State Of Washington v. Kevin Lee Garrison

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) DIVISION ONE Respondent, ) No.71134-2-I v. ) ) UNPUBLISHED OPINION KEVIN LEE GARRISON, ) = Q~cD

Appellant. ) FILED: April 6, 2015 ~ _______________ 1 ,~ C’~

DwYER, J. — Kevin Lee Garrison was found guilty of child molestation,i~i ~0

the second degree for touching the breasts of a sleeping 12-year-old girl. He1? ~ co ~<

was sentenced to life in prison as a persistent offender. On appeal, Garrison contends that (I) the trial court improperly admitted ER 404(b) evidence that he had touched the same victim on other occasions and that he had committed similar acts against another young girl approximately 10 years before, (2) the trial court’s limiting instruction with respect to this ER 404(b) evidence was incorrect, and (3) he was improperly sentenced as a persistent offender because one of his prior convictions was comparable to a Washington class C felony, not a class B felony, and, therefore, should not have been included in his offender score or deemed to be a strike offense. Because Garrison does not establish an entitlement to relief on either the evidentiary or instructional issues, we affirm the conviction. However, because one of his prior convictions was improperly counted as a strike offense, we reverse the sentence imposed and remand for further proceedings. No. 71134-2-1/2

A.W. was twelve years old and in sixth grade in December of 2011. She spent a significant amount of time at the home of her best friend, Sincerity, including spending the night there three or four times a week. Garrison was Sincerity’s stepfather. A.W. considered Garrison and Sincerity’s mother, Rosie Garrison, to be like family, and called them “Uncle Kevin” and “Aunt Rosie.” Garrison, in turn, bought A.W. gifts and was kind to her.

Normally, when A.W. wanted to spend the night at the Garrisons’ house, she would call her mother to ask permission. One night in December of 2011, however, it was Garrison who called A.W.’s mother to ask if A.W. could spend the night. A.W.’s mother gave permission, and spent part of the evening at the Garrisons’ home herself, socializing with the Garrisons.

When A.W. spent the night at the Garrisons’ house, she frequently shared Sincerity’s bed, but also sometimes slept on the family’s living room couch. After A.W.’s mother went home on the night in question, Garrison and Rosie went to bed and A.W. went to sleep on the couch. A.W. was wearing a shirt, bra, zip-up hooded sweatshirt, and jeans. Before going to sleep, A.W. zipped her sweatshirt all the way up.

Shortly before 5:00 in the morning, A.W. was awakened by the feeling of a hand rubbing and squeezing her breast underneath her bra. She opened her eyes and saw Garrison withdraw his hand from her chest and quickly walk back to his bedroom a few feet away. A.W. discovered that her sweatshirt was

unzipped, the neckline of her shirt was pulled down below her bra, and the cup of -2-

No. 71134-2-1/3 her bra was folded inwards, exposing part of her breast and nipple. A.W. fixed her clothes and turned to face the back of the couch, with her back toward Garrison’s open bedroom doorway, hoping that Garrison would think she was still sleeping. After a minute or two, Garrison came out of his bedroom and went to the kitchen. Garrison returned to his bedroom soon thereafter. A.W. waited a few minutes in the hope that he would fall asleep, then fled to Sincerety’s room.

Upon entering Sincerety’s room, A.W. climbed into the far side of Sincerity’s bed, placing Sincerity between her and the doorway. Fearing that Sincerety would not believe her, she did not tell her what had happened. A.W. forced herself to go back to sleep.

Upon arising for the day, and believing that Garrison would be suspicious if she acted unusually, A.W. acted as if nothing was wrong. Despite her reluctance to get into a car with him, as was customary, A.W. accepted a ride home from Garrison. Garrison said nothing during the short ride. When she arrived home, A.W. found that her mother had already left for work and her aunt was still asleep. A.W. decided to go to school but tried to reach her mother throughout the day. When her mother finally arrived home that night, a tearful A.W. met her in the driveway and told her what had happened the night before. The next day, A.W.’s mother took her to the police station to report what Garrison had done.

The State charged Garrison with child molestation in the second degree. During pretrial motions, the State requested a ruling on the admissibility of evidence of prior sexual misconduct by Garrison against both A.W. and a prior

-3-No. 71134-2-1/4

victim, A.F. Some of the evidence proffered by the State was that, while sleeping on the Garrisons’ couch a month or two before the charged incident, A.W. had

awakened to Garrison rubbing her upper thigh over her clothes. When she moved her leg, Garrison stopped. Because she trusted Garrison not to do anything inappropriate, A.W. did not think it was serious and went back to sleep.

The State also sought to admit the testimony of A.W. that, on several occasions prior to December of 2011, she had awoken on the Garrisons’ couch with her shirt and bra in disarray, but did not know how that had occurred. This only happened when A.W. slept on the couch, and never when she slept in Sincerity’s bed.

The State also sought to admit evidence that Garrison had previously molested another young girl, A.F. During the summer of 2000, A.F. was twelve years old and had just finished sixth grade. Her mother was dating Garrison, who lived next door. Like A.W., A.F. was more physically developed than most girls her age. Garrison was kind to A.F., and she began to view him as a fatheror uncle-like figure.

