Opinion
64234-1-I
08-13-2012
STATE OF WASHINGTON, Respondent, v. SCOTT SOLLESVIK, Appellant.
UNPUBLISHED OPINION
ON REMAND
Ellington, J.
In our first opinion on this matter, we affirmed Scott Sollesvik's conviction for rape of a child in the first degree, upholding admission of evidence of prior offenses as authorized by RCW 10.58.090. In the consolidated case of State v. Gresham and State v. Scherner, however, our Supreme Court held that RCW 10.58.090 violates the separation of powers doctrine and is unconstitutional. The court then remanded this matter for reconsideration in light of its opinion. We reverse and remand.
173 Wn.2d 405, 432, 269 P.3d 207 (2012).
DISCUSSION
The facts are set forth in our earlier opinion and need not be repeated here.
The admission of evidence of Sollesvik's prior sex offenses on the authority of the statute was error. The State contends the error was nonetheless harmless, because the evidence was admissible under ER 404(b) to show a common scheme or plan to sexually abuse young girls. The State reminds us that an evidentiary ruling may be affirmed if it is sustainable on other grounds, and points out that in Gresham, the Supreme Court affirmed Scherner's conviction because the prior sex offense evidence was admissible under ER 404(b). Scherner had proposed an ER 404(b) limiting instruction, albeit flawed, and the court held that failure to give a proper instruction was error but harmless, because the evidence of Scherner's guilt was overwhelming.
Id. at 419-20.
Id. at 424-25.
Here, the chief evidence against Sollesvik was the testimony of the victim and the evidence improperly admitted under the statute, which related to two 23-year-old convictions for statutory rape. The facts underlying Sollesvik's prior convictions and the allegations at trial share some common features. But the record does not reveal whether the trial court would have found the prior crime evidence admissible under ER 404(b), so we cannot determine whether admission of evidence under RCW 10.58.090 was harmless. Given that the evidence pertaining to Sollesvik's prior sex offenses was both highly prejudicial and central to the State's case, if it was not admissible for a proper purpose under ER 404(b), there is a reasonable probability that the error materially affected the outcome of the trial.
See State v. Villarreal, 97 Wn.App. 636, 643, 984 P.2d 1064 (1999) (this court may affirm the trial court's admission of evidence on an alternative basis only when the record is sufficiently developed) (quoting State v. Sondergaard, 86 Wn.App. 656, 657-58, 938 P.2d 351 (1997)).
See Gresham, 173 Wn.2d at 433-34.
Admission of the evidence under ER 404(b) is a question to be addressed for the first time by the trial court. We reverse Sollesvik's conviction and remand for further proceedings.