                                                                                          f` fLED
                                                                                      1 T iJF APPEA1
                                                                                        DMS1091 ii

                                                                              2014 FEB - 4       ACS 9* 16

                                                                               STATE OF WASHINGTON

                                                                               ay -       9 (/
                                                                                        f3 PT- E




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               DIVISION II

STATE OF WASHINGTON,


                                  Respondent,                            No. 43717 -1 - II


         V.



RAYMOND UWE ARNDT, JR.,                                             PUBLISHED OPINION


                                   Appellant.




         MAXA, J. —      Raymond Arndt, Jr. appeals his sentence following his conviction for

vehicular assault. He asserts that the sentencing court sentenced him based on an inflated

offender score because the court erroneously included points for five prior Oregon convictions.
We hold that the State met its burden to prove that the Oregon conviction for unauthorized use of

a vehicle was comparable to a Washington offense. However, we hold that the State failed to

prove that Arndt' s Oregon convictions for attempted second degree assault, driving while under

the influence   of   intoxicants ( DUII),   and third degree rape were legally or factually comparable to

Washington offenses. Therefore, the sentencing court should not have included the Oregon

attempted second degree assault, DUII, and third degree rape convictions in Arndt' s offender

score.   Accordingly,    we remand    for resentencing.
No. 43717 -1 - II



                                                          FACTS


         Arndt pleaded guilty to one count of vehicular assault, but he disputed the State' s

computation of his offender score at sentencing. Specifically, he argued that five prior Oregon

convictions —attempted second            degree   assault, unauthorized use of a vehicle,   DUII (two),   and



third degree   rape —   should not be included in his offender score because the State failed to prove


comparability. The sentencing court performed a legal and factual comparison on the record and

found that the Oregon convictions at issue were comparable to Washington offenses, which


resulted in an offender score of 8. The sentencing court sentenced Arndt to a mid -
                                                                                  range sentence

of 62 months. Arndt appeals his sentence.


                                                     ANALYSIS


A.       USE OF PRIOR CONVICTIONS IN OFFENDER SCORE


         Under the    Sentencing      Reform Act     of   1981 ( SRA),   chapter 9. 94A RCW, the sentencing

court uses the defendant' s prior convictions to determine an offender score, which along with the

     seriousness   level' " of the current offense establishes his or her presumptive standard


sentencing   range.    State   v.   Ford, 137 Wn.2d 472, 479, 973 P. 2d 452 ( 1999) ( quoting      State v.

Wiley,   124 Wn.2d 679, 682, 880 P. 2d 983 ( 1994)).              We review a sentencing court' s calculation

of an offender score de novo. State v. Bergstrom, 162 Wn.2d 87, 92, 169 P. 3d 816 ( 2007).


         The State must prove the existence of prior felony convictions) used to calculate an

offender score by a preponderance of the evidence. Ford, 137 Wn.2d at 479 -80; see also RCW



 Generally, only felonies are included in the offender score. State v. Larkins, 147 Wn. App.
858, 862 -63 &  n. 7, 199 P. 3d 441 ( 2008). But where the current conviction is for a felony traffic

offense, a sentencing court may include serious misdemeanor traffic offenses, such as driving
under the influence in the offender score. Larkins, 147 Wn. App. at 862 -63 & n. 7; see RCW

9. 94A.525 (11).


                                                             F)
No. 43717 -1 - II


9. 94A. 500( 1).    If the convictions are from another jurisdiction, the State also must prove that the


conviction would         be   a    felony   under    Washington law. Ford, 137 Wn.2d                  at   480. " The existence

                                                              2
of a prior conviction         is   a question of     fact."       In re Pers. Restraint ofAdolph, 170 Wn.2d 556,

566, 243 P. 3d 540 ( 2010).


             Where the defendant' s offenses resulted in out - state convictions, RCW 9. 94A.525( 3)
                                                             of -


provides that such offenses " shall be classified according to the comparable offense definitions

and sentences provided              by   Washington law."          This statute requires the sentencing court to make

a factual determination of whether the out - - tate conviction is comparable to a Washington
                                           of s

conviction.      State   v.   Morley,       134 Wn.2d 588, 601, 952 P. 2d 167 ( 1998) (               citing former 9. 94A.360

    1996),   recodified as    RCW 9. 94A.525           by LAWS       of   2001,   ch.   10, § 6).   Only if the convictions

are comparable can the out -of state conviction be included in the offender score. State v.
                               -

Thiefault, 160 Wn.2d 409, 415, 158 P. 3d 580 ( 2007).


             Our Supreme Court has adopted a two -
                                                 part analysis for determining whether an out-of-

state conviction is comparable to a Washington conviction. Thiefault, 160 Wn.2d at 414 -15.

