Opinion Information Sheet

			

          IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                )                 No. 84148-9
                                                    )                 (consolidated with
                             Respondent,            )                 No. 84150-1)
                                                    )
       v.                                           )
                                                    )
MICHAEL TYRONE GRESHAM,                             )
                                                    )
                             Petitioner.            )
                                                    )
                                                    )
STATE OF WASHINGTON,                                )
                                                    )
                             Respondent,            )
                                                    )
       v.                                           )                   En Banc
                                                    )
ROGER ALAN SCHERNER,                                )
                                                    )           Filed  January 5, 2012
                             Petitioner.            )
                                                    )

       OWENS, J.  --  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  

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

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.

                                            FACTS

       A.     Scherner

       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 

1 Because we resolve the case on this basis, we do not address the remaining challenges 
to the constitutionality of RCW 10.58.090.

                                               2 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

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.

       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 

                                               3 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

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.

       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, 

                                               4 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

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.

       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.

       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.

              . . . .

                                               5 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

              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 

                                               6 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

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.

       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 Wn. 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 Wn.2d 1036, 233 P.3d 888 (2010).

       B.     Gresham

       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 

                                               7 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

each occasion Gresham approached J.L. while he believed she was asleep and fondled 

her.  On other occasions, Gresham would wrestle with J.L., making contact of a sexual 

nature.  The final incident occurred while Gresham was baby-sitting J.L. and her 

siblings in J.L.'s home; Gresham snuck into J.L.'s room while she appeared to be 

asleep and fondled her beneath the covers.

       J.L. first revealed the molestation to her mother approximately one year after 

the final incident.  Several years later, she reported the molestation to her counselor as 

part of a drug and alcohol analysis.  Her counselor reported the information, leading to 

a criminal investigation.

       Prior to Gresham's trial, the court held a hearing to determine the admissibility 

of evidence of his prior conviction.  That conviction involved the molestation of a 

young girl, A.C., over a period of four years.  In that case, Gresham was charged with 

first degree rape of a child and pleaded guilty to second degree assault with sexual 

motivation in 1998.  Following the hearing, the trial court made detailed findings of 

fact and conclusions of law, including that the State had not proved the existence of a 

common scheme or plan and that ER 404(b) therefore barred admission of evidence of 

Gresham's prior crime.  The court found, however, that the same evidence of 

Gresham's sexual abuse of A.C. was admissible under RCW 10.58.090.

       The jury convicted Gresham of three counts of first degree child molestation 

                                               8 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

and one count of attempted first degree child molestation.  For each count, the trial 

court sentenced Gresham to life in prison without the possibility of parole pursuant to 

RCW 9.94A.570 and former RCW 9.94A.030(37)(b) (2008).  Gresham appealed the 

admission of evidence about his assault of A.C., arguing that RCW 10.58.090 violates 

the separation of powers and, as applied to him, is an ex post facto law.  The Court of 

Appeals rejected both of Gresham's arguments and affirmed his conviction.  State v. 

Gresham, 153 Wn. App. 659, 663, 223 P.3d 1194 (2009).  We granted review and 

consolidated Gresham's case with State v. Scherner, No. 84150-1.  State v. Gresham, 

168 Wn.2d 1036, 233 P.3d 888 (2010).

                                           ISSUES

       1.  Is evidence of prior sex offenses by Scherner admissible for the purpose of 

demonstrating a common scheme or plan?

       2.  Is RCW 10.58.090 constitutional?

                                         ANALYSIS

       A. Standard of Review

       Issues of constitutional and statutory interpretation are questions of law, and we 

review questions of law de novo.  Optimer Int'l, Inc. v. RP Bellevue, LLC, 170 Wn.2d 

768, 771, 246 P.3d 785 (2011).  Similarly, "[i]nterpretation of an evidentiary rule is a 

question of law, which we review de novo."  State v. Foxhoven, 161 Wn.2d 168, 174, 

                                               9 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

163 P.3d 786 (2007).  Provided the trial court has interpreted the rule correctly, we 

review the trial court's determination to admit or exclude evidence for an abuse of 

discretion.  Id.