One night, A.F. was awakened by Garrison rubbing her head and shoulders. Though A.F. found it awkward, she did not mention this to anyone at the time. On a later occasion, A.F. awoke to find Garrison touching her back with his hands under her clothes. He then moved his hands to fondle her breast and touch her vaginal area. A.F. pretended that she was asleep throughout the incident.

A.F. did not immediately report the molestation both because she did not

-4-No. 71134-2-1/5 want to hurt her mother and because she feared she would not be believed. In the ensuing months, A.F. was awakened more than 20 times by Garrison fondling her. The molestation escalated to more serious abuse that occurred while A.F. was awake, including incidents of vaginal penetration with Garrison’s fingers and with a dildo. A.F. eventually disclosed the abuse, and Garrison was charged with rape of a child and child molestation in 2004 but, pursuant to a plea agreement, was allowed to enter an Alford1 plea to assault in the second degree.

The State argued that evidence of the prior misconduct with A.W. was admissible for the purposes of demonstrating lusiful disposition, res gestae, and absence of mistake, and that testimony concerning the prior misconduct with A.F. was admissible for the purposes of demonstrating a common scheme or plan and the absence of mistake. The State indicated that it believed lustful disposition and common scheme or plan were essentially the same concept when considering prior misconduct against the victim of the current offense. The State’s argument regarding the absence of mistake was that, because evidence of a common scheme or plan was relevant to prove that the charged act had in fact occurred, the evidence would contradict Garrison’s expected claim that A.W. was mistaken in her belief that Garrison had touched her and had instead simply dreamed about it.

The trial court ruled that testimony about the thigh-touching incident with A.W. and the incidents of touching while A.F. was asleep were admissible. The

court found that the incidents involving A.W. awakening with her clothing in 1 North Carolina v. Alford, 400 u.s. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

-5-No. 71134-2-1/6 disarray were insufficiently connected to any action by Garrison for their relevance to outweigh their prejudice, and excluded evidence of those incidents. The court also found that evidence of the incidents of more serious molestation of A.F., after Garrison had progressed from fondling A.F. while she slept to molesting her while she was awake, was not admissible. The trial court reasoned that this evidence was not helpful to the jury because the incidents described were less similar to the conduct alleged by A.W. than were the incidents that occurred when A.F. was asleep. The trial court did not explicitly state for which purposes evidence of the thigh-touching incident with A.W. was admissible, but did state that evidence of the incidents of molestation while A.F. was asleep were admissible as evidence of a common scheme or plan and the absence of mistake.

The parties later submitted proposed limiting instructions setting out “common scheme or plan” and “absence of mistake or accident” as permissible purposes for A.F.’s testimony in accordance with the court’s ruling. The State’s proposed instruction set out “lustful disposition” and “absence of mistake” as permissible purposes for A.W.’s testimony concerning prior misconduct. However, Garrison’s proposed instruction listed “absence of mistake or accident” as the only permissible purpose for this testimony.

Garrison’s counsel argued that the term lustful disposition was unduly prejudicial and that the term common scheme or plan could be substituted for it. The trial court agreed with Garrison’s counsel and clarified that, in any case, its pretrial ruling had admitted the prior misconduct with A.W. as evidence of a

-6-No. 71134-2-1/7 common scheme or plan and lack of accident, similar to the evidence of prior misconduct with A.F. The trial court crafted and gave the jury its own instruction. Instead of differentiating between the prior misconduct against A.W. and A.F., this instruction simply stated that testimony concerning the alleged prior sexual misconduct could be considered in evaluating whether the evidence demonstrated a common scheme or plan or absence of mistake or accident.

The jury found Garrison guilty as charged. At sentencing, the trial court found Garrison to be a persistent offender and sentenced him to life in prison

without the possibility of release. Garrison timely appealed. II

Garrison first contends that the trial court erred when it admitted evidence of his prior sexual misconduct. This is so, he asserts, because the prior bad act evidence should not have been admitted for the purpose of establishing absence of mistake or accident. Garrison is correct that this evidence was admitted, in part, for an improper purpose. Nevertheless, the error was harmless.

An appellate court reviews a trial court’s interpretation of an evidentiary rule de novo. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). However, once the rule is correctly interpreted, a trial court’s decision to admit or exclude evidence is reviewed for abuse of discretion. DeVincentis, 150 Wn.2d at 17.

Pursuant to ER 404(b), “[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. It may, however, be admissible for other purposes, such as

-7-No. 71134-2-1/8 proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

“[A] material issue of accident arises where the defense is denial and the defendant affirmatively asserts that the victim’s injuries occurred by happenstance or misfortune.” State v. Roth, 75 Wn. App. 808, 819, 881 P.2d 268 (1994), abrogated by State v. Hampton, 182 Wn. App. 805, 332 P.3d 1020 (2014). Evidence is admissible under a lack of accident or absence of mistake theory “only if the defendant actually claims that the charged crime was an accident or mistake, or that he or she was acting in good faith.” 5 KARL B.

TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRAcTICE § 404.21, at 551 (5th ed. 2007); see, e.g., State v. Dewey, 93 Wn. App. 50, 58, 966 P.2d 414

(1998) (in prosecution for rape, defendant’s previous rape of another woman was not admissible to show a lack of mistake; the defendant’s defense was consent, not mistake), overruled on other grounds by DeVincentis, 150 Wn.2d 11. In a sex offense case, it is the defendant’s claim of accidental touching that triggers the absence of mistake theory of admissibility. There was no such claim in this case.

Garrison did not raise a defense of accident. His defense was that he never touched A.W.’s breasts or intimate parts, not that he touched them by mistake or accident. In fact, the prosecutor argued in closing that there was no evidence of an accidental touching. Likewise, there was no evidence that Garrison had touched A.F. by mistake or accident. A coincidental or mistaken

touching was not at issue. -8-

No. 71134-2-1/9

Without citation to relevant authority, the State argued to the trial court that the prior touching of A.W. or A.F. negated the defense theory that A.W. was mistaken in her belief that someone had improperly touched her. That is not the type of mistake that triggers admissibility under an absence of mistake rationale. Indeed, the State’s arguments regarding this basis for admission make clear that the State, and as a result the trial court, was using the term “absence of mistake or accident” to express the concept that, because the prior misconduct tended to establish a common scheme or plan, the existence of which tended to make it more likely that the charged misconduct in fact occurred, evidence of the prior misconduct tended to disprove Garrison’s claim that A.W. was mistaken in her belief that he had molested her. This framing of absence of mistake or accident rendered the notion functionally equivalent to common scheme or plan, but the two concepts, in fact, are not the same.

Thus, the trial court abused its discretion in basing its ruling on an erroneous view of the law. State v. Quismundo, 164 Wn.2d 499, 504, 192 P.3d 342 (2008); State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007). However, this observation does not end our inquiry.

The erroneous admission of ER 404(b) evidence is a nonconstitutional error and is therefore harmless unless there is a reasonable probability that the result of the trial would have been different had the error not occurred. State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984). The admission of ER 404(b) evidence for an improper purpose is harmless if the evidence was also admitted for a proper purpose. See State v. Powell, 126 Wn.2d 244, 264-65, 893 P.2d

-9-No. 71134-2-1/10 615 (1995) (trial court’s decision to admit prior misconduct evidence under ER 404(b) will be upheld if one of the bases is justified).

ER 404(b) evidence may be admitted to establish a common scheme or plan. In a child sexual abuse case, evidence of “the existence of a design to fulfill sexual compulsions evidenced by a pattern of past behavior” is relevant to whether the crime occurred. DeVincentis, 150 Wn.2d at 17-18. Admission of evidence for this purpose “requires substantial similarity between the prior bad acts and the charged crime.” DeVincentis, 150 Wn.2d at 21. “Sufficient similarity is reached only when the trial court determines that the ‘various acts are naturally to be explained as caused by a general plan . . . .“ DeVincentis, 150 Wn.2d at 21 (alteration in original) (quoting State v. Lough, 125 Wn.2d 847, 860, 889 P.2d 487 (1995)). There is no uniqueness requirement; the similarities need not “be ~atypical or unique to the way the crime is usually committed.” DeVincentis, 150 Wn.2d at 13.

With both A.F. and A.W., Garrison gained the victim’s trust, and access to her, by being close to someone the victim cared for and also treating the victim with kindness. In the instant case, Garrison established a strong and trusting relationship with A.W. as a result of being often around her. It was only after creating this bond that Garrison molested A.W. as she slept. Likewise, Garrison established a strong relationship with A.F. as a result of the significant amount of time he spent around her. It was only after creating that bond that Garrison started to molest A.F. as she slept. The defendant ingratiated himself with A.W.’s mother, thus ensuring access to A.W. Likewise, Garrison ingratiated

-10-No. 71134-2-I/Il himself with A.F.’s mother to facilitate access to her daughter. By being close to those around A.W. and A.F., Garrison was also able to evade suspicion. While A.W. never lived with Garrison, Garrison and A.W. would often sleep in the same house. Similarly, while Garrison never lived with A.F., Garrison would have access to A.F. multiple times a week when she slept or was getting ready for bed.

Additionally, the first time A.W. woke up to Garrison touching her, he was touching her in a somewhat innocuous manner; specifically, he was rubbing her upper thigh. A.W. did not protest or respond negatively, apparently emboldening Garrison. From there, Garrison’s touching progressed to the point where he touched A.W.’s breast as she slept. The touching that A.F. experienced while she slept or was getting ready for bed was similar. First, she woke up to Garrison rubbing her head and back. A.F. did not protest or respond negatively. Later, A.F. was awakened by Garrison’s hands touching her breast and vagina.

These significant similarities are naturally explained by Garrison having a general plan. The evidence was properly admitted to show this common scheme or plan. Therefore, any error in the trial court’s ruling admitting the same

evidence to show an absence of mistake or accident was harmless. III

Garrison next contends that the trial court erred in the manner in which it analyzed and admitted the ER 404(b) evidence. This is so, he asserts, because the trial court did not properly make a record of its balancing of the probative

-Il -No. 71134-2-1/12 value of the evidence against its prejudicial effect. Garrison’s argument is unavailing.

