STATE v. MOMAH (2007)

PUBLISHED IN PART

 ¶ 1 Dr. Charles Momah appeals his judgment and sentence based on convictions of rape and indecent liberties involving several of his medical patients.   We hold that he has failed to carry his burden to show that the trial court violated his constitutional right to a public trial by the manner in which the court conducted voir dire of potential members of the jury who were questioned individually.   The  court did not abuse its discretion by admitting evidence of certain of Dr. Momah's prior bad acts under the common scheme or plan exception.   Likewise, the court did not abuse its discretion by excluding evidence of alleged prior bad acts of one of the witnesses against Dr. Momah.   The court properly exercised its discretion in denying Dr. Momah's motion to sever.   And the court did not abuse its discretion in denying his mistrial motion.   We affirm.

¶ 2 Dr. Momah was a gynecologist and purported fertility specialist with offices in Burien and Federal Way. In 2003, one of his patients, H.P., went to a hospital and reported that Dr. Momah had raped her.   Once the allegations were made public, many other women came forward with complaints that Dr. Momah had sexually abused them.   These allegations became the subject of extensive media coverage.

¶ 3 After investigation, the State charged Dr. Momah with seven counts arising from these incidents.   Three of the counts were severed from the trial in this case.   The remaining four counts were tried in this action, including two counts of indecent liberties, one count of second-degree rape, and one count of third-degree rape.

¶ 4 Due to the nature of the charges and the extensive media coverage, a large number of potential jurors were called for voir dire by the parties and the court.   Some of the potential jurors asked to be questioned individually, and the court and both counsel agreed to honor those specific requests.   Some jurors had been exposed to media coverage about the case, also requiring individual juror questioning to avoid jury contamination.   We discuss in more detail later in this opinion how voir dire was conducted.

¶ 5 Following the selection of the jurors and alternates, the matter was tried over the course of 15 trial days.   The jury found Dr. Momah guilty as charged.

¶ 6 He appeals.

RIGHT TO PUBLIC TRIAL

¶ 7 Dr. Momah argues that the trial court violated his right to a public trial by the manner in which it conducted  voir dire of the prospective jurors who were questioned individually.   Because he fails in his burden to show there was a constitutional violation in this case, we disagree.

 ¶ 8 Article I, section 22 of the Washington State Constitution guarantees criminal defendants the right to a speedy, public trial.   Similarly, article I, section 10 provides that “[j]ustice in all cases shall be administered openly․” These rights extend to jury selection, which is essential to the criminal trial process.¹

 ¶ 9 To protect these rights, a court faced with a request for a trial closure must weigh five factors, referred herein as the Bone-Club factors, to balance the competing constitutional interests.²  To overcome the presumption of openness, the party seeking closure must show an overriding interest that is likely to be prejudiced and that the closure is narrowly tailored to serve that interest.³  The trial court must consider alternatives and balance the competing interests on the record.⁴

¶ 10 This test mirrors the one articulated by the United States Supreme Court to protect the Sixth Amendment right to a public trial and the First Amendment right to open hearings.⁵

¶ 11 We look to the plain language of the closure request and order to determine whether closure occurred, thus triggering the Bone-Club factors.⁶

  ¶ 12 Once the reviewing court determines there has been a violation of the constitutional right to a public trial right, “[p]rejudice is presumed,” and a new trial is warranted.⁷

 ¶ 13 On the other end of the spectrum from a full closure is a trial court's inherent authority and broad discretion to regulate the conduct of a trial.⁸  Thus, a “closure” in which one disruptive spectator is excluded from the courtroom for good cause will not violate the defendant's right to a public trial even absent an analysis of the Bone-Club factors.⁹  Likewise, limited seating by itself is insufficient to violate the defendant's public trial right.¹⁰

¶ 14 Here, Dr. Momah focuses his argument exclusively on the events of October 11, 2005, the second day of voir dire.   It is undisputed that he neither bases his argument on any other day of voir dire nor does he object to voir dire for reasons other than those described below.¹¹

¶ 15 On the second day of voir dire, the court convened the trial in Room E-942, the presiding courtroom in the King County Courthouse.¹²  During the prior day of voir dire, 48 potential jurors were excused, leaving 52 potential jurors to be examined further.¹³  The record reflects the following exchanges between the court and counsel for the parties regarding questioning of the remaining potential jurors:

 THE COURT:  ․ I made a list of jurors who wanted to have private questioning about various issues.   On that list I have eight jurors who wanted private questioning.

․

MR. ALLEN [counsel for Dr. Momah]:  Your Honor, it is our position and our hope that the Court will take everybody individually, besides those ones we have identified that have prior knowledge.   Our concern is this:  they may have prior knowledge to the extent that that might disqualify themselves, or we have the real concern that they will contaminate the rest of the jury.

․

MR. ROGOFF [counsel for the State]:  I agree.[14]

¶ 16 Thereafter, the court divided the prospective jurors who were to be questioned individually into two groups, the first group of 20 to be questioned that morning.   The rest were released with instructions to return for questioning that afternoon.

