Although an offense may be referred to by its statutory caption, the offense itself is an act or conduct proscribed by law. Therefore, determining whether a prior offense is an "offense listed" in the two strikes statute requires more than merely comparing captions. If the facts satisfying the elements of the defendant's prior offense under a previous statute satisfy the elements of an offense listed in the two-strikes statute, I would find that the prior offense qualifies as a strike. Therefore, I respectfully dissent.
Words used in a statute must be considered in the context of the general object, purpose, and subject matter of the statute in order to give effect to the legislature's intent.Strenge v. Clarke, 89 Wn.2d 23, 569 P.2d 60 (1977). When the language of a statute is plain, there is no room for judicial construction because the legislative intent is determined solely from the language used by the legislature.Bravo v. Dolsen Cos., 125 Wn.2d 745, 752,888 P.2d 147 (1995). Further, under the "plain meaning" rule "`examination of the statute in which the provision at issue is found, as well as related statutes or other provisions of the same act in which the provision is found, is appropriate as part of the determination whether a plain meaning can be ascertained.'" City of Seattle v. Allison, 148 Wn.2d 75,81, 59 P.3d 85 (2002) (quoting Dep't of Ecology v.Campbell Gwinn, L.L.C., 146 Wn.2d 1, 10, 43 P.3d 4 (2002), and citing C.J.C. *Page 733 v. Corp. of the Catholic Bishop of Yakima, 138 Wn.2d 699,708-09, 985 P.2d 262 (1999)). A court must bear in mind, however, that in satisfying the intent of the statute, a reading that results in absurd results must be avoided because it will not be presumed that the legislature intended absurd results. State v. Vela, 100 Wn.2d 636, 641,673 P.2d 185 (1983); State v. Gaines, 109 Wash. 196,200, 186 P. 257 (1919); see also State v. Fjermestad,114 Wn.2d 828, 835, 791 P.2d 897 (1990).
At the time of the defendant's sentencing, RCW 9.94A.030(27)(b)(ii) included within the "persistent offender" definition a defendant who
[h]as, before the commission of the offense under (b)(i) of this subsection, been convicted as an offender on at least one occasion, whether in this state or elsewhere, of an offense listed in (b)(i) of this subsection. A conviction for rape of a child in the first degree constitutes a conviction under subsection (27)(b)(i) only when the offender was sixteen years of age or older when the offender committed the offense.
Former RCW 9.94A.030(27)(b)(ii) (1999) (emphasis added).
The majority reasons that the unambiguous meaning of the term "offense" is that the statutory captions, or titles, of the listed crimes identify those "offenses" intended to be encompassed by the two-strikes law. While I agree that the word "offense" is unambiguous, I do not accept the majority's reasoning. It is neither reasonable nor rational to believe that the word "offense" refers solely to a statute's caption because such a reading leads to absurd results and defeats the legislature's intent to provide increased penalties for repeat sex offenders, whether they were previously convicted in this state or in another.
Applying the majority's interpretation, an "exclusive list" of statutes based upon their captions would read out of the two-strikes law nearly all prior out-of-state and federal convictions, as well as any prior in-state conduct for which the perpetrator was convicted under a previous statute. For example, under the majority's analysis, a prior conviction *Page 734 for an out-of-state or federal offense with the same statutory caption as a "listed offense" would result in a life sentence, while a Washington conviction of a crime with the same elements but a different caption would not. At the same time, under the majority's reading, out-of-state and federal convictions of a crime with the same elements but different captions would not result in a strike. Some prior Washington convictions for sexual offenses would count but not others, and some prior Washington convictions for sexual offenses would be treated differently than out-of-state convictions. Moreover, one could not count Washington sex offenses against children prior to 1988 as strikes, but could count pre-1988 out-of-state convictions as strikes.
To avoid these absurd results and to effectuate the legislature's intent, we need apply only the plain and proper meaning of the word "offense." Words in a statute are given their ordinary and common meaning absent a contrary statutory definition, and courts may resort to dictionaries to ascertain the common meaning of statutory language.Budget Rent A Car Corp. v. Dep't of Licensing,144 Wn.2d 889, 899, 31 P.3d 1174 (2001). An "offense" is an act clearly prohibited by the lawful authority of the state, providing notice through published laws. BLACK'S LAW DICTIONARY 1081 (6th ed. 1990); see also State v.Sykes, 434 So.2d 325 (Fla. 1983). An offense is a breach of moral or social conduct or an infraction of law. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1566 (1993). "`A crime, or misdemeanor, is an act committed, or omitted, in violation of a public law either forbidding or commanding it.'"Schick v. United States, 195 U.S. 65, 69, 24 S.Ct. 826,49 L.Ed. 99 (1904) (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES 5).6 The statutory caption merely aids our reference to particular prohibited conduct; it does not define the offense. The definition of the prohibited conduct is necessarily derived from all the words in the body of the statute describing the offense. *Page 735
The majority says that this court should not simply read a comparability or "catch all" provision into former RCW 9.94A.030(27)(b)(ii) where the statute did not include such a broad provision at the time that Delgado was sentenced. I agree. However, that does not mean that the majority's exceedingly narrow interpretation of the statute is correct and consistent with the legislature's intent. It is clear that the legislature intended to severely punish a perpetrator's second act of prohibited conduct. I would therefore hold that the word "offense" in the two-strikes statute plainly directs our courts to determine whether the perpetrator's conduct, for which he was previously convicted, would have met the current statutory definition of a listed offense. If so, then the prior conviction should qualify as a strike even if the caption of the statute under which the perpetrator was convicted is different from an "offense listed."