First, the sentencing court determines                 whether      the   offenses are    legally   comparable —whether      the



elements of the out -of - tate offense are substantially similar to the elements of the Washington
                        s

offense.       Thiefault, 160 Wn.2d at 415. If the elements of the out - state offense are broader
                                                                       of -




2
    Arndt does not challenge the existence and felony classification of his Oregon convictions.
And the State presented certified copies of the judgment of each of those convictions.
Accordingly,       the State       proved    their   existence     by   a preponderance of      the   evidence.
No. 43717 -1 - II


                                                                                                 3
than the    elements of   the Washington     offense,   they   are not   legally   comparable.        In re Pers.


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

           Second, even if the offenses are not legally comparable, the sentencing court can still

include the out - - tate conviction in the offender score if the offense is factually comparable.
                of s

Thiefault, 160 Wn.2d at 415; Lavery, 154 Wn.2d at 255. Determining factual comparability

involves analyzing whether the defendant' s conduct underlying the out - state conviction would
                                                                       of -

have violated the comparable Washington statute. Thiefault, 160 Wn.2d at 415. The sentencing

court may " look at the defendant' s conduct, as evidenced by the indictment or information, to

determine if the    conduct    itself would have   violated a comparable           Washington    statute."   Lavery,

154 Wn.2d at 255. In making this factual comparison, the sentencing court may rely on facts in

the out -of - tate record only if they are admitted, stipulated to, or proved beyond a reasonable
            s

doubt. Thiefault, 160 Wn.2d         at   415. But the elements of the charged crime must remain the


cornerstone of    this   inquiry because " `[ f]acts or allegations contained in the record, if not directly

related to the elements of the charged crime, may not have been sufficiently proven in the

trial.'"    Lavery, 154 Wn.2d at 255 ( quoting Morley, 134 Wn.2d at 606).

           In the factual comparability analysis, the sentencing court is not allowed to consider

evidence not presented in the out - - tate proceeding. The facts must be admitted or proved
                                  of s

beyond     a reasonable    doubt in the       of state conviction.
                                          out -  -                       Lavery,    154 Wn.2d    at   258. For


example, in State v. Ortega, the issue was whether a prior Texas conviction for second degree


indecency with a child, which required the child victim to be under 17 years old, was comparable

to a Washington offense that required the child victim be under 12 years old. 120 Wn. App. 165,


3 We use the elements of the Washington offenses in effect at the time the out - - tate crime was
                                                                               of s
committed in our analysis. In re Pers. Restraint ofLavery, 154 Wn.2d 249, 255, 111 P. 3d 837
 2005).
                                                          4
No. 43717- 1- 11



168 -69, 173 - 74, 84 P. 3d 935 ( 2004),     vacated on remand, 131 Wn. App. 591, 128 P.3d 146

 2006).   At sentencing, the State offered testimony of a Texas official and the Texas indictment,

judgment, and police reports to establish that the Texas victim was 10 years old. Ortega, 120


Wn. App. at 168, 173 -74. The defendant submitted letters from the Texas victim and her mother

urging the court to provide the defendant counseling; additionally the letters stated that the Texas

victim was 10 years old when the offense occurred. Ortega, 120 Wn. App. at 173 -74. Applying

Apprendi    v.   New   Jersey,   530 U. S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 ( 2000), the


sentencing court refused to consider the evidence of the victim' s age because the victim' s age

was not proven at the Texas trial. Ortega, 120 Wn. App. at 169, 174. Division Three of this

court affirmed and held that " Apprendi prohibits a sentencing court' s consideration of the

underlying facts of a prior conviction if those facts were not found by the trier of fact beyond a

reasonable    doubt."    Ortega, 120 Wn. App. at 174.

          If an out - - tate conviction involves an offense that is neither legally or factually
                    of s

comparable to a Washington offense, the sentencing court may not include the conviction in the

defendant'   s offender score.      Thiefault, 160 Wn.2d at 415.


B.        COMPARABILITY OF OREGON CONVICTIONS


          Arndt argues that the sentencing court erred in classifying five Oregon convictions as

comparable to Washington offenses and including them in his offender score calculation. We

hold that the Oregon unauthorized use of a vehicle conviction is comparable to a Washington


conviction, but that the Oregon attempted second degree assault, DUII, and third degree rape

convictions are not.




