she drove away.

       By the time the victim got home, Ross had left two messages on her answering 

machine, saying that he thought she was beautiful and wanted her to call him.  

Between March 3 and March 27, Ross left ten messages on the victim's answering 

machine.  She also received a number of hang-up calls during that period.  In the 

messages, Ross again said he thought she was beautiful and that she was the love of 

his life and his soul mate.  She did not return these calls.

       On April 12, the victim telephoned Ross and told him she was going to be at her 

daughter's house on Camano Island that day.  Ross told her to come to his house at 

6:00 p.m.  The victim's daughter and son-in-law drove to Ross's house and the victim 

followed in her car.  The victim testified that Ross made fun of the fact that she brought 

others with her and offered to take them all on a tour of his house because he had 

nothing to hide.

       After leading a tour of his house, Ross asked the three of them if they wanted to 

watch a movie.  The daughter and son-in-law said they had to return home, but the 

victim decided to stay.  Ross started the movie and, according to the victim, was pacing 

and talking while the movie played.  Ross's pacing made the victim afraid and nervous, 

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No. 65455-1-I / 3

and she "huddled" on the couch.

       Ross walked to the back of the couch and took off the victim's coat, and then sat 

on the couch near her.  Ross told her she was the love of his life and that he wanted to 

marry her and spend the rest of his life with her.  He also told her that he had been 

watching and following her.  Ross pulled the victim close to him and tried to reassure 

her that he was not a stalker.

       Ross then pulled the victim onto his lap and kissed her.  At first, she did not pull 

away, but then pushed back and told him to "wait a minute."            Ross said he was not 

going to hurt her and again said she was the love of his life.  Ross tried to kiss the 

victim again, but she pushed him away.  Then, he picked her up and carried her down 

the hall into the bedroom.  He threw her onto the bed, pulled her up to a sitting position, 

and took off her shirt and sports bra.

       Ross pushed the victim down on the bed and, lying on top of her, started to bite 

her nipples.  She repeatedly asked Ross why he was doing this to her.  He did not 

respond and then pulled off her pants and underwear.  He then took off all of his 

clothes and got back on top of her.  The victim repeatedly asked Ross why he was 

doing this to her, but he did not respond.  The victim testified that Ross used his finger 

to find her vaginal opening.  When asked whether Ross's fingers entered her vagina, 

the victim testified that his fingers got "to the door."    When asked, "Did he go in the 

door at all?" she replied,"Yes.  Yes."    On cross-examination, the victim admitted that in 

some of her statements after the incident, she said that Ross did not get "full 

penetration" meaning "penile to scrotum," that in other statements she said Ross did 

                                               3 

No. 65455-1-I / 4

not penetrate her whatsoever, and that in other statements, she said he penetrated her 

with his fingers.  On redirect examination, the victim testified that Ross penetrated her 

with the head of his penis and with his fingers.  She suffered a tear similar to an 

episiotomy.

       The victim attempted to get Ross to stop by feigning a seizure.  Ross stopped 

and, although he did not call 911 as the victim asked, he asked if he could call the 

victim's daughter.  Using the number on the victim's cell phone, Ross called her 

daughter, and she arrived with her husband at Ross's house a short time later.

       The victim got in her daughter's truck, the son-in-law got in the victim's car, and 

they all drove to a shopping center, where the victim called 911.  She was told to drive 

to the sheriff's office.  From the sheriff's office, she was transported to the hospital, 

where she spoke with a detective and underwent an examination.

