In State v. Gower, the Washington Supreme Court has reversed a man’s conviction for sex crimes against his 17-year-old stepdaughter. The court reasoned that the trial judge had considered evidence that would now be inadmissible in making his decision.
Gower had chosen trial by a judge, not a jury. At the time of the trial RCW 10.58.090—since ruled unconstitutional—was in effect. RCW 10.58.090 allowed evidence of a defendant’s prior sex offenses to be admitted at his trial. Using this statute, the State introduced evidence that Gower had committed similar acts against his biological daughter and a different stepdaughter. The trial judge ruled that this evidence was inadmissible under Rule of Evidence 404(b)—ER 404(b) excludes evidence of prior bad acts that is overly prejudicial—but the judge admitted the evidence under RCW 10.58.090.
Gower was convicted and appealed.
The Court of Appeals noted that, by the time of its decision, RCW 10.58.090 had been held unconstitutional. Nonetheless, the Court of Appeals affirmed the trial court’s decision, applying the rule in State v. Read: “we presume the judge in a bench trial does not consider inadmissible evidence in rending a verdict.” 147 Wn.2d 238, 242, 53 P.3d 26 (2002). The Court of Appeals reasoned that Gower failed to show that the trial judge had considered evidence of sexual misconduct against his biological daughter and a different stepdaughter when finding him guilty.
The Washington Supreme Court reversed the Court of Appeals. It distinguished this case from Read as the trial judge here admitted the evidence; in Read, the trial judge excluded the evidence. The Supreme Court therefore applied a different standard: “whether there is a reasonable probability that the outcome of the trial would have been different without the inadmissible evidence.” The court noted, “The potential for prejudice from admitting prior acts is ‘at its highest’ in sex offense cases.”
The court stressed two points: (1) both the trial judge and the State had noted the prior sexual misconduct evidence was necessary to the State’s case; and (2) the case turned on the credibility of the complaining witness, which was bolstered by evidence of Gower’s prior sexual misconduct. Further, the trial judge gave “significant weight” to the biological daughter’s incriminating testimony.