                                               10 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

       B. Alternative Admissibility of Scherner's Prior Sex Offenses

       For Scherner, the admissibility of evidence of his prior sex offenses under the 

Washington Rules of Evidence is dispositive.  We may affirm the trial court on any 

correct ground.  Nast v. Michels, 107 Wn.2d 300, 308, 730 P.2d 54 (1986).  Even 

absent RCW 10.58.090, the trial court ruled that evidence of Scherner's prior sex 

offenses was admissible for the proper purpose of showing a common scheme or plan.  

Scherner argues that the evidence of prior sex offenses is inadmissible under ER 

404(b) and that the absence of a limiting instruction is reversible error. We find that 

the trial court did not abuse its discretion in admitting the evidence.  We further hold 

that, while the trial court erred in refusing to give an appropriate limiting instruction 

upon Scherner's request, that error was harmless in the context of the case.

       1. The Evidence Was Admissible

       Addressing the admissibility of Scherner's prior sex offenses begins with a 

careful understanding of ER 404(b).  ER 404(b) provides, in full:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the 
       character of a person in order to show action in conformity therewith.  It 
       may, however, be admissible for other purposes, such as proof of motive, 
       opportunity, intent, preparation, plan, knowledge, identity, or absence of 
       mistake or accident.

The basic operation of the rule follows from its plain text: certain types of evidence 

(i.e., "[e]vidence of other crimes, wrongs, or acts") are not admissible for a particular 

                                               11 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

purpose (i.e., "to prove the character of a person in order to show action in conformity 

therewith").  Id.  The same evidence may, however, be admissible for any other 

purpose, depending on its relevance and the balancing of its probative value and 

danger of unfair prejudice; the list of other purposes in the second sentence of ER 

404(b) is merely illustrative. The burden of demonstrating a proper purpose is on the 

proponent of the evidence.  State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 

(2003). Where evidence is admissible for a proper purpose, the party against whom 

the evidence is admitted is entitled, upon request, to a limiting instruction informing 

the jury that the evidence is only to be used for the proper purpose and not for the 

purpose of proving the character of a person in order to show that the person acted in 

conformity with that character.  State v. Saltarelli, 98 Wn.2d 358, 362, 655 P.2d 697 

(1982).

       Properly understood, then, ER 404(b) is a categorical bar to admission of 

evidence for the purpose of proving a person's character and showing that the person 

acted in conformity with that character.  Id. ("In no case, . . . regardless of its 

relevance or probativeness, may the evidence be admitted to prove the character of the 

accused in order to show that he acted in conformity therewith." (emphasis added)).  

Critically, there are no "exceptions" to this rule.  5 Karl B. Tegland, Washington 

Practice: Evidence Law and Practice § 404.9, at 497 (5th ed. 2007). Instead, there is 

                                               12 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

one improper purpose and an undefined number of proper purposes. Though the other 

purposes are sometimes referred to as exceptions, this is simply legal shorthand for 

"other purposes."  In most circumstances, this shorthand is of no consequence and 

creates little risk of misunderstanding.  Only when the term "exception" is read out of 

context and the plain text of ER 404(b) is ignored does the possibility of confusion 

arise.

       Washington courts have developed a thorough analytical structure for the 

admission of evidence of a person's prior crimes, wrongs, or acts.  To admit evidence 

of a person's prior misconduct, "the trial court must (1) find by a preponderance of the 

evidence that the misconduct occurred, (2) identify the purpose for which the evidence 

is sought to be introduced, (3) determine whether the evidence is relevant to prove an 

element of the crime charged, and (4) weigh the probative value against the prejudicial 

effect."  State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002) (citing State v. 

Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995)).  The third and fourth elements 

ensure that the evidence does not run afoul of ER 402 or ER 403, respectively.  The 

party seeking to introduce evidence has the burden of establishing the first, second, 

and third elements.  DeVincentis, 150 Wn.2d at 17; Lough, 125 Wn.2d at 853.  It is 

because of this burden that evidence of prior misconduct is presumptively 

inadmissible.  DeVincentis, 150 Wn.2d at 17.

