Opinion
63736-3-I
09-17-2012
STATE OF WASHINGTON, Respondent, v. KURT NORMAN SCHAUER, Appellant.
UNPUBLISHED OPINION
Grosse, J.
In the consolidated cases of State v. Gresham and State v. Scherner, our State Supreme Court held that RCW 10.58.090, allowing admission of evidence of prior sex offenses in a sex offense prosecution, is unconstitutional. In light of this ruling, we reconsider our decision affirming Kurt Schauer's conviction and now reverse.
173 Wn.2d 405, 432, 269 P.3d 207 (2012).
FACTS
In 1992, Kurt Schauer began dating Kristy Viner, when they were both working in Oregon. Schauer then moved to Washington and they had a long distance relationship for about two years. After their romantic relationship ended, they remained close friends.
In 1998, Viner had a son, T.V., but the biological father was not involved in their lives. During this time, Viner and Schauer maintained a platonic relationship and Schauer often came to Oregon to visit her and T.V. Schauer eventually took on the role of T.V.'s father and by the time he was 6 years old, T.V. was spending every other weekend with Schauer. He also spent several holidays and weeks in the summer with Schauer.
In February 2007, T.V.'s aunt, uncle, and 8-year-old cousin, A.A., drove T.V. to Seattle to visit Schauer. During the car ride, A.A.'s parents overheard T.V. tell A.A., "My dad French-kisses me." In January 2008, during a birthday dinner for T.V., Viner heard T.V. say, "Daddy kisses me with his tongue." When Schauer denied this, T.V. insisted that he did.
A few weeks later, after Viner and T.V. attended a Boy Scout meeting in which the group discussed personal safety, including inappropriate touching, T.V. told Viner that he thought that was happening to him. The next day T.V. told A.A.'s mother, Jennifer Alexander, that Schauer had molested him. Alexander and her husband then spoke to A.A., because he had spent time at Schauer's house in the past. A.A. disclosed to them that Schauer had molested him when he stayed at Schauer's house in 2007.
Alexander contacted the police, who took a report from Viner. Physical examinations of T.V. and A.A. were then conducted and revealed some physical evidence of sexual abuse of T.V., but not of A.A. During the examinations, both boys disclosed that Schauer had molested them. After the physical examinations, both boys were separately interviewed and described how they had been molested.
The State charged Schauer with six counts of first degree child molestation, three counts involving T.V. and three counts involving A.A. On all six counts, the State also alleged as an aggravating circumstance that Schauer abused his position of trust to facilitate the crime. Additionally, on the three counts involving T.V., the State alleged that the offense was part of an ongoing pattern of sexual abuse of the same victim.
At trial, the court admitted evidence of Schauer's prior conviction for molesting another young boy, T.P., in Wyoming in 1987. Schauer met T.P. through the Big Brothers program, befriended T.P.'s mother, a single parent, and babysat T.P. In July 1987, while babysitting, Schauer fondled T.P. T.P. told his mother and Schauer was arrested. He admitted to police that he had sexual contact with T.P. and ultimately pleaded guilty to the crime of "Immodest, Immoral or Indecent Acts with a Minor." The trial court admitted this evidence under RCW 10.58.090.
Schauer testified on his own behalf and denied the charges. He admitted to the prior conviction, but explained that his hand "slipped" while he was dressing the boy. The jury found him guilty of counts I through V, but acquitted him on count VI. The jury also found that there were aggravating circumstances on counts I through V. The trial court imposed an indeterminate sentence of a maximum term of life and an exceptional minimum term of 346 months.
ANALYSIS
In view of the Supreme Court's determination that RCW 10.58.090 violates the separation of powers doctrine and is therefore unconstitutional, the admission of evidence of Schauer's prior sex offense conviction under this statute was error. While conceding that RCW 10.58.090 does not provide a lawful basis to admit the evidence, the State argues that the error was harmless nonetheless because the evidence was admissible under ER 404(b) to show that Schauer had a common scheme or plan to sexually abuse young boys. According to the State, even though ER 404(b) was not raised or expressly considered by the trial court, the court conducted the requisite analysis for admission under ER 404(b). The State accordingly urges us to affirm on this alternative ground.