¶ 17 Shortly after the release of the potential jurors, the record reflects that the court, both parties' counsel, Dr. Momah, and the court reporter moved into chambers adjoining the presiding courtroom.   Once in chambers, the record states:

THE COURT:  We have moved into chambers here.   The door is closed. We have the court reporter present, as well as all counsel and the defendant, along with the Court and juror number 36․ [15]

¶ 18 Following questioning by counsel and the court, prospective juror number 36 left chambers and prospective juror 2 entered chambers.   The record does not reflect whether the door to chambers was closed during this questioning or subsequent individual questioning of other prospective jurors during the morning session.

¶ 19 The court recessed for lunch and reconvened in room West 813 of the King County Courthouse for the afternoon  session.   The record reflects the following statement by the court prior to the arrival of the second group of prospective jurors:

THE COURT:  I guess we have twenty folks outside in the hall.   What I propose to do is have them come into the courtroom, we will move to the jury room for the individual questioning, and question them one at a time.   I thought about having them in the jury room, but there is [sic] only 16 chairs.   Secondly, we reserved 50 jurors for tomorrow.[16]

¶ 20 After further colloquy between the court and counsel, the prospective jurors entered the courtroom.   The trial judge explained to the group that individual questioning would continue and then adjourned to the jury room with the lawyers for both parties, Dr. Momah, and the court reporter.   The record does not reflect whether the door to the jury room was open or closed during any of the individual examinations of the prospective jurors that afternoon.

¶ 21 Court adjourned for the day at 3:10 p.m., after prospective juror number 41 left the jury room.

 ¶ 22 Dr. Momah makes two main arguments.   First, he argues that this record establishes that the trial court closed voir dire, infringing on his right to a public trial.   Second, he argues that this record supports the view that the burden of proving there was no closure and that the requirements of Bone-Club and its progeny were fulfilled shifted to the State.   We disagree with both of these arguments.

¶ 23 Nowhere in this record is there any evidence that the trial judge expressly closed voir dire to the public or the press in violation of any of the controlling cases.   Rather, the record expressly shows that the court, in response to the express request of Dr. Momah, agreed to allow voir dire by individual questioning of prospective jurors who indicated prior knowledge about the case.   Significantly, his request was based on the concern that prospective jurors might  have knowledge about the case that could disqualify them or that they might contaminate the rest of the prospective jurors with such knowledge.   In addition, the court and the parties agreed to individually question jurors in response to their express requests.   The State agreed that individual questioning was best to avoid the risk of a mistrial due to certain matters that are not relevant to our analysis in this case.   There simply is no indication in the record that individual questioning was for the purpose of excluding either the press or the public from this trial.

¶ 24 We note also that there is nothing in the record to indicate that any member of the public (including members of Dr. Momah's family) or the press was excluded from voir dire.   The court reporter in this case scrupulously recorded everything that took place during the morning session from the time the trial judge, both parties' counsel, Dr. Momah, and the court reporter went into chambers adjacent to the presiding courtroom.   Similarly, the court reporter also scrupulously recorded all that took place from the time the trial judge, counsel, Dr. Momah, and the court reporter went into the jury room in room West 813 after the noon recess.   Other than the entry and exit of the individual jurors and the questioning that ensued for each, there is nothing in this record indicating any attempt by either the press or the public (including members of Dr. Momah's family) to gain admittance to witness voir dire.   We simply do not know what would have happened if such an attempt had been made either during the morning or afternoon sessions of voir dire.   We will not speculate on whether the trial court would have ordered closure if any attempt had been made by anyone to join the judge, counsel, Dr. Momah, and the court reporter in chambers or in the jury room.

¶ 25 Dr. Momah relies on the seminal Washington cases on courtroom closure.   But the closures in each of those cases are distinguishable in important respects from the October 11 day of voir dire in this case.

¶ 26 In State v. Bone-Club, the trial court “ordered closure” of the courtroom by stating, “All those sitting in the  back, would you please excuse yourselves at this time.” ¹⁷  In discussing whether the defendant could have waived his rights, the supreme court noted, “The motion to close, not Defendant's objection, triggered the trial court's duty to perform the weighing procedure.” ¹⁸

¶ 27 Similarly, in In re Personal Restraint of Orange, the trial court ordered closure by the following statement:

I am ruling no family members, no spectators will be permitted in this courtroom during the selection of the jury because of the limitation of space, security, etcetera [sic].   That's my ruling.[19]

The supreme court examined the “plain language of its ruling ” in order to determine that the trial court had effectuated a permanent, full closure of the courtroom that day, thus requiring an analysis of the Bone-Club factors.²⁰

 ¶ 28 In State v. Brightman, the trial court told the attorneys in a pre-trial proceeding to:

tell the friends, relatives, and acquaintances of the victim and the defendant that the first two or three days for selecting the jury the courtroom is packed with jurors, they can't observe that.[21]

