Opinion
29168-5-III 29183-9-III
10-04-2012
STATE OF WASHINGTON, Respondent, v. BRIAN DEE WENZ, Appellant.
UNPUBLISHED OPINION
Brown, J.
Today, at Supreme Court direction, we reconsider Brian Wenz's appeal of his second degree child molestation and first degree child molestation convictions in light of State v. Gresham, 173 Wn.2d 405, 269 P.3d 207 (2012) (holding RCW 10.58.090 unconstitutional). We hold the trial court erred in allowing evidence under RCW 10.58.090 as cross admissible in the joined trials of two separate cases involving separate victims. We reject the State's arguments that the trial court alternatively allowed the evidence under ER 404(b), and reverse.
FACTS
The State separately charged Mr. Wenz in two cases. First, Mr. Wenz was charged with second degree rape of a child and second degree child molestation against 12-year-old N.M., a friend of Mr. Wenz's niece, R.H. N.M. reported Mr. Wenz fondled her in March 2007 while the two were at R.H.'s house watching television. Second, the State charged Mr. Wenz with three counts of first degree rape of a child and three counts of first degree child molestation involving Mr. Wenz's 10-year-old niece, T.W. T.W. reported Mr. Wenz forced his hands down her pants on several occasions between May and June 2006, while she and Mr. Wenz were watching television with other members of the family, including R.H. T.W. first disclosed the allegations to R.H. after R.H. informed T.W. about N.M.'s allegations.
T.W. is the adopted daughter of Mr. Wenz's brother. She was adopted prior to trial but after the incident. In some portions of the record she is referred to as T.P.
Before trial, the State moved for joinder under CrR 4.3 and sought cross admissibility of evidence under RCW 10.58.090 and additionally under ER 404(b) as res gestae and evidence of a lustful disposition. Mr. Wenz responded that RCW 10.58.090 was unconstitutional and inadmissible under ER 404(b). Acknowledging ER 404(b) in passing, the trial court ruled the evidence was cross admissible under RCW 10.58.090 and joined the cases for trial:
[T]hese two crimes could very well be admissible, cross admissible under 404 anyway, but I am going to move right to the statute, RCW 10.58.090 . . . in considering 10.58.090 and the factors, the sex offenses or the allegations of them would be, are cross admissible under that statute, again I think they very well could have been under 404(b) and therefore the motion to join will be granted since it's they're cross admissible anyway. . . . [N]ow I do believe under the statute they are cross admissible. . . . So the motion to join is granted.
Report of Proceedings (RP) (Feb. 9, 2009) at 66-68.
After two mistrials, Mr. Wenz was convicted of second degree child molestation in the matter involving N.M., and one count of first degree child molestation in the matter involving T.W. The trial court dismissed the remaining counts for the State's failure to offer sufficient evidence. Mr. Wenz appealed and this court affirmed, reasoning the evidence was constitutionally cross admissible under RCW 10.58.090. Our Supreme Court granted Mr. Wenz's petition for review and after Gresham, it remanded to us for reconsideration. In our prior opinion we reasoned the trial court clearly based its decision on RCW 10.58.090 not ER 404(b).
ANALYSIS
The issue is whether the trial court erred by ruling the evidence in the two separate cases was cross admissible under RCW 10.58.090 and then joining the two cases for trial. In supplemental briefing considering Gresham, the parties agree the trial court erred in allowing evidence cross admissibility under RCW 10.58.090, but disagree whether the trial court alternatively ruled on cross admissibility under ER 404(b). We conclude the trial court did not alternatively rule the evidence was cross admissible under ER 404(b).
The question of whether two offenses are properly joined is a question of law reviewed de novo. State v. Bryant, 89 Wn.App. 857, 864, 950 P.2d 1004 (1998). CrR 4.3(a)(1) permits two or more offenses to be joined in a single charging document when the offenses "[a]re of the same or similar character, even if not part of a single scheme or plan." There is no dispute that the two offenses here are of the same or similar character.
"Offenses properly joined under CrR 4.3(a), however, may be severed if 'the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense.'" State v. Bythrow, 114 Wn.2d 713, 717, 790 P.2d 154 (1990) (quoting CrR 4.4(b)). We review a trial court's denial of a motion to sever counts for abuse of discretion. Bryant, 89 Wn.App. at 864-65. Mr. Wenz did not move to sever the offenses, so the issue is waived on appeal. Id. Nonetheless, because joinder and severance are "based on the same underlying principle, that the defendant receive a fair trial untainted by undue prejudice . . . the 'pure' legal issue of joinder" cannot be decided without considering prejudice. Id. at 865.
