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.
Continue Reading State v. Gower: Anything is Reasonably Probable

In State v. Garcia, Jr., No. 88020-4, the State Supreme Court unanimously reversed the defendant’s first degree kidnapping and second-degree kidnapping convictions and remanded for a new trial of those convictions, but affirmed the defendant’s criminal trespass conviction.

The defendant, Phillip Garcia, Jr., believed he was involved in a car chase after hearing gun shots coming from other vehicles on a highway.  Garcia eventually abandoned his vehicle and ran to a gas station to seek help.  Upon learning the gas station was closed, Garcia broke into the gas station with a cinder block, but fled after hearing he triggered the station’s alarm.  Garcia then went to homes nearby, and ended up at the home where the victim was asleep.  Garcia entered the home through an unlocked door, then spoke with and remained with the victim for two hours before one of Garcia’s friends picked him up.

The State charged Garcia with first degree kidnapping based on his interactions with the victim, and first degree criminal trespass and burglary in the second degree for breaking into the gas station.  The State successfully excluded Garcia’s statements to the victim as hearsay, and also introduced a police report containing hearsay statements from Garcia’s previous burglary conviction.  A jury convicted Garcia of all three charges, and the Court of Appeals affirmed.  Garcia appealed, arguing there was insufficient evidence to support the kidnapping charge and that the trial court’s above evidentiary rulings were erroneous.
Continue Reading State v. Garcia, Jr. – Not Enough Evidence for First Degree Kidnapping Conviction