Although the supreme court did not inquire whether this order had actually been enforced, it emphasized that the court in Orange looked “solely to the transcript of the trial court's ruling ” to determine whether the order constituted a closure.²²  The court went on to hold:

 [O]nce the plain language of the trial court's ruling imposes a closure, the burden is on the State to overcome the strong presumption that the courtroom was closed.[²³ ]

¶ 29 In this case, the trial court simply never ordered that the proceeding be closed to any spectators or family members.   Looking to the plain language of the transcript, as these cases require us to do, it is apparent that no statement or order by the trial court triggered application of the Bone-Club factors or shifted the burden to the State to prove that the proceeding was open.   Rather, the trial court and both parties' counsel recognized the space constraints and the need to question jurors individually.   The court concluded that the only way to accommodate these concerns was to leave the jury venire in the courtroom and conduct individual juror questioning in the only other available room-chambers-that was available during the morning session.   Similar analysis applies to the court's use of the jury room during the afternoon session in Room West 813 of the King County Courthouse.   Nothing in the trial court's language or actions indicates that any member of the public, aside from the other members of the jury venire, were excluded from this proceeding.

¶ 30 The other cases on which Dr. Momah relies are also distinguishable for the same reasons.   For example, in NBC Subsidiary (KNBC-TV), Inc. v. Los Angeles County Superior Court, “the public and the press were ushered out of the courtroom” in response to one of the trial court's closure orders.²⁴

¶ 31 Relying on the NBC case, Dr. Momah argues that all proceedings conducted in chambers are per se closed to the public.   But the court in that case actually concluded that “although in some situations it may be appropriate to exclude the public and the press from chambers proceedings,”  those proceedings are still part of the trial process, subject to the same rules for closure.²⁵

¶ 32 The dictionary definitions and other cases Dr. Momah cites likewise do not establish that a proceeding is automatically closed to the public if it occurs in chambers.   They are mere observations that proceedings in chambers are often closed to the public.   Moreover, we conclude that the trial court's statement in this case, “We have moved into chambers here.   The door is closed,” was also nothing more than an observation.   Of course, a “door” to a courtroom being closed, which occurs in most court proceedings, is not the same as a “proceeding” in that courtroom being closed to the public.

¶ 33 Dr. Momah also relies on a recent case from Division Three, State v. Frawley.²⁶  We decline to follow that case.

¶ 34 There, the court reversed Frawley's conviction and remanded for a new trial based on the fact that one day of voir dire was conducted in chambers, outside Frawley's presence.   It is unclear from the facts of that case whether any member of the public or press was actually prevented from watching the proceedings, but it appears from the opinion that the parties were concerned about questioning jurors while other members of the public were present.²⁷

¶ 35 In contrast, Dr. Momah was present both in chambers and in the jury room for the October 11 day of voir dire.   Another distinction is that the trial court and the parties here were concerned with questioning potential jurors out of the presence of the rest of the jury venire, not the public or press.   Their failure to mention the public or press implies that they did not intend on excluding either from observing voir dire.

 ¶ 36 To the extent that Frawley holds that all in-chambers proceedings are per se closed to the public, we decline to follow Division Three's reasoning in that case.

¶ 37 To summarize, Dr. Momah has failed to carry his burden to show that the trial court closed his trial, depriving him of his constitutional right to a public trial.   Accordingly, we do not reach whether any closure was justified under the standards stated in Bone-Club and subsequent cases.

¶ 38 We affirm the judgment and sentence.

¶ 39 The remaining issues of this opinion are not of precedential importance.   Accordingly, the remainder of this opinion is not published.²⁸

CHARACTER EVIDENCE

¶ 40 Dr. Momah next argues that the trial court abused its discretion in admitting testimony of three witnesses that Dr. Momah had allegedly sexually abused in the past.   Conversely, Dr. Momah argues that the trial court erred in declining to admit evidence that victim H.P. had allegedly consented to sex with another doctor in the past.   We reject both arguments.

¶ 41 Evidence of a person's character, trait, or prior bad acts is generally inadmissible to prove that he acted in conformity with a bad character trait. 29  But evidence of other crimes, wrongs, or acts may be admissible for other purposes, such as proof of a motive or a plan.   Before admitting such evidence, a trial court must:

(1) identify the purpose for which the evidence is sought to be introduced, (2) determine whether the evidence is relevant to prove an element of the crime charged[,] and (3) weigh the probative value of the evidence against its prejudicial effect.[30]

The potential for prejudice from prior bad acts is highest in sex offense cases.31

¶ 42 The common scheme or plan exception allows proof that the defendant devised a plan to repeatedly commit separate but very similar crimes against similar victims under similar circumstances.32  It requires proof that the prior acts are:

(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.[[33]

Under this type of plan, there must be a high level of similarity between the acts, “such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.” 34

¶ 43 Although the prior acts must be markedly similar to the charged acts, the common scheme or plan exception is to be distinguished from the modus operandi exception, which requires highly unique and identical circumstances (often referred to as signature crimes) to prove the suspect's identity. 35  Under the common scheme or plan exception, the acts must be highly similar, but not identical or unique.36