                                               13 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

       One proper purpose for admission of evidence of prior misconduct is to show 

the existence of a common scheme or plan.  Id.  There are two instances in which 

evidence is admissible to prove a common scheme or plan:  (1) "where several crimes 

constitute constituent parts of a plan in which each crime is but a piece of the larger 

plan" and (2) where "an individual devises a plan and uses it repeatedly to perpetrate 

separate but very similar crimes."  Lough, 125 Wn.2d at 854-55.  Scherner's case 

involves the second category.  Evidence of this second type of common scheme or 

plan is admissible because it is not an effort to prove the character of the defendant.  

Instead, it is offered to show that the defendant has developed a plan and has again put

that particular plan into action.  Id. at 861.  In order to introduce evidence of the 

second type of common scheme or plan, the prior misconduct and the charged crime 

must demonstrate "such occurrence of common features that the various acts are 

naturally to be explained as caused by a general plan of which" the two are simply 

"individual manifestations."  Id. at 860.  Mere "similarity in results" is insufficient.  Id.  

In DeVincentis, we clarified that while the prior act and charged crime must be 

markedly and substantially similar, the commonality need not be "a unique method of 

committing the crime."  150 Wn.2d at 19-21.

       The trial court admitted evidence of Scherner's molestation of four other girls 

as evidence of a common scheme or plan after finding, by a preponderance of the 

                                               14 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

evidence, that the alleged prior sex offenses actually occurred and that they exhibited 

such markedly similar conduct that it was "abundantly clear that they show . . . an 

overarching plan."  Scherner 1 RP at 119.  The court also specifically found that the 

evidence was relevant and weighed the prejudice and probative value.  Because the 

trial court correctly interpreted the rules of evidence, our review is for abuse of 

discretion.  Foxhoven, 161 Wn.2d at 174.  With respect to evidence of Scherner's 

abuse of Williamson and Kahn, the implementation of the crime was markedly similar 

to the charged crime: Scherner took a trip with young girls and at night, while the other 

adults were asleep, approached those girls and fondled their genitals.  Though there 

are some differences (e.g., the presence of oral sex), these differences are not so great 

as to dissuade a reasonable mind from finding that the instances are naturally to be 

explained as "individual manifestations" of the same plan.  Lough, 125 Wn.2d at 860.  

Though the abuse of Spillane and Oducado took place in Scherner's home, the 

remaining details share such a common occurrence of fact with the molestation of 

M.S. that we cannot say that the trial court abused its discretion in determining that 

these were merely individual manifestations of a common plan.

       Finally, we are not inclined to retreat from our holding in DeVincentis that the 

relevant commonality need not be "a unique method of committing the crime." 150 

Wn.2d at 20-21.  Accordingly, we reject Scherner's argument that evidence of prior 

                                               15 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

misconduct admitted for the purpose of showing a common scheme or plan must be 

distinct from common means of committing the charged crime.

       In sum, we hold that the trial court did not err in admitting evidence of 

Scherner's prior molestations of Williamson, Kahn, Spillane, and Oducado for the 

purpose of demonstrating that Scherner had developed a common plan or scheme,

which he again put into action when he molested M.S.

       2. The Trial Court Erred in Failing To Give a Limiting Instruction, but the 
           Error Was Harmless

       If evidence of a defendant's prior crimes, wrongs, or acts is admissible for a 

proper purpose, the defendant is entitled to a limiting instruction upon request.2  

Foxhoven, 161 Wn.2d at 175; Saltarelli, 98 Wn.2d at 362.  An adequate ER 404(b) 

limiting instruction must, at a minimum, inform the jury of the purpose for which the 

evidence is admitted and that the evidence may not be used for the purpose of 

concluding that the defendant has a particular character and has acted in conformity 

with that character.  Cf. Lough, 125 Wn.2d at 864.

       Scherner requested a limiting instruction, but the specific instruction his lawyer 

proposed was flawed.  The proposed instruction would have informed the jury that 

evidence admitted to demonstrate a common scheme or plan could not be considered 

2 We recently reaffirmed our long-standing rule that the trial court has no duty to give an 
ER 404(b) limiting instruction sua sponte.  State v. Russell, 171 Wn.2d 118, 123-24, 249 
P.3d 604 (2011).

                                               16 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

"as evidence that the defendant's conduct in this case conformed with the conduct 

alleged in the prior allegation."  Scherner Clerk's Papers at 272.  This is an incorrect 

statement of the law.  Showing conformity between the charged conduct and a 

common scheme or plan, as evidenced by prior conduct, is precisely what makes the 

evidence relevant. The State correctly argues that the general rule is that the trial court 

may properly refuse to give the requested instruction if it is incorrect.  Crossen v. 

Skagit County, 100 Wn.2d 355, 360-61, 669 P.2d 1244 (1983).  As such, the trial court 

properly refused to give the proposed erroneous instruction.  This does not end the 

inquiry, however. While it was not error for the trial court to refuse to give an 

incorrect instruction, we hold that it was error, in this case, for the trial court to fail to 

give a correct instruction.

       At least in the context of ER 404(b) limiting instructions, once a criminal 

defendant requests a limiting instruction, the trial court has a duty to correctly instruct 

the jury, notwithstanding defense counsel's failure to propose a correct instruction.  

This follows from our pronouncement in State v. Goebel, 36 Wn.2d 367, 379, 218 

P.2d 300 (1950), that "the court should state to the jury whatever it determines is the 

purpose (or purposes) for which the evidence is admissible; and it should also be the 

court's duty to give the cautionary instruction that such evidence is to be considered 

for no other purpose or purposes." (Emphasis added.) This approach is also more 

                                               17 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

efficient and better prevents the possibility of unfair prejudice than does the alternative 

of holding that defense counsel's failure to craft a proper instruction is waiver of the 

request for a limiting instruction, thereby relegating the defendant to a personal 

restraint petition alleging ineffective assistance of counsel.

       Nonetheless, failure to give an ER 404(b) limiting instruction may be harmless.  

State v. Mason, 160 Wn.2d 910, 935, 162 P.3d 396 (2007). The error is harmless 

"'unless, within reasonable probabilities, had the error not occurred, the outcome of 

the trial would have been materially affected.'"  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)).  Had a limiting instruction been given, and the jury had accordingly 

been prohibited from considering the evidence of Scherner's prior sex offenses for the 

purpose of showing his character and action in conformity with that character, the 

remaining overwhelming evidence of Scherner's guilt persuades us that the outcome of 

his trial would not have been materially affected.  M.S.'s detailed testimony, evidence 

of Scherner's flight from prosecution, the jury's opportunity to assess Scherner's 

credibility, and, perhaps most damning, the recorded phone conversation in which 

Scherner all but admits his molestation of M.S. all, taken together, establish that there 

is no reasonable probability that the outcome would have been materially affected by 

the elimination of the impermissible inference.

                                               18 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

       In sum, we hold that evidence that Scherner had previously molested the four 

children was admissible for the purpose of demonstrating a common scheme or plan 

and the trial court's failure to give a limiting instruction was harmless error.  This is 

dispositive of Scherner's appeal.  Scherner's conviction is affirmed.

                                               19 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

       C. Constitutionality of RCW 10.58.090

       1. Background Information on RCW 10.58.090

       In 2008, the legislature enacted legislation designed "to ensure that juries 

receive the necessary evidence to reach a just and fair verdict" in cases in which the 

criminal defendant is accused of a sex offense.  Laws of 2008, ch. 90, §§ 1, 2, codified 

as RCW 10.58.090.3 The law provides that in any criminal prosecution for 

3 RCW 10.58.090 provides, in full:
       (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 Evidence Rule 404(b), if the 
       evidence is not inadmissible pursuant to Evidence Rule 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.
              (3)  This section shall not be construed to limit the admission or 
       consideration of evidence under any other evidence rule.
              (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;

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State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

commission 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."  RCW 10.58.090(1).  

