[No. 62507-1-I. Division One. December 21, 2009.]
November 6, 2009, Oral Argument
Eric W. Lindell (of Lindell Law Offices), for appellant.
Daniel T. Satterberg, Prosecuting Attorney, and Brian M. McDonald, Deputy, for respondent.
¶1 COX, J. -- Roger Scherner appeals his convictions of three counts of first degree child molestation. He fails in his burden to prove beyond a reasonable doubt that RCW 10.58.090, legislation that permits but does not require admission of evidence of prior "sexual offenses" ¶2 Roger Scherner is the grandfather of M.S. Both Scherner and M.S. reside in California. During the summer of 2001 or 2002, when M.S. was seven or eight years old, she joined her grandparents on a car trip to visit relatives in Bellevue, Washington. During the trip, M.S. stayed in hotels with her grandparents and at the house of Scherner's sister in Bellevue. ¶3 In May 2003, M.S. revealed that she had been molested by Scherner during the trip to Washington. Both the Monterey County Sheriff's Department and the Bellevue Police Department were involved in investigating the case over the course of the next three years. During this time, M.S. revealed that she had been molested by Scherner prior to the trip to Washington. Beginning at a time when M.S. was five or six years old, Scherner molested her when she spent the night at his house. M.S. described the molestation primarily as genital stroking, both over and under her underwear. Prior Sexual Misconduct ¶4 The investigation also revealed that Scherner had previously molested other women when they were children. Scherner's previous victims included J.S., S.O., S.W., and N.K. Scherner and J.S. are relatives. Scherner molested J.S. from the time she was five years old until she was a teenager. The molestation involved genital touching, digital penetration, and oral sex. The misconduct usually took place at Scherner's house. ¶5 Scherner and S.O. are also relatives. Scherner molested S.O. when she was 13 years old. Scherner rubbed her nipples and performed oral sex on her when she spent the night at his house. ¶6 Scherner's family befriended S.W.'s family when S.W. was growing up. S.W. was 13 when Scherner molested her during a family ski trip. He rubbed her genitals while she was in bed in the condominium where both families were staying. ¶7 Scherner and N.K. are relatives. N.K. took two car trips with Scherner and his wife when she was between six and eight years old. During the first trip, to Washington, Scherner molested N.K. while they were staying in a hotel room. On the second trip, to Disneyland, Scherner again molested N.K. while they were staying in a hotel room. Both times Scherner performed oral sex on N.K. ¶8 At trial, the court admitted testimony of the above described sexual offenses from J.S., S.O., S.W., and N.K. under RCW 10.58.090. The court also admitted the same evidence as a common scheme or plan under ER 404(b). The jury convicted Scherner as charged. The court sentenced him to 135 months in confinement for each count, to be served concurrently. CONSTITUTIONAL CHALLENGES ¶9 Scherner primarily argues that RCW 10.58.090 is unconstitutional under the state and federal constitutions. Specifically, he argues that it violates the prohibition against ex post facto laws, the separation of powers doctrine, due process, and equal protection. We disagree. [1, 2] ¶10 A statute is presumed constitutional and the party challenging it has the burden to prove beyond a reasonable doubt that it is unconstitutional. [3, 4] ¶11 "The primary goal of statutory interpretation is to ascertain and give effect to the legislature's intent and purpose. . . . If, among alternative constructions, one or more would involve serious constitutional difficulties, the court will reject those interpretations in favor of a construction that will sustain the constitutionality of the statute." [5] ¶12 This court reviews de novo challenges to the constitutionality of legislation. ¶13 RCW 10.58.090 provides in part: (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. . . . . (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; (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. [6-8] ¶14 We begin our analysis by making some preliminary observations. First, contrary to Scherner's characterization, nothing in the text of RCW 10.58.090 permits admission of "unproven misconduct evidence." ¶15 Second, this same legislative history states that relevancy of the evidence remains a requirement for admission. ¶16 Third, the statute expressly requires courts to consider an expanded nonexclusive list of balancing factors in conducting an ER 403 balancing test. ¶17 Lastly, the primary issue before us is whether the challenged statute is unconstitutional, not whether the statute should have been subject to the supreme court's rule-making process. Ex Post Facto ¶18 Scherner argues that RCW 10.58.090 violates