¶ 44 For example, a common scheme or plan existed in State v. DeVincentis when the defendant molested two children in similar ways.37  In both circumstances, he befriended young girls, desensitized them by wearing almost no clothing around the house, asked the victims to remove their clothes, and asked them to perform the same sexual act on him.38

¶ 45 And in State v. Lough, a common scheme or plan was proved by the testimony of four women who were in a personal relationship with the defendant, a paramedic.   The women each stated that the defendant offered her a drink or medication of some kind that rendered her unconscious, and then raped her. 39

¶ 46 Washington's rape shield statute also addresses the admissibility of prior sexual acts.   But that statute applies to victims, not criminal defendants.40  It prohibits the admission of evidence of a victim's prior sexual history on the issue of credibility under any circumstances. 41  One purpose of the statute is to prevent the jury from relying on the illogical premise that a woman who consents to sex is unchaste, and such an unchaste woman is more likely to consent to sex again in the future.42

¶ 47 Under the statute, a trial court may admit evidence of a victim's prior sexual acts as relevant to the issue of consent, not credibility, if the probative value of the evidence substantially outweighs its prejudicial effect, and its exclusion would deny substantial justice to the defendant.43  Evidence of a victim's past sexual behavior is only relevant to the issue of consent if the circumstances of the past acts of consent were similar to those alleged by the defendant.44  To have such evidence admitted, a defendant must file a written pretrial motion accompanied by affidavit, stating the offer of proof.45

¶ 48 Decisions as to the admissibility of evidence are within the discretion of the trial court, and are reversible only for abuse of that discretion. 46  A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.47  We may affirm on any ground supported by the record even if the trial court did not consider the argument.48

Dr. Momah's Prior Bad Acts

¶ 49 We conclude that the trial court did not abuse its discretion in admitting testimony of Dr. Momah's alleged acts against other women.

¶ 50 Here, after reviewing the relevant elements and case law, the trial court ruled that the testimony of K.T., C.W., and C.R. was admissible to prove a common scheme or plan.   Based on stipulation by the parties, the court found that the acts occurred by a preponderance of the evidence.   The court ruled that the testimony of each of the four charged victims and these three additional witnesses was relevant and not outweighed by its prejudicial effect.

¶ 51 This was not an abuse of the trial court's discretion.   The testimony of all seven women, taken together, illustrates Dr. Momah's plan to use his special position of power as a gynecologist to sexually take advantage of his most vulnerable patients.

¶ 52 He convinced each woman that he could help her with her specific problem, making her feel that she had few other options. Each victim testified about a particular vulnerability known to Dr. Momah.   For instance, H.P., K.T., C.W., C.R., and S.S. were to some extent dependent on the narcotics or other medications he prescribed to them.   Similarly, S.S., K.T., and C.W. experienced severe pain, requiring medication from Dr. Momah.   H.P., C.B., and C.W. used medical coupons and relied on Dr. Momah's generosity with respect to payment for services.   C.B., R.B., and C.W. desperately wanted to become pregnant, and R.B. and C.W. believed Dr. Momah's promises that he could enable them to get pregnant when other doctors could not.

¶ 53 Once he had gained their trust, he began acting inappropriately.   Most of the victims testified that Dr. Momah did not wear gloves or have assistants present during examinations.   Many testified that at some appointments, no receptionists or assistants were present in the entire office.   Dr. Momah personally called many of the women on the phone throughout their doctor-patient relationships.   He performed manual exams and ultrasounds at every, or almost every, appointment with these women, even when the sole purpose of the appointment was to obtain another prescription for the same symptoms or condition.

¶ 54 Finally, he abused their trust by sexually taking advantage of them, usually while they were on the examination table.   For example, he made sexually inappropriate comments to all of the women or asked them on dates.   He touched all of the women except C.R. in a sexual manner.   He used the ultrasound wand in a sexual manner with R.B. and C.B. He had sexual intercourse with H.P. on the examination table.

¶ 55 These acts occurred on multiple occasions for many of these women.   If the women objected, he usually became angry or gruff, told them not to tell, threatened them, or told them that no one would believe them.

¶ 56 Each of these acts was proved by a preponderance of the evidence.   Each was relevant and cross-admissible to show that the acts against S.S., C.B., and R.B. (Counts II through IV) actually occurred (corpus delicti) because of the similarity of Dr. Momah's acts against the other women.   And these non-consensual acts were relevant to rebut Dr. Momah's defense that H.P. consented to have sex with him (Count I).

¶ 57 The evidence was admitted only for the purpose of proving a common scheme or plan, and the jury was so instructed.

¶ 58 Finally, the trial court did not abuse its discretion in concluding that the probative value substantially outweighed any prejudicial effect of the evidence, given the repeated, similar acts Dr. Momah perpetrated on these women.   Although the prejudicial effect of prior sex acts can be great, this type of evidence is highly probative given the lack of other evidence available in sex cases.49

¶ 59 Dr. Momah argues that what happened to some of the women was too dissimilar to be probative.   We disagree.