                                                        R
No. 43717 -1 - II



                  Unauthorized Use of Vehicle Conviction


           Arndt was convicted of unauthorized use of a vehicle in Oregon based on an incident that


occurred in 1998. At sentencing, the State conceded that the Oregon and Washington offenses

were not legally comparable. See State v. Jackson, 129 Wn. App. 95, 107 -08, 117 P. 3d 1182

 2005) (    holding that Oregon'.s former unauthorized use of a vehicle offense was not legally

comparable to Washington' s taking a motor vehicle without permission offense because the

former Oregon statute prohibited a broader range of activity than the former Washington
            4
statute).       But the sentencing court performed a factual comparability analysis and determined

that Arndt' s conduct would have violated the former Washington statute. In his statement of

additional grounds for review, Arndt argues that the State did not prove that his conduct met the


intent element required by the former Washington statute. We disagree.

           The former Washington statute for taking a motor vehicle without permission requires ( 1)

intentionally taking or driving away a motor vehicle without permission of the owner or person

entitled to the possession thereof or ( 2) voluntarily riding in a motor vehicle with knowledge that

it   was   unlawfully taken. Former RCW 9A.56. 070 ( 1975);                   see Jackson, 129 Wn. App. at 108. In

his guilty plea, Arndt admitted that he drove a vehicle he had stolen. A sentencing court

properly can consider facts conceded by the defendant in a guilty plea as an admitted fact.

Thiefault, 160 Wn.2d at 415; see State v. Tewee, 176 Wn. App. 964, 970, 309 P. 3d 791 ( 2013)

 considering admission in guilty plea), petition for review filed, No. 89446 -9 ( Wash. Oct. 23,

2013); State       v.   Bunting,   115 Wn.   App.   135, 143, 61 P. 3d 375 ( 2003) (    noting that element of

Washington offense was not conceded by the defendant' s guilty plea in out -of state case).
                                                                               -


4 The analysis in Jackson applies here because the court compared the Washington and Oregon
statutes    in   effect   in 1998.   129 Wn.   App.   at   107 -08;   see   former RCW 9A.56. 070 ( 1975); former
ORS 164. 135 ( 1971).
                                                               31
No. 43717 -1 - II



Arndt' s admission demonstrates that he committed an intentional taking of the vehicle without

permission. Therefore, his conduct would have met the requirements of the former Washington


statute. Because Arndt' s Oregon conviction for unauthorized use of a vehicle is factually

comparable to Washington' s former taking a motor vehicle without permission statute, the

sentencing court properly included it as a point in Arndt' s offender score.

          2.   Attempted Second Degree Assault Conviction


          Arndt was convicted of attempted second degree assault in Oregon for an incident that


occurred in 2007. Under the SRA, prior convictions for felony anticipatory offenses, including

attempts, are scored the same as if they were convictions for completed offenses. RCW

9. 94A. 525( 4). Arndt argues that the Oregon and Washington attempted second degree assault


offenses are not legally comparable because the Oregon offense is broader than the Washington

offense. We agree.


               a.   Definition of Attempt


          Arndt asserts that " attempt" is defined more narrowly in Washington than in Oregon.

Under ORS 161. 405( 1), "      A person is guilty of an attempt to commit a crime when the person

intentionally engages in conduct which constitutes a substantial step toward commission of the

crime."    And   under   RCW 9A.28. 020( 1), "   A person is guilty of an attempt to commit a crime, if

with intent to commit a specific crime, he or she does any act which is a substantial step toward

the   commission of   that   crime." (   Emphasis   added.)   The difference is that Washington requires


specific intent to commit a crime rather than general intent to engage in conduct constituting a

substantial step towards commission of a crime.

          The sentencing court acknowledged that the Oregon and Washington elements of attempt

are not legally comparable. However, under the second part of the comparability analysis it

                                                        7
No. 43717 -1 - II



determined that the offenses were factually comparable. In his guilty plea, Arndt admitted that

he " intentionally attempted to cause serious physical injury" to the victim. Clerk' s Papers at 84.

As stated above, a sentencing court properly can consider this plea as an admitted fact.

Thiefault, 160 Wn.2d at 415; See Tewee, 176 Wn. App. at 970; Bunting, 115 Wn. App. at 143.

The sentencing court correctly held that this admission showed that Arndt specifically intended

to commit the crime of assault. Therefore, his conduct would have met the requirements of the

Washington attempt statute.


                  b.     Assault Statutes


         Arndt argues that the Oregon second degree assault statute is broader than the


Washington second degree assault statute. In Oregon, a person commits second degree assault if

the   person "[   i] ntentionally    or   knowingly     causes serious physical           injury   to   another."    ORS


163. 175( 1)( b) (     emphasis added). " `        Serious physical injury' means physical injury which creates

a substantial risk of death or which causes serious and protracted disfigurement, protracted


impairment        of   health   or protracted   loss   or   impairment     of   the   function   of   any   bodily   organ."   ORS


161. 015( 8).     In Washington a person commits second degree assault if the-person, under


circumstances not         amounting to first degree          assault, "[   i]ntentionally assaults another and thereby

recklessly inflicts       substantial     bodily   harm."     RCW 9A.36. 021( 1)(           a) ( emphasis added).




