Facts: Petitioner Timothy Fisher was convicted of sexually molesting his former stepdaughter in the Superior Court for Benton County after a trial in which the prosecution, in contravention of a pretrial agreement, discussed allegations of previous physical abuse of other children under Fisher’s care during its opening statement and subsequently introduced evidence of the abuse during direct examination of its first witness. Fisher appealed his conviction, claiming that admitting evidence regarding previous acts of abuse on his part for purposes other than accounting for his former stepdaughter’s delay in reporting the alleged sexual abuse violated his right to a fair trial. The Washington Court of Appeals affirmed Fisher’s conviction, holding that the evidence was properly admitted at the trial court’s discretion. Fisher appealed this decision to the Supreme Court of Washington.

Question(s): Was the evidence of previous acts of child abuse by Fisher admissible not only for the purpose of accounting for the delay in reporting the alleged crime but also for the purpose of establishing that Fisher had engaged in a consistent pattern of abusive behavior toward children?

Conclusion: Justice Fairhurst’s opinion for the Court concluded that Fisher had been denied a fair trial by the prosecution’s violation of the pretrial agreement, ruling that as evidence of a defendant’s prior misconduct is generally not admissible for purposes of demonstrating the defendant’s propensity to commit the charged crime under Washington Rules of Evidence §404(b), the only circumstance under which the evidence of Fisher’s prior abusive behavior could have been introduced would have been to rebut any attempt by Fisher to have the jury draw a negative inference from his former stepdaughter’s delayed reporting. However, as Fisher did not raise the issue at trial, the evidence was inadmissible and the Court therefore vacated Fisher’s conviction.

Docket No. 79801-0 (from Court of Appeals Division III Case No. 24253-6)

Petitioner: Timothy Fisher

(Counsel: John Henry Browne)

Respondent: State of Washington

(Counsel: Andrew K. Miller, Scott W. Johnson, and Mariah A. Wagner)

Briefs:

Argument: Tuesday, February 12, 2008 1:30pm

[Source: TVW, http://tvw.org]

Decided: Thursday, March 12th, 2009

Prevailing Party: Timothy Fisher (Petitioner)

Vote: 9-0

Opinion: 165 Wn.2d 727 (2009)

Court: Alexander4 Court (2008-2009)

Alexander

Johnson

Madsen
(Concurs)

Sanders

Chambers

Owens

Fairhurst
(Majority)

Johnson

Stephens