The law specifically allows for admission of prior uncharged sex offenses.  RCW 

10.58.090(5).  Prior to admitting evidence of the defendant's commission of another 

sex offense, the trial court must consider whether the evidence is made inadmissible 

by ER 403, and the statute provides a nonexclusive list of considerations that trial 

courts must consider in making that determination.  RCW 10.58.090(6). In a number 

of respects, RCW 10.58.090 resembles Federal Rules of Evidence 413 and 414, which 

apply to trials in which criminal defendants are charged with sexual assault and child 

molestation, respectively.

       As the previous discussion of ER 404(b) makes clear, evidence of a criminal 

defendant's commission of other sex offenses was already admissible for proper 

purposes prior to the legislature's enactment of RCW 10.58.090.  In this context, ER 

              (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.

                                               21 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

404(b) only prohibits the admission of such evidence for the purpose of demonstrating 

the criminal defendant's character in order to show activity in conformity with that 

character.  By enacting RCW 10.58.090, the legislature has declared that evidence of 

the defendant's commission of sex offenses is admissible "notwithstanding Evidence 

Rule 404(b)."  RCW 10.58.090(1).  Giving the term "notwithstanding" its plain and 

ordinary meaning (i.e., "without prevention or obstruction from or by" or "in spite of,"

Webster's Third New International Dictionary 1545 (2002)), as we must, see State v. 

Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010), and presuming the legislature did 

not intend to create a merely superfluous statute, see id. at 823, the plain purpose and 

effect of RCW 10.58.090(1) is to make admissible certain types of evidence that ER 

404(b) makes inadmissible. That is, RCW 10.58.090 makes evidence of a defendant's 

commission of other sex offenses admissible for the purpose of proving the 

defendant's character (e.g., the defendant is the "child-molesting type") in order to 

show that the defendant has committed the charged offense in spite of ER 404(b)'s

prohibition of admission for that purpose.

       2. RCW 10.58.090 Violates the Separation of Powers Doctrine

       Gresham argues that RCW 10.58.090 is unconstitutional because its enactment 

violates the separation of powers doctrine.  The party asserting that a statute is 

unconstitutional bears a heavy burden, for we presume that legislative enactments are 

                                               22 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

constitutional.  Island County v. State, 135 Wn.2d 141, 147, 955 P.2d 377 (1998).  

"[T]he Legislature speaks for the people and we are hesitant to strike a duly enacted 

statute unless fully convinced, after a searching legal analysis, that the statute violates 

the constitution."  Id. Ultimately, however, it is for the judiciary to determine whether 

a given enactment violates the constitution.  Id.

       The separation of powers is implicit in our state constitution and arises from 

"the very division of our government into different branches."  Carrick v. Locke, 125 

Wn.2d 129, 135, 882 P.2d 173 (1994).  The branches are not "hermetically sealed," 

but instead "must remain partially intertwined."  Id.  At bottom, the separation of 

powers doctrine ensures "that the fundamental functions of each branch remain 

inviolate," id., and that the actions of one branch do not threaten "the independence or 

integrity or invade[] the prerogatives of another," Zylstra v. Piva, 85 Wn.2d 743, 750, 

539 P.2d 823 (1975).

       Our separation of powers jurisprudence relating to legislative enactments 

alleged to conflict with court rules is well developed.  "[T]he power to prescribe rules 

for procedure and practice" is an inherent power of the judicial branch, State v. Smith, 

84 Wn.2d 498, 501, 527 P.2d 674 (1974), and flows from article IV, section 1 of the 

Washington Constitution, State v. Fields, 85 Wn.2d 126, 129, 530 P.2d 284 (1975).  

