State v. Gresham

Decision Date05 January 2012
Docket Number84150–1.,Nos. 84148–9,s. 84148–9
Citation173 Wash.2d 405,269 P.3d 207
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Michael Tyrone GRESHAM, Petitioner.State of Washington, Respondent, v. Roger Alan Scherner, Petitioner.


West Codenotes

Held Unconstitutional

West's RCWA 10.58.090 Maureen Marie Cyr, Washington Appellate Project, Eric William Lindell, Lindell Law Offices, Seattle, WA, for Petitioner.

Mary Kathleen Webber, Snohomish County Prosecutors Office, Everett, WA, Brian Martin McDonald, King County Prosecutor's Office, Seattle, WA, for Respondent.Laura Jones, King County Sexual Assault Resource Center, Renton, WA, amicus counsel for King County Sexual Assault Resource Center.Suzanne Lee Elliott, Attorney at Law, Amy Irene Muth, Law Office of Amy Muth, PLLC, Seattle, WA, amicus counsel for Washington Association of Criminal Defense Lawyers.OWENS, J.

[173 Wash.2d 413] ¶ 1 Roger Scherner and Michael Gresham were separately charged with child molestation. At trial, relying on the recently enacted RCW 10.58.090, the State successfully introduced evidence that Scherner and Gresham had previously committed sex offenses against other children. In Scherner's case, King County Superior Court ruled that evidence of his prior acts of molestation was also admissible for the purpose of demonstrating a common scheme or plan; in Gresham's case, Snohomish County Superior Court held that evidence of Gresham's prior conviction for second degree assault with sexual motivation was only admissible pursuant to RCW 10.58.090. We hold that the trial court in Scherner's case did not abuse its discretion in admitting the evidence for the purpose of showing a common scheme or plan and that its failure to give a limiting instruction, once requested, was harmless error. We therefore affirm Scherner's conviction. With respect to State v. Gresham, No. 84148–9, because RCW 10.58.090 irreconcilably conflicts with ER 404(b) and governs a procedural matter, we hold that its enactment violates the separation of powers doctrine and that the statute is, accordingly, unconstitutional.1 We further hold that the admission of evidence of Gresham's prior conviction was not harmless error and reverse his conviction and remand for further proceedings.

A. Scherner

¶ 2 In 2007, the State charged Scherner with first degree rape of a child and first degree child molestation. These charges, which were later amended to three charges of first degree child molestation, arose out of a trip Scherner took with his wife and his granddaughter, M.S., from California, where all three lived, to Bellevue, Washington, in the summer of 2001 or 2002 to visit Scherner's sister, Susan Tillotsen. At the time, M.S. was either seven or eight years old.

¶ 3 While at Tillotsen's house, M.S. slept upstairs in a bedroom with her grandmother. Scherner slept downstairs on a pullout couch. The first night, after Tillotsen and M.S.'s grandmother had gone to bed, M.S. went downstairs to get a glass of water and go to the bathroom, not expecting Scherner to be awake. Scherner was awake, however, and invited M.S. to lie down next to him. When M.S. began to walk upstairs, Scherner again invited her to lie down with him, saying, “It's not going to take long.” Scherner 4 Report of Proceedings (RP) at 482. [N]ot wanting to cause a huge fuss,” M.S. crawled under the covers he had pulled back. Id. Scherner pushed up her nightgown, placed his hand on her stomach, and then fondled her vagina. M.S. pulled away and ran upstairs. Several nights later, after a movie had ended and the other adults had gone to bed, Scherner again suggested M.S. lie down with him on his bed and again he fondled her genitals. A third incident occurred when M.S. went to use the bathroom downstairs; she walked out of the bathroom to find Scherner awake and sitting up. Scherner first asked if she wanted to lie down with him, and, when she said no, he insisted, telling her it would help him go to sleep faster. When M.S. lay down next to him, he took off her nightgown and held her for around 10 minutes with one hand over her groin. This time he went further, grabbing her wrist and putting her hand on his penis.

