Opinion Information Sheet

			

State v. Gresham, No. 84148-9
State v. Scherner, No. 84150-1
Concurrence in Part and Dissent in Part by J.M. Johnson, J.

                     No. 84148-9 (consolidated with No. 84150-1)

       J.M. JOHNSON, J. (concurring in part and dissenting in part) -- The 

State of Washington charged petitioner Michael Tyrone Gresham with "three 

counts of child molestation in the first degree and one count of attempted 

child molestation in the first degree for repeatedly molesting an eight-year-old 

girl from 1998 to 2002."  State v. Gresham, 153 Wn. App. 659, 663, 223 

P.3d 1194 (2009).  A jury found Gresham guilty on all four charges.  Id.  The 

eight-year-old victim in the present case was young J.L.  Majority at 7.

       Unfortunately, J.L. was not Gresham's first child victim.  Prior to the 

repeated molestation of J.L., Gresham was convicted of molesting another

nine-year-old girl.  Gresham, 153 Wn. App. at 663.  Today, the majority 

reverses Gresham's convictions for molesting J.L. because the jury learned of 

Gresham's sexual abuse of the other child victim.  This result is legally  

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

incorrect and ultimately, unjust.

       The majority opinion holds that  RCW 10.58.090, which allows

evidence of a defendant's prior sexual offenses in a criminal prosecution for 

another sexual offense, violates the separation of powers doctrine.  Ironically, 

the majority concludes that it is the legislature that has failed to respect the 

sovereignty of its sister-branches of government.  I disagree.  In this case, the 

shoe is on the other foot.

       I would hold that RCW 10.58.090 is constitutional.  There is no 

irreconcilable conflict between RCW 10.58.090 and ER 404(b) and thus, the 

statute does not infringe on the power of the judiciary.  By striking down 

RCW 10.58.090, the majority opinion preserves an overly rigid interpretation 

of ER 404(b) at the expense of the victims of sexual abuse.  Moreover, the 

majority opinion reaches paradoxical results in the present cases, finding the 

admission of mere accusations against Roger Alan Scherner harmless while 

reversing Gresham's child molestation convictions due to the admission of his 

prior conviction.  I concur in the majority opinion's affirmation of Scherner's 

convictions.  However, with respect to the majority's judgment that RCW 

10.58.090 violates the constitution and its reversal of Gresham's child 

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molestation convictions, I respectfully but strongly dissent.

       RCW 10.58.090 does not violate the separation of powers doctrine.  

The separation of powers is not a one-way street; it requires courts to respect 

the considered judgments of the legislature as it requires the legislature to 

respect the judgments of this court.  Only where there is an irreconcilable 

conflict  between our procedural rules and a rule promulgated by the 

legislature will we strike the legislative enactment down.  City of Fircrest v. 

Jensen, 158 Wn.2d 384, 394, 143 P.3d 776 (2006).  "'The question to be 

asked is not whether two branches of government engage in coinciding 

activities, but rather whether the activity of one branch threatens the 

independence or integrity or invades the prerogatives of another.'"  Id. 

(internal quotation marks omitted) (quoting State v. Moreno, 147 Wn.2d 500, 

505-06, 58 P.3d 265 (2002)).

       RCW 10.58.090 does not threaten judicial independence or integrity 

and does not preclude us from effectively administering justice in 

Washington's courts.  Other jurisdictions across the country routinely 

administer justice through provisions substantially similar to both RCW 

10.58.090 and ER 404(b).  Both the federal courts and military courts-martial 

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have similar provisions.  See Fed. R. Evid. 404(b); Fed. R. Evid. 413-14; Mil. 

R. Evid. 404(b); Mil. R. Evid. 413-14.  Additionally, at least one-fifth of state 

jurisdictions also allow for a propensity inference in sexual offense cases.  

See 1 Edward J. Imwinkelried, Uncharged Misconduct Evidence §§ 2:23,

4:15 (rev. ed. 2009).

       Washington law already allows for a propensity inference in cases 

involving sexual misconduct.  In its careful exposition of ER 404(b), the 

majority correctly notes that the general rule "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."  Majority at 

11.  Likewise, the majority accurately states that the illustrative list of other 

purposes for which a party may offer evidence of prior bad acts in the second 

sentence of ER 404(b) is not a list of "'exceptions.'"  Id. at 23.

