Roger Scherner was convicted of three counts of first degree child molestation. Mr. Scherner is a California resident, who molested several family members who were under age. Evidence of prior molestations of women who were under age when they were molested by him was admitted at his trial over his objections under ER 404(b). He claimed that a statute, RCW 10.58.090, which made such evidence was admissible, was an unconstitutional ex post facto law.
The Court of Appeals affirmed his convictions, holding that the prior molestations were part of a common plan or scheme and that RCW 10.58.090 was not an ex post facto law because it did not change the fact that the State still had to prove that he had committed the prior molestations in order to offer the evidence that he had committed them. The Court of Appeals also rejected arguments based on the Equal Protection Clause, the Due Process Clause and the separation of powers doctrine.
The Court of Appeals also rejected an argument that Bellevue Police Detective Jennifer Robertson had violated RCW 9.07.030 by intercepting telephone conversations where not all parties had consented to the recording.
The Court of Appeals also rejected the argument that the spousal privilege should have prohibited admissions made to Mr. Scherner’s spouse or that admission of that evidence was harmless.