       The State charged Ross with one count of second degree rape.  The State filed 

a notice of intent to offer evidence, pursuant to RCW 10.58.090, of two women who had 

previously accused Ross of having nonconsensual sex with them, one in 1996 and 
another in 2001.1     During oral argument on the admissibility of the evidence under 

RCW 10.58.090, the State asked the court to analyze the admissibility of the evidence 

under ER 404(b), as well as evidence of a common scheme or plan.  The court 

determined that the evidence was admissible under both RCW                 10.58.090 and ER 

1 RCW 10.58.090(1) provides that in any criminal prosecution for commission of a sex 
offense  "evidence of the defendant's commission of another sex offense or sex 
offenses is admissible, notwithstanding Evidence Rule 404(b), if the evidence is not 
inadmissible pursuant to Evidence Rule 403."           The statute specifically permits the 
admission of prior uncharged sex offenses.  RCW 10.58.090(5).

                                               4 

No. 65455-1-I / 5

404(b).  The Supreme Court has recently held RCW 10.58.090 unconstitutional.2

       A jury found Ross guilty of second degree rape.  The trial court sentenced Ross 

to the high end of the standard range.

                                          ANALYSIS

ER 404(b) Evidence

       ER 404(b) provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the 
       character of a person in order to show action in conformity therewith.  It 
       may, however, be admissible for other purposes, such as proof of motive, 
       opportunity, intent, preparation, plan, knowledge, identity, or absence of 
       mistake or accident.

       Evidence may be admissible under ER 404(b) to show a common scheme or 

plan.  To admit evidence of prior bad acts to prove a common scheme or plan, the prior 

acts must be "(1) proved by a preponderance of the evidence, (2) admitted for the 

purpose of proving a common plan or scheme, (3) relevant to prove an element of the 
crime charged or to rebut a defense, and (4) more probative than prejudicial."3

       This court reviews a trial court's interpretation of ER 404(b) de novo as a matter 
of law.4 If the trial court's interpretation is correct, we review the trial court's decision to 

admit or exclude evidence of prior bad acts for abuse of discretion.5            The abuse of 

discretion standard of review applies to the trial court's balancing of probative value 
against prejudicial effect.6

2 State v. Gresham, 173 Wn.2d 405, 269 P.3d 207 (2012) (holding that RCW 10.58.090 
is an unconstitutional violation of the separation of powers doctrine because it 
irreconcilably conflicts with ER 404(b) regarding a procedural matter).
3 State v. Lough, 125 Wn.2d 847, 852, 889 P.2d 487 (1995).
4 State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009).
5 Fisher, 165 Wn.2d at 745.
6 State v. Sexsmith, 138 Wn. App. 497, 505-06, 157 P.3d 901 (2007).

                                               5 

No. 65455-1-I / 6

       There are two types of common schemes or plans for purposes of ER 404(b): (1) 

where a number of crimes constitute constituent parts of a plan in which each crime is 

but a piece of a larger plan and (2) where a person devises a plan and repeatedly uses 
it to perpetrate separate but very similar crimes.7      The second type is at issue here.  

With regard to this type of common scheme or plan, evidence of prior bad acts is not 

offered to prove the defendant's character, but rather it is offered to show that the 
defendant has developed a plan and has again put that plan into action.8                 To be 

admissible as evidence of this type of common scheme or plan, the prior misconduct 

and the charged crime must demonstrate "such occurrence of common features that the 

various acts are naturally to be explained as caused by a general plan of which the 
charged crime and the prior misconduct are the individual manifestations."9                Mere 

similarity in results is insufficient to show a common scheme or plan of the second 
type.10  "[T]he degree of similarity for the admission of evidence of a common scheme 

or plan must be substantial."11     However, this "heightened level of similarity does not 

require that the evidence of common features show a unique method of committing the 
crime."12  The lapse of time between instances may erode the commonality between 

acts.13

       Here, the State offered evidence consisting of testimony of two women who 

claimed to have had nonconsensual sex with Ross.  Ross was neither charged with nor 

7 Gresham, 173 Wn.2d at 422.
8 Gresham, 173 Wn.2d at 421-22.
9 Lough, 125 Wn.2d at 860.
10 Lough, 125 Wn.2d at 860.
11 State v. DeVincentis, 150 Wn.2d 11, 20, 74 P.3d 119 (2003).
12 DeVincentis, 150 Wn.2d at 20-21.
13 Lough, 125 Wn.2d at 860.

