State Of Washington v. Derek R. Nebreja, 52861-4

Defendant Derek Ramirez Nebreja was charged with second-degree child molestation for touching a 12-year-old family member’s vagina over clothing while sitting on a couch.
One week earlier, the same child testified that Nebreja had touched her buttocks in a closet; she then thought it accidental and did not report it.
The State moved to admit the prior touching under ER 404(b) to show lack of mistake and a "lustful disposition" toward the victim; the trial court admitted it.
At trial the prosecutor argued the prior act supported sexual gratification and told the jury the State bore the burden of proof; jury convicted.
Nebreja appealed, raising (1) erroneous admission of ER 404(b) evidence, (2) insufficient evidence that touching was for sexual gratification, (3) prosecutorial misconduct in closing, and (4) cumulative error.

Issue	State's Argument	Nebreja's Argument	Held
Admissibility of prior misconduct (ER 404(b))	Prior touching one week earlier is highly probative to show lack of mistake and lustful disposition toward the victim	Prior act not sufficiently similar or necessary; prejudice outweighed probative value	Admissibility proper: probative value (lack of mistake/lust) outweighed prejudice; no abuse of discretion
Sufficiency — sexual gratification element	Touching intimate area over clothing, plus prior similar touching, supports an inference of sexual gratification	Evidence equivocal; touching fleeting and susceptible to innocent explanation (relies on Powell)	Sufficient: rational juror could find the touching was for sexual gratification given the second similar incident within a week
Prosecutorial misconduct in closing	Prosecutor’s statements that "the act speaks for itself" and affirming State’s burden were fair inferences and did not shift burden	Statements misstated law and shifted burden on element of sexual gratification	No misconduct: the prosecutor repeatedly acknowledged the State’s burden and drawing the inference was permissible; no incurable prejudice
Cumulative error	N/A — errors, if any, combine to deny fair trial	Cumulative effect of claimed errors requires reversal	Not reached substantively because no reversible errors found; cumulative-error claim fails

State v. Fisher, 165 Wn.2d 727 (Wash. 2009) (de novo review of ER 404(b) interpretation; abuse‑of‑discretion review of admission)
State v. Gresham, 173 Wn.2d 405 (Wash. 2012) (ER 404(b) may admit prior sexual misconduct for motive/intent/lustful disposition)
State v. Ray, 116 Wn.2d 531 (Wash. 1991) (prior acts may show a defendant’s lustful disposition toward a particular victim)
State v. Vy Thang, 145 Wn.2d 630 (Wash. 2002) (four‑part test for admitting prior misconduct under ER 404(b))
State v. Powell, 62 Wn. App. 914 (Wash. Ct. App. 1991) (touching over clothing may be innocent; insufficiency where purpose equivocal)
State v. Harstad, 153 Wn. App. 10 (Wash. Ct. App. 2009) (touching intimate parts by a noncaretaking adult supports inference of sexual gratification)
State v. Cardenas‑Flores, 189 Wn.2d 243 (Wash. 2017) (standard for sufficiency: view evidence in State’s favor; juror credibility determinations)
State v. Scherf, 192 Wn.2d 350 (Wash. 2018) (heightened standard for reviewing prosecutorial misconduct claims; whether curative instruction would have helped)