FILED
COURT OF APPEALS
DIVISION II
2015MAR 10 AM 8. 140
STAT A G TON
BY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 45753 -9 -II
Respondent,
v.
RYAN JOSEPH SMITH, UNPUBLISHED OPINION
Appellant.
JOHANSON, C. J. — Ryan Joseph Smith appeals his sentence for second degree burglary .
and possession of methamphetamine. He argues that the trial court erred when it increased his
offender score based on an Oregon conviction for assaulting a public safety officer. Because the
Oregon statute is not legally comparable to Washington' s third degree assault statute and the
record does not establish factual comparability, we agree with Smith, reverse his sentence, and
remand for resentencing.
FACTS
After a bench trial, Smith was convicted of second degree burglary and possession of
methamphetamine. At sentencing, the State argued that a prior Oregon conviction for assaulting
a public safety officer' should increase Smith' s offender score because it was comparable to
1
OR. REV. STAT. § 163. 208( 1).
No. 45753 -9 -II
Washington' s third degree assault against a law enforcement officer statute.2 Smith argued that
his Oregon conviction was not comparable because Oregon' s assaulting a public safety officer
statute has a broader mens rea requirement and the State provided insufficient facts to prove factual
comparability. The trial court agreed with the State and increased Smith' s offender score based
on his Oregon assaulting a public safety officer conviction. Smith appeals his sentence.
ANALYSIS
I. STANDARD OF REVIEW AND RULES OF LAW
We review a trial court' s calculation of a defendant' s offender score de novo. State v.
Olsen, 180 Wn.2d 468, 472, 325 P. 3d 187, cert. denied, 135 S. Ct. 287 ( 2014). A defendant' s
offender score may be increased for an out -of -state conviction if the State meets its burden to prove
the existence of the out -of s-tate conviction and can establish that the out -of s-tate conviction is
comparable" to a Washington offense. RCW 9. 94A.525( 3); Olsen, 180 Wn.2d at 472. When
determining whether a foreign conviction is comparable to a similar Washington offense, we apply
a two -part test. State v. Thiefault, 160 Wn.2d 409, 415, 158 P. 3d 580 ( 2007).
The comparability test requires us to first compare the elements of the foreign conviction
with a similar Washington offense to determine whether the offenses are legally comparable.
Olsen, 180 Wn.2d at 472. If the out -of s
- tate conviction is identical to or narrower than the similar
Washington offense, the offenses are legally comparable and the out -of s-tate conviction may be
used to increase a defendant' s offender score. Olsen, 180 Wn.2d at 472 -73. If the foreign
conviction is broader than the Washington offense, however, the statutes are not legally
2 RCW 9A.36.031( 1)( g).
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comparable and we continue to determine factual comparability. Thiefault, 160 Wn.2d at 415.
When performing a factual comparability analysis, we ask " whether the defendant' s conduct
would have violated the comparable Washington statute." Olsen, 180 Wn.2d at 473.
II. LEGAL COMPARABILITY
Here, the State claimed at sentencing that Smith' s Oregon conviction for assaulting a public
safety officer, Or. Rev. Stat. § 163. 208( 1), should be used to increase his offender score because it
is comparable to Washington' s third degree assault of a law enforcement officer statute, RCW
9A. 36. 031( 1)( g). The State argues that the statutes are legally comparable because Washington' s
assault statute is broader and covers more conduct. Smith argues that the Oregon statute is not
legally comparable to Washington' s statute because Washington requires that the assault be
committed with intent while Oregon requires either an intentional or a knowing mental state. We
agree with Smith.
We review de novo the comparability of two statutes, beginning with a legal comparability
analysis. Olsen, 180 Wn.2d at 472. In Oregon, a person is guilty of assaulting a public safety
officer when he " intentionally or knowingly causes physical injury to the other person, knowing
the other person to be a peace officer, corrections officer, youth correction officer, parole and
probation officer, animal control officer, firefighter or staff member, and while the other person is
acting in the course of official duty." OR. REV. STAT. § 163. 208( 1). A person acts " intentionally"
in Oregon when he " acts with a conscious objective to cause the result or to engage in the conduct
so described." OR. REV. STAT. § 161. 085( 7). A person acts " knowingly" when he acts " with an
awareness that the conduct of the person is of a nature so described or that a circumstance so
described exists." OR. REV. STAT. § 161. 085( 8).
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No. 45753 -9 -II
In Washington, a person is guilty of third degree assault if he "[ a] ssaults a law enforcement
officer or other employee of a law enforcement agency who was performing his or her official
duties at the time of the assault." RCW 9A.36. 031( 1)( g). Assault is defined not by statute but by
common law and covers three types of conduct: "( 1) an unlawful touching ( actual battery); ( 2) an
attempt with unlawful force to inflict bodily injury upon another, tending but failing to accomplish
it (attempted battery); and ( 3) putting another in apprehension of harm." State v. Elmi, 166 Wn.2d
209, 215, 207 P. 3d 439 ( 2009). In Washington, assault is a specific intent crime. State v. Willams,
159 Wn. App. 298, 307, 244 P. 3d 1018 ( citing State v. Byrd, 125 Wn.2d 707, 713, 887 P. 2d 396
1995)), review denied, 171 Wn.2d 1025 ( 2011). In other words, a defendant must act with specific
intent to commit an actual battery or to put his victim in apprehension of harm. Williams, 159 Wn.
App. at 307.