“A trial court must always begin with the presumption that evidence of prior bad acts is inadmissible.” DeVincentis, 150 Wn.2d at 17. When determining admissibility under ER 404(b), the trial court must (1) find the alleged misconduct occurred by a preponderance of the evidence, (2) identify the purpose for admission, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against its prejudicial effect. Foxhoven, 161 Wn.2d at 175.

“The court’s balancing of the prejudicial nature of ER 404(b) evidence must take place on the record.” State v. Carleton, 82 Wn. App. 680, 685, 919 P.2d 128 (1996). However, there is no magic words requirement. Thus, where the trial court did not explicitly weigh the probative value of prior misconduct evidence against its prejudicial effect, but admitted only some evidence of the defendant’s prior acts while excluding evidence of the acts that were most inflammatory, our Supreme Court concluded that the record as a whole demonstrated that the trial court had fulfilled the requirements of the rule. Powell, 126 Wn.2d at 264-65. Likewise, where the record reflected that the trial court adopted the express argument of one of the parties as to the relative weights of probative value and prejudice, there was no error. State v. Pirtle, 127 Wn.2d 628, 650-51, 904 P.2d 245 (1995). “But these variations serve to reinforce the general rule. . . : the record must in some way show that the court, after weighing the consequences of admission, made a ‘conscious determination’

- 12-No. 71134-2-1113

to admit or exclude the evidence.’ Carleton. 82 Wn. App. at 885 (quotIng State v. Tharo. 98 Wn.2d 591, 597,837 P2d 981 (1981)). Here, In making Its ruling, the trial court explicitly considered the probative value and prejudicial effect of the testimony the State sought to admit. In explaining why ft was admitting evidence of the prior incident In which akW. awoke to see Garrison touching her thigh, but was excluding evidence of the prior Incidents of A.W. awakening with her clothing In disarray for no apparent reason, the trial court stated that the clothing Incidents were ‘too Indefinite’ compared to the thigh-touching Incident The court explained that the clothing Incidents were ‘highly prejudicial’ and there was an Insufficient B~

conclude Its related to (the charged event].’ In explaining why ft was admitting evidence of Garrison touching AS. while she slept but excluding evidence of the more serious abuse that occurred once Garrison started molesting A.F. while she was awake, the court acknowledged that ‘it Is highly prejudicial to have any mention of sexual Impropriety with a young person.’ The court observed that the incidents while AS. was asleep were nonetheless very similar to the current allegations lnvoMng A.W., while the Incidents that occurred after Garrison progressed beyond touching A.F. In her sleep were less ‘helpful to the jury In deciding’ whether Garrison was guilty of the charged crime. At the end of the trial courts oral ruling, the prosecutor asked the court whether ft was finding that the probative value of the evidence the court ruled

-13-No. 71134-2-1/14 admissible was not outweighed by its unfair prejudice, and the court confirmed, “That’s correct.”

Although the trial court’s oral ruling may not be as organized and neatly set out as appellate counsel might wish, the record is clear that the trial court did indeed consider the probative value and prejudicial effect of the evidence the State sought to admit in making its rulings. Because the trial court balanced the probative value of the proffered testimony against its prejudice on the record, and only admitted those portions for which the probative value was not outweighed by the danger of unfair prejudice, the trial court properly exercised its discretion in admitting portions of the prior misconduct evidence offered by the State.

However, even were we to conclude that the trial court should have been more explicit in its balancing as to each individual piece of evidence, any error would be harmless. A failure to articulate the balance between probative value and prejudice does not necessarily require reversal. There are at least two different circumstances in which the failure to weigh prejudice on the record, while admitting ER 404(b) evidence, constitutes harmless error. The first is when the record is sufficient for the reviewing court to determine that the trial court, if it had considered the relative weight of probative value and prejudice, would still have admitted the evidence. Carleton, 82 Wn. App. at 686. The second circumstance is when, considering the untainted evidence, the appellate court concludes that the result of the trial would have been the same even if the trial court had not admitted the evidence. Carleton, 82 Wn. App. at 686-87.

- 14 -No. 71134-2-1/15

The record in this case is sufficient to evaluate these circumstances. The pretrial argument on just the issue of ER 404(b) admissibility spans approximately 70 pages of the verbatim report of proceedings. Each attorney repeatedly spoke at length and both attorneys framed their arguments in terms of the established framework for admitting evidence pursuant to ER 404(b). The trial judge participated by asking questions throughout the argument. This issue was also discussed a number of times at other stages of the proceedings. Here, it is clear from the record that, had the trial court more explicitly articulated its weighing of probative value against prejudicial effect for each instance of prior misconduct evidence, it would still have admitted and excluded the same

portions of the proffered evidence. Any error was harmless. lv Garrison next contends that the trial court gave an incorrect limiting

instruction concerning the ER 404(b) evidence. This is so, he asserts, because the jury should not have been instructed that it could consider this evidence to establish an absence of mistake or accident. Garrison is correct that this purpose should not have been included in the limiting instruction; however, the error was harmless.

