Argued September 12, 2013
Appeal from Pierce County Superior Court. 07-1-05074-6. Honorable Bryan E. Chushcoff.
Rebecca Wold Bouchey, for petitioner.
Mark E. Lindquist, Prosecuting Attorney, and Brian N. Wasankari, Deputy, for respondent.
AUTHOR: Justice Sheryl Gordon McCloud. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Debra L. Stephens, Justice Charles K. Wiggins. AUTHOR: Justice Steven C. Gonzá lez. WE CONCUR: Justice Mary E. Fairhurst, Justice James M. Johnson.
Gordon McCloud, J.
[179 Wn.2d 852] ¶ 1 Our rules of evidence have long provided that " [e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Evidence Rule (ER) 404(b). In 2008, the legislature enacted a statute [179 Wn.2d 853] making an exception for evidence of sex offenses.  Former RCW 10.58.090 (2008). In 2012, this court held that statute, RCW 10.58.090, was unconstitutional. State v. Gresham, 173 Wn.2d 405, 413, 269 P.3d 207 (2012). In 2009, between the statute's enactment and subsequent invalidation, the trial court admitted evidence of David Gower's prior sex offenses against him at his bench trial under that unconstitutional statute. Because that evidence was improperly admitted and considered by the trial judge in finding Gower guilty, we reverse Gower's conviction and remand for a new trial.
FACTS AND PROCEDURAL HISTORY
¶ 2 The State prosecuted Gower for sex crimes against his 17-year-old stepdaughter S.E.H. The prosecution took place in 2009, when both ER 404(b) and RCW 10.58.090 were in force. In accordance with those laws, the State offered evidence that Gower had committed other similar crimes against two other alleged juvenile victims, C.M. (his biological daughter) and J.K. (another stepdaughter). In a pretrial evidentiary hearing on the admissibility of that evidence, the trial court ruled it was all inadmissible under ER 404(b). But the trial court acknowledged that admissibility of that evidence under RCW 10.58.090 was a separate question and concluded that although the evidence of other sex offenses was inadmissible under ER 404(b), the evidence of the prior crimes relating to C.M. was admissible under RCW 10.58.090. 
¶ 3 The trial court entered clear findings of fact and conclusions of law explaining its decision. Under the statute, the trial court was required to consider several factors [179 Wn.2d 854] before admitting evidence of prior crimes, including " [t]he necessity of the evidence beyond the testimonies already offered at trial." Former RCW 10.58.090(6)(e). The trial court's conclusion of law 6 states exactly that--that the " evidence of the defendant's prior sexual misconduct with C.M. is necessary to the State's case at trial in the present case." Clerk's Papers (CP) at 30. The trial court thus excluded J.K.'s testimony but admitted C.M.'s testimony, after considering and applying the statutory factors.
¶ 4 After a bench trial, the trial court found Gower guilty of two counts of indecent liberties and one count of incest in the second degree. Gower received consecutive life sentences for the indecent liberties convictions
and 60 months for the incest conviction. Gower appealed his convictions, arguing, among other things, that RCW 10.58.090 was unconstitutional. The Court of Appeals stayed his appeal pending Gresham . In Gresham, we held that RCW 10.58.090 was unconstitutional. Gresham, 173 Wn.2d at 413. Nevertheless, the Court of Appeals upheld Gower's convictions in a published opinion. State v. Gower, 172 Wn.App. 31, 288 P.3d 665 (2012). Gower ...