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March 24, 2026 Get Citation Alerts Download PDF Add Note

State Of Washington, V. Christopher R. Fitzgerald

Court of Appeals of Washington

• Citations: None known
• Docket Number: 59793-4

• Precedential Status: Non-Precedential

• Opinion

• Authorities (17)

• Cited By (0)

• Summaries (0)

• Similar Cases (10.3K)

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Lead Opinion

Filed
Washington State
Court of Appeals
Division Two

March 24, 2026

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 59793-4-II

Respondent,

v.

CHRISTOPHER ROBIN FITZGERALD, UNPUBLISHED OPINION

Appellant.

MAXA, J. – Christopher Fitzgerald appeals his convictions of second degree child rape,

second degree rape due to the victim’s inability to consent, and third degree child rape, and his

sentences. The offenses involved a 13-year-old victim and a 14-year old victim who were

friends with one of his daughters. The trial court admitted evidence of Fitzgerald’s prior

conviction of third degree child molestation of another daughter under ER 404(b) as evidence of

a common scheme or plan. The court imposed the third degree rape sentence consecutively to

the sentences for the other two offenses.

We hold that (1) the trial court did not abuse its discretion when it admitted evidence of

Fitzgerald’s prior conviction as evidence of a common scheme or plan; (2) as the State concedes,

the convictions of second degree child rape and second degree rape due to the victim’s inability

to consent violate the prohibition against double jeopardy; and (3) the court erred when it
No. 59793-4-II

imposed the consecutive sentence.1 We decline to consider the issues Fitzgerald raises in his

SAG because they depend on matters outside of the record before us or raise weight or

credibility issues we do not review.

Accordingly, we affirm Fitzgerald’s convictions, but we remand for the trial court to

determine which conviction must be vacated on double jeopardy grounds and for resentencing,

and to reimpose the sentence on the third degree child rape conviction as a concurrent sentence.

FACTS

Background

In the summer of 2021, Fitzgerald spent considerable time with his daughter KF and

several of her friends at his mother’s house. Fitzgerald frequently took several of the girls, who

were then 13 and 14 years old, to a nearby store where he purchased them assorted snacks,

vapes, and alcoholic beverages. He also would take them on drives to rural areas and sometimes

let them drive his vehicle.

At the end of August, three of these girls, MC, RC and KK, disclosed to some of their

parents that Fitzgerald had engaged in inappropriate sexual contact with them. KK’s mother

contacted the police, and Fitzgerald was arrested.

The State charged Fitzgerald with (1) second degree child rape of MC, (2) second degree

rape due to the victim’s inability to consent of MC, (3) third degree child rape of RC, and (4)

third degree child molestation of KK. In the information, the State included a special allegation

under RCW 9.94A.836 that the crimes were predatory. The State also alleged a sentencing

aggravator under RCW 9.94A.535(2)(c) (the free crimes aggravator) because Fitzgerald had

1
Fitzgerald also argues that he received ineffective assistance of counsel at sentencing. Because
of our holding, we do not address this issue.

2
No. 59793-4-II

committed multiple current offenses and his high offender score would result in some of these

offenses going unpunished.

ER 404(b) Evidence

Before trial, the State moved to permit the introduction of evidence of Fitzgerald’s prior

conviction of third degree child molestation of his oldest daughter (OF) under ER 404(b) as

evidence of a common plan. Fitzgerald moved to exclude all evidence of his prior bad acts.

At the hearing on the ER 404(b) issue, the State argued that the prior conviction

demonstrated a common plan. The State asserted that during the course of the prior offense,

Fitzgerald had treated OF differently from his other seven children by spoiling her and buying

her snacks, treats, and other things that he did not buy for his other children. The State argued

that although the victims in this case were not his children, they were friends with his daughter

KF and, as he did with OF, he treated them specially and purchased them things.

The State clarified that the prior offense involved Fitzgerald’s biological daughter, and

that the molestation started when OF was four and continued until she was almost a teenager.

The State stated that Fitzgerald originally was charged with four or five counts regarding OF, but

he ultimately pleaded guilty to just one count. The State asserted that Fitzgerald had given OF

things like shoes and snacks and that he had given OF more things than he gave his other

children. And the State argued that this was similar to the circumstances in this case, where

Fitzgerald purchased the victims special goods and alcohol, spent more time with them than

other children, and gave them special treatment.