   Substantial bodily harm' means bodily injury which involves a temporary but substantial

disfigurement, or which causes a temporary but substantial loss or impairment of the function of

any   bodily    part or organ, or which causes a             fracture   of   any   bodily   part."    RCW 9A.04. 110( 4)( b).


          Arndt argues that the term " serious physical injury" used in the Oregon statute is broader

than the Washington requirement of "substantial bodily harm" because it permits conviction for

impairment of a person' s " health" but Washington' s does not. He argues that " impairment of

                                                                 8
No. 43717 -1 - II



health" (     Oregon statute) is broader than " impairment of the function of any bodily part or organ"

 Washington statute) because " health" could include mental or emotional health, or a general


feeling of malaise that cannot be traced to a particular bodily part or organ. We agree.

          The Oregon and Washington statutes are similar in that they both require some physical

injury.   Under the Oregon           statute, "   serious physical injury" exists only ifphysical injury causes

the " impairment of health."           ORS 161. 015( 8).      However, a victim could suffer a " protracted


impairment       of   health" ( Oregon statute) that does not involve the " impairment of the function of


any   bodily part      or organ" (   Washington       statute).   ORS 161. 015( 8); RCW 9A.04. 110( 4)( b). For


instance, a victim could suffer a laceration and scar that resulted in long -
                                                                            term psychological

injury that would qualify as impairment of mental health, but would not constitute impairment of

the function of a bodily part or organ. As a result, a showing of "serious bodily injury" under the

Oregon statute would not necessarily meet the Washington requirement of "substantial bodily

harm."        We hold that the Washington and Oregon statutes are not legally comparable in this
          5
regard.




          Even though the convictions are not legally comparable, the Oregon conviction could be

included in the offender score if they are factually comparable. But nothing in the record for the

Oregon attempted second degree assault conviction allows a finding that Arndt intended to cause

an   injury    that   satisfied   the Washington definition           of "substantial   bodily   harm." As a result, this


conviction is not factually comparable to a Washington offense.




 5 Arndt also argues that the Oregon statute does not require proof that the assault caused
  substantial" impairment and therefore that a protracted but insubstantial impairment or loss
 qualifies for conviction of second degree assault in Oregon but not in Washington. Because we
 find that the statutes are not legally comparable for another reason, we need not address this
 argument.

                                                                  9
No. 43717 -1 - II



          In sum, attempted second degree assault in Oregon is not legally comparable to attempted

second degree assault in Washington because the Oregon term " serious physical injury" is

broader than the Washington term " substantial            bodily     harm." And there is no basis in the record


of the Oregon conviction for finding factual comparability. Accordingly, the sentencing court

erred in including the Oregon conviction in Arndt' s offender score

                DUII Convictions


          Arndt twice was convicted of DUII in Oregon for conduct that occurred in 1998. Arndt


argues that even though the language of the Oregon and Washington driving under the influence

statutes is substantially similar, the offenses are not legally comparable because Washington and

Oregon have interpreted " under the influence" differently. We agree.

                a.   Interpretation of Statutes


          In Oregon,   a person commits       DUII if the   person     drives      a vehicle while   the   person "[   i] s


under   the influence   of   intoxicating   liquor   or a controlled substance."         Former ORS 813. 010( 1)( b)


 1991).    The Washington driving under the influence ( DUI) statute in effect in 1998, former

RCW 46. 61. 502( 1)( b) ( 1994),     provides that a person is guilty of DUI for driving while " under

the influence    of or affected   by intoxicating     liquor   or   any   drug."    The elements of the offenses are


the   same —   both are committed by driving while under the influence of intoxicating liquor.6
Former ORS 813. 010( 1)( b); former RCW 46. 61. 502( 1)( b). Nevertheless, Arndt argues that even


though the statutory elements of the offenses are nearly identical, the offenses are not legally




6 We discuss only the driving " under the influence" section of the DUI/DUII statutes because
that is the only section discussed by the parties. There are alternative theories of DUI / UII,
                                                                                         D
including proof of certain blood alcohol content, but these sections are not at issue.
                                                           10
No. 43 717 -1 - II



comparable because Oregon and Washington courts have interpreted " under the influence"

                7
differently.