The mens rea element of the Oregon offense is broader than Washington' s and dispositive
of the legal comparability question in this case. In Oregon, an assault may be committed either
knowingly or intentionally, Or. Rev. Stat. § 163. 208( 1), while in Washington, assault must be
committed intentionally. Williams, 159 Wn. App. at 307.
In In re Personal Restraint of Lavery, 154 Wn.2d 249, 255 -56, 111 P. 3d 837 ( 2005), our
Supreme Court decided a similar issue when it held that the federal bank robbery statute was not
legally comparable to Washington' s second degree robbery statute because the federal statute had
a broader mens rea. The mens rea for federal bank robbery is general intent, Carter v. United
States, 530 U.S. 255, 268 -69, 120 S. Ct. 2159, 147 L. Ed. 2d 203 ( 2000), while in Washington, the
mens rea for second degree bank robbery is specific intent. Lavery, 154 Wn.2d at 255 -56 ( citing
State v. Kjorsvik, 117 Wn.2d 93, 98, 812 P. 2d 86 ( 1991)). In Lavery, our Supreme Court held that
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No. 45753 -9 -II
the federal statute was broader and, therefore, not legally comparable because " a person could be
convicted of federal bank robbery without having been guilty of second degree robbery in
Washington." 154 Wn.2d at 256.
Similar to the federal bank robbery statute in Lavery, the Oregon statute here requires either
a knowing or an intentional mental state. OR. REV. STAT. § 163. 208( 1). Washington' s third degree
assault statute requires specific intent. This is the exact problem that our Supreme Court identified
in Lavery —because Oregon' s mens rea requirement is broader, some conduct that would violate
the Oregon statute would not violate Washington' s third degree assault statute.
Therefore, because the mens rea element of Or. Rev. Stat. § 163. 208( 1) is broader than
RCW 9A.36.031( 1)( g), the statutes are not legally comparable.3
III. FACTUAL COMPARABILITY
Next, we turn to the factual comparability analysis. Smith argues that his Oregon
conviction is not factually comparable because the facts fail to establish that Smith' s conduct was
an intentional assault. The State argues that Smith' s conviction is factually comparable because
the information provides enough facts to establish that Smith' s conduct underlying his Oregon
assaulting a public safety officer conviction would violate the Washington statute. We agree with
Smith.
When doing a factual comparability analysis we may consider the " defendant' s conduct,
as evidenced by the indictment or information, to determine if the conduct itself would have
3 Although the State correctly argues that Washington' s assault statute may cover more conduct-
i. e., battery, attempted battery, and putting the victim in apprehension of harm —while
actual
Oregon' s statute only criminalizes actual battery, the problem identified in Lavery remains. Elmi,
166 Wn.2d at 215. A defendant who commits an actual battery assault in Oregon knowingly would
not have violated Washington' s intentional assault statute. See Lavery, 154 Wn.2d at 256.
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No. 45753 -9 -II
violated a comparable Washington statute." Lavery, 154 Wn.2d at 255. We may also consider
evidence that was admitted or proven beyond a reasonable doubt in the out -of -state proceeding.
Lavery, 154 Wn.2d at 258. The sentencing court may not consider evidence that was not presented
in the foreign proceeding. Lavery, 154 Wn.2d at 258.
Here, the parties agree that the information and judgment and sentence from Smith' s
Oregon conviction provide the only facts that we can consider. Therefore, the issue is whether,
based on the facts in those pleadings, Smith' s " conduct would have violated the comparable
Washington statute." Olsen, 180 Wn.2d at 473. Unlike the Oregon statute, Washington' s law
requires that the criminal act be committed with specific intent. RCW 9A.36. 031( 1)( g); Williams,
159 Wn. App. at 307.
The Oregon information establishes that Smith was charged with " knowingly caus[ ing]
physical injury to Officer Kyle S. Williams of the Eugene Police Department, knowing that person
to be a peace officer acting in the course of official
duty." Ex. 8. The language of the information
is almost identical to the language of the statute itself, Or. Rev. Stat. § 163. 208( 1), and provides
no additional facts about Smith' s conduct except the name of the officer he assaulted and the date
of the offense. The judgment and sentence establishes that Smith pleaded guilty to and was
convicted of that charge.
Neither the judgment and sentence nor any other document includes
more specific facts about Smith' s actual criminal acts or mental state from which we could infer
that his conduct was intentional and, thus, would have violated the Washington statute. These
facts merely establish that Smith acted knowingly ' and fail to establish that Smith acted
intentionally.
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No. 45753 -9 -II
Therefore, because the information and judgment and sentence from Smith' s Oregon
conviction fail to establish that Smith assaulted a law enforcement officer in Oregon intentionally,
we hold that these statutes are not factually comparable.
IV. REMEDY ON REMAND
Because Smith' s Oregon conviction is not comparable to Washington' s third degree assault
statute, we must reverse his sentence and remand for resentencing. Smith argues that, on remand,
the sentencing court should not be permitted to consider the Oregon assault conviction. We
disagree.
Under State v. Jones, 182 Wn.2d 1, 10 -11, 338 P. 3d 278 ( 2014), a sentencing court is
permitted to consider new, permissible evidence on remand. We, therefore, reverse the trial court' s
sentence and remand for resentencing, permitting the State to provide additional relevant evidence
regarding Smith' s criminal history.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,
it is so ordered.
We concur:
MAXA
SUTTON, J.
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