The trial court ruled that the prior offense evidence was admissible as evidence of a

common plan. The court found that there was “a marked similarity in the allegations of the

approach to this, as far as a common scheme or plan.” Rep. of Proc. (RP) at 54. And the court

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No. 59793-4-II

found that the probative value outweighed the possible prejudice, especially because a limiting

instruction would be given.

Trial

At trial, MC testified consistently with the facts set out above. She testified that she was

13 when the incidents occurred, that she was best friends with KF, and that she considered

Fitzgerald to be a father figure. She testified about Fitzgerald purchasing the girls alcohol and

snacks and letting them drive his vehicle. MC testified that on one occasion she had fallen

asleep in a shed on Fitzgerald’s mother’s property after becoming intoxicated and that she awoke

to find Fitzgerald on top of her with his fingers inside her vagina.

RC, who was 14 at the time of the incident, also testified consistently with the facts set

out above about Fitzgerald purchasing the girls alcohol and snacks. She testified that Fitzgerald

had engaged in oral/vaginal contact with her against her will when they were alone in his

vehicle.

KK, who was 14 at the time of the incident, also testified consistently with the facts set

out above about Fitzgerald purchasing the girls alcohol and snacks and letting them drive his

vehicle. In addition, she testified that Fitzgerald had placed his hand high up on her inner thigh

when she was driving his car.

The State introduced the evidence of Fitzgerald’s prior conviction through Fitzgerald’s

former wife’s testimony. She testified that she had observed other children in Fitzgerald’s

vehicle when he was dropping KF off at her house in the summer of 2021 and that she was

concerned about this because Fitzgerald previously had been convicted of molesting their

daughter OF.

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No. 59793-4-II

Fitzgerald’s former wife further testified that the abuse of OF occurred from the time that

OF was 4 years old until she reported the abuse when she was 14 years old. During the period in

which the abuse was taking place, Fitzgerald treated OF differently than the other children by

taking her on special trips to the store to get treats or candy and buying her things that they

usually would not buy the other children.

Fitzgerald’s daughter KF testified for the defense. She also testified that around the time

the girls had reported the inappropriate contact, RC had gotten angry with her because she had

promised to take RC to a rodeo but she was unable to take her. KF also testified that MC was

mad at her because they had an argument and because of the situation with RC.

Fitzgerald testified in his defense. He denied sexually assaulting any of the girls.

Although he admitted that he would sometimes let the girls drive his vehicle and that he would

purchase things for them, he asserted that he did this with all of the children he was around. And

he claimed that the alcohol he purchased was for himself and other adults and asserted that he

never handed any of the juveniles an alcoholic drink.

After the parties rested, the trial court gave the jury the following limiting instruction:

You may have heard evidence of the existence of prior misconduct by the defendant
regarding [OF]. Such evidence may only be considered by you to the extent you
find it relevant to issues of acting pursuant to a common scheme or plan. It is not
to be considered by you for any other purpose.

Clerk’s Papers at 96.

Verdict and Sentence

The jury found Fitzgerald guilty of second degree child rape of MC, second degree rape

due to the victim’s inability to consent of MC, and third degree child rape of RC. The jury found

him not guilty of attempted third degree child molestation of KK. The jury also found by special

verdict that Fitzgerald established or promoted a relationship with the victim before the offense

5
No. 59793-4-II

and that the victimization of the victim was a significant reason he established or promoted the

relationship.

At sentencing, the State asked the court to impose concurrent 194 month sentences for

the second degree rape convictions, to run consecutively to a 60 month sentence for third degree

rape. The trial court commented on the highly concerning nature of the crimes in light of

Fitzgerald’s prior conviction and the impact the crimes would have on the victims. The court

stated,

In this case, I think the testimony -- as I recall the testimony, there was definitely
predatory behaviors. And because of that, I am going to sentence you in Count I
[the second degree child rape] to the 194 months; Count II [the second degree rape],
194 months. Those will run concurrent. And Count III, 60 months. And I’m going
to run that consecutive, for a total of . . . 254 months.

