    /FILE
        IN CLERKS OFFICE
 IIIII&E COURT, STATE OF WASHINGTON

      DAmFEB 1 3 ~4
1kto.~~·-·.
         CHIEF       TICE




         IN THE SUPREME COURT OF THE STATE OF WASHINGTON



   STATE OF WASHINGTON,                                    NO. 88207-0

                              Respondent,                  ENBANC

                     v.
                                                           Filed    FEB 1 3 2014
   DAVID JOEL GOWER,

                              Petitioner.



           GORDON McCLOUD, J.-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. 1 Former RCW 10.58.090 (2008). In 2012, this court held that

  statute, RCW 10.58.090, was unconstitutional. State v. Gresham, 173 Wn.2d 405,

  413,269 P.3d 207 (2012). In 2009, between the statute's enactment arid subsequent


            1
          "[E]vidence of the defendant's commission of another sex offense or sex offenses
  is admissible, notwithstanding Evidence Rule 404(b)." Former RCW 10.58.090(1) (2008).
State v. Gower (David J), No. 88207-0



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

      The State prosecuted Gower for sex crimes against his 17-year-old

stepdaughter S.E.H. The prosecution took place in 2009, when bothER 404(b) and

RCW 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 ER 404(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

ER 404(b ), the evidence of the prior crimes relating to C.M. was admissible under

RCW 10.58.090. 2




       2
        The trial court found that the evidence relating to J.K. was not admissible under
either ER 404(b) or RCW 10.58.090.

                                           -2-
State v. Gower (David J), No. 88207-0



      The 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." Former RCW 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.

       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 Wn.2d at 413. Nevertheless, the Court of Appeals upheld Gower's

convictions in a published opinion. State v. Gower, 172 Wn. App. 31, 288 P.3d 665

(2012). Gower petitioned this court for review, and we granted his petition. State

v. Gower, 177 Wn.2d 1007, 300 P.3d 416 (2013).



                                           -3-
State v. Gower (David J), No. 88207-0




                                        ANALYSIS

      I.     STANDARD OF REVIEW

      A trial court's admission of evidence under RCW 10.58.090 that is

inadmissible under ER 404(b) is error. Gresham, 173 Wn.2d at 434. "When the

support ofRCW 10.58.090 is removed, we are simply left with evidence admitted

in violation ofER 404(b )." I d. at 433. Erroneous admission of evidence in violation

of ER 404(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.""' I d. (quoting State v.

Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986) (quoting State v. Cunningham, 93

Wn.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




                                         -4-
State v. Gower (David J), No. 88207-0



      The Court of Appeals acknowledged that the trial court erred by admitting

evidence under RCW 10.58.090 that was inadmissible under ER 404(b ). 3                It

nevertheless held that the error was harmless based on State v. Read, 14 7 Wn.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. The Court of Appeals relied on this

Read presumption to uphold Gower's conviction.

      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. 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 Wn.2d 593, 601, 464 P.2d 723 (1970) (citing State v. Bell, 59 Wn2d 338, 352,

368 P.2d 177 (1962)).



       3
          The State did not argue before the Court of Appeals that the prior sex offense
evidence was admissible under ER 404(b ), and neither the State nor Gower has briefed the
issue to this court.

                                           -5-
State v. Gower (David J), No. 88207-0



          The Read presumption is, therefore, inapplicable when the judge actually

"consider[ ed] matters which are inadmissible when making his [or her] findings."

Jd. 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 Wn.2d at 245-46 (citing Greater Kan. City Laborers Pension

Fundv. Superior Gen. Contractors, Inc., 104 F.3d 1050, 1057 (8th Cir. 1997)).

          The Court of Appeals below upheld Gower's conviction because Gower failed

to rebut the Read presumption. Gower, 172 Wn. App. at 40. We disagree with that

result.

          The Read presumption, as our case law makes clear, depends entirely on our

recognition that the trial judge lmows the rules of evidence and will therefore

discount truly inadmissible evidence when making a decision in a bench trial. Read,

147 Wn.2d at 245; Miles, 77 Wn.2d at 601. 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.

          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



                                            -6-
State v. Gower (David J.), No. 88207-0



under RCW 10.58.090." CP at 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 ER 404(b), but since it is admissible under [RCW] 10.58.090, the

State may utilize the evidence in its case in chief."        CP at 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

       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 Wn.2d at 433

(quoting State v. Saltarelli, 98 Wn.2d 358, 363, 655 P.2d 697 (1982)). Moreover,

the analysis does not tum 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. We are satisfied that such a reasonable

probability exists in this case for the following reasons.

       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." CP at 30. Indeed, the evidence might



                                           -7-
State v. Gower (David J), No. 88207-0



have been inadmissible had the judge ruled otherwise.              See former RCW

10.5 8. 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.

      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 Wn.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).

       Third, as the State conceded in its argument to the trial court, this was a

credibility case; the only corroborating evidence was a witness who corroborated

details of the aftermath of one incident rather than the incident itself. Just as in

Gresham, "[t]here were no eyewitnesses to the alleged incidents of molestation."

Gresham, 173 Wn.2d at 433.         And, as the Gresham court       implie~,   the highly

prejudicial evidence of prior sex offenses thus impermissibly bolstered the alleged

victim's credibility. Because credibility was the main issue in this case, just as it



                                           -8-
State v. Gower (David J), No. 88207-0



was the main issue in Gresham, we cannot say admission of that evidence was

harmless.