¶ 60 Dr. Momah raped H.P., whereas he only said inappropriate things to C.R. (he did not rape or touch her inappropriately).   But the trial court was within its discretion in considering the testimony of all seven witnesses together and concluding that Dr. Momah's acts against them could be explained as manifestations of a single plan to use his status as a gynecologist to sexually abuse his patients while they were at their most vulnerable.   To the extent that C.R.'s testimony is less probative of the plan than the other witnesses because Dr. Momah did not touch her sexually, it is correspondingly less prejudicial.   Dr. Momah made sexual comments to her the way he did with every other victim, and she testified to no dissimilar facts that could have prejudiced Dr. Momah.

¶ 61 Dr. Momah counters that the time periods the seven women saw him were too varied to be probative.   But to the extent that Dr. Momah's inappropriate acts occurred repeatedly over a long period of time, then the passage of time tends to prove, rather than disprove, the existence of a common scheme or plan. 50  To the extent that the women testified that things went normally during their earlier relationship with Dr. Momah and then got worse in recent years, then remoteness is not an issue.

¶ 62 Dr. Momah argues that since rape is a strict liability crime and has no intent element, evidence of a common plan is irrelevant to proving intent.   He further argues that because he does not deny that he had sex with H.P., corpus delicti is not at issue, so the evidence is irrelevant to proving an element of the crime.

¶ 63 His arguments ignore the valid purpose of the evidence as applied to Count I-to rebut his defense that H.P. consented to the sexual encounter. 51  The lack of consent of numerous other victims under similar circumstances tends to show that H.P. did not consent in this case.

¶ 64 Dr. Momah asserts that Washington's jurisprudence regarding the common plan exception has been highly criticized and eviscerates the rule against propensity evidence.   But the Washington Supreme Court in DeVincentis recently refused to overrule the rule as set forth in Lough, and we are bound by that decision.52

¶ 65 Finally, Dr. Momah relies on the rape shield statute to argue that his prior sexual acts are not probative of the issues in this case.   He argues that the rape shield statute makes clear that prior sexual acts are not probative of either credibility or consent.   He misreads the statute.   Both the rape shield statute and ER 404(b) allow evidence of prior sexual acts to prove consent under certain circumstances, but never to prove credibility.   Under both rules, the prior acts must be similar to the act in question in order to be considered even minimally relevant to the issue of whether the individual consented in this case.   Thus, his argument that prior sex acts are never probative is incorrect.   In addition, he cannot rely upon the rape shield statute because by its terms, it applies to victims.   It was passed in part to encourage victims of sexual abuse to report their crimes.53  This policy does not apply to him, an accused sexual perpetrator.

¶ 66 Dr. Momah also assigns error to the jury instruction regarding this ER 404(b) evidence for the same reasons he objects to admission of the evidence.   Because the instruction properly allowed the jury to consider his alleged acts against all seven women for the proper purposes discussed above, and for no other purpose, it was proper.

H.P.'s Prior Bad Acts

¶ 67 Dr. Momah argues that the trial court abused its discretion in declining to allow evidence of victim H.P.'s alleged prior sexual experiences with doctors.   We disagree.

¶ 68 During the State's direct examination of H.P., the parties and the court had a colloquy outside the presence of the jury.   The prosecutor mentioned that in Dr. Momah's interview of H.P., he asked her “whether or not [H.P.] told the defendant that she had slept with other doctors.” 54  Dr. Momah stated that he wished to question H.P. about such incidents.   His oral proffer was as follows:

Your Honor, we are not going to raise it to show-First, I was going to bring it up [on cross] before I asked her that question.   But we would be asking the Court for permission to bring it up, because this is something that Dr. Momah tells us she told him.   She denied that she told him and denied that it happened, but this is going to be an issue.   And I would be asking for that.[[55]

The trial court ruled such evidence inadmissible because it was “not relevant.” 56

¶ 69 This non-specific proffer does not meet the requirements of the rape shield statute.   Dr. Momah points to no evidence in the record that before trial he made a specific, written offer of proof, supported by affidavit, explaining how the evidence would be relevant to show consent, rather than credibility.   He cites no details about these alleged prior acts that would allow the trial court or this court to conclude that the prior acts are similar enough to this case to be relevant to the issue of consent.   Thus, the trial court properly denied his request.

¶ 70 Dr. Momah does not dispute that he failed to adhere to the procedural requirements of the rape shield statute.   He argues, however, that the statute only applies to the types of prior sexual history listed therein and that H.P.'s alleged prior acts in this case do not fall within that list.

¶ 71 His argument is defied by the plain meaning of the statute, which applies to “Evidence of the victim's past sexual behavior including but not limited to ” the items in the list.57  Because Dr. Momah offered evidence of H.P.'s “past sexual behavior,” he was required to adhere to the statutory procedures.   He failed to do so, and the trial court did not abuse its discretion in rejecting the evidence.