The legislature recognized this power in RCW 2.04.190 and RCW 2.04.200. The 

                                               23 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

legislature may also adopt, by statute, rules governing court procedures. "If a statute 

appears to conflict with a court rule, this court will first attempt to harmonize them 

and give effect to both."  Putman v. Wenatchee Valley Med. Ctr., PS, 166 Wn.2d 974, 

980, 216 P.3d 374 (2009).  If the statute and the rule "cannot be harmonized, the court 

rule will prevail in procedural matters and the statute will prevail in substantive 

matters."  Id.

       RCW 10.58.090 cannot be harmonized with ER 404(b).  As discussed, ER 

404(b) is a categorical bar to introduction of evidence of prior misconduct for the 

purpose of showing the defendant's character and action in conformity with that 

character.  There are no exceptions to this rule.  RCW 10.58.090(1) provides that 

evidence of sex offenses, which are undoubtedly "prior crimes, wrongs, or acts," is 

admissible "notwithstanding Evidence Rule 404(b)."  That is, RCW 10.58.090 makes 

evidence of prior sex offenses admissible for the purpose of showing the defendant's 

character and action in conformity with that character.  In other words, RCW 

10.58.090 makes admissible evidence that ER 404(b) declares inadmissible.  This is an 

irreconcilable conflict.

       The State urges that RCW 10.58.090 can be reconciled with ER 404(b) for 

either of two reasons: (1) because it simply expands the list of exceptions to ER 

404(b) or (2) because it leaves admission of evidence of prior sex offenses to the 

                                               24 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

discretion of the trial court.  These arguments misunderstand ER 404(b).  The first 

argument has already been addressed?there are no exceptions to ER 404(b).  ER 

404(b) only prohibits admission of evidence of a person's prior misconduct when it is

offered for the purpose of demonstrating the person's character and action in 

conformity with that character.  Even when evidence of a person's prior misconduct is 

admissible for a proper purpose under ER 404(b), it remains inadmissible for the 

purpose of demonstrating the person's character and action in conformity with that 

character.  The other purposes for which evidence of prior misconduct are admitted 

are not, then, "exceptions."4 RCW 10.58.090 would, however, be an exception to ER 

404(b); the intent to create an exception is clear from its use of the term 

"notwithstanding." An exception is incompatible with a categorical rule.

       The State's second proffered method of reconciling RCW 10.58.090 and ER 

404(b) also fails.  A statute that makes admissible evidence deemed inadmissible by a 

court rule creates no less of an irreconcilable conflict than does a statute mandating 

admission of evidence that a court rule provides is inadmissible.  Our decision in City 

of Fircrest v. Jensen, 158 Wn.2d 384, 143 P.3d 776 (2006), is not inconsistent.  In 

4 This includes the purpose of demonstrating the defendant's "lustful disposition" toward 
the victim.  In that circumstance, the purpose of the evidence is not to demonstrate the 
defendant's character but to demonstrate the nature of the defendant's relationship with 
and feelings toward the victim.  In that way, such evidence is probative of motive and 
intent and provides context to the crime.  State v. Cox, 781 N.W.2d 757, 768 (Iowa 
2010).

                                               25 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

Jensen, the legislature enacted a law providing that challenges to a blood alcohol 

content test "'shall not preclude the admissibility of the test once the prosecution or 

department has made a prima facie showing'" of the requirements enumerated 

elsewhere.  Id. at 395 (emphasis omitted) (quoting Substitute H.B. 3055, § 4(4)(c), 

58th Leg., Reg. Sess. (Wash. 2004)).  This court held that that law did not mandate 

admission of evidence; admission remained subject to all the rules of evidence.  Id. at 

399.  Instead, the import of that case was that the law conflicted with a previous 

decision of this court, City of Seattle v. Clark-Munoz, 152 Wn.2d 39, 93 P.3d 141 

(2004).  Clark-Munoz held that evidence was inadmissible because it failed to comply 

with WAC regulations.  Id. at 48.  Unlike the case at bar, Jensen did not involve a 

statute that conflicted with any rule of evidence.

