                                                                                     FILED
                                                                             OURT OF APPEA1 S
                                                                                   DIVISION 1
                                                                            2013 JUN 27 AM 9: 31
                                                                            SXPE .
                                                                            s`
                                                                                     Wr1f lNGT
                                                                                       S '



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                      DIVISION II

STATE OF     WASHINGTON,                                          No. 42135 6 II
                                                                            - -


                             Respondent,

        V.



EDWARD MARK OLSEN,                                            PUBLISHED OPINION

                             W

             BRINTNALL, J. — On December 21, 2010, a jury found Edward Olsen not guilty
        QUINN-

of attempted first degree murder but guilty of attempted second degree murder, first degree

burglary, and felony-
                    harassment,all with domestic violence aggravators,-
                                -                         pouring gasoline on. __.. ____
                                                                     for-

and threatening to kill Bonnie Devenny while she was in bed. The trial court sentenced Olsen to
an exceptional sentence of 360 months in light of the crimes having occurred in the presence of

Devenny and Olsen's       year old son, J. .
                        12-    -        O.
                                         E            Olsen appeals his conviction and sentence,

arguing that (1)the trial court improperly admitted evidence of incidents of past domestic

violence in Olsen and Devenny's relationship; 2) trial court's to convict" instruction for
                                              ( the             "

felony harassment omitted an essential element of the crime; and (3)the trial court erred in



1
    The jury also found Olsen guilty of third degree malicious mischief, a misdemeanor, for
breaking   the passenger window of Devenny's   car.
          No. 42135 6 II
                    - -



          concluding that for calculating Olsen's offender score, a California conviction for "terrorist

          threats"was comparable to felony harassment in Washington.

                  Because the trial court properly admitted evidence of Olsen and Devenny's relationship

          and in State v. Allen, 176 Wn. d 611, 627 28,294 P. d 679 (2013), Supreme Court held that
                                       2            -       3             our

          the definition of true threat"need not be provided in a trial court's to convict"instructions, we
                            "                                                    "

          affirm Olsen's convictions.     And finding no error in the trial court's calculation of Olsen's

          offender score, we affirm his sentence.

                                                          FACTS


          BACKGROUND


                  Around 4:0 AM on November 29, 2009, Devenny was awakened by Olsen, the estranged
                          0

          father of her three children, dousing her bed in gasoline while threatening that she was going to

          die. Devenny "
                       struggled and jumped up out of bed screaming."5 Report of Proceedings (RP)at

          626. J. .Devenny and Olsen's 12-
               O.,
                E                        year old son who had fallen asleep in Devenny's room
                                              -

          while   watching   television earlier in the   evening,   awoke to his mother's   screaming.   O.
                                                                                                         J. .
                                                                                                          E


I-- _ grabbed and tried gethim as -faraway as possible from Devenny]." _ at
       _          "            -                            [        5

          O.
          J. .forced Olsen into the hallway, while Devenny made it into the bathroom the hall
           E

          and escaped through the bathroom window. Devenny ran across the street to the Wyatt House

          Retirement Center where J. .later ran to meet her.
                                  O.
                                   E


                  Wyatt House caretaker Terrance Black let Devenny and J. .inside the secured facility
                                                                       O.
                                                                        E

          and because Devenny "was just screaming that the gasoline was burning her,"
                                                                                    called 911. 3 RP

          at 231.   During the call, Devenny relayed that Olsen had broken into her home and thrown

          gasoline on her and that she was worried that " s coming after me."Clerk's Papers (CP) at
                                                        he'

           176. Bainbridge Island Police Officer Michael Tovar responded quickly to the scene where he

                                                             2
No. 42135 6 II
          - -



observed that Devenny was "
                          hyperventilating," "
                                           looked scared," had " bvious redness to her
                                                         and   o

legs."3 RP at 242 44. Devenny told Tovar that " he was lying in bed when she was awoken by
                  -                           s

a   male   pouring   gas   on   top of her :..   who she identified as Mr. Olsen." 3 RP at 246. Devenny

also told Tovar that while pouring the gasoline, Olsen "was saying something to the effect of:

Die,bitch. Die. "' 3 RP at 246. Bainbridge Island Police Officer Lloyd Berg arrived in time to

hear Devenny tell Tovar about the altercation. Berg could smell the gasoline on Devenny.

           Officers Berg and Tovar then left the Wyatt House to see if Olsen was still at Devenny's

home.      Berg and Tovar entered through the open front door and performed a sweep of the

residence. Tovar immediately smelled gasoline once inside. Both Tovar and Berg noticed that

the gasoline smell was strongest in the master bedroom and both noticed a red gasoline can near

the foot of the bed. Completing the sweep, Berg and Tovar checked the perimeter'of the house

but did not find Olsen.            They noted that the front passenger window of Devenny's car was
broken.