¶ 72 Dr. Momah also argues that the trial court violated his right to present a meaningful defense.   But there is no constitutional right to present irrelevant evidence.58  Evidence of a victim's prior sexual acts is irrelevant to the issue of credibility.   It is only relevant to the issue of consent if there are similarities between past acts of consent and the defendant's allegations of consent in this case, making it more likely that the victim consented in this case.59  Even if minimally relevant, such evidence must be excluded if it is substantially outweighed by its prejudicial effect.60  The State has a compelling interest in preventing the admission of such evidence when it has a tendency to confuse the jury and interfere with the fact-finding process.61  Here, Dr. Momah has not shown that the testimony is even minimally relevant, so his right to present a meaningful defense is not implicated.

SEVERANCE

¶ 73 Dr. Momah argues that the trial court abused its discretion in denying his motion to sever the four counts tried in this case.   We disagree.

¶ 74 Criminal Rule 4.3(a) allows the State to join offenses in one charging document if the offenses:

(1) Are of the same or similar character, even if not part of a single scheme or plan;  or

(2) Are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

Criminal Rule 4.4 allows the trial court to sever joined offenses if doing so “will promote a fair determination of the defendant's guilt or innocence of each offense.”   A defendant seeking severance has the burden to show that joinder is so manifestly prejudicial that it outweighs the interest in judicial economy.62

¶ 75 We review a trial court's ruling on a motion to sever for an abuse of discretion.63  We consider such factors as “the jury's ability to compartmentalize the evidence, the strength of the State's evidence on each count, the issue of cross admissibility of the various counts, [and] whether the judge instructed the jury to decide each count separately,” and we weigh strongly the concern for judicial economy.64  Jurors are presumed to follow the trial court's limiting instructions.65

¶ 76 Dr. Momah's argument rests largely on the assumption that he would succeed on the issue of exclusion of character evidence.   But as discussed above, testimony about Dr. Momah's prior acts against each of the seven victims was properly admitted against Dr. Momah with regard to each of the four counts.   Thus, because all of the testimony was cross-admissible as relevant to prove a common scheme or plan, there was no prejudice in allowing it to be presented in the same trial.

¶ 77 Because of the strong concern for judicial economy and the jury's ability to follow instructions, a defendant seeking severance must make an even stronger showing of prejudice than required to admit ER 404(b) evidence. 66  Therefore, the fact that Dr. Momah could not meet this burden under ER 404(b) illustrates his inability to establish prejudice from joinder of the four counts against him.67

¶ 78 Finally, the trial court properly instructed the jury to consider each count separately.   The court also instructed the jury that the ER 404(b) evidence should only be considered relevant to a possible common scheme or plan, and for no other purpose.   Dr. Momah makes no argument that the jury was unable to follow these instructions.

ORDER IN LIMINE / MISTRIAL

¶ 79 Dr. Momah contends that two violations of an order in limine prejudiced his trial and that his mistrial motion should have been granted.   We disagree.

¶ 80 The purpose of a motion in limine is to prevent the jury from hearing potentially prejudicial matters.68  A mistrial should only be granted based on a witness' violation of an order in limine if the defendant is so prejudiced by the violation that nothing short of a new trial would ensure that he receive a fair trial.69  Jurors are presumed to follow the trial court's limiting instructions.70  The decision to grant or deny a mistrial is within the sound discretion of the trial court and is reversible only for abuse of that discretion.71  We should only overturn such a decision if there is a substantial likelihood that the evidence affected the jury's verdict.72

¶ 81 Here, the State made a motion in limine to include testimony from victim R.B. regarding traumatic events she had experienced during the period of time relevant to this case.   The State wished to use these facts to explain minor inconsistencies, primarily regarding dates, between her trial testimony and prior statements, and Dr. Momah objected to admission of such testimony.   The trial court concluded that, assuming Dr. Momah opened the door by pointing out inconsistencies, the State could elicit that R.B. had an in-vitro fertilization procedure a couple days before one of the relevant interviews, and that her mother died about a month before another interview.   She was not allowed to testify that one of her children later died, that her brother was terminally ill, or the specific circumstances surrounding her mother's death.

¶ 82 R.B. testified part of the day Wednesday and part of the day on Thursday.   On Monday, she underwent cross-examination all morning.   Just before the lunch hour, defense counsel cross-examined her regarding the order and dates of appointments she had attended, pointing out apparently inconsistent statements.   She responded that it was difficult for her to remember exact dates of events that happened long ago, especially since she had other traumatic events in her life.   Defense counsel continued as follows:

Q. What's your birthday?   What is your date of birth?

A. December 30th.

Q. What year?

A. 1959.   So you are telling me that I am supposed to remember the day and time I am sexually assaulted?   I am supposed to remember that today on March 25th, Dr. Momah came and sexually assaulted me, and I am supposed to remember that, because this is the glorifying day that I need to remember?   That is a glorifying time in my life?   I can remember my daughter's birthday, because you know what, that is a glorifying time in my life.   October 24th, 2004 my daughter was born.   October 14th my son died ․ [73]

Defense counsel objected and moved for a mistrial.   The trial court denied the motion for a mistrial, but after the lunch break issued a limiting instruction that R.B.'s son died through no fault of Dr. Momah, and the jury should disregard that fact.74

¶ 83 Later, on re-cross, defense counsel asked R.B. whether her mother dying led to incorrect statements in her subsequent interview.   R.B. responded:

There could be dates or times that maybe are not exactly right.   I mean, just because my mother died on 7/31 of this year-My mother had a massive brain aneurysm at the same time I was being implanted with embryos.[75]

Defense counsel objected, and the court instructed the jury to disregard the statement.