the prohibition against ex post facto laws. We disagree. ¶19 The United States Constitution declares that "[n]o state shall . . . pass any . . . ex post facto law." [9, 10] ¶20 Both the United States Supreme Court and the Washington Supreme Court have repeatedly endorsed the analytical framework articulated in Calder v. Bull 1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. ¶21 The fourth category is at issue here. That same category was also at issue in the state supreme court's decision in City of Seattle v. Ludvigsen. ¶22 In Ludvigsen, the defendant was charged with driving while intoxicated (DWI) in 2002 after submitting to a breath test. ¶23 Discussing the ex post facto prohibition, the court stated that "[t]he difference between 'ordinary' rules of evidence and the alterations in the rules of evidence that Justice Chase [the author of Calder] spoke of in his '4th category' is their impact on the sufficiency of evidence necessary to convict. . . . '[O]rdinary' rules of evidence do not implicate ex post facto concerns because 'they do not concern whether the admissible evidence is sufficient to overcome the presumption [of innocence].' Thus, the issue is whether the . . . amendments changed the ordinary rules of evidence or changed the evidence necessary to convict." ¶24 The court concluded that because the validity of the breath test was part of the prima facie case required to convict, the government redefined the crime itself by redefining the meaning of a valid test. ¶25 The Ludvigsen analysis adopts the United States Supreme Court's most recent analysis of the fourth Calder category from Carmell v. Texas. ¶26 The Court stated that "[a] law reducing the quantum of evidence required to convict an offender is as grossly unfair as . . . retrospectively eliminating an element of the offense, increasing the punishment for an existing offense, or lowering the burden of proof." We do not mean to say that every rule that has an effect on whether a defendant can be convicted implicates the Ex Post Facto Clause. Ordinary rules of evidence, for example, do not violate the Clause. Rules of that nature are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in any given case. More crucially, such rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption. Therefore, to the extent one may consider changes to such laws as "unfair" or "unjust," they do not implicate the same kind of unfairness implicated by changes in rules setting forth a sufficiency of the evidence standard. ¶27 In concluding that the Texas statute did violate the ex post facto clause, the court noted that the statute was a sufficiency of the evidence rule. [11-19] ¶28 Scherner essentially argues that RCW 10.58.090 is a sufficiency of the evidence rule that reduces the quantum of evidence required to prove guilt beyond a reasonable doubt. Neither a close reading of the statute nor the case law supports this argument. ¶29 In State v. Clevenger, ¶30 Scherner argues, incorrectly, that RCW 10.58.090 permits admission of unproven sexual offenses. As we have already observed, nothing in the statute relieves the proponent of such evidence of the existing requirement of proving by a preponderance of the evidence that the sexual offense occurred. ¶31 He also argues that the statute permits admission of evidence without specification of its purpose. Again, nothing in the statute relieves the proponent of the evidence or the court from the common law requirement of ensuring that the evidence is not used for an improper purpose. ¶32 For example, the court here gave an instruction to the jury that provided: In a criminal case in which the defendant is accused of an offense of sexual assault or child molestation, evidence of the defendant's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered for its bearing on any matter to which it is relevant. However, evidence of a prior offense on its own is not sufficient to prove the defendant guilty of any crime charged in the Information. Bear in mind as you consider this evidence that at all times the State has the burden of proving that the defendant committed each of the elements of each offense charged in the Information. I remind you that the defendant is not on trial for any act, conduct, or offense not charged in the Information. ¶33 Scherner neither assigns error to, nor explains why, this type of instruction fails to adequately protect against the improper use of sexual offense evidence. ¶34 Scherner does not and could not persuasively argue that RCW 10.58.090 changes the State's burden of proof. Prior to passage of the statute, the State had to prove beyond a reasonable doubt that Scherner (1) had sexual contact with M.S, (2) who was under 12 years old and unmarried to Scherner at the time, and (3) that Scherner was more than 36 months older than M.S. ¶35 Scherner's more troubling argument is that sex offense