State v. Crossguns

• Decision Date: 10 March 2022
• Docket Number: 99396-3
• Citation: 199 Wash.2d 282,505 P.3d 529
• Parties: STATE of Washington, Petitioner/Cross Respondent, v. Patrick J. CROSSGUNS, Sr., Respondent/Cross Petitioner
• Court: Washington Supreme Court

199 Wash.2d 282

505 P.3d 529

STATE of Washington, Petitioner/Cross Respondent,

v.Patrick J. CROSSGUNS, Sr., Respondent/Cross Petitioner

No. 99396-3

Supreme Court of Washington.

Filed: March 10, 2022

Larry D. Steinmetz, Gretchen Eileen Verhoef, Jerry P. Scharosch, Spokane County Prosecuting Attorney Office, 1100 W. Mallon Ave., Spokane, WA, 99260-0270, for Petitioner.

Eric J. Nielsen, Nielsen Koch & Grannis, PLLC, 2200 6th Ave., Ste. 1250, Seattle, WA, 98121-1820, for Respondent.

MONTOYA-LEWIS, J.

¶ 1 In this case, we are asked to examine the "lustful disposition" doctrine. We are also asked to evaluate whether a prosecutor's statements in closing, asking the jury to decide if the witnesses were telling the truth, constitute misconduct that—absent an objection—was so prejudicial that reversal is warranted. We conclude that the term "lustful disposition" is archaic and reinforces outdated rape myths and misconceptions of sexual violence. Moreover, use of that term wrongly suggests that evidence of collateral offenses relating to a specific victim may be admitted for the purpose of showing that the defendant has a propensity for committing sexual misconduct. Therefore, we now reject the "lustful disposition" label and hold that "lustful disposition" is not a distinct or proper purpose for admitting evidence. To the extent our precedent indicates otherwise, it is disavowed. However, rejection of the label "lustful disposition" does not modify our established doctrine of allowing "[e]vidence of other crimes, wrongs, or acts" to be admitted as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident" pursuant to ER 404(b). In this case, we conclude that evidence of Crossguns's uncharged acts of sexual assault was properly admitted for permissible ER 404(b) purposes. Therefore, the trial court's reference to lustful disposition in its decision admitting the evidence was harmless. Further, we conclude that the prosecutor's statements constitute misconduct, but the prejudice could have been corrected by an instruction. Therefore, we affirm the Court of Appeals in part and reverse in part, and remand to the Court of Appeals for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

A. Factual Background

¶ 2 In August 2016, R.G.M.¹ disclosed to her mother, Marsha Matte,² that her father, Patrick Crossguns Sr., had sexually abused her. R.G.M. said he had been abusing her for over a year, beginning when she was 12 years old. Shortly thereafter, Crossguns was charged with one count of second degree rape of a child and one count of second degree child molestation. The State also sought two aggravators for each count, alleging that Crossguns used a position of trust to commit the crimes and that the offenses were part of an ongoing pattern of sexual abuse of the same victim. RCW 9.94A.535(3)(g), (n).

1. Pretrial Motion To Admit ER 404(b) Evidence

¶ 3 Before trial, the State sought to admit evidence of uncharged sexual abuse of R.G.M. by Crossguns from July 2015 to August 2016. The State also sought to admit testimony from family members regarding these incidents. Crossguns opposed admission of the evidence, arguing that it was improper propensity evidence. The trial court concluded the probative value outweighed any risk of unfair prejudice and ruled the evidence was admissible under ER 404(b) to demonstrate Crossguns's "intent, plan, motive, opportunity, absence of mistake or accident, lustful disposition toward [R.G.M.], and as res gestae in the case to show [R.G.M.]’s state of mind for her delayed disclosure." Clerk's Papers (CP) at 119. The court also concluded the evidence was admissible to prove the aggravators but stated "the main factor" for admitting the evidence was to prove Crossguns's "lustful disposition toward[ ] [R.G.M.]" 1 Verbatim Report of Proceedings (VRP) (July 16, 2019) at 227.

¶ 4 The court issued a limiting instruction that directed the jury to consider this evidence only for the purposes of "intent, plan, motive, opportunity, absence of mistake or accident, lustful disposition toward [R.G.M.], [R.G.M.’s] state of mind for her delayed disclosure of the alleged abuse, and/or whether the charged conduct was part of an ongoing pattern of sexual abuse and/or involved an abuse of trust or confidence." CP at 93. The instruction also informed the jury, "You may not consider [this evidence] for any other purpose." Id.

2. Trial Testimony

¶ 5 At trial, R.G.M. described in graphic detail the ongoing sexual abuse she endured at the hands of Crossguns from July 2015 to August 2016. She testified that the first time he sexually abused her was on a car ride, and over the next year he regularly took her on car rides alone to abuse her. She also described how Crossguns would sneak into her room at night to sexually abuse her and that he did this as often as every other night. R.G.M. said that for over a year, whenever they were alone, Crossguns would sexually abuse her.