If evidence of a defendant’s prior crimes, wrongs, or acts is admissible for a proper purpose, the defendant is entitled to a limiting instruction upon request. Foxhoven, 161 Wn.2d at 175; State v. Saltarelli, 98 Wn.2d 358, 362, 655 P.2d 697 (1982). “[O]nce a criminal defendant requests a limiting instruction, the trial

court has a duty to correctly instruct the jury, notwithstanding defense counsel’s -15-

No. 71134-2-1/16 failure to propose a correct instruction.” State v. Gresham, 173 Wn.2d 405, 424, 269 P.3d 207 (2012).

The court gave the following written limiting instruction to the jury:

Certain evidence has been admitted in this case for only a limited purpose. Evidence of the defendant’s alleged prior sexual misconduct may be considered by you only for the purpose of considering whether such evidence demonstrated 1) a common scheme or plan, or 2) absence of mistake or accident. You may not consider it for any other purpose. Any discussion of the evidence during your deliberations must be consistent with this limitation.

Instruction 9.

As previously discussed, the ER 404(b) evidence was admissible to show a common scheme or plan but was not properly admissible to show absence of mistake or accident. Thus, the trial court erred by instructing the jury that the challenged evidence could be used for the latter purposes. The State concedes as much in its appellate briefing: “If this Court concludes that the trial court erred in admitting the prior misconduct for that purpose, then it was also error to instruct the jury on that purpose.” Resp’t’s Amended Br. at 22.

Failure to give a proper ER 404(b) limiting instruction may be harmless. State v. Mason, 160 Wn.2d 910, 935, 162 P.3d 396 (2007). The error is harmless “unless, within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.” State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986) (quoting State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)). Thus, the relevant question iswhethera reasonable probability exists that, had a correct limiting instruction been given,

the outcome of Garrison’s trial would have been materially affected. - 16-

No. 71134-2-1/17

The jury was first given an oral limiting instruction after A.W. and A.F. had finished testifying. At that time, the trial court only mentioned the common scheme or plan purpose.

Certain evidence has been admitted in this case for only a limited purpose. This evidence of the defendant’s alleged prior sexual misconduct may be considered by you only for the purpose of considering whether such evidence demonstrated a common scheme or plan. You may not consider it for any other purpose. Any discussion of the evidence during your deliberations must be consistent with this limitation.

Later, at the close of the evidence, when the trial judge instructed the jury, Instruction 9, quoted above, which mentioned both common scheme or plan and absence of mistake or accident, was given.

The only other mention of absence of mistake or accident during the trial was by defense counsel during his closing argument. It was brief and misleading—presumably to Garrison’s benefit:

[A.F.]’s evidence is about common scheme and plan. Common scheme and plan that goes over a period well, it was --

2011, eleven years. It’s about absence and mistake, because there can’t be any mistake. It has to be true. There’s not a real possibility that it couldn’t be true, or that it might not be true. And that’s what’s so important.

It is inconceivable that a handful of words in the written limiting instruction—offered without any further guidance—changed the outcome of this trial. The testimony of A.W. and A.F. was powerful because it described a sexual predator who employed similar tactics to gain access to his victims and grow their trust in him, and then attacked them when they were most vulnerable, while they were sleeping and alone—not because the testimony tended to disprove

- 17 -No. 71134-2-1/18 some hypothetical mistake or accident. In fact, as discussed above, there was absolutely no evidence that Garrison’s alleged touching of A.W. or A.F. was by mistake or accident. The issue was whether the touching occurred at all. There is no reasonable probability that the jury’s verdict would have been different had

it been instructed only on the common scheme or plan purpose. V

Garrison’s final contention is that he was improperly sentenced as a persistent offender pursuant to the Persistent Offender Accountability Act, RCW 9.94A.570. This is so, he asserts, because the trial court incorrectly concluded that one of his prior convictions was comparable to a Washington class B felony, rather than a class C felony, which would have washed out and would not have

counted as a strike. Garrison is correct. A

A “persistent offender” is an offender who:

(a)(i) Has been convicted in this state of any felony considered a most serious offense; and (ii) Has, before the commission of the offense under (a) of this subsection, been convicted as an offender on at least two separate occasions, whether in this state or elsewhere, of felonies that under the laws of this state would be considered most serious offenses and would be included in the offender score under RCW 9.94A.525.

RCW 9.94A.030(37).

As our Supreme Court has noted, application of this provision can be broken down into four steps:

After a defendant has been convicted in this state of a most serious offense, RCW 9.94A.030[(37)](a)(i), four more elements must be

-18-No. 71134-2-1/19

present for a defendant to be declared a persistent offender: (1) The defendant must have been previously convicted on at least two separate occasions, (2) in this state or elsewhere, (3) of felonies that, under the laws of this state, would be considered most serious offenses (defined in RCW 9.94A.030[(32)fl, and (4) would be included in the offender score under RCW 9.94A. [525].[²]

State v. Morley, 134 Wn.2d 588, 603, 952 P.2d 167 (1998). The fourth step is herein at issue.

RCW 9.94A.525 governs offender scores. The “wash out” provision of that statute provides, in pertinent part:

(2)(a) Class A. prior felony convictions shall always be . .

included in the offender score. (b) Class B prior felony convictions other than sex offenses shall not be included in the offender score if. the offender had . .

spent ten consecutive years in the community without committing any crime that. results in a conviction. . .

