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 ofa
-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 Wash. 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 Wash. 2d at
17.
Pursuant to ER 404(b), "[ejvidence 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 Wash. App. 808, 819,
881 P.2d
268 (1994), abrogated by State v. Hampton,
182 Wash. App. 805,
332 P.3d 1020
(2014). Evidence is admissible under a lack ofaccident 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 Wash. 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 Wash. 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 Wash. 2d 499, 504,
192 P.3d
342 (2008); State v. Foxhoven,
161 Wash. 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 Wash. 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 Wash. 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 Wash. 2d at 17-18. Admission of
evidence for this purpose "requires substantial similarity between the prior bad
acts and the charged crime."
DeVincentis, 150 Wash. 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 Wash. 2d at
21 (alteration in original) (quoting State v. Lough,
125 Wash. 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.2dat13.
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. 71134-2-1/11
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.
Ill
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
11
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 Wash. 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 Wash. 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 Wash. 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 ofthe
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 Wash. 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
Wash. 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. 71134-2-1/13
to admit or exclude the evidence."
Carleton. 82 Wash. App. at 685 (quoting State
v. Tharp.
96 Wash. 2d 591, 597,
637 P.2d 961 (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 it was admitting evidence of the prior incident in which A.W.
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 "basis to
conclude it's related to [the charged event]."
In explaining why it was admitting evidence of Garrison touching A.F.
while she slept but excluding evidence ofthe 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
A.F. was asleep were nonetheless very similar to the current allegations involving
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 court's oral ruling, the prosecutor asked the court
whether it 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 clearthat 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 ofevidence, 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 Wash. 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 Wash. 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 effectfor each instance of prior
misconduct evidence, it would still have admitted and excluded the same
portions of the proffered evidence. Any error was harmless.
IV
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 Wash. 2d at 175; State v. Saltarelli.
98 Wash. 2d 358, 362,
655 P.2d
697 (1982). "[Ojnce 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 Wash. 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 Wash. 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
Wash. 2d 772, 780,
725 P.2d 951 (1986) (quoting State v. Cunningham.
93 Wash. 2d
823, 831,
613 P.2d 1139 (1980)). Thus, the relevant question is whether a
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.j'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. At sentencing, the State argued that Garrison's 1981 Texas felony
voluntary manslaughter conviction constituted a strike offense because it was
comparable to two Washington felony offenses, manslaughter in the first degree
and assault in the second degree. The trial court ruled that it was comparable to
manslaughter in the first degree and sentenced Garrison accordingly. Garrison
contends that the trial court erred by so ruling. We agree.2
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 ofthe offense under (a) of
this subsection, been convicted as an offender on at least two
separate occasions, whether in this state or elsewhere, offelonies
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).
2By separate order, we grant, in part, the State's motion for reconsideration of our initial
resolution of this issue.
-18-
No. 71134-2-1/19
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
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[(33)]), and (4) would be
included in the offender score under RCW 9.94A.[525].^
State v. Morlev.
134 Wash. 2d 588, 603,
952 P.2d 167 (1998). The third and fourth
steps are herein at issue.
To constitute a strike offense for persistent offender sentencing, a prior
conviction must both be included in the defendant's offender score and be a
"most serious offense." RCW 9.94A.525 governs the classification of out-of-state
convictions for offender score purposes. It provides, in pertinent part: "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). In this context, the relevant comparison is to "Washington criminal
statutes in effect when the foreign crime was committed."
Morlev, 134 Wash. 2d at
606. "If the [out-of-state] conviction is comparable to a Washington crime, it
counts toward the offender score as if it were the equivalent Washington
offense."
Morlev, 134 Wash. 2d at 606.
RCW 9.94A.030(33) defines "most serious offense." That definition
includes, in pertinent part, "any . . . out-of-state conviction for an offense that
3The current provisions are bracketed. The current version is the same as was in effect
at the time that Garrison committed the instant offense.
-19-
No. 71134-2-1/20
under the laws of this state would be a felony classified as a most serious
offense under this subsection." RCW 9.94A.030(33)(u). In this context, the
relevant comparison is to offenses that would have constituted "most serious
offenses" at the time that the defendant committed the offense for which he is
being sentenced. State v. Varga,
151 Wash. 2d 179, 191,
86 P.3d 139 (2004) ("We
have repeatedly held that sentencing courts must 'look to the statute in effect at
the time [the defendant] committed the [current] crimes' when determining
defendants' sentences." (alterations in original) (quoting State v. Delgado, 148
Wash. 2d 723, 726,
63 P.3d 792 (2003))). If the elements of the out-of-state
conviction are comparable to the elements of a most serious offense, the prior
conviction is considered a most serious offense. State v. Webb.