¶ 6 R.G.M. testified that sometime in April or May 2016, Crossguns raped her in the basement of their home. This incident was the basis for the charge of second degree rape of a child. She also testified that in August 2016, Crossguns molested her in the living room of their home. R.G.M.’s younger brother, P.M., walked into the living room and observed Crossguns sexually abusing R.G.M.³ This incident was the basis for the charge of second degree child molestation.

¶ 7 Matte and three of R.G.M.’s brothers also testified at trial and described their observations. They noticed that Crossguns treated R.G.M. differently from the other children and that he took her with him whenever he left the house. Some of them testified that they observed Crossguns going into R.G.M.’s room at night. They also described changes in R.G.M.’s demeanor during this time period.

¶ 8 Crossguns also testified at trial, and he denied ever sexually abusing R.G.M. S.R.—R.G.M.’s cousin and Crossguns's niece—testified on behalf of Crossguns. S.R. testified that she had asked R.G.M. why she said Crossguns had abused her. According to S.R.’s testimony, R.G.M. said it was a lie that Matte told her to tell. R.G.M. denied ever saying this and testified that she ignored S.R.’s question.

3. Closing Arguments

¶ 9 In closing, the prosecutor reviewed the charges and the evidence presented and discussed the jury's role. He pointed out S.R.’s and R.G.M.’s conflicting testimony about their conversation and told the jury, "Somebody's lying. It's your job to determine who's lying. Is [R.G.M.] lying or is [S.R.] lying? And that's your job entirely." 4 VRP (July 22, 2019) at 815. When discussing R.G.M.’s and Crossguns's conflicting testimony about whether any abuse occurred, the prosecutor said, "[Y]ou have the testimony of [R.G.M.] on one hand, and [Crossguns's] testimony on the other hand. Somebody's not telling the truth, and, again, you're going to have to make that decision. Who is lying and who is telling the truth." Id. at 817. The defense did not object. In rebuttal, the prosecutor argued that R.G.M. was telling the truth: "[T]hat's the whole thing. Why would [R.G.M.] make this up? ... There is no reason for [the State's witnesses] to make this up." Id . at 851-52. Again, the defense did not object.

B. Procedural History

¶ 10 The jury found Crossguns guilty of both counts and both aggravators. Crossguns appealed, challenging the admission of evidence of prior acts and arguing that the prosecutor's statements about the jury's task to determine who was telling the truth constituted misconduct. Crossguns also argued that the prosecutor engaged in misconduct by misstating the law of the missing witness doctrine and that cumulative error warranted reversal. In an unpublished, split decision, the Court of Appeals ruled that the prior acts were admissible under the "lustful disposition" doctrine but reversed the trial court on the basis that the prosecutor engaged in misconduct by misstating the burden of proof. State v. Crossguns , No. 37079-8-III, slip op. at 16, 26, 2020 WL 7231098 (Wash. Ct. App. Dec. 8, 2020) (unpublished) https://www.courts.wa.gov/opinions/pdf/370798_unp.pdf. It did not reach Crossguns's other claim of misconduct or cumulative error. Id. at 10, 17. The State petitioned for review on the prosecutorial misconduct issue, and Crossguns cross petitioned on the "lustful disposition" issue. We granted review of both issues.

ANALYSIS

A. The "Lustful Disposition" Doctrine

¶ 11 Generally, ER 404(b) permits admission of evidence of prior bad acts for purposes other than propensity, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." The parties dispute whether we should retain or abandon "lustful disposition" as a permissible "other purpose" to admit prior bad acts under ER 404(b). "We do not lightly set aside precedent." State v. Kier , 164 Wash.2d 798, 804, 194 P.3d 212 (2008). In order for this court to overturn precedent, "we require ‘a clear showing that an established rule is incorrect and harmful.’ " State v. Johnson , 188 Wash.2d 742, 756-57, 399 P.3d 507 (2017) (quoting In re Rights to Waters of Stranger Creek , 77 Wash.2d 649, 653, 466 P.2d 508 (1970) ). "We may also abandon our precedent ‘when [its] legal underpinnings ... have changed or disappeared altogether.’ " Id. at 757, 399 P.3d 507 (alterations in original) (quoting W.G. Clark Constr. Co. v. Pac. Nw. Reg'l Council of Carpenters , 180 Wash.2d 54, 66, 322 P.3d 1207 (2014) ).

¶ 12 We hold that the term "lustful disposition" must be rejected and that it may no longer be cited as a distinct purpose for admitting evidence under ER 404(b). However, we do not disturb our precedent permitting evidence of collateral misconduct relating to a specific victim for appropriate purposes under ER 404(b), including "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or...