State v. Gower

González, J.

¶18 (dissenting) — Evidence of David Gower’s prior crimes was improperly admitted against him. I agree with the majority that this was error. I also agree with the majority that this was not constitutional error and that the Read presumption that the trial judge did not rely on inadmissible evidence does not apply. Majority at 855 (quoting State v. Read, 147 Wn.2d 238, 242, 53 P.3d 26 (2002)). But we do not reverse convictions based on harmless error, and a careful review of the trial judge’s well-reasoned decision persuades me that the error was harmless. I respectfully dissent.

¶19 We will reverse for nonconstitutional error only if “within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.” State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980) (citing State v. Craig, 82 Wn.2d 777, 514 P.2d 151 (1973)). Gower makes no meaningful attempt to show us that the outcome of his trial would have been different *860but for the application of former RCW 10.58.090 (2008). This was an understandable strategic decision. Focusing on the fact of the error, rather than its consequence, allowed Gower to focus on the fact evidence was admitted against him under an unconstitutional statute, as it was in State v. Gresham, 173 Wn.2d 405, 269 P.3d 207 (2012). In Gresham, of course, we reversed under similar facts because there was “a reasonable probability that absent this highly prejudicial evidence of Gresham’s prior sex offense, the jury’s verdict would have been materially affected.” Id. at 433-34 (citation omitted) (citing State v. Saltarelli, 98 Wn.2d 358, 363, 655 P.2d 697 (1982)). But both Gresham and Saltarelli were jury trials. The court could only speculate on the trier of fact’s decision-making process.

¶20 In contrast, we need not speculate here. Gower was tried before a judge who provided us with lengthy findings of fact and conclusions of law detailing the facts he relied on in both convicting and acquitting. The judge acquitted Gower of first degree rape of a child against S.E.H. because the victim “provided too little detail to credit her account as proof beyond a reasonable doubt” and acquitted him of second degree assault with sexual motivation on the ground the state failed to prove beyond a reasonable doubt that the spanking in question “was not authorized parental discipline under RCW 9A.16.100.” Clerk’s Papers (CP) at 16,18. The judge found Gower guilty of incest and one count of indecent liberties against S.E.H. based on her testimony that she feared physical punishment if she did not comply with his demands. He also found Gower guilty of a second count of indecent liberties based on S.E.H.’s testimony as corroborated by her sister. While the trial judge referenced Gower’s prior convictions in his recitation of the facts, at no point in his conclusions of law did he rely on them. Nor did he need to do so; the testimony alone was sufficient to convict. See Gresham, 173 Wn.2d at 433.

¶21 True, in admitting Gower’s prior convictions, the trial judge accepted the State’s characterization of the *861evidence as “necessary to the State’s case.” CP at 30. But this must be read in context. The State successfully moved in a preliminary motion to admit the evidence in its case in chief. The State was doubtlessly acting on the good-faith belief that former RCW 10.58.090 (2008) was constitutional and was doubtlessly eager to give the trier of fact all evidence that supported its case. The judge’s characterization of the evidence came in that context. But if the evidence of prior convictions had been so prejudicial as to shake our confidence in the conclusion, Gower likely would have been convicted on all five counts. Instead, the trial judge carefully parsed the evidence and acquitted him on two of the charges. Given that, and given that the judge had the opportunity to consider both Gower’s and S.E.H.’s testimony, I am confident that the erroneously admitted prior convictions had no material effect on the outcome of this case.

¶22 The error was harmless. Thus, I respectfully dissent.

Fairhurst and J.M. Johnson, JJ., concur with González, J.