                                               6 

No. 65455-1-I / 7

convicted of any crime with regard to these two incidents.  At trial, one of the prior 

victims was unable to identify Ross as the person who she claimed raped her 14 years 

ago.  After some discussion, the trial court decided to exclude this prior victim's 

testimony and instructed the jury to disregard all of it.

       With the exclusion of this testimony, the only evidence the State had to offer with 

regard to common scheme or plan was the other prior victim's testimony with regard to 

an incident that occurred in 2001.  This prior victim testified that in November 2001, she 

and Ross were exiting a grocery store at the same time.  Ross approached her when 

she was at her car.  She testified that Ross was friendly and seemed like a nice person.  

Ross told her that he did not usually approach people the way he approached her, but 

did so because it was difficult to find people to date.  Ross gave his telephone number 

to the victim, but she did not give Ross her number.

       A couple of days later, the prior victim called Ross, told him about her bad 

marriage, and gave him her telephone number.  Over the next couple of weeks, she 

and Ross had several telephone conversations, talking mostly about her marriage.  

Ross said that, as a former police officer, he was familiar with domestic violence and, in 

his opinion, the prior victim was in a dangerous situation and needed to get away.

       The prior victim and Ross then met at a restaurant, and Ross told her that he 

had a room at his house where she could stay.  At the end of the meeting, Ross walked 

her to her car and kissed her good-bye.  A few days later, she telephoned him and 

asked if she could come to his house to see the room he had mentioned to her.  Ross 

said she could come to his house.

                                               7 

No. 65455-1-I / 8

       When the prior victim arrived at Ross's house, she and Ross began talking in 

the living room.  Ross then walked into his bedroom and began to fold laundry that was 

on the bed.  She followed and helped with the laundry.  When the laundry was folded 

and off the bed, Ross became "affectionate."      He put his arms around her and began to 

undress her.  She told Ross no several times, but he was persistent and eventually 

took all of her clothes off.  Ross put her on the bed, undressed himself, and then got on 

top of her.  She did not fight back because, she testified, she was afraid.  Ross 

penetrated her vaginally with his penis and stopped when there was a knock on the 

door.  When Ross returned from answering the knock, he made her get back on the 

bed.  Then the telephone rang and, while Ross was on the phone, she got dressed.  

When Ross got off the phone, the prior victim told him she had to leave.  She reported 

this incident to the Island County Sheriff's Department, but did not pursue charges 

against Ross.

       The trial court found that the State proved the occurrence of the incident with the 
prior victim by a preponderance of the evidence.14        The trial court determined that the 

evidence was admissible under ER 404(b) because there was a sufficient similarity 

between the incident with her and the current facts "to show that the current allegation 

against Mr. Ross is naturally to be explained as caused by a general plan."           The court 

also stated, "There is the requisite level of similarity between the prior acts and the 

14 At the time the trial court ruled on the admissibility of this evidence, the incident 
involving the first prior victim was still at issue, and the trial court allowed the State to 
present the testimony of both prior victims.  But because the trial court ultimately 
instructed the jury to disregard the first prior victim's testimony due to her inability to 
identify Ross, the admissibility of only the evidence involving the other prior victim is at 
issue.

                                               8 

No. 65455-1-I / 9

present allegation such that the various incidents can naturally be explained as individual 

manifestations of a general plan."       And, the court found that the probative value of the 

evidence substantially outweighed the danger of unfair prejudice, confusion of the 

issues, misleading the jury, and considerations of undue delay, waste of time, or 

needless presentation of cumulative evidence.