But as Schauer correctly notes, when the court admits evidence of prior acts under ER 404(b), the defendant is entitled to a limiting instruction that tells the jury for what purpose it may properly consider the evidence of prior misconduct. An adequate limiting instruction must, at a minimum, inform the jury of the purpose for which the evidence is admitted and that the evidence may not be used as a basis to conclude that the defendant has a particular character and has acted in conformity with that character. Schauer contends that not only was this instruction not given here to limit the jury's consideration of the evidence, the instruction relating to RCW 10.58.090 that was given allowed the jury to consider Schauer's prior sex offense "for its bearing on any matter to which it is relevant, " which included whether Schauer had a propensity to molest young boys. Thus, he contends that absent a proper limiting instruction, admitting the prior conviction under ER 404(b) was error.
State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007).
Gresham, 173 Wn.2d at 423-24.
In Scherner, the trial court admitted evidence of prior child molestation offenses under both the statute and ER 404(b) to show a common scheme or plan. Scherner proposed an ER 404(b) limiting instruction, but the trial court refused to give it because it was an incorrect statement of the law. On appeal, Scherner argued that it was reversible error to admit the evidence to show a common scheme or plan without a limiting instruction. The court concluded that the trial court had a duty to give a correct limiting instruction, because Scherner proposed a limiting instruction, albeit a flawed instruction. But the court held that failure to give a limiting instruction in that case was harmless error, concluding that "the remaining overwhelming evidence of Scherner's guilt persuades us that the outcome of his trial would not have been materially affected." The court noted that even if the jury had been prohibited from considering the prior sex offense, the jury still had before it the detailed testimony of the victim, evidence of Scherner's flight from prosecution, Scherner's credibility in light of his trial testimony, and "most damning" of all, evidence of a recorded telephone conversation with the victim, in which Scherner essentially admitted to the molestation.
Gresham, 173 Wn.2d at 424.
Gresham, 173 Wn.2d at 425.
Gresham, 173 Wn.2d at 425.
The State contends that the failure to give an ER 404(b) limiting instruction here was harmless error because the jury was given another instruction that sufficiently cautioned the jury against placing too much weight on the prior misconduct evidence. The instruction to which the State refers is the one discussing the statutory basis for admission of the prior sex offense which, as noted above, allows the jury to consider it "for its bearing on any matter to which it is relevant." The State points to additional language in that instruction that evidence of the prior offense "on its own is not sufficient to prove the defendant guilty of the crimes charged, " and that "[t]he defendant is not on trial for any act, conduct, or offense not charged in the information, " and argues that this instruction, coupled with the prosecutor's argument that the prior misconduct was relevant as evidence of a common scheme or plan, sufficiently informed the jury that it was offered for this limited purpose. We disagree. As discussed above, by allowing the jury to consider this evidence "for its bearing on any matter to which it is relevant, " this instruction impermissibly permitted the jury to consider it as evidence of Schauer's propensity to act in conformity with this past misconduct.
Thus, we turn to the harmless error analysis, which requires us to determine whether "'within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.'" In Gresham, the court concluded there was a reasonable probability that absent the "highly prejudicial evidence" of Gresham's prior sex offense, the outcome of trial would have been different. In that case, excluding the erroneously admitted evidence of a prior sex offense left the remaining evidence of the child victim's testimony about the abuse and witnesses' corroboration of the defendant's opportunity to commit the alleged acts.
Gresham, 173 Wn.2d at 433 (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).
Gresham, 173 Wn.2d at 433.
Here, we cannot say that the admission of Schauer's prior molestation conviction, in conjunction with an instruction allowing the jury to consider the evidence for propensity purposes, was harmless. As in Gresham, absent evidence of the highly prejudicial evidence of the prior conviction, there is a reasonable probability that the outcome of the trial would have been different. The evidence of guilt presented at trial hinged on witness credibility. Schauer denied the allegations and the only direct evidence of his guilt was the testimony of two child victims and their statements made to other adults. While there was also some physical evidence of abuse of T.V., there was no physical evidence of abuse of A.A. Such evidence was sufficient to support Schauer's conviction, but we cannot say that it amounted to overwhelming evidence of guilt. In fact, in closing argument, the State emphasized the significance of Schauer's prior molestation conviction, arguing that it provided corroboration of the boys' testimony, that it was a "blueprint" for the current offenses, and that "history ha[s] a way of repeating itself." The lack of overwhelming evidence of guilt is further demonstrated by the jury's acquittal on one of the counts involving A.A., despite having the evidence of the prior conviction before it. Because the trial court's admission of evidence of his prior molestation conviction under RCW 10.58.090 was not harmless, we reverse Schauer's conviction.
We further note that the State does not argue that there was overwhelming evidence of guilt absent the admission of the prior conviction, but simply takes the position that failure to give an ER 404(b) instruction was harmless error.
WE CONCUR: