State v. Gower

• Decision Date: 20 November 2012
• Docket Number: No. 39883–4–II.,39883–4–II.
• Citation: 288 P.3d 665
• Parties: STATE of Washington, Respondent, v. David Joel GOWER, Appellant.
• Court: Washington Court of Appeals

288 P.3d 665

STATE of Washington, Respondent,

v.David Joel GOWER, Appellant.

No. 39883–4–II.

Court of Appeals of Washington, Division 2.

Nov. 20, 2012.

Recognized as Unconstitutional

West's RCWA 10.58.090.

Rebecca Wold Bouchey, Nielsen, Broman & Koch, P.L.L.C., Seattle, WA, for Appellant.

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

JOHANSON, J.

¶ 1David Joel Gower appeals his bench trial convictions for two counts of indecent liberties by forcible compulsion (counts II and IV) and one count of second degree incest (count III) for sexual contact with his stepdaughter, S.E.H.He argues (1)the trial court erroneously admitted evidence of his prior acts of child molestation under RCW 10.58.090,¹(2) the evidence was insufficient to support his convictions, and (3) cumulative error requires reversal.We hold that it was error to admit evidence of Gower's prior sex offenses under RCW 10.58.090 because our Supreme Court has held that statute unconstitutional.But because we have the benefit of the trial court's specific findings of fact and conclusions of law in support of each guilty verdict, we further hold that substantial, independently-admissible evidence supports Gower's convictions for counts II, III and IV, and we affirm those counts, holding harmless the trial court's admission of Gower's prior sex offenses under RCW 10.58.090.

FACTS

¶ 2The State charged Gower with first degree child rape,² alleging that he digitally penetrated SEH on an occasion years earlier (count I).The State also charged Gower with indecent liberties by forcible compulsion ³ and first degree incest,⁴ alleging sexual contact and sexual intercourse with SEH while she rode with Gower in his truck (counts II and III).And the State further charged Gower with indecent liberties by forcible compulsion and second degree assault with sexual motivation,⁵ alleging that he spanked SEH for sexual gratification (counts IV and V).

¶ 3 Pretrial, the State moved to admit the testimony of both CM, Gower's daughter; and JK, Gower's former stepdaughter.Both witnesses testified pretrial that Gower had inappropriately touched and physically abused them as children.The trial court ruled that both witnesses' testimonies were inadmissible under ER404(b).It admitted CM's testimony under RCW 10.58.090 but denied admission of JK's testimony.The court held a bench trial in July 2009, and based on the evidence presented, it found the following facts: ⁶ Between January 1 and November 10, 2001, when SEH was 11 years old, Gower digitally penetrated her in her bedroom.

¶ 4 Between August 1 and September 10, 2007, Gower learned that SEH had used a cell phone while driving.As punishment, Gower, a truck driver, ordered SEH to either ride with him in his truck on a trip from Tacoma, Washington, to Astoria, Oregon, or else receive a spanking.Gower had struck SEH in the past.SEH opted for the truck ride; and, while driving, Gower ordered SEH to remove her pants and underwear, touched her breasts and genitals, and digitally penetrated her.⁷

¶ 5 On September 19, SEH accidentally clogged the kitchen sink drain.Gower was upset and ordered SEH to the basement to be punished.Gower told SEH to remove her pants and underwear and spanked her with a coat hanger, asking, “[A]re we having fun yet?”Clerk's Papers(CP)at 15.After the spanking, SEH was crying and without pants or underwear.

¶ 6 Both Gower and SEH's mother were involved in Tacoma's sadomasochism community.Gower called witnesses to testify about his involvement in the sadomasochism community, and based on their testimony, the trial court found that the objective of spanking within the sadomasochism community is to satisfy sexual desire.The court further found that there is a sexual component to such spanking because “normal things in life do not satisfy the sexual desires” of a sadomasochism practitioner.CPat 14.Gower did not object to the evidence underlying these findings and conclusions.

¶ 7 Based on these findings, the trial court concluded as a matter of law that Gower was not guilty of counts I, III (as charged), and V, but guilty of counts II, III (inferior degree), and IV.On count I, the trial court concluded that SEH's testimony regarding the digital penetration when she was 11 years old lacked sufficient detail to constitute proof beyond a reasonable doubt that the incident occurred, finding Gower not guilty of first degree child rape.On count III, the trial court concluded that although there was evidence that Gower had sexual intercourse with SEH in his truck, the evidence that it occurred in Washington was insufficient, finding Gower not guilty of first degree incest.And on count V, the trial court concludedthat the State had not proved that Gower's spanking of SEH was unauthorized under RCW 9A.16.100,⁸ finding him not guilty of second degree assault with sexual motivation.

