The Court recently held that because RCW 10.58.090 irreconcilably conflicted with ER 404(b) which governs a procedural matter, RCW 10.58.090 was unconstitutional.

This case was heard with State v. Sherner. In Sherner, the court held that the evidence of prior acts of molestation was admissible for the purpose of demonstrating a common scheme or plan, and the court upheld the conviction.

Mr. Gresham was charged with four counts of child molestation in the 1st degree. This conduct involved one victim with the allegations occurring in 2003.

Prior to trial the court held that pursuant to RCW 10.58.090 the defendants previous conviction of Assault in the 2nd with sexual motivations was admissible. Mr. Gresham was convicted after trial of three counts of 1st child molestation and one count of attempted 1st child molestation. On each count he was sentenced to life in prison without the possibility of parole.

Mr. Gresham asserted that RCW 10.58.090 was unconstitutional. The Court of Appeals rejected his argument and affirmed his conviction. The Supreme Court consolidated the Scherner and Gresham cases. The issue was whether the admissibility of evidence in a criminal case is a substantive matter or a procedural matter. The statute in question reads:

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:
   1. Any offense defined as a sex offense by RCW 9.94A.030;
   2. Any violation under RCW 9A.44.096 (sexual misconduct with a minor in the second degree); and
   3. Any violation under RCW 9.68A.090 (communication with a minor for immoral purposes).
5. For purposes of this section, uncharged conduct is included 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:
   1. The similarity of the prior acts to the acts charged;
   2. The closeness in time of the prior acts to the acts charged;

The court explained that the legislature enacted this legislation “to ensure that juries receive the necessary evidence to reach a just and fair verdict.” 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).

By contrast ER 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).” ER 404(b) states:

(b) Other Crimes, Wrongs, or Acts. 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.

Mr. Gresham asserted that RCW 10.58.090 violated the separation of powers. 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). “[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 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.

The court held 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 court came to the conclusion that it could not say that the erroneous admission of Gresham’s prior conviction was harmless error. The court reversed Gresham’s conviction and remanded for further proceedings. On remand the Snohomish County Prosecutors agreed to amend the matter to two counts of second-degree child molestation. Defendant Gresham pled by way of a Alford/Newton plea. Prosecutors agreed to recommend a low-end sentence in exchange for the guilty plea. The judge did not follow the low-end recommendation.