RP at 331-32 (emphasis added).

In the judgment and sentence, the trial court found the second degree child rape and the

second degree rape to be same criminal conduct and calculated the offender scores as 6 points for

each offense. Based on these offender scores, the standard sentencing ranges were 146 to 194

months for the second degree child rape and second degree rape and 46 to 60 months for the

third degree child rape.

The trial court imposed indeterminate sentences on the two second degree child rape

convictions with minimum terms of 194 months and maximum terms of life. The court ran these

sentences concurrently. The court also imposed a sentence of 60 months on the third degree

child rape, but it ran this sentence consecutive to the indeterminate sentences.

Despite imposing the consecutive sentence, the trial court did not complete the section of

the judgment and sentence regarding imposition of an exceptional sentence. And the court did

not set out any substantial and compelling reasons justifying an exceptional sentence.

6
No. 59793-4-II

Fitzgerald appeals his convictions and his sentence.

ANALYSIS

A. ADMISSION OF COMMON PLAN EVIDENCE

Fitzgerald argues that the trial court erred by admitting evidence of his prior conviction as

evidence of a common plan because the State failed to show that the prior and current offenses

were markedly similar acts against similar victims under similar circumstances. We disagree.

1. ER 404(b) Framework

Under ER 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity therewith.” However, this

evidence may be admissible for other purposes, such as “proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” ER 404(b). The

proponent of the evidence bears the burden of demonstrating its proper purpose. State v.

Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012).

Before a trial court admits evidence under ER 404(b), it must (1) find by a preponderance

of the evidence that the misconduct occurred, (2) identify the purpose for admitting the evidence,

(3) determine the relevance of the evidence to prove an element of the crime, and (4) weigh the

probative value of the evidence against its prejudicial effect. State v. Gunderson, 181 Wn.2d

916, 923, 337 P.3d 1090 (2014). The court must complete this analysis on the record. Id. And

if evidence of a defendant’s prior bad acts is admissible for a proper purpose, the defendant is

entitled to an appropriate limiting instruction. Gresham, 173 Wn.2d at 423.

We must read ER 404(b) together with ER 403 when analyzing whether the prejudice

unfairly outweighs the probative value of the evidence. Gunderson, 181 Wn.2d at 923.

Even when ER 404(b) evidence is admitted for a proper purpose and is relevant to
a material issue in the case, the trial court must still weigh the probative value

7
No. 59793-4-II

against its prejudicial effect. Evidence of prior misconduct is likely to be highly
prejudicial, and should be admitted only for a proper purpose and then only when
its probative value clearly outweighs its prejudicial effect.

State v. Lough, 125 Wn.2d 847, 862, 889 P.2d 487 (1995).

We review the trial court’s decision to admit evidence under ER 404(b) for abuse of

discretion. Gunderson, 181 Wn.2d at 922. The abuse of discretion standard applies both to the

determination of relevancy and the weighing of probative value and prejudicial effect. Gresham,

173 Wn.2d at 422. The court abuses its discretion when its decision is manifestly unreasonable

or based on untenable grounds. Gunderson, 181 Wn.2d at 922.

1. Legal Principles

One accepted “other purpose” under ER 404(b) is to show the existence of a common

plan, where the defendant “ ‘devises a plan and uses it repeatedly to perpetrate separate but very

similar crimes.’ ” Gresham¸173 Wn.2d at 421-22 (quoting Lough, 125 Wn.2d at 854-55).

“Evidence of . . . [a] common scheme or plan is admissible because it is not an effort to prove the

character of the defendant. Instead, it is offered to show that the defendant has developed a plan

and has again put that particular plan into action.” Gresham, 173 Wn.2d at 422.

To establish a common plan, the State must show that the defendant committed

“ ‘markedly similar acts of misconduct against similar victims under similar circumstances.’ ”

State v. DeVincentis, 150 Wn.2d 11, 19, 74 P.3d 119 (2003) (quoting Lough, 125 Wn.2d at 856).