       The trial court correctly interpreted the relevant rules of evidence; accordingly, 
our review is for abuse of discretion.15    In State v. Gresham,16 the Supreme Court held 

that the trial court did not abuse its discretion in admitting evidence under ER 404(b) of 

the co-defendant Scherner's molestation of four other girls in the prosecution of the co-

defendant for the molestation of another girl.  With respect to two of the prior victims, 

the implementation of the crime was similar to the current offense in that Scherner took 

a trip with young girls and at night, while the other adults were asleep, approached the 

girls and fondled their genitals.  The court noted that although there were some 

differences, such as the occurrence of oral sex with respect to some victims, the 

differences were not so great as to dissuade a reasonable mind from finding that the 
instances could naturally be explained as individual manifestations of the same plan.17  

Also, the court concluded, with respect to the other two girls, that although the abuse 

took place in Scherner's home while the current abuse did not, the remaining details 

shared such a common occurrence of fact with the molestation of the current victim that 

the Court could not say that the trial court abused its discretion in determining that 

these instances were individual manifestations of a common plan.

15 See State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007).
16 173 Wn.2d 405, 269 P.3d 207 (2012).
17 Gresham, 173 Wn.2d at 421-22.

                                               9 

No. 65455-1-I / 10

       In State v. DeVincentis,18 the defendant was charged with second degree rape of 

a child and second degree child molestation.  The defendant asked the victim to clean 

his house and, while she was cleaning, the defendant was present wearing only a g-

string or bikini underwear.  The defendant asked the victim to massage him and to take 

off her clothes, and he made sexual contact with her.  He asked the victim to 

masturbate him until he ejaculated.  The trial court admitted, on the State's motion, 

evidence that the defendant had been convicted in New York of crimes involving sexual 

misconduct with a young girl several years before.  The victim of this earlier crime 

testified that she spent three or four evenings a week at the defendant's home and that 

he was usually present wearing a g-string or bikini underwear.  She testified that the 

defendant showed her pictures of naked people and pressed his erection against her 

back.  She said she had memory flashes of being naked with the defendant in a 

bedroom, him asking for massages, and him putting his erection in her mouth and 

ejaculating on her.

       The Supreme Court held that the trial court did not abuse its discretion in 

admitting this evidence under ER 404(b).  The court noted that with regard to both girls, 

the defendant wore only bikini or g-string underwear in their presence and gave the 

impression that this was normal, asked both girls to remove their clothes, asked both 

girls for massages, and asked them to masturbate him until he ejaculated.  The trial 

court found that the defendant's lack of clothing showed a design or plan to add a 

sense of normalcy to his behavior and to gain the girls' trust by desensitizing them to 

18 150 Wn.2d 11, 74 P.3d 119 (2003).

                                              10 

No. 65455-1-I / 11

his nudity, thereby making it easier for him to make sexual contact with them.19

       Here, as in Gresham and DeVincentis, the trial court did not abuse its discretion 

in admitting the prior victim's testimony under ER 404(b).  In both the prior incident and 

the current incident, Ross met the women in parking lots, appeared friendly and 

interested in dating, and asked the women for their phone numbers.  His manner of 

assaulting the women was similar in that he undressed both women, undressed 

himself, and forced himself on the victims, disregarding their struggles to get away.  
Both victims were of substantially smaller stature than Ross.20       Further, the trial court's 

determination that the probative value of the evidence outweighed the danger of unfair 

prejudice was not an abuse of discretion.  The trial court's balancing process is on the 
record, as required.21    Where, as here, the trial court acted within the bounds of its 

discretion in ruling on this issue, there is no error.22

       Even if the admission of the evidence was error, however, the error was 

harmless.  Evidentiary error is harmless if, within reasonable probability, it did not 
materially affect the verdict.23    A person is guilty of second degree rape when the 

person engages in sexual intercourse with another person by forcible compulsion.24  

Forcible compulsion means that the force was (1) directed at overcoming the victim's 

19 DeVincentis, 150 Wn.2d at 22-24.

20 Ross weighed 200 pounds.  Ross outweighed the prior victim by 80 pounds.  The 
current victim wore a size zero at the time of the incident.  
21 See State v. Fualaau, 155 Wn. App. 347, 359, 228 P.3d 771, review denied, 169 
Wn.2d 1023 (2010), cert. denied, 131 S. Ct. 1786 (2011).
22 Fualaau, 155 Wn. App. at 359.
23 State v. Hawkins, 157 Wn. App. 739, 752, 238 P.3d 1226 (2010), review denied, 171 
Wn.2d 1013 (2011).
24 RCW 9A.44.050(1)(a).

