State v. Scherner

• Citation: 153 Wash.App. 621,225 P.3d 248
• Decision Date: 21 December 2009
• Docket Number: No. 62507-1-I.,62507-1-I.
• Parties: STATE of Washington, Respondent, v. Roger Alan SCHERNER, Appellant.
• Court: Washington Court of Appeals

225 P.3d 248

153 Wash.App. 621

STATE of Washington, Respondent, v. Roger Alan SCHERNER, Appellant.

No. 62507-1-I.

Court of Appeals of Washington, Division 1.

December 21, 2009.

Eric William Lindell, Lindell Law Offices, Seattle, WA, for Appellant.

Brian Martin McDonald, King County Prosecuting Attorney, Seattle, WA, for Respondent.

PUBLISHED IN PART

COX, J.

¶ 1 Roger Scherner appeals his convictions of three counts of first degree child molestation. He fails in his burden to prove beyond a reasonable doubt that RCW 10.58.090, legislation that permits but does not require admission of evidence of prior "sexual offenses"¹ in sex offense prosecutions, is unconstitutional. That statute is not an ex post facto law and does not violate the separation of powers between the legislative and judicial branches. Moreover, it does not violate either the equal protection or the due process clauses of the state or federal constitutions. Alternatively, the evidence of his prior "sexual offenses" that the trial court admitted under the statute was also admissible as a common scheme or plan under ER 404(b). In sum, the trial court did not abuse its discretion in admitting the evidence of prior sexual offenses in this case. Because there are no other meritorious challenges to his convictions, we affirm.

¶ 2 Roger Scherner is the grandfather of M.S. Both Scherner and M.S. reside in California. During the summer of 2001 or 2002, when M.S. was seven or eight years old, she joined her grandparents on a car trip to visit relatives in Bellevue, Washington. During the trip M.S. stayed in hotels with her grandparents and at the house of Scherner's sister in Bellevue.

¶ 3 In May 2003, M.S. revealed that she had been molested by Scherner during the trip to Washington. Both the Monterey County Sheriff's Department and the Bellevue Police Department were involved in investigating the case over the course of the next three years. During this time, M.S. revealed that she had been molested by Scherner prior to the trip to Washington. Beginning at a time when M.S. was five or six years old, Scherner molested her when she spent the night at his house. M.S. described the molestation primarily as genital stroking, both over and under her underwear.

Prior Sexual Misconduct

¶ 4 The investigation also revealed that Scherner had previously molested other women when they were children. Scherner's previous victims included J.S., S.O., S.W., and N.K. Scherner and J.S. are relatives. Scherner molested J.S. from the time she was five years old until she was a teenager. The molestation involved genital touching, digital penetration, and oral sex. The misconduct usually took place at Scherner's house.

¶ 5 Scherner and S.O. are also relatives. Scherner molested S.O. when she was thirteen years old. Scherner rubbed her nipples and performed oral sex on her when she spent the night at his house.

¶ 6 Scherner's family befriended S.W.'s family when S.W. was growing up. S.W. was thirteen when Scherner molested her during a family ski trip. He rubbed her genitals while she was in bed in the condominium where both families were staying.

¶ 7 Scherner and N.K. are relatives. N.K. took two car trips with Scherner and his wife when she was between six and eight years old. During the first trip, to Washington, Scherner molested N.K. while they were staying in a hotel room. On the second trip, to Disneyland, Scherner again molested N.K. while they were staying in a hotel room. Both times Scherner performed oral sex on N.K.

¶ 8 At trial, the court admitted testimony of the above described sexual offenses from J.S., S.O., S.W., and N.K. under RCW 10.58.090. The court also admitted the same evidence as a common scheme or plan under ER 404(b). The jury convicted Scherner as charged. The court sentenced him to 135 months in confinement for each count, to be served concurrently.

CONSTITUTIONAL CHALLENGES

¶ 9 Scherner primarily argues that RCW 10.58.090 is unconstitutional under the state and federal constitutions. Specifically, he argues that it violates the prohibition against ex post facto laws, the separation of powers doctrine, due process, and equal protection. We disagree.

