“[T]he doctrine of chances is most often invoked when intent or absence of mistake are in issue.”
How later courts described this case
- “[T]he doctrine of chances is most often invoked when intent or absence of mistake are in issue.”
Written by the judges who cited it.
The opinion
Scholfield, J.
(dissenting) — Because I believe the majority opinion allows propensity evidence into the defendant's trial in direct violation of ER 404(b), I respectfully dissent.
*338 In May 1990, this court filed its opinion in State v. Lynch, 58 Wn. App. 83 , 792 P.2d 167 , review denied, 115 Wn.2d 1020 (1990). In Lynch , the defendant was charged with a robbery in Bellevue, Washington, many aspects of which were identical to robberies committed by the defendant in Los Angeles and Portland. Despite the similarities, we ruled that the evidence of the Los Angeles and Portland robberies was not admissible to show a common scheme or plan 24 because there was no causal connection:
The common plan or scheme exception, however, refers to a larger criminal design of which the charged crime is only one part. State v. Bowen, 48 Wn. App. 187, 192 , 738 P.2d 316 (1987). The scope of the common plan exception is limited to evidence showing a causal connection between the other crime or act and the charged crime,
so that proof of the other offense could be said to evidence a pre-existing design, system, plan, or scheme directed toward the doing of the very act charged.
Bowen, 48 Wn. App. at 192 (quoting State v. Goebel, 40 Wn.2d 18, 21 , 240 P.2d 251 (1952)); see also State v. Harris, 36 Wn. App. 746, 751 , 677 P.2d 202 (1984).
Lynch , at 88.
The Lynch court's explanation of the limited use of evidence of similar acts to show common scheme or plan is a correct statement of the rule. If the evidence, of prior similar acts does not show a causal connection between the prior acts and the act charged, it is not admissible to show common scheme or plan.
The Lynch case cites and is consistent with State v. Bowen, 48 Wn. App. 187 , 738 P.2d 316 (1987), where the court ruled that evidence that a doctor made house calls on two female patients and fondled their breasts was not evidence of a common scheme or plan to fondle the breast of a third woman, the victim in the case on trial.
The majority opinion relies upon mere similarities among different crimes to support its conclusion that evidence of Lough's prior misconduct with other women is enough to *339 establish a common scheme or plan. The majority's reasoning eviscerates the protection of ER 404(b) and is similar to that criticized in State v. Harris, 36 Wn. App. 746, 751 , 677 P.2d 202 (1984), where the court said:
Common scheme, plan or design has been described as: an antecedent mental condition which evidentially points to the doing of the act planned. Something more than the doing of similar acts is required in evidencing design, as the object is not merely to negative an innocent intent, but to prove the existence of a definite project directed toward completion of the crime in question.
(Italics ours.) Slough & Knightly, Other Vices, Other Crimes, 41 Iowa L. Rev. 325 , 329-30 (1956).
Under this definition, it is obvious the two rapes here do not qualify as links in a chain forming a common design, scheme or plan. At most they show only a propensity, proclivity, predisposition or inclination to commit rape. Such evidence is explicitly prohibited by ER 404(b).
The majority opinion fails to show that the commission of any one or more of the prior alleged acts of misconduct by Lough was done with the objective of making a sexual assault upon P.A., the victim in this case. Furthermore, the record does not show that Lough even knew P.A. at the time the prior alleged assaults occurred.
There being no causal connection between the alleged prior assaults and the assault on P.A., the evidence of prior assaults was not admissible to show a common scheme or plan. Its only purpose was to show that Lough had a propensity or predisposition to commit rape. Thus, the admission of the evidence of prior assaults violated the purpose of ER 404(b).
There being no question about the prejudicial effect of such evidence, Lough is entitled to a new trial.
Review granted at 122 Wn.2d 1022 (1993).
The evidence of the prior robberies was, however, admissible on the issue of identification.