Under ER 404(b), evidence of prior bad acts is not admissible to show conformity with those acts.  In 2008, the Legislature carved out an exception to ER 404(b) by passing a bill that allowed evidence of prior sex crimes to be admitted in criminal sex cases.  But in 2012, the Washington Supreme Court held that this statute was unconstitutional.

Gower involves a bench trial that took place in 2009, after the Legislature’s ER 404(b) exception was in effect, but before it was held unconstitutional.  The State had charged Gower with a series of sex crimes relating to sexual contact with his minor step-daughter, SEH.  At trial, the State sought to admit the testimony of one of Gower’s other minor children, CM, and the trial court admitted CM’s testimony, stating that the evidence would have been inadmissible under ER 404(b), but was admissible under the statutory exception.  SEH also testified to her own experience at the hands of Gower.

The trial court found Gower guilty on numerous counts.  It issued a set of findings and conclusions.  In those findings, the trial court recounted CM’s testimony, as well as SEH’s and other witnesses.  In issuing five conclusions of law, the trial court explained the evidence on which it relied to reach those conclusions.  It stated that it relied on evidence other than CM’s testimony to reach its conclusions of law that rendered Gower guilty.

Following trial, and after the State Supreme Court overturned the statutory exception for ER 404(b), Gower appealed his conviction, claiming that because CM testified to his prior bad acts, that inadmissible evidence prejudiced his trial.  The Court of Appeals agreed that CM’s testimony regarding Gower’s prior bad acts was inadmissible; but, it held that admitting CM’s evidence was harmless error because Gower could not demonstrate resulting prejudice, given that the trial court’s conclusions of law expressly detailed that the trial court relied on admissible evidence in finding Gower guilty.  The Court of Appeals held that the admission of improper evidence was harmless because there was no reasonable probability that the error materially affected the trial’s outcome; and, trial courts are presumed to rely on admissible evidence in reaching its decisions.

Gower then successfully petitioned to the State Supreme Court.  In a 6-3 ruling, the State Supreme Court reversed Gower’s convictions, holding that the presumption that judges in bench trials do not consider inadmissible evidence does not apply to evidence that is actually admissible and admitted under the law at the time of trial.  Like the Court of Appeals, the Supreme Court held that CM’s testimony was inadmissible.  But the Supreme Court did not think the error was harmless.  The Supreme Court explained that this case was a credibility contest, pinning Gower’s word against SEH’s.  Because the trial court noted that it heard CM’s evidence, potentially bolstering SEH’s credibility, it was reasonably probable that the outcome would have been different without CM’s testimony.

In dissent, Justice Gonzalez echoed the Court of Appeals.  He expressed that the admission of CM’s testimony was improper, but it was harmless because the trial court expressly stated that it relied on admissible evidence in reaching its conclusions regarding Gower’s guilty.

If this were a jury trial, there would be no question about overturning Gower’s convictions based on the admission of Gower’s previous sex crimes pursuant to the unconstitutional statute.  As mentioned by the Court of Appeals, in jury trials “we do not have a window into the jury’s decision-making process, and therefore, we have no way to know if the jury relied on inadmissible evidence.”  But this was not a jury trial; Gower instead made the strategic decision to have his charges heard and decided in a bench trial.

When a criminal defendant waives his or her right to a jury trial, it is with the knowledge that the trial judge will serve as both a gatekeeper, determining what evidence is admissible and what evidence may not be admitted, and also the finder of fact.  Unlike jury trials, we have the benefit of the trial court’s findings of fact and conclusions of law to provide us with the “window” into the fact-finder’s reasoning and decision-making.  The value of this process was not lost on the dissent author, Justice Gonzalez, who is the only current justice on Washington’s Supreme Court with any significant superior court experience.

Gower’s trial court judge left very detailed findings and conclusions explaining how it reached its decisions.  In its conclusions, the trial court stated that it relied on SEH’s testimony.  In fact, in one of its conclusions, the trial court even stated when it felt another witness’ testimony bolstered SEH’s.  Accordingly, we know that this trial court articulated when it found another witness’ testimony added to SEH’s credibility—tellingly, the absence of any mention of CM’s testimony in the trial court’s conclusions of law indicates that the trial court did not rely on CM’s testimony for anything material to this case’s outcome.

The majority of the State Supreme Court, however, glossed over the trial court’s written word and held that it is “reasonably probable” that the trial court relied on CM’s testimony, even though the trial court never mentioned CM’s testimony in its conclusions of law or gave any other indication that CM’s testimony played any role in its conclusions of law.  Consequently, an observer might believe that the only way a reviewing court could determine that there was no reasonable probability that a trial court relied on inadmissible evidence would be for the trial court to expressly state that it was not relying on it.  This calls into question the purpose of written findings and conclusions in bench trials altogether.