       We cannot perceive of, nor has the State suggested, a narrowing construction of 

RCW 10.58.090 that would render the statute constitutional.  The plain text of the 

statute itself establishes that it applies "notwithstanding Evidence Rule 404(b)."  RCW 

10.58.090(1).  The irreconcilable conflict flows from the plain text of the statute.

       Because RCW 10.58.090(1) and ER 404(b) cannot be reconciled, we must 

determine whether the admissibility of evidence in a criminal case is a substantive or 

procedural matter.  There is not always a "clear line of demarcation" between that 

which is substantive and that which is procedural.  Smith, 84 Wn.2d at 501.  Instead, 

                                               26 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

we are left with the following "general guidelines":

       Substantive law prescribes norms for societal conduct and punishments 
       for violations thereof.  It thus creates, defines, and regulates primary 
       rights.  In contrast, practice and procedure pertain to the essentially 
       mechanical operations of the courts by which substantive law, rights, and 
       remedies are effectuated.

Id.

       The admission of evidence in a criminal trial is generally a procedural matter.  

Definition of the crime and its punishment are substantive matters; admission of 

evidence is simply the means by which that substantive law is effectuated.  See id.  

Moreover, we long ago suggested that the admission of evidence is a procedural matter 

to be controlled by the courts in State ex rel. Foster-Wyman Lumber Co. v. Superior 

Court, 148 Wash. 1, 14, 267 P. 770 (1928), when we stated that "[i]t seems plain to us 

that the taking of depositions is an act in the procedure and practice before the courts.  

It involves the receiving of evidence before the courts, a matter for the courts to 

determine, and which in no wise trespasses upon the substantive rights of parties."

       The legislature, in enacting RCW 10.58.090, expressed its understanding that 

evidentiary statutes are substantive law and take priority over conflicting court rules, 

citing to State v. Pavelich, 153 Wash. 379, 279 P. 1102 (1929).  Laws of 2008, ch. 90, 

§ 1. It is true that in Pavelich, this court stated that "[r]ules of evidence are 

substantive law."  153 Wash. at 382.  However, that statement was plainly a dictum, as 

                                               27 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

the holding of that case was that rules relating to a trial court's responsibility to give 

jury instructions sua sponte are procedural.  Id. at 385-86.  Moreover, context makes 

the intended meaning of that statement questionable.  Another statement the Pavelich

court approved of was that "[p]rocedure . . . includes in its meaning whatever is 

embraced by the three technical terms, 'pleading,' 'evidence' and 'practice.'"  Id. at 

381-82 (citing Kring v. Missouri, 107 U.S. (17 Otto) 221, 231-32, 2 S. Ct. 443, 27 L. 

Ed. 506 (1883), overruled on other grounds by Collins v. Youngblood, 497 U.S. 37, 

110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990)).  Pavelich also recognizes that rules of 

evidence are "found in the common law, chiefly, and grow[] out of the reasoning, 

experience and common sense of lawyers and courts."  Id. at 382.  One contemporary 

commentary noted that Pavelich "contains puzzling passages characterizing rules of 

evidence as part of the substantive law."  Edmund M. Morgan & John MacArthur 

Maguire, Looking Backward and Forward at Evidence, 50 Harv. L. Rev. 909, 934 n.65 

(1937).  The assertion in Pavelich that rules of evidence are, categorically, substantive 

matters is an unpersuasive dictum.

       In sum, RCW 10.58.090 is an unconstitutional violation of the separation of 

powers doctrine because it irreconcilably conflicts with ER 404(b) regarding a 

procedural matter.

       3. Admission of Gresham's Prior Sexual Misconduct Was Not Harmless Error

                                               28 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

       We must now determine whether the admission of evidence of Gresham's prior 

conviction was harmless error.  A deceptively simple question confronts us at the 

outset: do we apply the constitutional harmless error standard or the nonconstitutional 

harmless error standard?  It is true that the statute supporting admission is 

unconstitutional, but it does not necessarily follow that admission of the evidence is 

unconstitutional. Under our disposition of the case, RCW 10.58.090 is not 

unconstitutional because the constitution, state or federal, prohibits the admission of 

such evidence, but because the separation of powers doctrine prohibits the legislature

from permitting admission in the face of a court rule barring admission.  "Unlike many 

other constitutional violations, which directly damage rights retained by the people, the 

damage caused by a separation of powers violation accrues directly to the branch 

invaded."  Carrick, 125 Wn.2d at 136.  In this circumstance, the fact that evidence was 

admitted pursuant to an unconstitutional statute does not necessarily mean that we are 

to apply the constitutional harmless error doctrine.