¶ 84 We conclude that the trial court did not abuse its discretion in denying the motion for a mistrial.   The circumstances regarding R.B.'s mother and son are entirely irrelevant to this case. True, her credibility in this case was important.   But these events in her life were not so prejudicial that the trial court's instructions would have been ineffective.   While the fact that her son died and her mother suffered a brain aneurysm may have garnered sympathy with the jury, they were irrelevant to whether she told the truth when she accused Dr. Momah of sexually abusing her.

ADDITIONAL EVIDENCE

¶ 85 Dr. Momah argues that alleged misconduct by a lawyer who represented witnesses in this case in separate civil litigation was prejudicial to his defense.   He also claims the alleged misconduct by the civil attorney is chargeable to the State in this case.   Because the record before us fails to substantiate this claim, we reject it.

¶ 86 Dr. Momah moved for an order requesting this court to take judicial notice of findings of fact and conclusions of law from a separate court proceeding.   According to the motion, that proceeding addressed alleged misconduct of a civil attorney who is not employed by the State.

¶ 87 A commissioner of this court denied the motion, and a panel of this court denied Dr. Momah's motion to modify.   The supreme court denied review of our ruling.   Thus, the information Dr. Momah sought to bring before this court to support this appeal is not before us.   We will therefore not review this claim on appeal.

¶ 88 We affirm the judgment and sentence.

FOOTNOTES

1.   In re Pers. Restraint of Orange, 152 Wash.2d 795, 804, 100 P.3d 291 (2004).

2.   Id. at 805-07, 100 P.3d 291 (quoting State v. Bone-Club, 128 Wash.2d 254, 258-59, 906 P.2d 325 (1995)).

3.   Id. at 806, 100 P.3d 291 (citing Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984);  Press-Enter. Co. v. Superior Court of Cal., 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984)).

4.   Id.

5.   Id. (citing Waller, 467 U.S. at 45-47, 104 S.Ct. 2210).

6.   Orange, 152 Wash.2d at 808, 100 P.3d 291;  Bone-Club, 128 Wash.2d at 261, 906 P.2d 325;  State v. Brightman, 155 Wash.2d 506, 516, 122 P.3d 150 (2005);  see also Orange, 152 Wash.2d at 823, 100 P.3d 291 (Madsen, J., concurring) (“[I]n order to determine whether a trial closure violates the constitutional standard applicable to the open trial guaranty, a reviewing court must consider ․ the language of the closure ruling․”);  United States v. Shryock, 342 F.3d 948, 974 (9th Cir.2003) (“The denial of a defendant's Sixth Amendment right to a public trial requires some affirmative act by the trial court meant to exclude persons from the courtroom.”) (quoting United States v. Al-Smadi, 15 F.3d 153, 155 (10th Cir.1994)).

7.   Orange, 152 Wash.2d at 814, 100 P.3d 291 (quoting Bone-Club, 128 Wash.2d at 261-62, 906 P.2d 325 and citing State v. Marsh, 126 Wash. 142, 146-47, 217 P. 705 (1923);  Waller, 467 U.S. at 49 & n. 9, 104 S.Ct. 2210).

8.   See State v. Gregory, 158 Wash.2d 759, 816, 147 P.3d 1201 (2006).

9.   See id.

10.   See, e.g., Shryock, 342 F.3d at 974, cited in Brightman, 155 Wash.2d at 517, 122 P.3d 150.

11.   Appellant's Opening Brief at 26-27.

12.   Report of Proceedings (Oct. 11, 2005) at 2.

13.   Id.

14.   Report of Proceedings (Oct. 11, 2005) at 2, 4.

15.   Id. at 19-20.

16.   Id. at 105.

17.   128 Wash.2d 254, 256, 906 P.2d 325 (1995).

18.   Id. at 261, 906 P.2d 325 (emphasis added).

19.   152 Wash.2d 795, 802, 100 P.3d 291 (2004) (emphasis and editorial comment in original).

20.   Id. at 808, 100 P.3d 291 (emphasis added).

21.   155 Wash.2d 506, 511, 122 P.3d 150 (2005).

22.   Id. at 516, 122 P.3d 150 (emphasis in original).

23.   Id. (emphasis added).

24.   20 Cal.4th 1178, 1186, 86 Cal.Rptr.2d 778, 980 P.2d 337 (1999).