           Bainbridge Island Police Detective Trevor Ziemba responded to a call about the incident

at approximately 5 Am. - - though Devenny - chartg ed her clothes, Ziembacould still -
                    - Even
                       ---     g        Y had      - -- - __             -

smell gasoline. After interviewing Devenny and J. .
                                               O.,
                                                E Ziemba went to Devenny's home. Upon

entering, he immediately smelled gasoline and the odor "was just unbelievable." 4 RP at 330.

The gasoline smell in the master bedroom was "so strong"that it made Ziemba "nauseous" and

he "could only spend a limited amount of time in the room."4 RP at 331. Ziemba noticed a

lighter on the night stand near the bed which he collected as evidence. Police were unable to

locate Olsen at the time, but were able to corral the family dog which had run off during the

incident. They did not notice any gasoline smell on the dog.



                                                          3
No. 42135 6 II
          - -



         Toward the end of January, Olsen turned himself in to law enforcement in Arizona.

Detectives Ziemba and Christian Hemion flew to Arizona to bring Olsen back to Washington.

After transporting Olsen to Washington, Hemion advised Olsen of his Miranda rights. Olsen
waived those rights and spoke with the detectives about the incident. Olsen told the detectives

that on the night of the incident, he broke out the window of Devenny's car with a large rock so

that he could open the home's garage door with the opener in the car. Olsen then said that he

drank    some           had
                alcohol," "        a   casserole and ...        watched some TV." RP at 352. Sometime
                                                                                 4


later, Olsen needed to use the bathroom, but "there was a dog in there" that was denying him

access to the bathroom. 4 RP at 352. Then,

         because he had to   use   the bathroom     so   bad ...   he tried to use the casserole to coax
         the dog out of the bathroom, and when that didn't work he then went into the
         garage and took a can of gasoline, went into the bathroom and poured gasoline --
         or started pouring gasoline on the dog as the dog ran into the bedroom and then
         jumped on the bed, which was occupied by [ Devenny] and [J. .
                                                                    O.].E

4 RP at 353. Olsen told the detectives that he did not believe Devenny was in the house as these

events transpired and that the dog jumping on the bed was "why there [was] gasoline in the

bedroom: " 4      at_ -- -- - - -- - - -


         The State initially charged Olsen with attempted first degree murder and -first degree

burglary,   both with domestic violence aggravators.                  RCW 9A. 2.020( );
                                                                          a),
                                                                          030(
                                                                             1)( RCW
                                                                             3     1                       .

9A. 2.RCW 10. 9. The State later amended the charges to add attempted second
020;
  5       020.
            9


degree murder, felony harassment, and third degree malicious mischief, all with domestic

violence aggravators.    RCW 9A. 2.
                             a); 8.
                             050(
                                1)(
                                3  RCW 9A.
                                       020(
                                          1 RCW 020(
                                          2 ); 9A. 6.
                                                   1 RCW
                                                   4 );

a);
090(
9A. 8.
   1)( 99.
   4 RCW 10.
         020.



2
    Miranda v. Arizona, 384 U. .436, 86 S. Ct. 1602, 16 L.Ed. 2d 694 (1966).
                             S

                                                           rd
No.42135 6 II
         - -



PROCEDURE


       Pretrial proceedings began on June 15, 2010. The trial court heard the State's offer of

proof and argument from both parties concerning admitting evidence under ER 404( ) two
                                                                               b of

previous   incidents of domestic violence          involving Devenny and Olsen. The court found by a

preponderance of the evidence that

       o] April 22, 1998 Ms. Devenny allowed [Olsen], ex-
         n                                           her   boyfriend, to stay at her
       house. While she was on the phone [Olsen] became angry and started yelling at
       her. [ Olsen] threwMs. Devenny on the bed so she landed on her stomach and
       wrapped a cord around hen neck. He began to choke Ms. Devenny so hard that
       she vomited....
                  Olsen] grabbed a couple of pillows and covered her face so she couldn't
       breathe and became light-
                               headed. She continued to fight him.
              Olsen] started tying Devenny up with an extension cord telling her that he
       was going to rape and kill her and [bury] her that night. She was able to escape
       when [Olsen] thought that someone else was in the house.
              The second episode ... involve[
                                            s] California incident occurring on May
                                                 a
       23,000 ... .
         2
                        Ms. Devenny contacted law enforcement and reported that for the past
       several days she and [ Olsen] had been arguing back and forth about their
       relationship. That evening [Olsen] told her that he was tired of their arguments
       and   began pushing       her around and          hitting   her in the head.   Ms. Devenny fell
       down, and [Olsen] sat on top of her and held her down.
              He then wrapped duct tape around her lower legs. As [Olsen] was doing
       this he told her to say good bye to her children because this would be the last
                    -               -
       time they would see their mom.
                 Olsen told Devenny] that he was, quote, going to kill her and cut her up
       into little pieces. [Olsen] told Ms. Devenny that he was going to put her pieces in
       a plastic storage container that was on the floor next to her.31[
RP (June 18, 2010)at 2 4.
                       -