(c) [C]lass C prior felony convictions other than sex . . .

offenses shall not be included in the offender score if. the . .

offender had spent five consecutive years in the community without committing any crime that. results in a conviction. . .

(Emphasis added.) Thus, the class of a felony generally determines its wash out period.

The same statute governs the classification of out-of-state convictions: “Out-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law.” RCW 9.94A.525(3). “If the foreign conviction is comparable to a Washington crime, it counts toward the offender score as if it were the equivalent Washington offense.” Morley, 134 Wn.2d at 606. Thus, if an out-of-state conviction is No. 71134-2-1/20 No. 71134-2-1/21 Beals, 100 Wn. App. 189, 196, 997 P.2d 941 (2000).

At sentencing, the State argued that Garrison’s 1981 Texas voluntary manslaughter conviction was comparable to two Washington class B felony offenses, manslaughter in the first degree and assault in the second degree. The trial court agreed that it was comparable to manslaughter in the first degree. On appeal, Garrison contends that this conclusion was incorrect. The parties agree, however, that, at a minimum, Garrison’s Texas conviction is comparable to the

Washington offense of manslaughter in the second degree, a class C felony. B

Garrison pleaded guilty to voluntary manslaughter in Texas in 1981. At

that time, V.T.C.A., Penal Code § 19.04(a) defined the offense of “voluntary manslaughter” as follows:

A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.~51

(Emphasis added.)

In 1981, the murder statute referenced therein provided, in pertinent part: “(a) A person commits an offense if he: . . . (2) intends to cause serious bodily

~ “Sudden passion’ means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.” Former V.T.C.A., Penal Code §19.04(b) (1974). “Adequate cause’ means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” Former V.T.C.A., Penal Code §19.04(c) (1974).

-21-No. 71134-2-1/22 injury and commits an act clearly dangerous to human life that causes the death of an individual.” V.T.C.A., Penal Code § 19.02.

Under then-applicable Texas law, there was no culpable mental state for the act alleged to be “clearly dangerous to human life that causes the death of an individual” under § 19.02(a)(2). Peterson v. State, 659 S.W.2d 59, 61 (Tex. Ct. App. 1983); Luqo-Luqo v. State, 650 S.W.2d 72, 80-82 (Tex. Crim. App. 1983). In Luqo-Luc~o, the court held that an indictment charging voluntary manslaughter under section 19.02(a)(2) was proper in not stating a culpable mental state for “committing an act clearly dangerous to human life.” 650 S.W.2d at 73, 80, 82. The statute only required the specific intent to cause serious bodily injury, while “the act clearly dangerous to human life” was an objective standard untied to any culpable mental state. Luqo-Luqo, 650 S.W.2d at 81-82. The statute thus “focuses the mental state of the individual on the particular result and not on the conduct that causes death.” Luqo-Lu~io, 650 S.W.2d at 82. For this reason, the Lugo-Luqo court, sitting en banc, condemned and withdrew an earlier panel decision that had held that an indictment alleging voluntary manslaughter under section 1 9.02(a)(2) was deficient in failing to allege that the defendant intentionally or knowingly committed an act clearly dangerous to human life. 650

S.W.2d at 74-75, 82. C

The State first contends that Garrison’s Texas conviction is for an offense comparable to Washington’s manslaughter in the first degree.

Under applicable Washington law, a person was guilty of manslaughter in

- 22 -No. 71134-2-1/23 the first degree when he “recklessly causes the death of another person.” Former RCW 9A.32.060(1)(a) (1975).

Although the State concedes on appeal that the prong of Texas’s voluntary manslaughter statute under which Garrison was convicted is not legally comparable to Washington’s manslaughter in the first degree,6 it contends that the two offenses are nevertheless factually comparable. This is so, the State asserts, because Garrison admitted the allegation in the information that he “intentionally and knowingly commit[ted] an act clearly dangerous to human life,” when he pleaded guilty. This is incorrect.

In its attempt to establish factual comparability, the State relies entirely on two documents related to the Texas conviction—the information and the judgment and sentence. In particular, it relies on the following allegation from the information: “GARRISON did then and there: . . . intentionally and knowingly commit an act clearly dangerous to human life, to-wit: striking the head and body of the said [T.M.C.],” and the following statement in the judgment and sentence:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that on this the 15th day of September, 1981, . GARRISON is guilty of the offense of voluntary . .

manslaughter as charged in the information in this cause, and as confessed by him in his plea of guilty herein made.

(Emphasis added.) The State contends that, together, these statements mean

6 We agree. Under the Texas statute, no culpable mental state attaches to the result. By

contrast, the Washington statute does require a culpable mental state—recklessness—with respect to the result. A person could be convicted of Texas voluntary manslaughter without having any culpable mental state connected to the result of death, whereas the Washington offense of first degree manslaughter requires that a person recklessly cause a person’s death. Thus, the Texas statute is broader than the Washington statute, and the offenses are not legally comparable.

- 23 -No. 71134-2-1/24 that Garrison admitted to acting “intentionally and knowingly” when he committed the 1981 offense. This contention is foreclosed by our decision in State v. Thomas, 135 Wn. App. 474.