Joinder carries the potential for prejudice if (1) the defendant may have to present separate, possibly conflicting, defenses; (2) the jury may infer guilt on one charge from evidence of another charge; or (3) the cumulative evidence may lead to a guilty verdict on all charges when, if considered separately, the evidence would not support every charge. Bythrow, 114 Wn.2d at 718. On the other hand, the prejudice from joinder is mitigated by (1) the strength of the evidence on each count; (2) the clarity of the separate defenses; (3) instructions directing the jury to consider each count separately; and (4) the admissibility of the evidence of one charge in a separate trial of the other charge. State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994). Joinder of charges can be particularly prejudicial when the alleged crimes are sexual in nature. State v. Saltarelli, 98 Wn.2d 358, 363, 655 P.2d 697 (1982).
In Gresham, the Supreme Court ruled on two consolidated cases. Gresham, 173 Wn.2d at 413. The Supreme Court reversed the trial court in Mr. Gresham's case where the evidence was admitted solely under RCW 10.58.090, but affirmed the trial court in Mr. Scherner's case because the trial court ruled the evidence was admissible under both RCW 10.58.090 and ER 404(b). Id. Here, the State argues the trial court similarly allowed cross admissibility under ER 404(b). We disagree. The record clearly shows the trial court based its evidence-admissibility decision on RCW 10.58.090 with a bare acknowledgement and no full consideration of the State's ER 404(b) arguments.
Moreover, we review de novo whether a trial court correctly interpreted an evidentiary rule in deciding to admit evidence. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). ER 404(b) prohibits the use of evidence of other crimes, wrongs, or acts to show action in conformity therewith. While ER 404(b) generally prohibits evidence of a defendant's prior bad acts, it contains a nonexclusive list of purposes for which evidence of past acts is admissible. ER 404(b). Two recognized purposes are lustful disposition and res gestae. See State v. Ray, 116 Wn.2d 531, 547, 806 P.2d 1220 (1991); State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995). Even if the trial court had considered alternative cross admissibility under ER 404(b), the record does not support the State's arguments.
This nonexclusive list of other purposes for which past acts evidence may be admitted includes "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
First, evidence of a defendant's prior sexual misconduct against the same victim is admissible in order to show the defendant's lustful disposition toward that victim. Ray, 116 Wn.2d at 547. "In that circumstance, the purpose of the evidence is not to demonstrate the defendant's character but to demonstrate the nature of the defendant's relationship with and feelings toward the victim." Gresham, 173 Wn.2d at 430 n.4. "When considering lustful disposition, it is important that the prior conduct reveals a sexual desire for that particular victim." State v. Guzman, 119 Wn.App. 176, 182, 79 P.3d 990 (2003). Here, the evidence ruled cross admissible does not reveal a sexual desire for a particular victim much less show lustful disposition toward the other victim. Thus, to the extent the trial court acknowledged the evidence could be admissible to show Mr. Wenz's lustful disposition, its interpretation was error.
Second, under the res gestae doctrine, such evidence "is admissible to complete the story of a crime or to provide the immediate context for events close in both time and place to the charged crime." State v. Lillard, 122 Wn.App. 422, 432, 93 P.3d 969 (2004). The purpose of the evidence is not to demonstrate the defendant's character but to show the "sequence of events surrounding the charged offense." State v. Hughes, 118 Wn.App. 713, 725, 77 P.3d 681 (2003). "Each act must be 'a piece in the mosaic necessarily admitted in order that a complete picture be depicted for the jury.'" State v. Powell, 126 Wn.2d 244, 263, 893 P.2d 615 (1995) (quoting State v. Tharp, 27 Wn.App. 198, 204, 616 P.2d 693 (1980)). Here, the evidence ruled cross admissible pertained to incidents which occurred several months apart and involved separate victims who did not know one another; the evidence did not relate to a single sequence of events, but to two different situations. Thus, to the extent the trial court acknowledged the evidence could be admissible under the res gestae doctrine, its interpretation of the rule was error.
Reversed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: Korsmo, C.J., Sweeney, J.