       Trial began on December 13. In addition to eliciting testimony concerning the November

29 events, the State called Devenny to testifyafter the trial court gave a limiting instruction-
                                              —




3 The transcripts mention written ER 404( )
                                        b findings on multiple occasions. Written ER 404( )
                                                                                        b
findings   were   not   designated for   our   review.
No.42135 6 II
         - -



about three previous incidents of domestic violence involving her and Olsen. Devenny testified
that about a week before the gasoline incident, she and Olsen got into " verbal altercation that
                                                                       a

turned physical" and Olsen struck her six times in the face in front of their three children. 5 RP

at 619. She also testified that in 1998, Olsen tied her up with an electrical cord and choked her.

She said that at the time Olsen told her, You better say `good bye' to your children." 5 RP at
                                          "                    -

622. Last, Devenny testified concerning the 2000 incident from California where Olsen began

duct taping her and told her "he was going to cut [her] in pieces and put [her] in a blue bin."5

RP at 623.


         Two of Devenny's three children testified about the fight that occurred shortly before the

gasoline event. J. .testified that "[ here was a lot of fist throwing"from both Devenny and
                O.
                 E                 t]                                  -

Olsen and that Devenny received      a " bloody eyebrow, and        that is about it." RP at 581 82.
                                                                                     5           -


O.' older brother, J. .testified that he heard an argument but did not see the actual fight
J. .
 s
 E                 O.,
                    M

or   that Devenny suffered any   injuries   as   a   result. J. . also testified that the incident from
                                                             O.
                                                              M


2000 began as a result of Devenny punching their five year old brother, E. . the face.
                                                           -            O.,
                                                                         J in

O.
E. : down account of the blow and, - the process;knocked over - - -
 J fell    "      - -            in

Devenny    then hit J. . for
                    O.
                     M           crying. According to J. . Olsen came in the door shortly
                                                      O.,
                                                       M




4 As previously discussed, the trial court ruled at a pretrial ER 404( )
                                                                     b hearing that evidence of
the 1998 and 2000 incidents would be admissible. Prior to Devenny's testimony, the trial court
heard an offer of proof outside the jury's presence concerning a fight that occurred
approximately    one   week before the   gasoline incident. The trial court ruled that the State had
proven by a preponderance of the evidence (based on what appeared "to be a healing wound
above [ Devenny's] eyebrow"in pictures taken on the night of the gasoline incident)that the
                  left
fight from the week before the gasoline incident occurred. 5 RP at 567. The trial court also
ruled that " vidence of an assault so close in time to the charged event is relevant to the issue of
           e
motive and intent." RP at 568.
                   5


                                                        2
No.42135 6 II
         - -



thereafter and    began tying Devenny    up to   stop her from hitting the children. Olsen did not

testify.

           On December 21, the jury returned its verdict finding Olsen not guilty of attempted first

degree murder but guilty of attempted second degree murder, first degree burglary, felony

harassment, and third degree malicious mischief. The jury also found that all of the crimes were

aggravated domestic violence offenses. On April 11, 2011, the trial court sentenced Olsen to an

exceptional sentence of 360 months. Olsen appeals his sentence and convictions

                                            DISCUSSION


PRIOR BAD ACTS


           Olsen argues that the trial court abused its discretion in allowing the State to present

evidence under ER 404( ) prior acts of violence that Olsen committed against Devenny to
                     b of

show intent, motive, and absence of mistake or accident related to the attempted murder charges.

Specifically, Olsen contends that these acts were irrelevant and that the potential prejudicial

effect of the evidence outweighed any probative value such evidence might hold. Because the

trial"courtproperly interpreted 404(
                                   b) not abuse its discretion ina mitting evidence -
                                     did                         -

of the incidents for the limited purposes of establishing motive, intent, or lack of mistake, we

disagree.

           We review a trial court's interpretation of ER 404( ) novo. State v. Foxhoven, 161
                                                             b de

Wn. d 168, 174, 163 P. d 786 (2007).If the trial court has correctly interpreted ER 404( ),
  2                  3                                                                 b we

review the trial court's ruling to admit or exclude evidence of misconduct for an abuse of

discretion. State v. Fisher, 165 Wn. d 727, 744 45,202 P. d 937 (2009).A trial court abuses its
                                   2            -       3

discretion by not following the requirements of ER 404( ) admitting evidence of a defendant's
                                                      b in

prior acts of misconduct. Fisher, 165 Wn. d at 744 45.
                                        2          -
                                                    7
No. 42135 6 II
          - -