The prior misconduct and the charged crime must have such common features that the acts

naturally can be explained as individual manifestations of a general plan. Id. Similarity of

results is not sufficient, and to be admissible evidence of prior child sexual abuse must show

more than a general plan to molest children. Gresham, 173 Wn.2d at 422; State v. Slocum, 183

Wn. App. 438, 453-54, 333 P.3d 541 (2014). But “the commonality need not be ‘a unique

8
No. 59793-4-II

method of committing the crime.’ ” Gresham, 173 Wn.2d at 422 (quoting DeVincentis, 150

Wn.2d at 19-21). Instead, whether a common plan exists focuses on “the similarity between the

prior acts and the charged crime.” DeVincentis, 150 Wn.2d at 19.

Washington courts have held in several cases under various factual scenarios that

testimonial evidence of prior child sexual abuse committed by a defendant that is similar to the

charged sexual abuse is admissible for the purpose of showing a common plan. E.g., Gresham,

173 Wn.2d at 421-22; DeVincentis, 150 Wn.2d at 22-24; State v. Kennealy, 151 Wn. App. 861,

887-89, 214 P.3d 200 (2009); State v. Sexmith, 138 Wn. App. 497, 505, 157 P.3d 901 (2007);

State v. Baker, 89 Wn. App. 726, 733, 950 P.2d 486 (1997); State v. Krause, 82 Wn. App. 688,

697, 919 P.2d 123 (1996). “Conduct is sufficiently similar when the similarity indicates design,

not merely coincidence.” Baker, 89 Wn. App. at 733.

1. Common Plan

Fitzgerald argues that the State failed to establish that the prior and current acts were

similar acts of misconduct because it failed to present any evidence relating to the circumstances

of the prior crime and failed to establish markedly similar acts of misconduct. He contends that

the State only established a similarity of result.

Although the State did not present any evidence regarding the exact nature of the illegal

acts Fitzgerald engaged in with OF, the State presented evidence that Fitzgerald engaged in

sexual activities with OF until she was 14. And during this time, he gave OF special treatment.

This is markedly similar to the circumstances in the current offenses, where the alleged victims

were 13 and 14 and Fitzgerald gave them special treatment by buying them treats and alcohol

and letting them drive his vehicle. The similarity is that Fitzgerald used special treatment to

groom the teenaged victims for sexual assault.

9
No. 59793-4-II

Fitzgerald makes several arguments against admissibility. First, he argues that the State

failed to establish that the prior and current acts were similar because the current victims were

not related to him and were older than OF. Although there were some dissimilarities between

OF and the current victims because they were not related to Fitzgerald and the abuse did not

begin until the victims were 13 and 14, there also were substantial similarities. Even though the

current victims were not his children, Fitzgerald obtained access to them because they were

friends with his daughter and he had built a relationship of trust with the current victims to the

degree at least one of his victims considered him to be a father figure. Despite the absence of a

biological connection, in both cases Fitzgerald victimized children with whom he had fostered a

personal relationship. And although the inappropriate contact did not start when the current

victims were much younger and did not continue over an extended period of time, the sexual

assaults still were within the age range during which Fitzgerald abused OF.

Second, Fitzgerald argues that the State’s evidence of similar circumstances was not

sufficient to establish a common plan because there was no evidence that he purchased alcohol

for OF and that even though he also purchased things for KF, there was no evidence he engaged

in misconduct with KF. But the circumstances of the offenses need not be identical; they need

only be sufficiently similar to establish a general plan. See Gresham, 173 Wn.2d at 422. In both

cases Fitzgerald provided the victims with special treatment and purchasing gifts that they

wanted, the fact these gifts might have differed because of the age and preferences of the

particular victims does not mean that the circumstances were too distinct to establish a common

plan. The overarching circumstance was that Fitzgerald singled out his victims and purchased

them gifts as a way of forming a bond with the child.

10
No. 59793-4-II

Third, Fitzgerald argues that there was no evidence that OF’s abuse was connected to any

gifts from him. He contends that unlike in Kennealy, where the fact the defendant provided his

victims with treats was related to the crimes, his former wife testified that she did not think that

Fitzgerald was buying OF things for the purpose of molesting the child. But Fitzgerald

mischaracterizes his former wife’s testimony. She did not testify that she did not think

Fitzgerald was buying OF things for the purposes of molesting OF generally. Instead, she

testified that at the time Fitzgerald was molesting the child and she was still unaware of the

molestation, she thought that he was just buying the child things to spoil her and did not suspect

that he was favoring OF for a more sinister reason. The fact that Fitzgerald was buying OF

things to facilitate the abuse may not have been expressly established, but it is a reasonable

inference.