183 Wash. App.
242, 247-48,
333 P.3d 470 (2014), review denied.
182 Wash. 2d 1005 (2015).
Washington law employs the same two-part test to determine the
comparability of a foreign offense for both the offender score and "most serious
offense" analyses. Compare State v. Thiefault.
160 Wash. 2d 409, 415,
158 P.3d
580 (2007) (offender score), with
Webb. 183 Wash. App. at 247-48 ("most serious
offense"). "A court must first query whether the foreign offense is legally
comparable." Thiefault. 160 Wash. 2d at 415. To do so, the court compares the
elements of the out-of-state offense to the elements of the relevant Washington
criminal statute.
Morlev. 134 Wash. 2d at 606. Ifthe elements of the foreign
offense are broader than the Washington counterpart, they are not legally
comparable.
20
No. 71134-2-1/21
"[T]he 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 Wash. 2d
at 415. "[B]ecause the judicial determination of the facts related to a prior out-of-
state conviction implicates the concerns underlying Apprendi'41 and Blakelv.[5]
judicial fact finding must be limited." State v. Thomas.
135 Wash. 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 Wash. 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
Wash. 2d 867, 876,
123 P.3d 456 (2005). Our review is de novo. State v. Beals,
100 Wash. App. 189, 196,
997 P.2d 941 (2000).
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:
Aperson 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.[6]
4Apprendi v. New Jersey.
530 U.S. 466,
120 S. Ct. 2348, 147 L Ed. 2d 435 (2000).
s Blakelv v. Washington.
542 U.S. 296,
124 S. Ct. 2531,
159 L. Ed. 2d 403 (2004).
6"'Sudden passion' means passion directly caused by and arising out of provocation by
the individual killed oranother 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,
21
No. 71134-2-1/22
(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
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.
Thus, to obtain a conviction under the theory alleged, the State of Texas
had to prove that: "(1) [Garrison] committed an act with intent to cause serious
bodily injury; (2) this act was 'objectively clearly dangerous to human life'; and (3)
this act caused [the victim's] death." Nickerson v. State,
69 S.W.3d 661, 666
(Tex. Ct. App. 2002) (quoting Lugo-Lugo v. State,
650 S.W.2d 72, 81 (Tex. Crim.
App. 1983)).
At the time of Garrison's crime, Texas defined "serious bodily injury" as
"bodily injury that creates a substantial risk ofdeath or that causes death, serious
permanent disfigurement, or protracted loss or impairment ofthe function ofany
bodily member or organ." V.T.C.A. Penal Code, § 1.07(a)(34).
C
The State first contends that Garrison's Texas conviction constitutes a
strike offense because it was for a Texas offense comparable to Washington's
offense of manslaughter in the first degree.
§19.04(b) (1974). "'Adequate cause' means cause that would commonly produce a degree of
anger, rage, resentment, or terror in a person ofordinary temper, sufficient to render the mind
incapable of cool reflection." Former V.T.C.A. Penal Code, §19.04(c) (1974).
-22-
No. 71134-2-1/23
Washington defines manslaughter in the first degree as "recklessly
caus[ing] the death of another person." RCW 9A.32.060(1)(a). This definition
was in effect both at the time of Garrison's current offense and at the time of his
1981 Texas offense. Compare RCW 9A.32.060(1)(a) (current and applicable at
the time of the current offense) with former RCW 9A.32.060(1)(a) (1975)
(applicable at time of 1981 Texas offense). Thus, the same comparability
analysis applies to both the offender score inquiry and the "most serious offense"
inquiry.
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 offense of manslaughter in the first degree.7
However, the State contends that the two offenses are 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
7We agree. Under the Texas statute, no culpable mental stateattaches to the result. By
contrast, the Washington statute does require a culpable mental state—recklessness—with
respect tothe result. Aperson could be convicted ofTexas voluntary manslaughter without
having any culpable mental state connected to the result ofdeath, whereas theWashington
offense offirst degree manslaughter requires that a person recklessly cause a person's death.
Thus, theTexas statute is broader than the Washington statute, and the offenses are not legally
comparable.
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No. 71134-2-1/24
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 contendsthat, together, these statements mean
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 Wash. 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 Wash. 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
24
No. 71134-2-1/25
[that] are not directly related to the elements" of the charged offense have been
proved or admitted.
Thomas, 135 Wash. App. at 486.
Moreover, this case is unlike State v. Releford,
148 Wash. 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
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 Wash. App. at 488 (first alteration in original).
There is no equivalent rule in the law ofTexas. 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.