       Under ER 404( ), "[ of other crimes, wrongs, or acts is not admissible to prove
                   b e] vidence

the character of a person in order to show action in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan ,

knowledge, identity, or absence of mistake or accident."ER 404( ) not designed `to deprive
                                                        "     b is

the State of relevant evidence necessary to establish an essential element of its case,'but rather

to prevent the State from suggesting that a defendant is guilty because he or she is a criminal -

type person who would be likely to commit the crime charged." Foxhoven, 161 Wn. d at 175
                                                                              2

quoting State v. Lough, 125 Wn. d 847, 859, 889 P. d 487 (1995)).
                              2                  2             Thus, evidence of prior bad

acts must be relevant to a material issue before the jury,State v. Gogolin, 45 Wn. App. 640, 644,

727 P. d 683 (1986), ER 404( )
     2             and     b must be read in conjunction with ER 403, which " equires
                                                                            r

exclusion of evidence, even if relevant, if its probative value is substantially outweighed by the

danger of unfair prejudice."State v. Smith, 106 Wn. d 772, 776, 725 P. d 951 (1986).
                                                  2                  2

       With these considerations in mind, Washington courts have developed a four part test for
                                                                                  -

ruling on the admissibility of prior acts evidence: before admitting ER 404( )
                                                                           b evidence, a trial

court                     a -preponderance
                             -                                      misconduct -occurre
                                               of evidence that the -                               ,   2



identify the purpose for which the evidence is sought to be introduced, 3)
                                                                        ( determine whether the

evidence is relevant to prove an element of the crime charged, and (4)weigh the probative value

against the prejudicial effect."State v. Thang, 145 Wn. d 630, 642, 41 P. d 1159 (2002).This
                                                      2                 3                "

analysis must be conducted on the record."Foxhoven, 161 Wn. d at 175.
                                                          2

        Here, Olsen does not challenge the trial court's oral ruling that the State proved the three

previous   instances of misconduct   by   a   preponderance   of the evidence.         Accordingly, these

unchallenged findings are treated as verities on appeal. State v. Chanthabouly, 164 Wn. App.

104, 129, 262 P. d 144 (2011)unchallenged oral rulings
               3              (                               are   verities   on          review denied,
                                                                                    appeal),
No. 42135 6 II
          - -



173 Wn. d 1018 (2012). Thus, we must solely determine whether the trial court admitted the
      2

evidence on appropriate legal grounds (steps 2 and 3 of the test described above) and, if so,

whether the trial court abused its discretion in concluding that the probative value of the

evidence outweighed its potential for prejudice (step 4).

        Contrary to Olsen's characterization of the trial court's ER 404( )
                                                                        b analysis, the court

performed extensive, on- -record analysis of why the State should be allowed to submit
                       the

evidence of Olsen's prior violence toward Devenny. As to the incidents from 1998 and 2000, the

trial court ruled that evidence of these prior acts "is relevant in the Attempted Murder in the First

Degree charge on the issue of intent"and also to rebut Olsen's statements to the police that the
                                                                "

splashing of gasoline upon Devenny and her son was accidental or incident[al] trying to use
                                                                             to

the gas to move the dog." (June 18, 2010)at 13. The trial court also ruled that " he evidence
                         RP                                                     t

is also relevant ...   to the issue of motive, which goes towards premeditation in that it was clearly

expressed in the prior incidents that the defendant's intent was to kill"Devenny. RP (June 18,

2010) at   13.    As to the fight between Devenny and Olsen that occurred one week before the

gasoline -
         incident, the court ruled that " vidence an assault so close in timeto thecharged -
                   "    - -             e                             -       -

event is relevant to the issue of motive and intent."5 RP at 568.


        Washington law clearly supports admitting evidence of prior acts in circumstances such

as this. In State v. Powell, 126 Wn. d 244, 261, 893 P. d 615 (1995) quoting State v. Parr, 93
                                   2                  2              (

Wn. d 95, 102, 606 P. d 263 (1980)), instance, the Washington Supreme Court pointed out
  2                 2             for

that "` [ t is
        i]       undoubtedly the rule that evidence of quarrels between the victim and the defendant

preceding a crime, and evidence of threats by the defendant, are probative upon the question of

the defendant's intent. "'    Moreover, when a defendant asserts that certain conduct is accidental,

evidence of prior misconduct is highly relevant as it will tend to support or rebut such a claim.

                                                    9
No. 42135 6 II
          - -



Gogolin, 45 Wn. App. at 646. Thus, in Gogolin, Division One of this court allowed evidence of

a defendant's prior assaultive behavior toward his wife as " the evidence was relevant and

probative since it tended to rebut [the defendant's]
                                                   defense of accident by demonstrating his

history of hostility and abusive conduct toward [the victim]." Wn. App. at 646. The Gogolin
                                                             45

court further stated that " he evidence tended to make more probable the fact that [the victim's]
                          t

injuries   resulted from   an   intentional assault rather than       an   accident."   45 Wn. App. at 646.

Accordingly, we hold that the trial court correctly interpreted ER 404( )
                                                                      b when it concluded that

the State could present evidence of Olsen's prior assaultive behavior toward Devenny to show

intent and motive and, especially, to counter his claims of accident.