In Thomas, the State sought to establish that the defendant’s California burglary convictions were comparable to Washington’s burglary offense. The State conceded that the California crime of burglary was not legally comparable because the Washington crime required proof of unlawful entry. However, the State argued that the burglary convictions were factually comparable to Washington’s burglary offense. To establish the comparability of one of the defendant’s convictions, the State relied on an allegation in the charging instrument that the defendant “did willfully, unlawfully, and feloniously enter,” and a statement in the judgment that the defendant “pled guilty. . . as alleged in the Complaint.” Thomas, 135 Wn. App. at 479, 485.

Rejecting the State’s contention, we explained that, when determining whether an out-of-state conviction is comparable to a Washington crime, a sentencing court may not assume that “facts alleged in the charging document [thati are not directly related to the elements” of the charged offense have been proved or admitted. Thomas, 135 Wn. App. at 486.

Moreover, this case is unlike State v. Releford, 148 Wn. App. 478, 200 P.3d 729 (2009). In that case, we affirmed the trial court’s conclusion that an Oklahoma burglary conviction was factually comparable to the Washington burglary offense based in part on factual allegations contained in the charging

- 24 -No. 71134-2-1/25 document. As we explained, our holding in that case was grounded in Oklahoma law.

In Oklahoma, “[a] plea of guilty admits the facts pleaded in the Information.” . There is no basis for us to conclude that, . .

where a defendant enters a plea of guilty at a point in time and in a foreign jurisdiction where such a plea constitutes an admission of the facts alleged by the government in the charging document, such an admission cannot be later relied upon to prove factual comparability for purposes of a subsequent sentencing in Washington.

Releford, 148 Wn. App. at 488 (first alteration in original).

There is no equivalent rule in the law of Texas. In Texas, on a plea of guilty before a judge, “the defendant may consent to the proffer of evidence in testimonial or documentary form, or to an oral or written stipulation of what the evidence against him would be, without necessarily admitting to its veracity or accuracy.” Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009). Alternatively, a defendant “may enter a sworn written statement, or may testify under oath in open court, specifically admitting his culpability or at least acknowledging generally that the allegations against him are in fact true and correct.” Menefee, 287 S.W.3d at 13.

The State produced no evidence herein of an evidentiary stipulation or “judicial confession” in Garrison’s Texas case. The Texas paperwork related to the manslaughter conviction sets forth no underlying facts of the crime that were admitted, stipulated to, or proven beyond a reasonable doubt. Thus, Thomas governs our inquiry, not Releford.

- 25 -No. 71134-2-1/26

There is no way for us to determine, as a factual matter, whether Garrison recklessly caused the death in the Texas case. Therefore, the State has not met its burden of establishing that Garrison’s Texas offense is factually comparable to

Washington’s offense of manslaughter in the first degree. D

The State next contends that Garrison’s Texas conviction is comparable to Washington’s offense of assault in the second degree.

In 1981, a person was guilty of second degree assault if he “[s]hall knowingly inflict grievous bodily harm upon another with or without a weapon.” Former RCW 9A.36.020(1)(b) (1975).

To be convicted of assault in the second degree, a person must “knowingly” inflict grievous bodily harm upon another. By contrast, there is no such mens rea counterpart to the Texas manslaughter offense. The statute requires the specific intent to cause serious bodily injury, but “an act clearly dangerous to human life” is an objective standard untied to any culpable mental state. Luqo-Luqo, 650 S.W.2d at 81-82. In other words, the intent to inflict a certain level of injury is uncoupled from any mens rea tied to the commission of the act.

As a result, a person could be guilty of voluntary manslaughter under Texas law if he intends to cause serious bodily injury, even if he does not knowingly commit an act that is clearly dangerous to human life that causes the death of an individual. Stated in different terms, a person could be guilty of voluntary manslaughter if he intends to cause serious bodily injury but then

- 26 -No. 71134-2-1/27 recklessly or negligently commits an act that is clearly dangerous to human life. The Texas statute is therefore broader than the Washington second degree assault statute in terms of the mens rea required for the commission of the act that causes the harm. In 1981, the Washington second degree assault offense was not legally comparable to the Texas offense of voluntary manslaughter.

Moreover, the State cannot prove factual comparability because, as set forth above, Garrison did not admit to the unnecessary charging language consisting of “intentionally and knowingly” committing an act clearly dangerous to human life, “to-wit: striking the head and body of the said [T.M.C.], thereby causing the death of an individual, namely: [T.M.C.j.” The record does not otherwise factually show that Garrison stipulated to this unnecessary language or

that the State proved the unnecessary allegation beyond a reasonable doubt.7 E

The parties agree that Garrison’s 1981 Texas voluntary manslaughter conviction is comparable to Washington’s offense of manslaughter in the second degree.