       When the support of RCW 10.58.090 is removed, we are simply left with

evidence admitted in violation of ER 404(b).  It is well settled that the erroneous 

admission of evidence in violation of ER 404(b) is analyzed under the lesser standard 

for nonconstitutional error.  Smith, 106 Wn.2d at 780.  The question, then, is whether, 

"'within reasonable probabilities, had the error not occurred, the outcome of the trial 

                                               29 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

would have been materially affected.'"  Id. (quoting Cunningham, 93 Wn.2d at 831).

       We cannot conclude that the erroneous admission of Gresham's prior 

conviction was harmless error.  Much of the testimony at trial was predicated on the 

fact of Gresham's prior conviction, including all of A.C.'s testimony and much of 

J.L.'s parents' testimony. What would remain absent the erroneously admitted 

evidence would be J.L.'s testimony that Gresham had molested her and her parents' 

corroboration that Gresham had had the opportunity to do so, along with the 

investigating officer's testimony.  There were no eyewitnesses to the alleged incidents 

of molestation.  While this evidence is by no means insufficient for a jury to convict a 

defendant, there is a reasonable probability that absent this highly prejudicial evidence 

of Gresham's prior sex offense, see Saltarelli, 98 Wn.2d at 363 ("[I]n sex cases . . . 

the prejudice potential of prior acts is at its highest."), the jury's verdict would have 

been materially affected.  Thus, we cannot say that the erroneous admission of the 

evidence of Gresham's prior conviction was harmless error.

                                       CONCLUSION

       Because RCW 10.58.090 violates the separation of powers doctrine and there 

was no other basis for admission of evidence of Gresham's prior crimes, we must 

reverse Gresham's conviction.  We emphasize that the legislature has wide latitude in 

establishing rules for the courts, both procedural and substantive.  In some instances, 

                                               30 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

the rules of evidence themselves invite legislative amendment.  See, e.g., ER 402 ("All 

relevant evidence is admissible, except . . . as otherwise provided by statute."); ER 802 

("Hearsay is not admissible except as provided . . . by statute."); see also RCW 

9A.44.020 (codification of the "rape shield statute" making certain types of relevant 

evidence inadmissible in certain circumstances); RCW 9A.44.120 (making certain 

hearsay statements relating to sexual contact with a child admissible in certain 

circumstances).  Only in those rare cases where a legislative enactment irreconcilably 

conflicts with a court rule and the rule is procedural in nature will we invalidate the 

enactment.  This is one such circumstance.  Because RCW 10.58.090 irreconcilably 

conflicts with ER 404(b), we hold that the statute violates the separation of powers 

doctrine and declare it unconstitutional. Admission of evidence of Gresham's prior 

sex offense was therefore error. Since we cannot determine that the erroneous 

admission of that evidence was harmless error, we reverse Gresham's conviction and 

remand for further proceedings.

       As to Scherner, we hold that the evidence of his prior acts of child molestation 

was admissible for the purpose of demonstrating a common scheme or plan.  Thus, 

even without RCW 10.58.090, the evidence was admissible in his trial.  Admission 

therefore was not error.  We accordingly affirm Scherner's conviction.

                                               31 

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1

AUTHOR:

        Justice Susan Owens

WE CONCUR:

        Justice Charles W. Johnson                       Justice Debra L. Stephens

        Justice Tom Chambers                             Justice Charles K. Wiggins

                                                         Gerry L. Alexander, Justice Pro Tem.

        Justice Mary E. Fairhurst

                                               32