      We also note that the judge's findings of fact following the bench trial devote

a full page to the testimony of the prior crime victim, C.M., and two pages to the

testimony of the alleged victim in this case, S.E.H. Out of a total transcript length

of about 600 pages, C.M. gave 35 pages of testimony at the pretrial hearing, and

S.E.H. testified for 85 pages at trial. As the posttrial findings of fact make clear, the

trial judge gave significant weight and consideration to C.M.'s testimony. Although

the judge did not mention C.M. in his posttrial conclusions oflaw regarding Gower's

guilt, that does not alter our conclusion that it is reasonably probable the outcome

would have been different without the evidence of prior sex crimes. See id. (finding

improper admission of evidence not harmless in part because a large portion of the

testimony at trial "was predicated on the fact of Gresham's prior conviction").

                                    CONCLUSION

       In Gresham, we invalidated RCW 10.58.090 and held that admission of

otherwise inadmissible evidence under that statute was error subject to

nonconstitutional harmless error analysis. We also ruled that the admission of prior

sex offense evidence was not harmless where credibility was a primary issue in the

case and testimony regarding the prior sex offense featured prominently at trial. The



                                           -9-
State v. Gower (David J), No. 88207-0



Court of Appeals below distinguished Gresham on the basis that the present case

was a bench trial, and Gower could not overcome the presumption that the judge at

a bench trial does not consider inadmissible evidence. The Court of Appeals erred;

that presumption does not apply where, as here, the evidence was actually admissible

under the law at the time of the judge's decision to admit it, and the judge

affirmatively recognized its legal admissibility when admitting the evidence.

Without that presumption, this case is indistinguishable from Gresham.          We

therefore hold that the trial court's admission of evidence of Gower's prior sex

crimes constituted reversible error. We reverse Gower's conviction and remand to

the trial court for further proceedings consistent with this opinion.




                                          -10-
State v. Gower (David J), No. 88207-0




                                                 0

       WE CONCUR:




                                               S~,Q
                                                , I




                                        -11-
State v. Gower, No. 88207-0 (Gonzalez, J. dissenting)




                                         No. 88207-0

       GONZALEZ, J. (dissenting)-Evidence of David Gower's prior crimes was

improperly admitted against him. I agree with the majority that this was error. I also

agree with the majority that this was not constitutional error and that the Read

presumption that the trial judge did not rely on inadmissible evidence does not apply.

Majority at 5 (quoting State v. Read, 147 Wn.2d 238, 242, 53 P.3d 26 (2002)). But

we do not reverse convictions based on harmless error, and a careful review of the

trial judge's well-reasoned decision persuades me that the error was harmless. I

respectfully dissent.

       We will reverse for nonconstitutional error only if "within reasonable

probabilities, had the error not occurred, the outcome of the trial would have been

materially affected." State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)

(citing State v. Craig, 82 Wn.2d 777, 514 P.2d 151 (1973)). Gower makes no

meaningful attempt to show us that the outcome of his trial would have been different

but for the application of former RCW 10.58.090 (2008). This was an understandable

strategic decision. Focusing on the fact of the error, rather than its consequence,

allowed Gower to focus on the fact evidence was admitted against him under an

unconstitutional statute, as it was in State v. Gresham, 173 Wn.2d 405, 269 P.3d 207


                                                1
State v. Gower, No. 88207-0 (Gonzalez, J. dissenting)




(2012). In Gresham, of course, we reversed under similar facts because there was "a

reasonable probability that absent this highly prejudicial evidence of Gresham's prior

sex offense, the jury's verdict would have been materially affected." !d. at 433-34

(citation omitted) (citing State v. Saltarelli, 98 Wn.2d 538, 363, 655 P.2d 697 (1982)).

But both Gresham and Saltarelli were jury trials. The court could only speculate on

the trier of fact's decision making process.

       In contrast, we need not speculate here. Gower was tried before a judge who

provided us with lengthy findings of fact and conclusions of law detailing the facts he

relied upon in both convicting and acquitting. The judge acquitted Gower of first

degree rape of a child against S .E.H. because the victim "provided too little detail to

credit her account as proof beyond a reasonable doubt" and acquitted him of second

degree assault with sexual motivation on the grounds the state failed to prove beyond

a reasonable doubt that the spanking in question "was not authorized parental

discipline under RCW 9A.l6.100." Clerk's Papers (CP) at 16, 18. The judge found

Gower guilty of incest and one count of indecent liberties against S.E.H. based on her

testimony that she feared physical punishment if she did not comply with his

demands. He also found Gower guilty of a second count of indecent liberties based

on S.E.H.'s testimony, as corroborated by her sister. While the trial judge referenced

Gower's prior convictions in his recitation of the facts, in no point in his conclusions

of law did he rely on them. Nor did he need to do so; the testimony alone was

sufficient to convict. See Gresham, 173 Wn.2d at 433.




                                                2
State v. Gower, No. 88207-0 (Gonzalez, J. dissenting)




       True, in admitting Gower's prior convictions, the trial judge accepted the

State's characterization of the evidence as "necessary to the State's case." CP at 30.

But this must be read in context. The State successfully moved in a preliminary

motion to admit the evidence in its case in chief. The State was doubtlessly acting on

the good-faith belief that former RCW 10.58.090 (2008) was constitutional and was

doubtlessly eager to give the trier of fact all evidence that supported its case. The

judge's characterization of the evidence came in that context. But if the evidence of

prior convictions had been so prejudicial as to shake our confidence in the conclusion,

Gower likely would have been convicted on all five counts. Instead, the trial judge

carefully parsed the evidence and acquitted him on two of the charges. Given that,

and given that the judge had the opportunity to consider both Gower's and S.E.H. 's

testimony, I am confident that the erroneously admitted prior convictions had no

material effect on the outcome of this case.

       The error was harmless. Thus, I respectfully dissent.




                                                3
State v. Gower, No. 88207-0 (Gonzalez, J. dissenting)




                                                        9·




                                                4
