State v. Gower

• Decision Date: 13 February 2014
• Docket Number: No. 88207–0.,88207–0.
• Citation: 321 P.3d 1178,179 Wash. 2d 851
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. David Joel GOWER, Petitioner.

179 Wash.2d 851

321 P.3d 1178

STATE of Washington, Respondent,

v.David Joel GOWER, Petitioner.

No. 88207–0.

Supreme Court of Washington, En Banc.

Feb. 13, 2014.

Recognized as Unconstitutional

West's RCWA 10.58.090NielsenBroman Koch PLLC, Attorney at Law, Seattle, WA, Rebecca Wold Bouchey, Attorney at Law, Mercer Island, WA, for Petitioner.

Brian Neal Wasankari, Pierce County Prosecuting Atty, Tacoma, WA, for Respondent.

GORDON McCLOUD, J.

¶ 1 Our rules of evidence have long provided that “[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.”Evidence Rule (ER)404(b).In 2008, the legislature enacted a statute making an exception for evidence of sex offenses.¹FormerRCW 10.58.090(2008).In 2012, this court held that statute, RCW 10.58.090, was unconstitutional.State v. Gresham,173 Wash.2d 405, 413, 269 P.3d 207(2012).In 2009, between the statute's enactment and subsequent invalidation, the trial court admitted evidence of David Gower's prior sex offenses against him at his bench trial under that unconstitutional statute.Because that evidence was improperly admitted and considered by the trial judge in finding Gower guilty, we reverse Gower's conviction and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2The State prosecuted Gower for sex crimes against his 17–year–old stepdaughter S.E.H.The prosecution took place in 2009, when both ER404(b)andRCW 10.58.090 were in force.In accordance with those laws, the State offered evidence that Gower had committed other similar crimes against two other alleged juvenile victims, C.M. (his biological daughter) and J.K. (another stepdaughter).In a pretrial evidentiary hearing on the admissibility of that evidence, the trial court ruled it was all inadmissible under ER404(b).But the trial court acknowledged that admissibility of that evidence under RCW 10.58.090 was a separate question and concluded that although the evidence of other sex offenses was inadmissible under ER404(b), the evidence of the prior crimes relating to C.M. was admissible under RCW 10.58.090.²

¶ 3The trial court entered clear findings of fact and conclusions of law explaining its decision.Under the statute, the trial court was required to consider several factors before admitting evidence of prior crimes, including “[t]he necessity of the evidence beyond the testimonies already offered at trial.”FormerRCW 10.58.090(6)(e).The trial court's conclusion of law 6 states exactly that—that the “evidence of the defendant's prior sexual misconduct with C.M. is necessary to the State's case at trial in the present case.”Clerk's Papers(CP)at 30.The trial court thus excluded J.K.'s testimony, but admitted C.M.'s testimony, after considering and applying the statutory factors.

¶ 4 After a bench trial, the trial court found Gower guilty of two counts of indecent liberties and one count of incest in the second degree.Gower received consecutive life sentences for the indecent liberties convictions and 60 months for the incest conviction.Gower appealed his convictions, arguing, among other things, that RCW 10.58.090 was unconstitutional.The Court of Appeals stayed his appeal pending Gresham.In Gresham,we held that RCW 10.58.090 was unconstitutional.Gresham,173 Wash.2d at 413, 269 P.3d 207.Nevertheless, the Court of Appeals upheld Gower's convictions in a published opinion.State v. Gower,172 Wash.App. 31, 288 P.3d 665(2012).Gower petitioned this court for review, and we granted his petition.State v. Gower,177 Wash.2d 1007, 300 P.3d 416(2013).

ANALYSIS

I.Standard of Review

¶ 5 A trial court's admission of evidence under RCW 10.58.090 that is inadmissible under ER404(b) is error.Gresham,173 Wash.2d at 434, 269 P.3d 207.“When the support of RCW 10.58.090 is removed, we are simply left with evidence admitted in violation of ER404(b).”Id. at 433, 269 P.3d 207.Erroneous admission of evidence in violation of ER404(b) is analyzed under the nonconstitutional harmless error standard—that is, we ask whether there is a reasonable probability that, without the error, “ ‘ “the outcome of the trial would have been materially affected.” ’ ”Id.(quotingState v. Smith,106 Wash.2d 772, 780, 725 P.2d 951(1986)(quotingState v. Cunningham,93 Wash.2d 823, 831, 613 P.2d 1139(1980))).

II.Admission of Gower's Prior Sex Offenses

a. The Presumption That Judges in Bench Trials Do Not Consider Inadmissible Evidence Does Not Apply to Evidence That Is Actually Admissible and Admitted under the Law at the Time of Trial

¶ 6The Court of Appeals acknowledged that the trial court erred by admitting evidence under RCW 10.58.090 that was inadmissible under ER404(b).³It nevertheless held that the error was harmless based on State v. Read,147 Wash.2d 238, 53 P.3d 26(2002).In Read,we held that “in the absence of evidence to the contrary, we presume the judge in a bench trial does not consider inadmissible evidence in rendering a verdict.”Id. at 242, 53 P.3d 26.The Court of Appeals relied on this Read presumption to uphold Gower's conviction.