In fact, contrary to Fitzgerald’s argument, this case is very similar to Kennealy. In

Kennealy this court concluded that the defendant had used treats to gain the trust of his victims

so he could have access to them. 151 Wn. App. at 889. Fitzgerald’s pattern of giving his victims

special treatment could also be reasonably construed as a method he used to gain the victims’

trust and facilitate the abuse.

Fourth, Fitzgerald notes that he did not engage in misconduct with KF, which weighs

against finding similar circumstances. But even if KF was not a targeted victim, treating her the

same as her friends likely increased his access to KF’s friends and helped create the

circumstances in which the crimes could occur.

The similarities discussed above showed that the current victims were within the age

range of his prior victim and that Fitzgerald’s plan included identifying victims to whom he gave

special treatment This is sufficient to show that the prior act and the current acts were similar

11
No. 59793-4-II

enough to find a common plan. Accordingly, we conclude that the trial court did not abuse its

discretion in ruling that prior offense was evidence of a common plan.

1. Probative Value vs. Prejudicial Effect

Fitzgerald argues that the trial court erred in determining that the prejudicial effect of the

evidence about the prior offense outweighed the probative value of that evidence. We disagree.

Evidence of a defendant’s prior sexual misconduct, standing alone, is probative only to

show propensity to commit such acts. However, when those prior acts reflect a common plan,

such evidence becomes highly probative. “[E]vidence that a charged crime was carried out in a

manner devised by the defendant and used by him more than once has a distinct and additional

probative value [other than showing propensity] that justifies its admission.” Slocum, 183 Wn.

App. at 456. This probative value is enhanced in cases involving child sexual abuse, where the

need for supporting evidence is great because, as is the case here, corroborating evidence of the

criminal acts generally is unavailable. See DeVincentis, 150 Wn.2d at 23; Kennealy, 151 Wn.

App. at 890.

Here there is no question that the prior acts evidence was prejudicial. But that prejudice

was limited to some extent by the trial court’s limiting instruction. And the probative value of

the evidence of a common scheme or plan was high because it put into context Fitzgerald’s

behavior, which might otherwise appear to be facially innocuous. Taking this all into

consideration, we conclude that the trial court did not abuse its discretion when it ruled that the

probative value of the evidence outweighed its prejudice.

In summary, we hold that the trial court did not err in admitting evidence of Fitzgerald’s

prior conviction of third degree child molestation.

B. DOUBLE JEOPARDY

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No. 59793-4-II

Fitzgerald argues, and the State concedes, that the trial court violated the prohibition

against double jeopardy when it sentenced him on both the second degree child rape and the

second degree rape due to the victim’s inability to consent because the two convictions were

based on the same act of intercourse with the same victim. Both parties agree that remand for

the trial court to determine which conviction to vacate is required. We agree.

In State v. Hughes, the Supreme Court held that convictions for second degree child rape

and second degree rape due to the victim’s inability to consent arising from one act of sexual

intercourse with the same victim violates the prohibition against double jeopardy. 166 Wn.2d

675, 683-86, 212 P.3d 558 (2009). The court further held that because both crimes were class A

felonies with the same seriousness levels and sentencing ranges, remand was necessary to allow

the trial court to determine which offense was the lesser offense that must be vacated. Id. at 686

n.13. The same circumstances exist here – the two convictions were based on a single sexual act

with the same victim, and the two offenses are both class A felonies with the same seriousness

levels and sentencing ranges.

Accordingly, we accept the State’s concession that the two convictions violate double

jeopardy. We remand to the trial court to determine which conviction to vacate. And because

vacating a conviction will change Fitzgerald’s offender score, we remand for resentencing.

C. CONSECUTIVE SENTENCE

Fitzgerald argues that the trial court erred when it imposed the third degree rape sentence

consecutively to the other rape sentences. We agree.