25
No. 71134-2-1/26
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.
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 constitutes a
strike offense because it is comparable to Washington's offense of assault in the
second degree.
i
We begin with the offender score inquiry. In 1981, Washington defined
assault in the second degree, in pertinent part, as "knowingly inflict[ing] grievous
bodily harm upon another with or without a weapon." Former RCW
9A.36.020(1)(b) (1979). Under the common law, "'grievous bodily harm'
include[d] a hurt or injury calculated to interfere with the health or comfort of the
person injured." State v. Salinas,
87 Wash. 2d 112, 121,
549 P.2d 712 (1976)
(quoting jury instructions with approval).
As set forth above, supra section V, subsection B, to be convicted of the
Texas offense of which Garrison was convicted, a person must act with the
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No. 71134-2-1/27
specific intent to cause serious bodily injury, while actually causing death. Thus,
the three constituent parts of the Texas statute are: (1) culpability—intention, (2)
type of harm, and (3) result—death. By contrast, the three constituent parts of
the Washington comparator offense are: (1) culpability—knowledge, (2) type of
harm (attached to the mental state)—grievous bodily harm, and (3) result-
grievous bodily harm.
Comparing each part in turn, a person who acts intentionally satisfies a
requirement that he act knowingly. RCW 9A.08.010(2). Thus, the Washington
culpability requirement is broader than the parallel Texas requirement.
Furthermore, because a "bodily injury that creates a substantial risk of death or
that causes death, serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ," V.T.C.A. Penal Code,
§ 1.07(a)(34), will always meet the standard of a hurt or injury that "interfere[s]
with the health or comfort of the person injured,"
Salinas, 87 Wash. 2d at 121, the
type of harm attached to the mental state under the Washington statute is also
broader than the parallel requirement underthe Texas statute. Finally, the
Washington requirement that grievous bodily harm result is less severe than the
Texas requirement that the result be death. Thus, each element ofthe Texas
offense is narrower than its Washington counterpart. Therefore, the two offenses
are legally comparable for offender score purposes.
-27
No. 71134-2-1/28
Turning to the "most serious offense" inquiry, assault in the second degree
is currently defined, in pertinent part, as "[intentionally assaulting]'81 another and
thereby recklessly inflict[ing] substantial bodily harm."9 RCW 9A.36.021(1)(a).
"'Substantial bodily harm' means bodily injury which involves a temporary but
substantial disfigurement, or which causes a temporary but substantial loss or
impairment ofthe function ofany bodily part or organ, or which causes a fracture
of any bodily part." RCW 9A.04.110(4)(b).
Because a person who killed another while intending to inflict serious
bodily harm would have intentionally touched another in a "harmful or offensive"
manner, a person convicted of voluntary manslaughter in Texas in 1981
necessarily engaged in conduct constituting an "intentional[ ] assault" under
Washington's assault in the second degree statute. We focus, then, on the
Washington statute's reckless infliction of substantial bodily harm requirement.
To satisfy this portion of the Washington comparator offense, a person must
cause substantial bodily harm while acting recklessly with regard to the risk that
substantial bodily harm will result. There are three constituent parts: (1)
culpability—recklessness, (2) type of harm—substantial bodily harm, and (3)
result—substantial bodily harm.
8"'An assault is an intentional touching, striking, cutting, or shooting of another person,
with unlawful force, that is harmful or offensive regardless ofwhether any physical injury is done
to the person.'" State v. Smith.
159 Wash. 2d 778, 781-82,
154 P.3d 873 (2007) (quoting common
law definition).
9The provisions cited mirror those in effect at the time that Garrison committed the
underlying offense against A.W.
-28-
No. 71134-2-1/29
In attempting to prove comparability, the State's analytical problem is with
the requirement regarding the type of harm.10 In order for the relevant offenses
to be legally comparable, the type of harm required under the Texas statute must
be the same as or narrower than the type of harm required under the Washington
statute. Stated differently, when conduct satisfies the type of harm requirement
under the Texas statute, it must also satisfy the parallel Washington requirement.
For this to be the case, the harm required under the Texas statute must be
greater than or equal to the harm required underthe Washington statute.
There are three ways to establish "serious bodily injury" under the Texas
law at issue, including "protracted loss or impairment ofthe function ofany bodily
member or organ." V.T.C.A. Penal Code, § 1.07(a)(34). The parallel
Washington provision requires "temporary but substantial loss or impairment of
the function ofany body part or organ, or which causes a fracture ofany body
part." RCW 9A.04.110(4)(b). Texas courts have adopted the "common meaning"
of the word "protracted," which is synonymous with "continuing, dragged out,
drawn out, elongated, extended, lengthened, lengthy, lingering, long, long-
continued, long-drawn, never-ending, ongoing, prolix, prolonged, or unending."