                                              11 

No. 65455-1-I / 12

resistance and (2) more than that which is normally required to achieve penetration.25            Forcible 

compulsion is statutorily defined as "physical force which overcomes resistance, or a 

threat, express or implied, that places a person in fear of death or physical injury to 

herself or himself or another person, or in fear that she or he or another person will be 
kidnapped."26    Sexual intercourse occurs upon any penetration, however slight, and 

includes penetration, however slight, of the vagina by an object.27       The jury could have 

rationally found, based on the victim's testimony, that Ross penetrated her with his 

penis and/or his fingers.  And, a forensic specialist from the state crime lab who tested 

the victim's rape kit testified that she found no sperm cells, but did find a protein found 

in semen on some swabs.  Even without the prior victim's testimony, it is reasonably 

probable that the jury would have found Ross guilty of second degree rape.  

Accordingly, the trial court's admission of the prior victim's testimony, even if error, was 

harmless.

Real Facts Doctrine

       The trial court sentenced Ross to the high end of the standard range.  Ross 

argues that the trial court erred when sentencing him by considering unproven facts, 

specifically the statements of two women who spoke at sentencing.  As became clear 

during oral argument, Ross's argument raises troubling issues, none of which have 

been briefed by the parties.  Chief among these issues is the seemingly irreconcilable 

conflict between RCW 9.94A.585(1), which provides that a standard range sentence 

25 State v. Wright, 152 Wn. App. 64, 71, 214 P.3d 968 (2009), review denied, 168 
Wn.2d 1017 (2010) (citations omitted).
26 RCW 9A.44.010(6).
27 RCW 9A.44.010(1)(a),(b).

                                              12 

No. 65455-1-I / 13

may not be appealed, and the legal principle that allows a defendant to challenge the 

underlying legal conclusions by which a court comes to apply a particular sentencing 
provision.28  This principle presumably applies to standard range sentences as well as 

exceptional sentences and permits a defendant, under certain circumstances, to appeal 
a standard range sentence.29        Also seemingly in conflict with RCW 9.94A.585(1)'s 

prohibition of appeals of standard range sentences is RCW 9.94A.530(1), on which 

Ross bases his argument.  That provision states in part:

       In determining any sentence other than a sentence above the standard 
       range, the trial court may rely on no more information than is admitted by 
       the plea agreement, or admitted, acknowledged, or proved in a trial or at 
       the time of sentencing, or proven pursuant to RCW 9.94A.537.[30]

This statute would appear to allow appeals, under certain circumstances, of standard 

28 State v. Williams, 149 Wn.2d 143, 147, 65 P.3d 1214 (2003).
29 See, e.g., State v. Murawski, 142 Wn. App. 278, 283, 173 P.3d 994 (2007).
30 RCW 9.94A.530(2).  The statute provides in full:
        In determining any sentence other than a sentence above the standard 
        range, the trial court may rely on no more information than is admitted by 
        the plea agreement, or admitted, acknowledged, or proved in a trial or at 
        the time of sentencing, or proven pursuant to RCW                    9.94A.537.  
        Acknowledgment includes not objecting to information stated in the 
        presentence reports and not objecting to criminal history presented at the 
        time of sentencing.  Where the defendant disputes material facts, the 
        court must either not consider the fact or grant an evidentiary hearing on 
        the point.  The facts shall be deemed proved at the hearing by a 
        preponderance of the evidence, except as otherwise specified in RCW 
        9.94A.537.  On remand for resentencing following appeal or collateral 
        attack, the parties shall have the opportunity to present and the court to 
        consider all relevant evidence regarding criminal history, including 
        criminal history not previously presented.
Division Two has held that the part of the statute providing that acknowledgement 
includes  "not objecting to criminal history presented at the time of sentencing"
unconstitutionally relieves the State of its burden to prove prior convictions.  State v. 
Hunley, 161 Wn. App. 919, 928, 253 P.3d 448 (2011)                 (internal quotation marks 
omitted) (citation omitted).  The Supreme Court granted review in Hunley, 172 Wn.2d 
1014 (Sep. 26, 2011).  This provision is not at issue here.