We review the trial court’s authority to impose an exceptional sentence de novo. State v.

France, 176 Wn. App. 463, 469, 308 P.3d 812 (2013).

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No. 59793-4-II

Subject to certain exceptions that do not apply here, RCW 9.94A.589 provides that when

a defendant is sentenced for two or more current offenses, those sentences are to be served

concurrently unless the trial court imposes an exceptional sentence under RCW 9.94A.535.2

RCW 9.94A.589(1)(a)-(d). “A departure from the standards in RCW 9.94A.589(1) and (2)

governing whether sentences are to be served consecutively or concurrently is an exceptional

sentence subject to the limitations in [RCW 9.94A.535].” RCW 9.94A.535.

Under RCW 9.94A.535(3), the trial court may impose an aggravated exceptional

sentence based on a jury’s consideration only if the jury finds one or more aggravating

circumstances from an exclusive list.

There is no question that the trial court imposed an exceptional sentence when it ran the

third degree rape sentence consecutively to the other sentences. RCW 9.94A.535; RCW

9.94A.589(1). The State argues, and the trial court’s oral ruling demonstrates, that the court

imposed the consecutive sentence because Fitzgerald engaged in predatory behavior. Under

RCW 9.94A.836, in a child rape case the State may file a special allegation that the offense was

predatory. The State did so here. The definition of “predatory” includes that “the perpetrator

established or promoted a relationship with the victim prior to the offense and the victimization

of the victim was a significant reason the perpetrator established or promoted the relationship.”

RCW 9.94A.030(38). The jury made that finding in this case.

But the predatory nature of the offense is not one of the aggravating circumstances in the

exclusive list specifically enumerated in RCW 9.94A.535(3). And RCW 9.94A.836 does not

authorize the court to impose an exceptional aggravated sentence.

2
This statute was amended in 2025, but the amendments are not relevant to this appeal.
Therefore, we cite to the current version of the statute.

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No. 59793-4-II

We hold that the trial court erred when it imposed an exceptional sentence based on the

predatory offense finding.3 Accordingly, we vacate the consecutive sentence and remand for the

trial court to reimpose the sentence on the third degree child rape conviction as a concurrently

with the second degree rape sentence.

D. SAG CLAIMS

In his SAG, Fitzgerald asserts that the investigating officer knowingly made false

statements and omissions in his probable cause statement, his incident report, and his testimony.

But these claims all rely on factual assertions that are not in the record before us or relate to

credibility and weight determinations that we will not review. State v. Alvarado, 164 Wn.2d

556, 569, 192 P.3d 345 (2008) (rejecting SAG issues not supported by the record); State v.

Bergstrom, 199 Wn.2d 23, 41, 502 P.3d 837 (2022) (appellate courts defer to the trier of fact’s

resolution of conflicting testimony, witness credibility, and the persuasiveness of the evidence).

Therefore, we decline to consider these claims

Fitzgerald also appears to assert that the trial court erred in permitting a juror to be seated

on the jury despite potential conflicts or biases. Fitzgerald may also be asserting that he received

ineffective assistance of counsel because defense counsel did not move to excuse the juror on

these grounds. However, our record does not include a transcript from jury selection, so these

claims also rely on matters outside the record. As a result, we cannot consider this claim on

3
The State also argues that the trial court could have imposed the exceptional sentence under the
free crimes aggravator, RCW 9.94A.535(2)(c), which applies when “[t]he defendant has
committed multiple current offenses and the defendant’s high offender score results in some of
the current offenses going unpunished.” But the free crimes aggravator cannot apply here
because Fitzgerald’s offender scores were only 6 points, and each current offense that was not
considered to be same criminal conduct contributed to that score.

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No. 59793-4-II

direct appeal. Alvarado, 164 Wn.2d at 569. This claim is more properly raised in a personal

restraint petition. Id.

CONCLUSION

We affirm Fitzgerald’s convictions, but we remand for the trial court to determine which

second degree rape conviction must be vacated on double jeopardy grounds and for resentencing,

and to reimpose the sentence on the third degree child rape conviction as a concurrent sentence.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

MAXA, J.

We concur:

VELJACIC, A.C.J.

PRICE, J.

16