Moore v. State,
739 S.W.2d 347, 352 (Tex. Crim. App. 1987) (citing Burton,
Legal Thesaurus 418 (1980 edition)). Thus, in terms of the temporal
requirements present in the two comparator statutes, the Texas requirement of
10 Aperson who acts intentionally satisfies a requirement that he act recklessly. RCW
9A.08.010(2). Furthermore, a required result of death is more severe than a required result of
substantial bodily harm. Therefore, the Texas voluntary manslaughter statute is narrower than the
Washington comparator in terms of both the culpability required and the result required.
-29-
No. 71134-2-1/30
"protracted" injury is narrower than the Washington requirement of a "temporary"
injury.
However, in addition to the temporal requirement, the Washington statute
also requires that the loss or impairment be "substantial." Because the Texas
requirement that the injury be "protracted" is grounded firmly in the injury's
duration, and not its severity, we cannot read a requirement that the injury be
"substantial" into the Texas statute. Compare Williams v. State,
575 S.W.2d 30,
33 (Tex. Crim. App. 1979) (injury that caused victim to lose lifting power in his
arm for three months constitutes a "protracted impairment") with Villarreal v.
State,
716 S.W.2d 651, 652 (Tex. Ct. App. 1986) (evidence ofvictim's inability to
raise arms for two weeks caused by pain of injury did not show "protracted loss
or impairment"). See also Allen v. State,
736 S.W.2d 225, 226-27 (Tex. Ct. App.
1987) (injury which caused victim to have dysfunction in her injured finger
constituted protracted impairment because it lasted for more than three months);
Sanchez v. State,
543 S.W.2d 132, 134 (Tex. Crim. App. 1976) (loss of
consciousness and temporary amnesia following alleged aggravated assault
"insufficient to show any 'protracted loss or impairment'").
Conversely, the requirement that the injury be "substantial" cannot be read
out of the Washington statute. To do so not only would ignore the plain language
of the statute, but would also contradict our Supreme Court's interpretation of
that statute, which emphasized the significance of the word "substantial." "[T]he
term 'substantial,' as used in RCW 9A.36.021(1)(a), signifies a degree of harm
that is considerable and necessarily requires a showing greater than an injury
-30-
No. 71134-2-1/31
merely having some existence." State v. McKague.
172 Wash. 2d 802, 806,
262
P.3d 1225 (2011). Therefore, Garrison's Texas offense is not legally comparable
to Washington's present offense of assault in the second degree.
Moreover, as explained above, because the State produced no evidence
of facts of the Texas offense that were admitted, stipulated to, or proven beyond
a reasonable doubt, the State cannot establish the factual comparability of the
Texas and Washington convictions.
Accordingly, the State did not meet its burden of establishing that
Garrison's Texas offense constituted a "most serious offense."
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
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.11 Former RCW 9A.32.070(2).
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:
11 It is now a class Bfelony. This legislative reclassification has no effect on Garrison's
prior conviction. See Rivard v. State.
168 Wash. 2d 775, 781-82,
231 P.3d 186 (2010) ("[T]he
subsequent reclassification ofan offense from a class Bto a class Afelony has no effect on a
prior conviction for that offense and does not retroactively convert the conviction to a class A
felony.").
-31 -
No. 71134-2-1/32
[C]lass 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 Wash. 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
Wash. 2d at 821. For instance, incarceration for a probation violation constitutes
confinement pursuant to a felony conviction within the meaning ofthe statutory
washout provision. State v. Mehrabian,
175 Wash. App. 678, 714,
308 P.3d 660,
review denied,
178 Wash. 2d 1022 (2013). However, once a conviction washes out,
it cannot count as a "most serious offense" in the defendant's criminal history.
State v. Failev.
165 Wash. 2d 673, 678,
201 P.3d 328 (2009) (prior conviction that
washes out is not counted as a strike offense).
Garrison's 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.
Accordingly, Garrison spentfive years in the community "since the last date of
release from confinement" without committing any new crime that resulted in
conviction. Taking manslaughter in the second degree as the proper Washington
32
No. 71134-2-1/33
comparator, Garrison's 1981 Texas conviction for voluntary manslaughter
washed out and, thus, could not constitute a strike offense.
The trial court's conclusion that Garrison must be sentenced as a
persistent offender because he was convicted on two prior occasions of strike
offenses is, therefore, incorrect. His case must be remanded for resentencing.
Affirmed in part, reversed in part, and remanded for resentencing.
_^.
We concur:
£