       However, the majority incorrectly concludes               that there are "no 

exceptions" to ER 404(b).  Id. at 22.  This is not accurate.  This court already 

recognizes the "lustful disposition" exception, notwithstanding ER 404(b), in 

cases involving sexual misconduct.  State v. Ferguson, 100 Wn.2d 131, 133-

34, 667 P.2d 68 (1983) ("This court has often invoked an exception in similar 

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cases to permit evidence of collateral sexual misconduct when it shows a 

lustful disposition directed toward the offended female." (emphasis added)).  

If prior sexual assaults against the same victim are probative and relevant 

evidence, it is hard to see why the same rationale does not apply to similar

prior sexual assaults against third parties.  1 Imwinkelried, supra, at § 4:15, at 

4-89 to -90 ("If there is no qualitative difference between [sexual misconduct 

against the same victim and against a third party] and the uncharged 

misconduct doctrine does not bar the former, it is difficult to defend an 

absolute exclusion of misconduct involving third parties.").  We can 

harmonize RCW 10.58.090 and ER 404(b) by viewing the statute as an 

additional legislatively created exception.

       The majority tries to distinguish the lustful disposition exception in a 

footnote.  Majority at 23 n.4.          The majority opinion argues that when 

admitting lustful disposition evidence, the purpose of the prior sexual offenses 

is "not to demonstrate the defendant's character but to demonstrate the nature 

of the defendant's relationship with and feelings toward the victim."  Id.

       This is inaccurate.  A "disposition" is by definition a description of 

"[t]emperament or character."  Black's Law Dictionary 539 (9th ed. 2009).  

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Under the lustful disposition exception, the court admits evidence of the 

defendant's prior sexual misconduct affecting the victim "'for the purpose of 

showing the lustful inclination of the defendant toward the offended female, 

which in turn makes it more probable that the defendant committed the 

offense charged.'"  State v. Ray, 116 Wn.2d 531, 547, 806 P.2d 1220 (1991) 

(quoting Ferguson, 100 Wn.2d at 134).  A propensity inference by any other 

name is still a propensity inference  --  whether directed to the same victim or 

to third parties.

       Intellectual honesty demands that we recognize lustful disposition 

evidence for what it is:  a propensity inference that, based upon the 

defendant's  past sexual abuse of the victim, he is more likely to have 

committed the charged sexual offense against the same  victim.  See 1 

Imwinkelried, supra, at § 4:14, at 4-76 ("In some jurisdictions, intellectual 

honesty triumphed, and the courts eventually acknowledged that they were 

fashioning a special exception [in sexual offense cases] to the norm 

prohibiting the use of the defendant's disposition as circumstantial proof of 

conduct."); see also 5 Karl B. Tegland, Washington Practice:  Evidence Law 

and Practice § 404.26, at 581 (5th ed. 2007) ("The courts have seldom 

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articulated any way of reconciling the traditional lustful-disposition rule with 

Rule 404(b), but the traditional rule is so ingrained that it is unlikely to 

change.").

       The legislature has found that allowing the propensity inference in 

sexual offense cases though court application of RCW 10.58.090 serves 

important policy goals.  Highly probative circumstantial evidence may be 

considered in cases in which direct evidence rarely exists.  Sexual offenders 

commit their crimes in secret and with an eye toward avoiding detection.  

Often there is no physical evidence of the sexual abuse and no third party 

witnesses.  The consequence is that sexual offense cases routinely involve a 

competition between two lines of conflicting testimony:  the victim's word 

against the defendant's.  This problem is further exacerbated when the victim 

is a child whose testimony may be impeached due to the victim's tender age 

and the effects of victimization.  Under such circumstances, the jury should

not be restricted to decide the case without evidence that the defendant stands 

previously convicted of sexually assaulting other children.

       It is well established from studies around the country that sexual

offenders are repetitious in their predatory conduct, demonstrating very high 

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rates of recidivism.  Social scientific studies now confirm empirically what 

most citizens know by common sense.  A person who sexually assaulted 

others in the past is more likely to reoffend in the future than an individual 

who lacks such a history.  See            Ellen H. Meilaender, Note, Revisiting 

Indiana's Rule of Evidence 404(b) and the Lannan Decision in Light of 

Federal Rules of Evidence 413-415, 75 Ind. L.J.                 1103, 1116 (2000) (

"[R]esearch supports the conclusion that, 'contrary to the impression yielded 

by the general literature, [sex] offenders are serious recidivists,' although 

much of their recidivism goes undetected." (second alteration in original)

(quoting A. Nicholas Groth et al., Undetected Recidivism Among Rapists and 

Child Molesters, 28 Crime & Delinq. 450, 456 (1982))).  Moreover, these 

empirical studies likely underestimate the level of recidivism among sex 

offenders.  Id. (citing Lita Furby et al., Sex Offender Recidivism:  A Review, 

105 Psychol. Bull. 3, 4, 27 (1989); Groth et al., supra, at 456; Joseph J. 

Romero & Linda Meyer Williams, Recidivism Among Convicted Sex 

Offenders:  A 10-Year Followup Study, 49 Fed. Probation 58, 63-64 (1985)).

