## Facts

- Johnathon D. Roswell, age 21, interacted with three minor girls at a park and made sexual comments and requests; witnesses also described inappropriate touching.
- Roswell had the girls sign a “little black book,” indicating they would have sex with him when they turned 18.
- The State charged Roswell with second-degree child molestation, third-degree child molestation, and multiple counts of communicating with a minor for immoral purposes.
- Under Washington law, communicating with a minor for immoral purposes is generally a gross misdemeanor, but it becomes a felony if the defendant has a prior qualifying felony sex-offense conviction.
- Roswell had a prior felony sex-offense conviction, so the State charged the communication counts as felonies, making the prior conviction an element the State had to prove.
- Before trial, Roswell moved in limine to stipulate to the existence of the prior conviction and to waive a jury trial only as to that element, asking the judge to decide the prior-conviction element while the jury decided the remaining elements.
- The trial court denied the requested split between judge and jury but limited the State’s proof of the prior conviction to the fact of conviction, without details about the offense.
- A jury convicted Roswell. The Court of Appeals affirmed, and the Washington Supreme Court granted review on the partial-jury-waiver question.

## Issues

1. May a defendant, without waiving a jury trial on the entire case, waive a jury determination only on a prior-conviction element and require the judge to decide that element while the jury decides the remaining elements?

## Decision

- The Washington Supreme Court affirmed.
- The court held that Roswell could not require a “hybrid” trial in which the judge decides one element (the prior conviction) and the jury decides the others.
- The court ruled that the trial court did not err by refusing the requested split and instead reducing potential prejudice by limiting the State’s proof to the bare fact of the prior conviction.

## Legal Principles

- When a prior conviction changes the level of an offense (for example, from gross misdemeanor to felony), the prior conviction functions as an element of the charged felony that the State must prove beyond a reasonable doubt.
- A defendant may waive the right to a jury trial, but the right does not include an entitlement to allocate different elements of a single charged offense to different fact finders.
- Measures to reduce unfair prejudice from proof of a prior conviction (such as stipulations, limiting the evidence to the fact of conviction, or bifurcating jury instructions as approved in State v. Oster) do not require transferring an element from the jury to the judge.
- Trial courts have discretion to manage the presentation of prior-conviction evidence to limit prejudice, while keeping all elements of the offense for decision by the same trier of fact.

## Conclusion

State v. Roswell holds that when a prior conviction is an element that makes communicating with a minor for immoral purposes a felony, the defendant may not waive a jury only for that element and demand that the judge decide it while the jury decides the rest; the trial court may instead address prejudice by limiting the evidence of the prior conviction, and Roswell’s convictions were affirmed.


State v. Roswell, 196 P.3d 705 (2008)