ER 404(b) “Common Scheme or Plan” in Washington: Markedly Similar Acts Can Suffice Even Without Markedly Similar Victims

1. Introduction

State v. Stearns arises from the 1998 killing of Crystal Williams in Seattle’s Central District. The State charged John Ray Stearns with first-degree felony murder predicated on rape (with sexual motivation). The prosecution’s theory depended heavily on proving forcible compulsion and rebutting any inference of consent in an encounter that, by circumstance, had limited living witnesses.

A central evidentiary dispute was whether the jury could hear details of two prior convictions (a 1981 rape of “BG” and a 1989 attempted rape/robbery of “DH”) under ER 404(b)’s “common scheme or plan” exception. The trial court admitted the evidence with a limiting instruction; the Court of Appeals later reversed on ER 404(b) grounds after this court had already addressed and rejected the preaccusatorial-delay reversal in earlier proceedings (State v. Stearns, 23 Wn. App. 2d 580 (2022); then State v. Stearns, 2 Wn.2d 869 (2024)).

The Washington Supreme Court granted review to provide guidance on how trial courts should apply the “common scheme or plan” pathway—specifically, how to evaluate “similar victims” within the established “markedly similar acts” framework.

2. Summary of the Opinion

Applying that clarification, the court concluded the trial court acted within its discretion in admitting two prior sexual-assault incidents to show a common scheme or plan relevant to proving forcible compulsion and rebutting a consent defense. The Supreme Court reversed the Court of Appeals and reinstated Stearns’ conviction, also holding that the trial court’s ER 403 balancing—while including an irrelevant comment about perceived juror attitudes by venue—was not based on untenable grounds and did not amount to an abuse of discretion.

3. Analysis

3.1. Precedents Cited (and How They Shaped the Decision)

• State v. DeVincentis, 150 Wn.2d 11 (2003) and State v. Lough, 125 Wn.2d 847 (1995): These are the decision’s doctrinal backbone. They supply the four-part admissibility test and the oft-quoted formulation requiring “markedly similar acts of misconduct against similar victims under similar circumstances.” Stearns keeps the structure but clarifies the “victims” component: “similar” victims need not be “markedly similar,” and, in appropriate cases, may share only broad characteristics.
• State v. Lord, 161 Wn.2d 276 (2007) and State v. Vy Thang, 145 Wn.2d 630 (2002): These cases supply the abuse-of-discretion yardstick (“manifestly unreasonable,” “untenable grounds,” or “no reasonable judge” would so rule). The court used these standards to frame deference to trial judges when they correctly understand ER 404(b).
• State v. Bowen, 48 Wn. App. 187 (1987), abrogated on other grounds by State v. Lough, 125 Wn.2d 847: Quoted to articulate why propensity evidence is dangerous—risk of punishment for past immorality, overestimation of probative value, and erosion of the presumption of innocence. Stearns invokes these concerns as the starting presumption: other-acts evidence is inadmissible unless it fits an exception.
• State v. Saltarelli, 98 Wn.2d 358 (1982) and State v. Smith, 106 Wn.2d 772 (1986): Cited to emphasize heightened prejudice in sexual-assault prior-acts evidence and the admonition that close calls should be resolved for the defendant. The court nonetheless found this was not a close call given the marked similarity of conduct and the limiting instruction.
• State v. Yates, 161 Wn.2d 714 (2007): Used illustratively for what a pattern looks like when acts, victims, and circumstances align in a clear common plan. Though it involves an aggravator context (jury finding), it supports the intuitive idea that repeated conduct with shared features can reflect a single plan.
• State v. Williams, 156 Wn. App. 482 (2010): A factually comparable sexual-assault pattern case (strangulation to unconsciousness followed by rape). Stearns leverages it to show that a “plan” can be inferred from recurring methods of approach and subdual.
• State v. Brown, 132 Wn.2d 529 (1997); State v. Knapp, 197 Wn.2d 579 (2021); and State v. W.R., 181 Wn.2d 757 (2014): These cases ground the relevance link between “consent,” “forcible compulsion,” and the prosecution’s evidentiary need. The court reiterates that where forcible compulsion is an element, evidence that tends to rebut consent can be central to the State’s proof.
• State v. Gresham, 173 Wn.2d 405 (2012): Confirms the fourth prong’s incorporation of ER 403 balancing (probative value vs. unfair prejudice). This frames the court’s review of the trial judge’s on-the-record balancing and limiting-instruction reliance.
• Carnation Co. v. Hill, 115 Wn.2d 184 (1990): Supplies the presumption that juries follow instructions. This was pivotal to rejecting the claim that prejudice necessarily overwhelmed probative value once a limiting instruction issued.

3.2. Legal Reasoning

The court proceeds in three linked steps: (1) it reaffirms ER 404(b)’s core prohibition on propensity proof; (2) it restates the Lough admissibility framework; and (3) it clarifies how “similar victims” fits within the common scheme or plan inquiry.