¶ 8The trial court did conclude, however, that Gower was guilty of the inferior degree offense of second degree incest ⁹(count III) because there was sufficient evidence that sexual contact in Gower's truck occurred in Washington.The trial court also concluded that Gower was guilty of indecent liberties by forcible compulsion for the sexual contact in Gower's truck (count II) and indecent liberties by forcible compulsion for spanking SEH (count IV).Gower appeals these three convictions.

ANALYSIS

I. RCW 10.58.090

¶ 9The trial court ruled that CM's testimony was not admissible under ER404(b) but that it was admissible under RCW 10.58.090.Gower argues that the trial court erred by admitting CM's testimony under RCW 10.58.090.Although we agree the admission of CM's testimony was error under RCW 10.58.090, we hold that it was harmless error.

¶ 10RCW 10.58.090(1) provides, “In a criminal action in which the defendant is accused of a sex offense, evidence of the defendant's commission of another sex offense or sex offenses is admissible, notwithstanding Evidence Rule 404(b), if the evidence is not inadmissible pursuant to Evidence Rule 403.”Our Supreme Court in State v. Gresham,173 Wash.2d 405, 432, 269 P.3d 207(2012), held that RCW 10.58.090 violates the separation of powers by interfering with the judiciary's authority to determine court procedural law.As such, CM's testimony was improperly admitted under RCW 10.58.090.

¶ 11 Because the trial court also found that CM's testimony was not admissible under ER404(b), we next determine whether admission of this evidence under RCW 10.58.090 was harmless.Gresham,173 Wash.2d at 432–33, 269 P.3d 207.Admission of improper evidence is harmless if there is no reasonable probability that the error materially affected the trial's outcome.¹⁰Gresham, 173 Wash.2d at 433, 269 P.3d 207.As our Supreme Court recognized in Gresham, evidence of prior sex offenses is highly prejudicial in sex offense cases.173 Wash.2d at 433, 269 P.3d 207.But, “Where a case is heard by a judge without a jury, a new trial should not be granted for error in the admission of evidence, if there remains substantial admissible evidence to support the findings, unless it appears that the findings are based on the evidence which should have been excluded.”State v. Ryan,48 Wash.2d 304, 308, 293 P.2d 399(1956).Moreover, a trial court commits reversible error only when it considers inadmissible evidence and the defendant can show that the verdict is not supported by sufficient admissible evidence, or that the trial court relied on the inadmissible evidence to make essential findings that it otherwise would not have made.State v. Read,147 Wash.2d 238, 245–46, 53 P.3d 26(2002).

¶ 12 Our conclusion that admission of the improper evidence was harmless rests largely on the fact that, here, the trial court was the trier of fact.The trial court made specific findings of fact and five conclusions of law to support its guilty verdicts.None of these findings of fact reference or rely in any way on the inadmissible evidence.¹¹In conclusions III and IV, regarding counts II and III, the trial court expressly relied solely on SEH's testimony.The trial court began conclusion III, “That S.E.H.'s account of the road trip to Astoria did in fact describe sexual contact by forcible compulsion.”CPat 16.It then began conclusion IV, “As stated in conclusion III., that S.E.H.'s testimony regarding the incident in the truck was credible.”CPat 17.Finally, in conclusion V, which involves count IV, the trial court relied on the testimony of SEH and her sister, SH.It began, “That ... S.E.H.'s description of what occurred on September 17th, 2007, was credible”; and, “[t]he testimony of S.H., S.E.H.'s sister is consistent with the account of S.E.H.”CPat 17–18.In each of the trial court's conclusions of law, the trial court expressly articulated the evidence on which it relied to arrive at its conclusions.At no point did the trial court state “that it relied on CM's testimony, and it instead relied solely on independently-admissible evidence as set forth in its findings of fact to support its guilty verdicts.”

¶ 13 In a jury trial, we do not have a window into the jury's decision-making process, and therefore, we have no way to know if the jury relied on inadmissible evidence.But here, we have the great benefit of detailed findings of fact and conclusions of law that allow us to see precisely what evidence the trial court relied on to reach each of its verdicts.CM's testimony was harmless because substantial, independently-admissible evidence supports the trial court's findings, and Gower does not demonstrate that the trial court relied on inadmissible evidence to make essential findings it otherwise would not have made.¹²SeeRead,147 Wash.2d at 245–46, 53 P.3d 26.Accordingly, the admission of improper evidence was harmless because there is no reasonable probability that the error materially affected the trial's outcome.SeeGresham,173 Wash.2d at 433,...