¶ 4 Out of embarrassment and confusion, M.S. did not reveal Scherner's actions until May 2003. When M.S.'s mother found out, she immediately reached out to Child Protective Services, which led to a police investigation. In the course of the police investigation, evidence of prior instances of child molestation by Scherner came to light. At trial, the State sought to admit testimony of four prior victims: Jobbie Spillane and Shaun Oducado, Scherner's nieces; Suzanne Williamson, the child of close friends of the Scherners; and Naseema Kahn, Scherner's granddaughter. While Spillane was between the ages of 5 and 12 years old, she and her family regularly stayed at Scherner's home around holidays. Once, when Spillane was four or five years old, Scherner took her to the master bedroom and fondled her vagina and performed oral sex on her. For around 15 years, when Spillane stayed overnight at Scherner's home, he would come into her room and engage in similar acts of molestation. This abuse ended in 1987. Scherner's sexual abuse of Oducado occurred when she was 13 years old and consisted of Scherner entering her room at night while she was staying at Scherner's home and performing oral sex on her. Scherner's molestation of Williamson occurred around 1975, when she was around 13 years old, on a trip to Lake Tahoe with several other families. One night after the other adults had gone to bed, Scherner approached Williamson, who was sleeping on the couch, began rubbing her back, and then rubbed her vagina. Kahn was sexually abused by Scherner around 1986 and 1987, between the ages of six and seven. Twice in hotel rooms on trips to Seattle and Disneyland, Scherner went to Kahn's bed at night while others slept and performed oral sex on her.

¶ 5 Prior to trial, the superior court determined that evidence of Scherner's prior sex offenses involving Spillane, Oducado, Williamson, and Kahn was admissible both under RCW 10.58.090 and, alternatively, to demonstrate the existence of a common scheme or plan.

¶ 6 At trial, in addition to the testimony of M.S. and Scherner's prior victims, the State introduced further evidence of Scherner's guilt. The State played an audio recording of a phone call that M.S. made to Scherner confronting him about the molestation. That audio recording included the following exchanges:

M.: Um I just want you to tell me why you did this to me? Why did you touch me?

S: Well, I'm afraid that there's two things that happened. Um, one I had too many drinks and I really didn't realize what was happening, and uh two, I just felt ... very strongly for you I like you very much, love you and uh I guess I thought [I] was doing the right thing instead of the wrong thing.


M: Why did you touch me in my vagina why did you squeeze me and touch me in places that I don't want to be touched? I[']m too young, I was too young for that.

S: Well uh all I got to say, all we can do is, all I can do is say I am sorry I did it. I wish I hadn't and I though[t] I had explained to you why I probably did it. I really had way too much to drink and I wasn't myself.

M: I just need an answer, I was so confused there was everything going on left and right.

S: Well you can ... understand that I am sorry that it happened and I wish it didn't happen, but there is nothing that I can do to repair it, all I can do is say um understand that I made a mistake. And I am very very sorry that it happened. So try to think that over and I think it will make you feel better if you realize that I made a mistake and you didn't....


M: Okay I just don't want it happening to anymore people.

S: It will not, don't you worry about that. I certainly had a wake up call when this all happened.


M: It made my trip to Seattle really bad.

S: Yes, I am sure, but you just have to understand that you have to go on with life and you're a great kid. And uh you don't have to feel, feel put down about it all because it's not your fault it[']s mine.

Scherner State's Ex. 33. Nowhere in the recording did Scherner express confusion or surprise at the allegations nor did he deny them. The State also presented the jury with evidence that Scherner had failed to appear for his originally scheduled trial on February 28, 2008, and instead had absconded to Panama City, Florida, using a false name and carrying more than $14,000 in cash. Scherner was promptly discovered and apprehended on March 6, 2008. In addition to the State's evidence, the jury had the opportunity to assess Scherner's credibility when he testified in his defense.

¶ 7 The jury convicted Scherner of the three charged counts of first degree child molestation. The court sentenced Scherner to 130 months for each count to be served concurrently. The Court of Appeals affirmed Scherner's conviction. State v. Scherner, 153 Wash.App. 621, 225 P.3d 248 (2009). We granted review and consolidated Scherner's case with State v. Gresham, No. 84148–9. State v. Scherner, 168 Wash.2d 1036, 233 P.3d 888 (2010).

B. Gresham

¶ 8 In 2008, Gresham was charged with four counts of child molestation in the first degree. The conduct underlying these charges took place between December 1998 and September 2003 and involved a single victim—J.L. J.L. knew Gresham and his wife through her mother and considered Mrs. Gresham to be her godmother. The Greshams also had a daughter, K.G., who was five years younger than J.L., and J.L. would stay overnight at the Greshams' house approximately once a month. The jury was presented with a number of incidents of sexual contact. Three incidents of molestation occurred while J.L. was spending the night at the Greshams' home; on each occasion Gresham approached J.L. while he believed she was asleep and fondled her. On other...

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