           In addition to determining whether the trial court admitted the evidence on appropriate

legal grounds, we must also decide whether the trial court abused its discretion in concluding that

the probative value of the evidence outweighed its potential for prejudice. On the record here,

the trial court carefully weighed the probative value of the offered evidence against its

potentially prejudicial effects. While recognizing that "evidence of this type is prejudicial,"
                                                                                              the

court concluded that the evidence does have a high degree of valueto proving the intent an
                      -  -        "           "                    -

motive. It also does have a high degree of value in rebutting absence of mistake."RP (June 18,

2010) at     15.   Olsen utterly fails to explain - ow the trial court's analysis entailed an abuse of
                                                  h

discretion. The evidence admitted        clearly   had   a    high degree of probative   value —especially   in

light of Olsen's claim that the spilling of gasoline on Devenny and J. . was an accident
                                                                    O.
                                                                     E




                                                         10
No. 42135 6 II
          - -



incidental to his . ttempt to relocate the dog. Accordingly, we hold that the trial court did not
                  a

abuse its discretion in admitting evidence of Olsen's prior bad acts.
FELONY HARASSMENT INSTRUCTION


       Olsen next argues that the trial court erred in giving a "to convict" instruction on the

felony harassment charge that omitted the requirement that the threat be a "true threat."Because

the trial court properly gave a definitional instruction limiting criminalized behavior to "true

threats,"and the Washington Supreme Court has recently held that when such a definitional

instruction is given, "
                      true threat" need not be defined as an element in the "to convict"

instructions for felony harassment, we disagree.

       We review jury instructions de novo, within the context of the jury instructions as a
                                            "

whole."State v. Jackman, 156 Wn. d 736, 743, 132 P. d 136 (2006).Jury instructions, taken
                               2                  3                                 "

in their entirety, must inform the jury that the State bears the burden of proving every essential

element of a criminal offense beyond a reasonable doubt."State v. Pirtle, 127 Wn. d 628, 656,
                                                                                2

904 P. d 245 (1995),
     2             cent, denied, 518 U. . 1026 (1996).
                                      S

       Because threatening language may - be protected by -theFirst -
                                              _                -- Amendment, j-ury - -

instructions must carefully distinguish "true threats" ( hich receive no First Amendment
                                                       w

protection) from constitutionally protected speech. State v. Williams, 144 Wn. d 197, 207 08,
                                                                             2            -


5
 Olsen makes passing reference in his brief, without explicitly raising the issue of prosecutorial
misconduct, to the fact that " he prosecutor improperly made a propensity argument to the jury"
                             t
based on the admitted ER 404( ) b evidence. Br. of Appellant at 11. Because this court " ill not
                                                                                         w
review issues for which inadequate argument has been briefed or only passing treatment has been
made,"   State v. Thomas, 150 Wn. d 821, 868 69, 83 P. d 970 (2004), do not fully address
                                 2           -           3              we
this issue. We note, however, that our review of the prosecutor's closing argument reveals that
the prosecutor was not focused on proving Olsen's conformity with prior behavior but, instead,
on countering Olsen's claim that pouring gasoline on Devenny occurred accidentally while he
was attempting to douse the dog.

                                                11
No. 42135 6 II
          - -



26 P. d 890 ( 2001). A "true threat" is "`
    3                                    a statement made in a context or under such


circumstances wherein a reasonable person would foresee that the statement would be interpreted

      as a serious expression of intention to inflict bodily harm upon or to take the life' of another .

person." State v. Kilburn, 151 Wn. d 36, 43, 84 P. d 1215 (2004) internal quotation marks
                                 2               3                (

omitted)quoting Williams, 144 Wn. d at 207 08).
        (                       2          -

         Here, the trial court gave the following definitional instruction of "true threat" in

instruction 23: .


                 Threat means to communicate, directly or indirectly, the intent —
                 To cause bodily injury in the future to the person threatened or to any
         other person; or
                 To do any other act which is intended to harm substantially the person
         threatened or another with respect to that person's health, safety, business,
         financial condition or personal relationships.
                 To be a threat, a statement or act must occur in a context or under such
         circumstances where a reasonable person, in the position of the speaker, would
         foresee that the statement or act would be interpreted as a serious expression of
         intention to carry out the threat rather than as .something said in jest or idle talk.

CP at 240. This instruction clearly defines "true threats,"
                                                          including the constitutionally required

mens    re   element   distinguishing "true threats" from idle talk    or   jests. Accordingly, this
instruction does not run afoul of the First Amendment.


         Nevertheless, Olsen contends that because only " rue threats"may be prosecuted, the "to
                                                        t

convict" instruction for the felony harassment charge must include an element stating that the




6
    See State v. Schaler, 169 Wn. d 274, 283 84,236 P. d 858 (2010).
                                2            -       3

                                                   12
No. 42135 6 II
          - -


                                                       7
defendant's threat constituted       a "true   threat."     The Washington Supreme Court has recently

rejected this argument.