Under this analysis, the legislature's use of the word "offense" is given substantive meaning as the criminal conduct that actually constitutes the offense rather than a superficial definition that varies depending solely on what a legislature names a crime, in this jurisdiction or another. It is a matter of what the word "offense" means, not whether a comparability clause should be read into the statute. This approach avoids absurd results, serves the legislature's intent, and is consistent with the analysis this court uses to resolve how to count prior convictions for sentencing purposes generally.
As to the latter, in order to establish the defendant's criminal history for sentencing purposes, the State must prove by a preponderance of the evidence that a prior conviction exists. Former RCW 9.94A.110 (1999), recodifiedas RCW 9.94A.500; State v. Ammons, 105 Wn.2d 175,186, 713 P.2d 719, 718 P.2d 796 (1986). In order to classify a prior out-of-state conviction, the sentencing court must compare the elements of the out-of-state offense with the elements of potentially comparable then-existing Washington crimes. State v. Morley, 134 Wn.2d 588, 606,952 P.2d 167 (1998); State v. Wiley, 124 Wn.2d 679,684, 880 P.2d 983 (1994); *Page 736 State v. Weiand, 66 Wn. App. 29, 31-32, 831 P.2d 749 (1992). If the elements are not identical or if the Washington statute defines the offense more narrowly than does the foreign statute, it may be necessary to look into the record of the out-of-state conviction to determine whether the defendant's conduct would have violated the comparable Washington offense. Morley, 134 Wn.2d at 606. A court may consider an indictment or information to determine whether underlying prior conduct satisfies elements of the Washington offense. Id. However, if facts and allegations contained in the record of prior proceedings are not directly related to the elements of the previously charged offense, those facts may be insufficiently proved and unreliable. Id.7
A similar analysis should be applied here. First, the elements of the prior and current offenses should be compared. If they are the same, the prior offense should count as a strike regardless of its caption or title. If the elements are not identical, then the court should engage in a limited examination of the prior record to determine whether suitably established facts satisfying the elements of the prior offense also satisfy the elements of an offense listed in the two-strikes law. The court may also rely on information admitted or acknowledged by the defendant.See former RCW 9.94A.370(2) (1999), recodifiedas RCW 9.94A.530(2); see also State v.Majors, 94 Wn.2d 354, 616 P.2d 1237 (1980) (where defendant was held to stipulation to facts constituting a charge of being an habitual offender).
In the present case, Delgado was convicted in 1986 under former RCW 9A.44.070 (1986), which provided:
Statutory rape in the first degree. (1) A person over thirteen years of age is guilty of statutory rape in the first degree when *Page 737 the person engages in sexual intercourse with another person who is less than eleven years old.
(2) Statutory rape in the first degree is a class A felony. . . .
That statute was repealed in 1988 and replaced by RCW 9A.44.073, an "offense listed" under the two-strikes statute, which provides:
Rape of a child in the first degree.
(1) A person is guilty of rape of a child in the first degree when the person has sexual intercourse with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim.
(2) Rape of a child in the first degree is a class A felony.
The elements are not identical. However, a set of facts that supports a conviction of statutory rape under the prior statute would necessarily support a conviction of child rape in the first degree, except for the latter statute's additional "not married to the perpetrator" element.8
While it is doubtful that the defendant was married to the victim in the 1986 case, the limited record before this court does not disclose whether he was or not. I would remand this case to determine if this fact can be properly ascertained from the record of the prior case or by defendant's admission or acknowledgement. Also, to satisfy the persistent offender definition, the defendant must have been 16 years of age or older at the time he committed the prior offense. Whether the defendant was 16 at the time of the offense should also be determined on remand, although the inclusion of this requirement in the two-strikes law *Page 738 apart from any reference to the prior offense clearly shows that it is to be established without regard to the prior record. If on remand the State were to prove by a preponderance of the evidence that at the time the defendant committed statutory rape he was at least age 16 and not married to the victim, then the defendant's conduct that resulted in his previous conviction would be exactly the conduct required for a conviction of child rape in the first degree and would thus be a strike.
For the reasons stated I dissent from the majority opinion and would remand this matter for a determination of whether the defendant is a persistent offender under the two-strikes law.
IRELAND and BRIDGE, JJ., concur with MADSEN, J.