25.   Id. at 1215, 86 Cal.Rptr.2d 778, 980 P.2d 337.

26.   140 Wash.App. 713, 167 P.3d 593 (2007).

27.   See id. at 599 (Brown, J., dissenting) (noting that Frawley's agreement with the chambers questioning was based on his preference that potential jurors be questioned outside the presence of the public).

28.   See RCW 2.06.040.

29.   ER 404(a)(1), (b).

30.   State v. Lough, 125 Wash.2d 847, 853, 889 P.2d 487 (1995).

31.   State v. Ramirez, 46 Wash.App. 223, 227, 730 P.2d 98 (1986).

32.   Lough, 125 Wash.2d at 855, 889 P.2d 487.

33.   Id. at 852, 889 P.2d 487.

34.   State v. DeVincentis, 150 Wash.2d 11, 19, 74 P.3d 119 (2003) (internal quotations omitted), habeas corpus denied by DeVincentis v. Quinn, No. C06-680-JLR, 2007 WL 1059304 (W.D.Wash. April 5, 2007).

35.   See id. at 21, 74 P.3d 119 (noting the importance of this distinction).

36.   Id.

37.   150 Wash.2d 11, 74 P.3d 119 (2003).

38.   Id. at 16, 74 P.3d 119.

39.   Lough, 125 Wash.2d at 850, 889 P.2d 487.

40.   RCW 9A.44.020(2).

41.   RCW 9A.44.020(2);  Gregory, 158 Wash.2d at 789, 147 P.3d 1201.

42.   State v. Hudlow, 99 Wash.2d 1, 10, 659 P.2d 514 (1983).

43.   RCW 9A.44.020(3)(d).

44.   Hudlow, 99 Wash.2d at 11, 659 P.2d 514.

45.   RCW 9A.44.020(3)(a), (b).

46.   State v. Powell, 126 Wash.2d 244, 258, 893 P.2d 615 (1995).

47.   State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971).

48.   State v. Michielli, 132 Wash.2d 229, 242-43, 937 P.2d 587 (1997).

49.   DeVincentis, 150 Wash.2d at 25, 74 P.3d 119.

50.   See Lough, 125 Wash.2d at 860, 889 P.2d 487 (repeated acts over a period of time are probative of common scheme or plan, whereas remoteness in time between acts may lead to a conclusion that the acts are dissimilar).

51.   See Williams v. State, 110 So.2d 654 (Fla.1959) (evidence of a common plan used to rebut the defense of consent in a rape case), cited with approval in Lough, 125 Wash.2d at 857 n. 14, 889 P.2d 487.

52.   See DeVincentis, 150 Wash.2d at 25, 74 P.3d 119.

53.   Hudlow, 99 Wash.2d at 16, 659 P.2d 514.

54.   Report of Proceedings (Oct. 26, 2005) at 62.

55.   Id. at 63.

56.   Id.

57.   RCW 9A.44.020(2), (3) (emphasis added);  see also Gregory, 158 Wash.2d at 783, 147 P.3d 1201 (rejecting the appellant's argument that prior acts of prostitution are exempted from the statute).

58.   Hudlow, 99 Wash.2d at 15, 659 P.2d 514.

59.   See id. at 11, 659 P.2d 514.

60.   RCW 9A.44.020(3)(d).

61.   Hudlow, 99 Wash.2d at 18, 659 P.2d 514.

62.   State v. Bythrow, 114 Wash.2d 713, 718, 790 P.2d 154 (1990).

63.   Id. at 717, 790 P.2d 154.

64.   State v. Kalakosky, 121 Wash.2d 525, 537, 852 P.2d 1064 (1993).

65.   State v. Johnson, 124 Wash.2d 57, 77, 873 P.2d 514 (1994).

66.   Bythrow, 114 Wash.2d at 722, 790 P.2d 154.

67.   See State v. Smith, 74 Wash.2d 744, 756, 446 P.2d 571 (1968) ( “However, since the evidence of the other crimes would have concededly been admissible in separate trials, the defendants were not unduly prejudiced by the joinder.”), vacated in part on other grounds by Smith v. Washington, 408 U.S. 934, 92 S.Ct. 2852, 33 L.Ed.2d 747 (1972), overruled in part on other grounds by State v. Gosby, 85 Wash.2d 758, 539 P.2d 680 (1975).

68.   State v. Austin, 34 Wash.App. 625, 627-28, 662 P.2d 872 (1983), aff'd, State v. Koloske, 100 Wash.2d 889, 676 P.2d 456 (1984).

69.   State v. Harris, 48 Wash.App. 279, 284-85, 738 P.2d 1059 (1987).

70.   Johnson, 124 Wash.2d at 77, 873 P.2d 514.

71.   State v. Russell, 125 Wash.2d 24, 85, 882 P.2d 747 (1994).

72.   Id.

73.   RP (Oct. 24, 2005) at 109 (emphasis added).

74.   Id. at 121.

75.   Id. at 136.

COX, J.