¶ 7 The Read presumption arises because of the “unique demands” bench trials place on judges, “requiring them to sit as both arbiters of law and as finders of fact.”Id. at 245, 53 P.3d 26.But the presumption is only that—an assumption that appellate courts begin with, but do not necessarily end with, depending on the case.The presumption is based on the notion that the trial judge knows and applies the law, even if he or she did not recite the particular legal rule at the time; it is “a presumption on appeal that the trial judge, knowing the applicable rules of evidence, will not consider matters which are inadmissible when making his [or her] findings.”State v. Miles,77 Wash.2d 593, 601, 464 P.2d 723(1970)(citingState v. Bell,59 Wash.2d 338, 352, 368 P.2d 177(1962)).

¶ 8 The Read presumption is, therefore, inapplicable when the judge actually “consider[ed] matters which are inadmissible when making his [or her] findings.”Id.Thus, “[a]defendant can rebut the presumption by showing the verdict is not supported by sufficient admissible evidence, or the trial court relied on the inadmissible evidence to make essential findings that it otherwise would not have made.”Read,147 Wash.2d at 245–46, 53 P.3d 26(citingGreater Kan. City Laborers Pension Fund v. Superior Gen. Contractors, Inc.,104 F.3d 1050, 1057(8th Cir.1997)).

¶ 9The Court of Appeals below upheld Gower's conviction because Gower failed to rebut the Read presumption.Gower,172 Wash.App. at 40, 288 P.3d 665.We disagree with that result.

¶ 10 The Read presumption, as our case law makes clear, depends entirely on our recognition that the trial judge knows the rules of evidence and will therefore discount truly inadmissible evidence when making a decision in a bench trial.Read,147 Wash.2d at 245, 53 P.3d 26;Miles,77 Wash.2d at 601, 464 P.2d 723.That presumption is inapplicable where the evidence was actually admissible under the law in place at the time, and the judge affirmatively recognized its legal admissibility when admitting the evidence.

¶ 11 That is what happened here—the trial court affirmatively recognized the legal admissibility of the evidence in question.It explicitly ruled that “evidence of the defendant's prior sexual misconduct with C.M. is admissible in the present case under RCW 10.58.090.”CPat 30.It also expressly found that the State could rely on the evidence to present its case: “The court does not find that the evidence is admissible under ER404(b), but since it is admissible under [RCW] 10.58.090, the State may utilize the evidence in its case in chief.”CPat 31.Under these circumstances, we cannot presume that the trial court did not consider the inadmissible evidence.

b. Admission of Gower's Prior Sex Offenses Was Not Harmless

¶ 12 Without the Read presumption, we cannot say the error in this case was harmless.As we pointed out in Gresham, the potential for prejudice from admitting prior acts is “ ‘at its highest’ ” in sex offense cases.Gresham,173 Wash.2d at 433, 269 P.3d 207(quotingState v. Saltarelli,98 Wash.2d 358, 363, 655 P.2d 697(1982)).Moreover, the analysis does not turn on whether there is sufficient evidence to convict without the inadmissible evidence.Id.Rather, the question is whether there is a reasonable probability that the outcome of the trial would have been different without the inadmissible evidence.Id. at 433–34, 269 P.3d 207.We are satisfied that such a reasonable probability exists in this case for the following reasons.

¶ 13 First, during the pretrial evidentiary hearing, the judge ruled as a matter of law that “evidence of the defendant's prior sexual misconduct with C.M. is necessary to the State's case at trial in the present case.”CPat 30.Indeed, the evidence might have been inadmissible had the judge ruled otherwise.See former RCW 10.58.090(6)(e)(requiring the judge to consider, among other things, the “necessity of the evidence”).The trial court's ruling that the evidence regarding C.M. was necessary to the State's case as a matter of law strongly suggests that exclusion of that evidence would have affected the verdict.

¶ 14 Second, the State itself argued at the pretrial hearing that “this is necessary evidence as this is essentially one person's version of events versus another.”2 Verbatim Report of Proceedings(July 13, 2009)at 124–25.At the very least, this undermines the State's current, and contrary, assertion that the prior sex offense evidence was unnecessary.Cf.State v. Roberts,142 Wash.2d 471, 498, 14 P.3d 713(2000)(characterizing as “[r]emarkabl[e]”the State's decision to take “opposite position[s]” on one factual matter in two separate but related appeals).

¶ 15 Third, as the State conceded in its argument to the trial court, this was a credibility case; the only...