(a) Starting presumption and structured discretion.
Echoing treatise commentary (5D ELIZABETH A. TURNER & KARL B. TEGLAND, WASHINGTON PRACTICE § 404:8), the opinion emphasizes there is no “bright line,” but trial courts must begin with inadmissibility and then justify an exception. Appellate review is deferential if the trial court correctly interprets the rule and uses tenable reasons.

(b) The “common scheme or plan” showing: acts, victims, circumstances.
The court frames the analysis as a three-part similarity assessment: the nature of the acts (most important), the victims, and the circumstances. Crucially, it distinguishes levels of similarity: “markedly similar” applies to the acts; “similar” applies to victims and circumstances.

(c) The new clarification: no requirement of “markedly similar victims.”
The Court of Appeals treated victim dissimilarities (race, age, occupation, relationship to defendant) as a near-fatal flaw. The Supreme Court rejects that approach and clarifies that crimes can be opportunistic or “seemingly random,” so a plan can be method-based rather than target-based. Accordingly, victims may share only broad similarities (here: women, attacked in the same neighborhood) as long as the misconduct and circumstances are sufficiently alike.

(d) Application to Stearns’ prior acts.
The court identifies “markedly similar” conduct across incidents: head strikes, strangulation, sexual assault/attempted sexual assault, and indicia of robbery. It also sees comparable circumstances in the “trick” or ruse enabling access or vulnerability (a chase story to gain entry; feigned incapacitation in a gutter; likely approach to a sex worker under the guise of drugs/money). Given that forcible compulsion and consent were live issues, the evidence had substantial probative value beyond propensity.

(e) ER 403/Prejudice balancing and the limiting instruction.
The court candidly criticizes the trial judge’s venue-based comment about juror attitudes toward police as irrelevant to ER 404(b). Still, it holds the ruling was not “untenable” because the judge’s core reliance was the ordinary presumption that jurors follow limiting instructions (Carnation Co. v. Hill) and because the court did perform on-the-record balancing.

3.3. Impact

• Doctrinal clarification for trial courts: The decision recalibrates the “similar victims” phrase from DeVincentis/Lough. Parties should expect courts to focus less on demographic matching and more on whether the repeated acts and surrounding circumstances reflect a method-based plan.
• Sexual-assault prosecutions where consent is contested: By reaffirming that common-scheme evidence may prove forcible compulsion and rebut consent (citing State v. Brown and State v. Knapp), the opinion is likely to be invoked to admit prior assaults with similar mechanics (e.g., strangulation, incapacitation, opportunistic attack patterns).
• Limits remain (and litigation will shift to “markedly similar acts” and ER 403): The court does not relax the requirement that the acts be “markedly similar,” nor does it lessen the “particularly prejudicial” nature of sexual-assault priors (State v. Saltarelli). Future disputes will likely concentrate on (i) whether the asserted common features are truly distinctive or merely generic violence, and (ii) whether the probative value is genuinely tied to a disputed element rather than serving as character proof.
• Appellate deference reinforced: Even with an acknowledged irrelevant consideration by the trial judge, the court declined to find abuse of discretion. This signals that reversal will generally require a misinterpretation of ER 404(b) or a clearly untenable balancing rationale, not merely imperfect judicial phrasing.

4. Complex Concepts Simplified

• ER 404(b): A rule that generally bars evidence of a person’s prior bad acts to prove they have a bad character and “probably did it again,” but allows such evidence for limited, non-propensity purposes (like identity, motive, or common plan).
• “Propensity” evidence: “He did similar bad things before, so he’s the kind of person who did this.” This is usually forbidden because it is powerfully prejudicial and can substitute for proof beyond a reasonable doubt.
• “Common scheme or plan”: Not a “master plan” connecting crimes to a single end, but often a repeated method—where multiple acts share enough features that they look like the same play run repeatedly.
• “Markedly similar” vs. “similar”: Under this opinion, the acts must be strongly alike (“markedly similar”), while victims/circumstances need only be alike enough to support the inference of a repeated method.
• ER 403 balancing: Even relevant evidence can be excluded if its unfair prejudice substantially outweighs its probative value.
• Limiting instruction: A direction telling jurors the narrow reason they may consider evidence (here, common scheme/plan and forcible compulsion) and forbidding other uses (like inferring criminal character).

5. Conclusion

State v. Stearns establishes an important clarification in Washington evidence law: ER 404(b) common scheme or plan does not require “markedly similar” victims. When a defendant’s prior acts are markedly similar and the surrounding circumstances and victim characteristics are sufficiently alike to indicate a repeated method, trial courts may—within their discretion—admit the evidence for a proper, non-propensity purpose such as proving forcible compulsion and rebutting consent.

The opinion both (1) strengthens the analytic focus on conduct and circumstances over demographic victim matching, and (2) reinforces that appellate courts will generally defer to trial judges who apply the correct framework, conduct on-the-record balancing, and cabin the jury’s use of the evidence through limiting instructions.