“A person is guilty of manslaughter in the second degree when, with

~‘ The State contends that the proper comparison is to the current assault in the second degree statute, which was the version in effect when the legislature first defined “most serious offense.” The State relies on State v. Failey, 165 Wn.2d 673, 201 P.3d 328 (2009), in support of this position. Failey is inapposite for two reasons. First, it concerns whether an offense is a “most serious offense,” not whether an offense counts toward a defendant’s offender score. ~ Morley, 134 Wn.2d at 605 (whether an out-of-state offense is comparable to a Washington offense has two aspects: “First, it must be determined if Defendants’ [out-of-state convictions]. .

are included in their offender scores.. . It must then be determined whether their particular .

[convictions] are comparable to most serious offenses.”). Second, Failey concerns the classification of prior Washington crimes for purposes of persistent offender sentencing, not out- of-state offenses. It is the rule of Morley, not language from Failey, that controls our comparability inquiry.

- 27 -No. 71134-2-1/28 criminal negligence, he causes the death of another person.” Former RCW 9A.32.070(1) (1975). In 1981, second degree manslaughter was a class C felony.⁸ Former RCW 9A.32.070(2).

As previously set forth, the offender score statute governs when class C felony convictions may be included in a defendant’s offender score. The relevant subsection provides, in pertinent part:

[Cilass C prior felony convictions other than sex offenses shall not be included in the offender score if, since the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent five consecutive years in the community without committing any crime that subsequently results in a conviction.

RCW 9.94A.525(2)(c).

The statute contains a “trigger” clause, which identifies the beginning of the five-year period, and a “continuity/interruption” clause, which sets forth the substantive requirements a person must satisfy during the five-year period. State v. Ervin, 169 Wn.2d 815, 821, 239 P.3d 354 (2010). Any offense committed after the trigger date that results in a conviction resets the five-year clock. Ervin, 169 Wn.2d at 821. For instance, incarceration for a probation violation constitutes confinement pursuant to a felony conviction within the meaning of the statutory washout provision. State v. Mehrabian, 175 Wn. App. 678, 714, 308 P.3d 660, review denied, 178 Wn.2d 1022 (2013). However, once a conviction washes out, No. 71134-2-1/29 No. 71134-2-1/30

Affirmed in part, reversed in part, and remanded for resentencing.

N~~d(T) We concur:

~T

- 30 -

Footnotes

[2] The current provisions are bracketed. -19- comparable to a Washington class B felony, the 10-year wash-out period applies, and if it is comparable to a class C felony, the five year period applies. “Washington law employs a two-part test to determine the comparability of a foreign offense. A court must first query whether the foreign offense is legally comparable.” State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007). To do so, the court compares the elements of the out-of-state offense “to the elements of Washington criminal statutes in effect when the foreign crime was committed.” Morley, 134 Wn.2d at 606. “If the elements of the foreign offense are broader than the Washington counterpart, the sentencing court must then determine whether the offense is factually comparable—that is, whether the conduct underlying the foreign offense would have violated the comparable Washington statute.” Thiefault, 160 Wn.2d at 415. “[B]ecause the judicial determination of the facts related to a prior out-of- state conviction implicates the concerns underlying Apprendi3 and Blakely,4 judicial fact finding must be limited.” State v. Thomas, 135 Wn. App. 474, 482, 144 P.3d 1178 (2006). Thus, in making its factual comparison, the sentencing court may rely only on facts in the foreign record “that are admitted, stipulated to, or proved beyond a reasonable doubt.” Thiefault, 160 Wn.2d at 415. “[T]he State. . . bears the burden of proving the convictions are comparable to Washington crimes.” In re Pers. Restraint of Cadwallader, 155 Wn.2d 867, 876, 880, 123 P.3d 456 (2005). Our review is de novo. State v. ~ Ajprendi v. New Jersey, 530 U.s. 466, 120 5. Ct. 2348, 147 L. Ed. 2d 435 (2000). ~ Blakely v. Washington, 542 U.s. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). - 20 -

[8] It is now a class B felony. This legislative reclassification has no effect on Garrison’s prior conviction. See Rivard v. State, 168 Wn.2d 775, 781-82, 231 P.3d 186 (2010) (‘[T]he subsequent reclassification of an offense from a class B to a class A felony has no effect on a prior conviction for that offense and does not retroactively convert the conviction to a class A felony.”). -28- it cannot count as a “most serious offense” in the defendant’s criminal history. ~ State v. Failey, 165 Wn.2d 673, 678, 201 P.3d 328 (2009) (prior conviction that washes out is not counted as a strike offense). The wash out provision pertaining to prior class C felonies requires that the offender, “since the last date of release from confinement. . . pursuant to a felony conviction,” spend “five consecutive years in the community without committing any crime that subsequently results in a conviction.” RCW 9.94A.525(2)(c). Garrison did just that. The latest five year clock began to run when he was released from confinement on the second degree assault conviction in May 2005. The offense for which he was convicted in the present case occurred in December 2011. Garrison spent five years in the community “since the last date of release from confinement” without committing any new crime that resulted in conviction. Garrison’s prior Texas conviction for voluntary manslaughter washed out and cannot be counted as a “most serious offense” because he committed no crimes resulting in conviction for a five year period while in the community since his last release from confinement. The trial court’s conclusion that Garrison must be sentenced as a persistent offender because he was convicted on two prior occasions of a “most serious offense” is, therefore, incorrect. His case must be remanded for resentencing. - 29 -