evidence is propensity evidence that reduces the quantum of evidence the State must produce in order to convict. We conclude that it is not. ¶36 In Schroeder v. Tilton, ¶37 The Ninth Circuit concluded that the California court correctly held that section 1108 relates to admissibility of evidence and not sufficiency. "Nothing in the text of $ 1108 suggests that the admissible propensity evidence would be sufficient, by itself, to convict a person of any crime." ¶38 We also note that RCW 10.58.090 permits but does not require admission of sexual offense evidence. Likewise, ER 404(b) permits admission of evidence for "other purposes" than to show propensity: 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. ¶39 Moreover, the accused's "lustful disposition" toward the victim, though not expressly listed in the rule is, nevertheless, another exception to the rule against certain types of propensity evidence. ¶40 This statute does not limit evidence of sexual offenses to acts against the victim. Rather, it permits admission of evidence of sexual misconduct by the accused against persons other than the victim. Viewing this statutory change as an extension of the principles underlying the lustful disposition exception to propensity evidence that Washington courts already recognize, it is difficult to see why admission of lustful disposition evidence is not unconstitutional but admission of sexual offense evidence under RCW 10.58.090 is unconstitutional. There is no reduction in the quantum of evidence required to convict when comparing the two. ¶41 In any event, the statute expressly retains the function of the trial courts to balance probative value against prejudicial effect under the modified ER 403 test. Moreover, trial courts retain the ultimate power to decide whether to admit or exclude any proffered evidence. These safeguards should protect against admission of any evidence that could unconstitutionally affect the sufficiency of evidence to convict. ¶42 Unlike the statute at issue in Carmell, RCW 10.58.090 does not subvert the presumption of innocence because it does not concern whether the admitted evidence is sufficient to overcome the presumption of innocence. ¶43 Finally, Scherner argues that the statute violates the ex post facto clause because it changes the definition of what constitutes a "sex offense." However, the focus of the ex post facto inquiry is on whether a legislative change alters the definition of criminal conduct or increases the punishment for criminal acts. ¶44 This is not an ex post facto law. Separation of Powers ¶45 Scherner next argues that RCW 10.58.090 violates the separation of powers doctrine. He argues that RCW 10.58.090 invades the judicial branch's inherent power to promulgate rules of evidence, infringing on the court's independence and integrity. In the alternative, he argues that the statute cannot be harmonized with ER 404(b). We again disagree. [20, 21] ¶46 The doctrine of separation of powers is implicit in our constitution, derived from the distribution of power into three coequal branches of government. [22-25] ¶47 The authority to enact evidence rules is shared by the supreme court and the legislature. ¶48 The legislature's authority to enact rules of evidence has long been recognized by the supreme court. ¶49 The question Scherner poses concerns the effect of RCW 10.58.090 on the court-promulgated ER 404(b), which deals with the same subject matter. Specifically, we must address the effect of the statutory language that states, "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 ER 404(b), if the evidence is not inadmissible pursuant to ER 403." [26] ¶50 For at least 25 years, where an apparent conflict between a court rule and a statutory provision can be harmonized, both are given effect if possible. ¶51 Here, Scherner appears to argue that the subject matter of ER 404(b) may not be modified by RCW 10.58.090 and, thus, we need not attempt to harmonize the two. However, the case law is to the contrary. ¶52 Scherner next argues that RCW 10.58.090 cannot be harmonized with ER 404(b) because it poses a direct conflict with the ban on propensity evidence. We also reject this argument. [27] ¶53 ER 404(b) bans the admission of propensity evidence if offered to prove action in conformity therewith, but permits admission of other crimes, wrongs, and acts for other purposes. [28] ¶54 Although the evidence rules relating to relevance do not specifically contemplate legislative amendment, RCW 10.58.090 is not inconsistent with the legislature's prior policy-driven amendments to the rules of evidence. It is not at all unusual for the legislature to act with regard to the admissibility of specific classes of evidence based on overarching policy concerns. ¶55 In City of Fircrest v. Jensen, ¶56 RCW 10.58.090 modifies the subject matter addressed by ER 404(b) by expanding the nonexclusive