                                              13 

No. 65455-1-I / 14

range sentences, again contrary to the plain language of RCW 9.94A.585(1).

       Given the evidence presented during trial, we need not, however, resolve the 

issues raised by Ross's attempt to appeal his standard range sentence.  The trial court 

was presented with ample evidence at trial, apart from the statements of the women at 
sentencing, upon which to impose a sentence at the high end of the standard range.31

Statement of Additional Grounds

       In his statement of additional grounds, Ross argues that the State did not prove 

beyond a reasonable doubt that he had sexual intercourse with the victim and therefore 

did not prove all of the essential elements of second degree rape.  "Sexual intercourse"

for purposes of second degree rape "has its ordinary meaning and occurs upon any 
penetration, however slight."32    It also means any penetration of the vagina, however 

slight, by an object.33 The victim testified that when she initially reported the rape, she 

thought "penetration" meant "when the penis goes fully to the scrotum," which was why 

she thought Ross had not penetrated her.  But she testified at trial that she understood 

that penetration meant "[w]hen he has opened those doors" with the head of his penis 

or his fingers and that Ross did in fact penetrate her.  The State did, therefore, prove 

beyond a reasonable doubt the element of sexual intercourse.

       Ross also claims error in the court's jury instruction 6, which reads:

              Certain evidence has been admitted in this case only for a limited 
       purpose.  This evidence consists of the testimony of [the prior victim] and 
       may be considered by you only on the issue of the credibility of [the 
       victim] or for the purpose of showing a common scheme or plan.  You may 

31 For the same reasons, we reject Ross's argument in his statement of additional 
grounds that the trial court's characterization of him at sentencing as a "vicious 
predator" is grounds for reversal.
32 RCW 9A.44.010(1)(a).
33 RCW 9A.44.010(1)(b).

                                              14 

No. 65455-1-I / 15

       not consider it for any other purpose.  Any discussion of the evidence 
       during your deliberations must be consistent with this limitation.
This instruction is almost identical to WPIC 5.30,34 except for the inclusion of the 

phrase "on the issue of the credibility of [the victim]."   Ross appears to be arguing that 

the admission of the prior victim's testimony was prejudicial to Ross.  While the 

evidence was undeniably prejudicial, the trial court weighed the prejudicial effect of the 

evidence against its probative value, and the trial court's determination of this 

balancing is not an abuse of discretion.

State's Concessions of Error

       The State concedes:       (1) the court lacked authority to prohibit Ross from 

accessing the Internet; (2) the evidence was insufficient to support the trial court's 

order forbidding Ross from possessing, consuming, or acquiring alcohol, from entering 

an establishment where alcohol is the primary commodity sold, and from possessing 

drug paraphernalia; (3) that the trial court's prohibition of possessing pornographic 

materials, as written, is improper; and (4) that the trial court's attempt at preventing 

Ross from resuming his common scheme or plan of finding women to rape in parking 

lots is too vague to follow.

                                        CONCLUSION

       We affirm Ross's conviction and remand for resentencing in accordance with the 
State's concessions of error.35

34 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 5.30, at 180 
(3d ed. 2008) (WPIC).
35 Because we affirm Ross's conviction, we reject his argument that he is entitled to a 
new trial on the ground of cumulative error.

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No. 65455-1-I / 16

WE CONCUR:

                                              16