¶ 10 A statute is presumed constitutional and the party challenging it has the burden to prove beyond a reasonable doubt that it is unconstitutional.² "When a party claims both state and federal constitutional violations, we turn first to our state constitution."³

¶ 11 "The primary goal of statutory interpretation is to ascertain and give effect to the legislature's intent and purpose .... If, among alternative constructions, one or more would involve serious constitutional difficulties, the court will reject those interpretations in favor of a construction that will sustain the constitutionality of the statute."[⁴]

¶ 12 This court reviews de novo challenges to the constitutionality of legislation.⁵

¶ 13 RCW 10.58.090 provides in part:

(1) 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 ER 404 (b), if the evidence is not inadmissible pursuant to ER 403.

(2) In a case in which the state intends to offer evidence under this rule, the attorney for the state shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.

...

(4) For purposes of this section, "sex offense" means:

(a) Any offense defined as a sex offense by RCW 9.94A.030;

(b) Any violation under RCW 9A.44.096 (sexual misconduct with a minor in the second degree); and

(c) Any violation under RCW 9.68A.090 (communication with a minor for immoral purposes).

(5) For purposes of this section, uncharged conduct is included in the definition of "sex offense."

(6) When evaluating whether evidence of the defendant's commission of another sexual offense or offenses should be excluded pursuant to Evidence Rule 403, the trial judge shall consider the following factors:

(a) The similarity of the prior acts to the acts charged;

(b) The closeness in time of the prior acts to the acts charged;

(c) The frequency of the prior acts;

(d) The presence or lack of intervening circumstances;

(e) The necessity of the evidence beyond the testimonies already offered at trial;

(f) Whether the prior act was a criminal conviction;

(g) Whether the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence; and

(h) Other facts and circumstances.

¶ 14 We begin our analysis by making some preliminary observations. First, contrary to Scherner's characterization, nothing in the text of RCW 10.58.090 permits admission of "unproven misconduct evidence."⁶ The language of the statute does not indicate that the proponent of admission of sexual offense evidence is relieved of the common law burden of proving by a preponderance of the evidence that the misconduct occurred.⁷ To the contrary, the legislative history states: in a criminal action charging a sex offense, evidence of the defendant's commission of other sex offenses is admissible, notwithstanding Washington's ER 404(b), if relevant to any fact in issue.⁸

¶ 15 Second, this same legislative history states that relevancy of the evidence remains a requirement for admission.⁹ This is consistent with the existing admissibility requirements of the common law.¹⁰

¶ 16 Third, the statute expressly requires courts to consider an expanded nonexclusive list of balancing factors in conducting an ER 403 balancing test.¹¹ We note that the statute expressly retains in subsection (6)(g) the traditional ER 403 test that courts have applied.¹²

¶ 17 Lastly, the primary issue before us is whether the challenged statute is unconstitutional, not whether the statute should have been subject to the supreme court's rule making process.¹³

Ex Post Facto

¶ 18 Scherner argues that RCW 10.58.090 violates the prohibition against ex post facto laws. We disagree.

¶ 19 The United States Constitution declares that "[n]o state shall ... pass any ... ex post facto law."¹⁴ The Washington Constitution includes a virtually identical prohibition: "No ... ex post facto law ... shall ever be passed."¹⁵

¶ 20 Both the United States Supreme Court and the Washington Supreme Court have repeatedly endorsed the analytical framework articulated in Calder v. Bull¹⁶ for analyzing ex post facto violations.¹⁷ This framework identifies four categories of ex post facto laws:

1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.¹⁸

¶ 21 The fourth category is at issue here. That same category was also at issue in the state supreme court's decision in Ludvigsen v. City of Seattle.¹⁹

¶ 22 In Ludvigsen, the defendant was charged with driving while intoxicated (DWI) in 2002 after submitting to a breath test.²⁰ He was not tried and convicted until 2005.²¹ Ludvigsen appealed his DWI conviction, arguing that a 2004 legislative amendment, which removed the requirement that the breath test machine's thermometer be certified by a thermometer traceable to National Institute of Standards and Testing standards, was an ex post facto law.²²

¶ 23 Discussing the...