         In Allen,the defendant argued that even though the trial court gave a separate definitional

instruction for true threats, "
                              because only true threats may be prosecuted, the true threat

requirement is an essential element [that] must be included in the information and to-
                                                                                     convict
                                                                                               8
instruction" for    felony   harassment.       176 Wn. d at 626 27.
                                                     2          -          The Allen court          rejected this

argument, holding that "failure         to   include the true threat   requirement   in the . . .     to-
                                                                                                        convict


instruction   was   not error." 176 Wn. d at 630.
                                      2                         As the Allen court explained, Washington

appellate courts have consistently arrived at this conclusion:

          T] e Court of Appeals has repeatedly held the true threat requirement is not an
           h
          essential element of harassment statutes. In State v. Tellez, 141 Wn. App. 479,
          170 P. d 75 (2007), defendant, charged with felony telephone harassment
               3            the

7
    The trial court gave the "to convict"instruction for felony harassment as instruction 24:
                 To convict the defendant of the crime of Harassment as charged in Count
          IV, each of the following elements of the crime must be proved beyond a
          reasonable doubt —
          1)     That on or about November 28, 2009 through November 29, 2009, the
                 defendant knowingly threatened to kill Bonnie Devenny immediately or in - -
                 the future;
          2)     That the words or conduct of the defendant placed Bonnie Devenny in
                 reasonable fear that the threat to kill would be carried out;
          3)     That the defendant acted without lawful authority; and
          4)     That the threat was made or received in the State of Washington.
CP at 241. We note that the second element of this instruction appears to state the requirement
that the threat be a "true threat" — a reasonable person in the speaker's position would
                                   that
foresee that his or her words or conduct would place the victim in reasonable fear that the threat
to   kill would be carried   out.   Cf. ¶3 of the trial court's instruction 23.
8
  The Allen decision produced four opinions by the Supreme Court (the lead opinion, cited
herein, two concurrences, and a dissent). Thus, the lead opinion in Allen is a plurality decision
only signed by four justices. However, the other three opinions in Allen do not address this
issue — whether the " o convict"instructions for felony harassment must explicitly limit threats to
                      t
true threats "at all and, accordingly, common sense dictates that the whole of the court agreed
               —
with the lead opinion's assessment of this particular issue.

                                                           13
No. 42135 6 I1
          - -



         based on a threat to kill,claimed the information and to-  convict instruction were
         deficient because they lacked the requirement of a true threat, an essential element
         of the crime. The Court of Appeals agreed with the State that " the constitutional
         concept of `rue threat' merely defines and limits the scope of the essential threat
                    t
         element in the felony telephone harassment statute and is not itself an essential
         element of the crime." Tellez, 141 Wn. App. at 484. In so holding, the court in
         Tellez construed our holding in [State v. Johnston, 156 Wn. d 355, 127 P. d 707
                                                                   2                 3
         2006)] — it is error not to give a limiting instruction defining threat to include
                 that
         only true threats as characterizing the true threat concept as definitional, and not
                           —
         as an essential element of any threatening-  language crime. Tellez, 141 Wn. App.
         at 484. In State v. Atkins, 156 Wn. App. 799, 236 P. d 897 (2010), defendant,
                                                               3               the
         charged with felony harassment, likewise contended the information and to-
         convict instruction were deficient for failing to contain the essential element of a
         true threat. The Court of Appeals found Tellez dispositive, holding that so long as
         the jury was instructed as to the true threat requirement, the defendant's First
         Amendment rights were protected.

176 Wn. d at 629 30.
      2          -


         This case is on all fours with the Allen case the jury instructions in both cases are nearly
                                                       —

identical.     Here, the trial court properly provided a definitional instruction limiting threats to

true threats" instruction 23 discussed above) in conjunction with the "to convict" instruction
               (

for   felony   harassment (instruction   24). Nothing   more   is   required. Accordingly, we reject

Olsen's contention that the trial court's jury instructions were erroneous.

COMPARABILITY OF "
                 TERRORISTIC THREATS"CONVICTION


         Last, Olsen contends that the State failed to prove that his 2000 California conviction for

terrorist threats" was comparable to the Washington crime of felony harassment and, in result,

the trial court miscalculated his offender score. Because Olsen specifically pleaded no contest in

2000 to threatening to kill Devenny, we hold that Olsen's prior offense for terroristic threats is

factually comparable to . elony harassment in Washington and, accordingly, the trial court did not
                        f

err when it included Olsen's 2000 California conviction in calculating his offender score.




