249 P.3d 604
Wash.2011Background
- CR, born May 22, 1992, was the youngest of Russell's five children; the family moved frequently due to Russell's Navy service.
- The State charged Russell with first degree rape of a child (domestic violence) for Washington-era abuse of CR.
- Before trial, the State sought to admit ER 404(b) evidence of Russell's abuse of CR in Japan, Hawaii, Florida, and Indiana to show lustful disposition and corroborate Washington acts.
- The trial court admitted Hawaii and Florida abuses; Japan abuse was excluded for CR's lack of independent recollection; the court also admitted Florida as not more prejudicial than probative.
- Neither the trial court nor the defense requested a limiting instruction to constrain ER 404(b) evidence to its limited purpose, and no sua sponte instruction was given.
- The Court of Appeals reversed, holding the ER 404(b) evidence permissible but requiring a sua sponte limiting instruction; this Court reversed and affirmed the conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| RAP 2.5(a) review proper? | Russell's claim challenges trial error not raised in court. | The Court of Appeals could review under its discretionary authority. | Review proper; discretionary review allowed. |
| Must trial court sua sponte give limiting instruction for ER 404(b)? | Court should have sua sponte given limiting instruction for lustful disposition evidence. | ER 105 limits instructions to requests; no sua sponte duty. | No sua sponte duty; instruction required only upon request. |
Key Cases Cited
- State v. Noyes, 69 Wn.2d 441 (1966) (limiting instruction not required absent request)
- State v. Athan, 160 Wn.2d 354 (2007) (omission of limiting instruction not reversible error without request)
- State v. Myers, 133 Wn.2d 26 (1997) (no error where no instruction was requested)
- State v. Hess, 86 Wn.2d 51 (1975) (no reversible error without request for limiting instruction)
- State v. Goebel, 36 Wn.2d 367 (1950) (early discussion of limiting instructions for ER 404(b))
- State v. Saltarelli, 98 Wn.2d 358 (1982) (principles on admissibility and limiting instructions)
- State v. Brown, 113 Wn.2d 520 (1989) (limiting instruction issues dependent on request)
- State v. Foxhoven, 161 Wn.2d 168 (2007) (reliance on dicta regarding ER 404(b) instructions)
- State v. Lough, 125 Wn.2d 847 (1995) (discussion of ER 404(b) limiting instructions)