¶37 (concurring in part and dissenting in part) — I concur with the majority that sufficient evidence supports all of Gower’s convictions. But I dissent from the majority as to harmless error. The trial court admitted evidence of Gower’s prior sex offenses against CM under RCW 10.58.090 but excluded it under ER 404(b). The trial court therefore admitted the evidence to show Gower’s propensity to commit sex crimes. Under such circumstances, I would reverse Gower’s convictions and remand for a new trial. I accordingly dissent from the majority’s decision to affirm Gower’s convictions on the basis that CM’s testimony was harmless.
¶38 The instant case turned largely on a credibility contest between Gower and SEH. SEH testified as to Gower’s alleged crimes against her. And Gower testified that although he made SEH ride in his truck, there was no sexual contact and he never spanked her in the basement. There were no eyewitnesses to either crime, aside from SEH, and there was no conclusive physical evidence.
¶39 Under these facts, CM’s testimony was not harmless. Based on CM’s testimony, the trial court found that Gower had spanked CM and left bruises, had exposed himself to her and made her expose herself to him, had made her watch pornography, had masturbated in front of her, and had digitally penetrated her. And because the trial court ruled it inadmissible under ER 404(b), the trial court could not have admitted CM’s testimony for any purpose except to show Gower’s character as a sex offender who molested his daughter, and to show that he acted in conformity with that character by sexually assaulting his stepdaughter. The inference that Gower engaged in sexual misconduct with SEH because of a propensity to sexually assault his daughters was highly prejudicial to Gower. This evidence was reasonably likely to have affected the verdict and I would hold that it was not harmless.
¶40 The majority, in holding to the contrary, relies on State v. Ryan, 48 Wn.2d 304, 308, 293 P.2d 399 (1956), and *49State v. Read, 147 Wn.2d 238, 245-46, 53 P.3d 26 (2002). But I respectfully submit that neither case adequately supports the majority’s conclusion.
¶41 The majority relies on Ryan for the proposition that “ ‘[w]here a case is heard by a judge without a jury, a new trial should not be granted for error in the admission of evidence, if there remains substantial admissible evidence to support the findings, unless it appears that the findings are based on the evidence which should have been excluded.’ ” Majority at 38-39 (alteration in original) (quoting 48 Wn.2d at 308). But the majority applies this holding much more broadly than the facts of Ryan warrant.
¶42 In Ryan, the trial judge did not make findings relying on inadmissible evidence. 48 Wn.2d at 308. And the trial judge ruled with respect to the challenged items of hearsay admitted at trial, “ T am going to strike them from the testimony and not consider them.’ ” 48 Wn.2d at 308. Our Supreme Court held, “We must accept the trial judge’s statement that he disregarded the challenged testimony entirely.” 48 Wn.2d at 308. Thus, unlike here, the trial judge explicitly declined to consider the inadmissible evidence, making Ryan distinguishable.
¶43 Read is similarly inapposite. Read relied on State v. Miles, 77 Wn.2d 593, 601, 464 P.2d 723 (1970), for the proposition that “we presume the trial judge did not consider inadmissible evidence in rendering the verdict.” 147 Wn.2d at 244. But Read noted that the Miles presumption is rebuttable “by showing that the verdict is not supported by sufficient admissible evidence, or the trial court relied on the inadmissible evidence to make essential findings that it otherwise would not have made.” 147 Wn.2d at 245-46. Read concluded that sufficient admissible evidence supported Read’s conviction and that Read had not shown that the trial judge relied on the inadmissible evidence to make essential findings. 147 Wn.2d at 246.
¶44 The Read dissent disagreed with this conclusion, however, opining, “Where, as here, a trial judge openly *50refutes the presumption he did not consider inadmissible evidence, we cannot conclude otherwise.” 147 Wn.2d at 258 (Sanders, J., dissenting). I would hold that here, the trial judge’s inclusion of CM’s testimony in the findings of fact openly refuted the presumption that the trial judge did not consider this inadmissible evidence.
¶45 “When a judge is required to make findings of fact in a jury-waived case, he not only indicates his findings on the issuable facts, but he sets forth the very basis upon which his conclusions of law must rest.” Gunnar H. Nordbye, Improvements in Statement of Findings of Fact and Conclusions of Law, 1 F.R.D. 25, 25 (1940). The findings of fact form the basis for the conclusions of law whether explicitly referenced or not. If the Court of Appeals retrospectively determines that the trial court must have ignored certain of its own findings of fact, the Court of Appeals steps out of its role as a review tribunal and becomes a fact finder itself, effectively amending the findings of fact to correct the trial court’s error. I respectfully submit that this is not our role.15
¶46 Because the trial court issued findings of fact based on CM’s testimony, and because RCW 10.58.090 directed the trial court to consider such facts to show Gower’s propensity to commit sex offenses, I would hold that the admission of CM’s testimony under RCW 10.58.090 was reversible error, requiring a new trial. I accordingly dissent from the majority’s decision to affirm Gower’s convictions.
¶47 I concur in part and dissent in part.
Review granted at 177 Wn.2d 1007 (2013).
The majority also suggests that Gower was not prejudiced because the trial court acquitted him on some counts. I disagree. The question is whether the error was reasonably likely to have affected the verdict. It does not follow that simply because the trial court acquitted Gower on some counts that the court would have reached the same verdict in the absence of the inadmissible evidence.