                                                   14
No. 42135 6 II
          - -



       We review the trial court's classification of out ofstate crimes and the trial court's
                                                         - -

calculation of a defendant's offender score de novo. State v. Labarbera, 128 Wn. App. 343, 348,

115 P. d 1038 (2005);
     3              State v. Bergstrom, 162 Wn. d 87, 92, 169 P. d 816 (2007).When prior
                                              2                3               "

outofstate convictions are used to increase an offender score, the State must prove the
   - -

conviction would be a [comparable] felony under Washington law."Labarbera, 128 Wn. App.

at 348; RCW 9. ).
            525( 4A.
               3
               9

       We employ a two part test to determine the comparability of a foreign offense. State v.
                       -

Thiefault, 160 Wn. d 409, 415, 158 P. d 580 (2007). First, we determine whether the foreign
                 2                  3

offense is   legally comparable —that is, whether the elements of the foreign offense are
                                  "

substantially similar to the elements of the Washington offense." Thiefault, 160 Wn. d at 415.
                                                                                   2

Second, if the foreign offense elements are broader than Washington's elements, precluding legal

comparability, we 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. d at 415 (citing State v. Morley, 134 Wn. d 588, 606, 952 P. d 167 (1998)).
                 2                                         2                  2

In factual -comparison,this -
       "                - [ court] may rely on facts in the foreign -
                                                                    that are - - -
                                                                         -

admitted, stipulated to, or proved beyond   a   reasonable doubt." Thiefault,   160 Wn. d at 415
                                                                                      2

citing In re Pers. Restraint ofLavery, 154 Wn. d 249, 258, 111 P. d 837 (2005)).
                                             2                  3

       Here, Olsen pleaded no contest in 2000 to committing the California felony crime of

terrorist threats." At the time, the former Cal. Penal Code §    422 (1998) defined the crime as

follows:


       Any person who willfully threatens to commit a crime which will result in death
       or great bodily injury to another person, with the specific intent that the statement
       is to be taken as a threat, even if there is no intent of actually carrying it out,
       which, on its face and under the circumstances in which it is made, is so
       unequivocal, unconditional, immediate, and specific as to convey to the person
                                                 15
No. 42135 6 II
          - -



         threatened, a gravity of purpose and an immediate prospect of execution of the
         threat, and thereby causes that person reasonably to be in sustained fear for his or
         her own safety or for his or her immediate family's safety.

         Washington's harassment statute at the time provided,

         1) person is guilty of harassment if:
             A
                 a) Without lawful authority, the person knowingly threatens:
                 i) cause bodily injury immediately or in the future to the person
                    To
         threatened or to any other person....

                 2) person who harasses another is guilty of a gross misdemeanor ...
                   A
         except that the person is guilty of        a   class C       felony   if ... (
                                                                                      b)the    person harasses
         another person under subsection (1)( of this section by threatening to kill the
                                          i)
                                           a)(
         person threatened or any other person.

Former RCW 9A. 6.1999).
           020 (
             4

         The elements of the California and Washington crimes are not legally comparable: under

California's statute, it is possible to be convicted of a . elony for threatening great bodily injury
                                                          f

or death, whereas felony harassment in Washington requires a true threat involving death; a

threat   involving bodily injury constitutes only                 a    misdemeanor.      Thus, we must determine

whether the conduct underlying Olsen's terroristic threats"conviction would have been a felony
                                        "

violation of Washington's harassment statute: -Thie au t;
                             -                           160 Wn. d at 415.
                                                               2

         Unlike in   Washington,    California allows defendants to                  plead no contest" to charged

offenses.   Under California law, the "`egal effect of such a plea, to a crime punishable as a
                                       l

felony, shall be the   same as   that of   a   plea of guilty         for all purposes. "'   California v. Wallace, 33

 Cal. 4th 738, 749, 93 P. d 1037, 16 Cal. Rptr. 3d 96 ( 2004) quoting Cal. Penal Code §
                        3                                     (

 1016( )).
     3 And under established California law, a guilty plea " mounts to an admission of every
                                                           a

 9
  Although Washington's current harassment statute is nearly identical to the statute in effect in
 2000, the elements of the out of state crime must be compared to the elements of a Washington
        "
 criminal statute in effect when the foreign crime was committed."In re Lavery, 154 Wn. d at2
 255.


                                                           IEII
No. 42135 6 II
          - -



element of the crime charged." California v. Jones, 52 Cal. 2d 636, 651, 343 P. d 577 (1959)
                                                                              2

emphasis added),
               cent. denied, 361 U. . 926 (1960).Thus, when a defendant is charged under a
                                  S

California statute that employs the inclusive disjunctive as is this case with "or"herethe
                                                          —

defendant, in pleading no contest, admits guilt to all elements of the statute set forth in the

charging document. California v. Tuggle, 232 Cal. App. 3d 147, 154, 283 Cal. Rptr. 422

1991),
     overruled on other grounds by California v. Jenkins, 10 Cal. 4th 234, 893 P. d 1224, 40
                                                                                2

Cal. Rptr. 2d 903 (1995).