       To recognize the importance of providing the jury with information of a 

defendant's past sexual offenses, consider Gresham.  Between December 

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1998 and September 2003, young J.L. stayed at Gresham's house on a 

monthly basis.  Majority at 7.  While staying at the home, Gresham 

repeatedly molested J.L., fondling her and sexually touching her.  Id.  The 

final act of molestation occurred in J.L.'s own home when Gresham, acting as 

a baby-sitter, snuck into her room and fondled her in her bed.  Id. at 7-8.  

Like many child victims, J.L. did not reveal the molestation until much time 

had passed.  Id. at 8.  The criminal investigation occurred several years later.  

Id.

       Due to the secretive nature of Gresham's molestation, there was little 

evidence of his crime.  The jury heard J.L. testify that Gresham molested her, 

heard her parents testify that Gresham had the opportunity to commit the 

crimes, and heard a detective discuss the investigation.  Id. at 27-28.  The 

majority concludes that hearing this evidence alone, a jury might not have 

convicted Gresham of the charged offenses.  Id. at 28.

       However, that is not the only evidence that the jury heard in Gresham's 

case.  The jury also based its decision on the fact that Gresham pleaded guilty 

to sexually molesting another young girl over a period of four years.  Id. at 8.  

In a justice system aimed at discerning truth, it is hard to understand why the 

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jury should be deprived of such obviously probative and crucial information 

before rendering its verdict.

       Of course, the decision as to when evidence of prior sexual offenses 

should be admitted in sexual offense trials will continue to remain a hotly 

debated issue.  Important policy concerns weigh heavily on both sides.  These 

matters were heard and presumably considered by the legislature and the 

governor when adopting this law.  It is the constitutional role of the 

legislature  to fully consider the policy adopted in RCW 10.58.090.  Our 

decision in this case should be to respect that legislative decision that  is 

actually supported by both scientific evidence and common sense. As Justice 

Holmes once noted:

       I think the proper course is to recognize that a state legislature 
       can do whatever it sees fit to do unless it is restrained by some 
       express prohibition in the Constitution of the United States or of 
       the State, and that Courts should be careful not to extend such 
       prohibitions beyond their obvious meaning by reading into them 
       conceptions of public policy that the particular             Court may 
       happen to entertain.

Tyson & Brother-United Theatre Ticket Offices, Inc. v. Banton, 273 U.S. 

418, 446, 47 S. Ct. 426, 71 L. Ed. 718 (1927) (Holmes, J., dissenting)

overruled in part on other grounds by Olsen v. State of Nebraska ex rel. 

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Western Reference & Bond Ass'n, 313 U.S. 236, 61 S. Ct. 862, 85 L. Ed.

1305 (1941).

                                      Conclusion

       I would hold that RCW 10.58.090 is a  constitutional exercise of 

legislative power.  This court has long allowed propensity inferences in 

sexual offense cases where prior acts against the same victim were involved, 

notwithstanding ER 404(b).  There is no reason to believe that the 

legislature's and the governor's determination that the same should apply to 

similar sexual violations against third parties somehow invades the integrity 

and independence of the judiciary.        Such a legislative determination accords 

with another important principle of our state constitution:  protecting the 

rights of unusually vulnerable victims.  See Wash. Const. art. I, § 35.

       Apparently, the only solution acceptable to the majority is for this court 

to consider and adopt changes that parallel the provisions of Fed. R. Evid. 

413-14 for adoption into the Washington Rules of Evidence.              We should do 

so and incorporate the legislative record for RCW 10.58.090 as part of our 

record.

       The separation of powers doctrine imposes an obligation on this court

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to respect the considered judgments of the legislature and the governor.  

Whether courts should admit evidence of prior sexual offenses in sexual 

offense trials is a contested matter that is amenable to legislative solutions

reached after full fact-finding, discussion, and debate at legislative hearings.  

Based on separation of powers principles I am compelled to the opposite 

conclusion of the majority.  I concur in the majority's affirmation of 

Scherner's convictions.  With respect to its reversal of Gresham's child 

molestation convictions, I respectfully but strongly dissent.

       AUTHOR:

                Justice James M. Johnson

       WE CONCUR:

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