269 P.3d 207
Wash.2012Background
- Schemer and Gresham were charged with child molestation. State admitted prior sex-offense conduct under RCW 10.58.090 in Schemer’s case for common scheme/plan and in Gresham’s case for prior conviction context. Schemer’s trial admitted four prior victims with markedly similar conduct; D.A. also introduced a recorded phone confession and Schemer’s flight to Panama. Gresham’s prior conviction involved second-degree assault with sexual motivation against A.C. and the court found it admissible under RCW 10.58.090 but subject to ER 404(b). The Schemer court held admission for common scheme/plan was proper and any lack of a limiting instruction was harmless. The Gresham court held RCW 10.58.090 unconstitutional due to irreconcilable conflict with ER 404(b) and not harmless, reversing and remanding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of prior sex offenses for common scheme/plan | Schemer argues ER 404(b) bars the prior acts for character evidence. | State contends prior acts show a common scheme or plan and are admissible. | Admissible to prove common scheme/plan; harmless error for missing limiting instruction. |
| Constitutionality of RCW 10.58.090 | Gresham argues statute violates separation of powers by conflicting with ER 404(b). | State argues statute is constitutional and harmonizable with ER 404(b). | RCW 10.58.090 unconstitutional as irreconcilable with ER 404(b) and thus void. |
| Harmlessness of admission of Gresham’s prior conviction | Erroneous admission could contribute to conviction. | If statute unconstitutional, still consider harmlessness under nonconstitutional standard. | Admission not harmless; reversal and remand warranted. |
Key Cases Cited
- State v. Vy Thang, 145 Wn.2d 630 (2002) (established four-part test for admissibility of prior misconduct evidence)
- State v. Lough, 125 Wn.2d 847 (1995) (common scheme/plan framework; relevance and similarity requirements)
- State v. DeVincentis, 150 Wn.2d 11 (2003) (burden on proponent; proper-purpose analysis under ER 404(b))
- State v. Saltarelli, 98 Wn.2d 358 (1982) (limiting instruction requirement under ER 404(b))
- State v. Foxhoven, 161 Wn.2d 168 (2007) (standard for reviewing admission of 404(b) evidence; abuse of discretion)
- State v. Goebel, 36 Wn.2d 367 (1950) (when limiting instruction requested, court should instruct on purposes)
- City of Fircrest v. Jensen, 158 Wn.2d 384 (2006) (conflict between statute and court rule; harmonization approach)
- State v. Fields, 85 Wn.2d 126 (1975) (authority on proceduralRule-substantive law role; delegation of rulemaking)
- State v. Pavelich, 153 Wash. 379 (1929) (statutory vs. judicial rule interaction; substantive vs. procedural)
- Ray v. State, 116 Wn.2d 531 (1991) (lustful disposition exception to 404(b) in sexual offenses)