       In 2000, while Olsen and Devenny were living in California, Olsen began duct taping her

and told her "he was going to cut [her] in pieces and put [her] in a blue bin." RP at 623. The
                                                                               5

information charging Olsen with violating California's terrorist threats statute states that Olsen

did willfully and unlawfully threaten to commit a crime which would result in death and great

bodily injury to [ Devenny],
                           with the specific intent that the statement be taken as a threat."Ex:

37 (emphasis added).The information also stated that

       i] is further alleged that the threatened crime, on its face and under the
        t
       circumstances in which it was made, was so unequivocal, unconditional,
       immediate and specific as to convey to BONNIE MARIE DEVENNY a gravity
       purpose and an immediate prospect of execution.
       It is further alleged that the said BONNIE MARIE DEVENNY was reasonably in
       sustained fear of his her safety and the safety of his/ er immediate family.
                              /                              h

Ex. 37. Thus, Olsen, by pleading no contest, pleaded guilty to threatening to kill Devenny and

threatening to gravely injure her. Because of this,the conduct that Olsen pleaded no contest to in

the 2000 information involves (1) true threat against Devenny ( )
                                 a                            2 involving a threat to kill that

3)placed Devenny in fear of an immediate prospect of execution"of the threat, namely Olsen
                            "


10 In addition, during Olsen's current trial, he signed a stipulation admitting that "[ n the year
                                                                                     i]
2000 in Solano County, California the defendant Edward Mark Olsen pleaded guilty to Terrorist
Threats."CP at 203.

                                                17
No. 42135 6 II
          - -



carrying   out his threat to kill.   Ex. 37. Accordingly, the conduct underlying Olsen's terrorist '

threat conviction would have satisfied the conduct necessary to be convicted of felony

harassment in Washington under RCW 9A. 6.the crimes are factually comparable and the
                                   020;
                                     4

trial court correctly included this conviction in calculating Olsen's offender score.

         Shortly before we heard oral argument in this case, Olsen submitted a statement of

additional authorities pursuant to RAP 10.8, directing our attention to State v. C. ., Wn. d
                                                                                  G 150  2

604, 80 P. d 594 (2003). In C. ., juvenile case also involving a threat to kill under RCW
         3                   G a

020, Supreme Court held that
9A. 6.
  4   our

                 i] order to convict an individual of felony harassment based upon a
                  n
         threat to kill, RCW 9A. 6. requires that the State prove that the person
                              020 4
         threatened was placed in reasonable fear that the threat to kill would be carried
         out as an element of the offense.

150 Wn. d at 612.
      2


         As we explained previously, the 2000 information filed in California alleged that Olsen

communicated the death threat to Devenny in such          a manner   as " to   convey to [   Devenny] a

gravity of purpose and an immediate prospect of execution"and that the threat left Devenny " n
                                                                                           i

sustained fear of [ er] safety."Ex. 37. Having stipulated to both of these facts by pleading no
                  h

contest, we are satisfied that Olsen stipulated to Devenny's being " laced in reasonable fear that
                                                                   p

a                  would] be carried out. "
    threat to kill [                          C. .,
                                               G 150 Wn. d at 610.
                                                       2




11 Olsen argues that because the 2000 information states that Devenny was "reasonably in
sustained fear of his/ er safety and the safety of his/ er immediate. family" and does not
                     h                                h
explicitly mention fear of death, the State failed to prove a degree of fear sufficient to establish
felony harassment under C.G. Ex. 37. This reading of the information, though, divorces a single
sentence from the     entirety   of the document.   When read as a whole, the information clearly
explains that the threat involved ( ) " rue threat," g., "`
                                  aat              e. a statement made in a context or under
such circumstances wherein a reasonable person would foresee that the statement would be
interpreted ... as a serious expression of intention to inflict bodily harm upon or to take the life'
of another person,"Kilburn, 151 Wn. d at 43 ( internal quotation marks omitted) quoting
                                        2                                                  (
                                                    18
No. 42135 6 II
          - -



          The conduct underlying Olsen's terrorist threat conviction would have satisfied the

conduct necessary to be convicted of felony harassment in Washington under RCW 9A. 6.
                                                                               020.
                                                                                 4

The crimes are factually comparable and none of the cases Olsen relies on dictate a different

result.    Accordingly, we conclude that the trial court correctly included this conviction in

calculating Olsen's offender score and, in result, the trial court's calculation of Olsen's offender

score is legally correct. Finding no error, we affirm Olsen's convictions and sentence.



                                                   QVINN-
                                                        BRINTNALL, J.
We concur:




 OHIANSON, A. .
           J.
            C

B




Williams, 144 Wn. d at 207 08); (b)
                2          -  that caused the person threatened "reasonable fear that the
threat made is the one that will be carried out." G., Wn. d at 610.
                                                C.  150 2
                                                 19