             In Oregon, " a         person is under the influence of intoxicating liquor when he or she has

consumed enough liquor to adversely affect that person' s mental or physical faculties to some

noticeable or perceptible               degree."   Chartrand v. Coos Bay Tavern, Inc., 298 Or. 689, 699 -700,

696 P. 2d 513 ( 1985) (             emphasis added).      In Oregon v. Moody, 201 Or. App. 58, 64, 116 P. 3d 935

 2005),      the Oregon Court of Appeals interpreted this rule as requiring a showing of impairment

due to a controlled substance. In Washington, a person is under the influence of or affected by

the use of intoxicating liquor " if the person' s ability to drive a motor vehicle is lessened in any

appreciable         degree."        11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:


CRIMINAL 92. 10,          at   286 ( 3d   ed.   2008);   see State v. Wilhelm, 78 Wn. App. 188, 193, 896 P. 2d 105

    1995);   State v. Hansen, 15 Wn. App. 95, 95 -97, 546 P. 2d 1242 ( 1976).

                    b.    Effect on Ability To Drive

             Arndt argues that the Oregon and Washington interpretations of "under the influence"


differ in that the Washington interpretation focuses on a person' s actual ability to drive, while the

Oregon interpretation focuses on impairment of a person' s mental or physical faculties without


reference to the ability to drive. Under Washington law direct evidence that the defendant' s




7
 Initially, it is unclear whether court interpretations of statutory elements can defeat legal
comparability of statutes containing identical elements. When courts have adopted non -statutory
elements of crimes, those non -statutory elements should be included in the comparability
analysis.      See State      Sublett, 176 Wn.2d 58, 88, 292 P. 3d 715 ( 2012) ( considering specific
                               v.

intent to      steal an   essential, nonstatutory element of second degree robbery); Lavery, 154 Wn.2d

at   255 -56 ( same).      However, we found no Washington authority addressing whether or not
courts' interpretations of statutory elements also must be comparable. Because the State did not
argue that court interpretations are irrelevant to the comparability analysis, we do not address
this issue.
                                                                 11
No. 43717 -1 - II



ability to drive     was affected   is   not required   to   convict under   RCW 46. 61. 502( 1).       Wilhelm, 78


Wn.    App.   at   192 -93.   We have held that RCW 46. 61. 502 is violated if circumstantial evidence


allows the fact finder to infer that the defendant' s ability to handle an automobile was lessened in

an appreciable       degree.   Wilhelm, 78 Wn. App. at 192 -93. As a result, proof that a defendant' s

mental or physical faculties are adversely affected as required under the Oregon statute would

allow a Washington fact finder to infer that the defendant' s ability to drive was affected.

         However, under Washington law a fact finder is not required to infer that if a defendant' s


mental or physical faculties are adversely affected his or her ability to drive also was affected.

Accordingly, the facts required to convict under the Oregon statute would not necessarily result
                                                                                                                        8
in   a conviction under       the Washington    statute.     This   precludes a   finding   of   legal comparability.


         We hold that the former Oregon DUII statute is not legally comparable to the former

Washington DUI statute. Although the language of the statutes is identical, the respective


interpretations of the statutory language provide different standards.

                        Factual Comparability

         Nothing in the record for the Oregon DUII convictions allow a finding that Arndt

admitted or stipulated in his guilty plea agreement that his intoxication affected his ability to

drive. As a result, the convictions are not factually comparable to a Washington offense.




8 Arndt also argues that the Washington and Oregon statutes are not legally comparable based on
an Oregon case suggesting that the Oregon DUII statute only requires the " slightest degree" of
impairment. Dyrdahl v. Dep' t of Transp., 204 Or. App. 509, 514 -16, 131 P. 3d 770 ( 2006).
Because we find that the statutes are not legally comparable on other grounds, we need not
address this issue.


                                                               12
No. 43717 -1 - II



        The State failed to prove legal or factual comparability between the Oregon and

Washington driving under the influence of intoxicants statutes. Accordingly, the sentencing

court erred by including the two Oregon DUII convictions in calculating Arndt' s offender score.

        4.          Third Degree Rape


        Arndt was convicted of third degree rape in Oregon for conduct that occurred in May

2001.   He argues that his conviction is not comparable because the offense is defined more


broadly in Oregon than in Washington and the record does not show that his conduct met the

more narrow     definition   of   the Washington   offense.   9 We agree.

               a.     Legal Comparability

        In Oregon, a person commits third degree rape by having sexual intercourse with another

person less than 16 years of age. ORS 163. 355. The comparable Washington offense is third


degree rape of a child, which a person commits by having sexual intercourse with another person

who is at least 14 years old but less than 16 years old and who is not married to the perpetrator,


and the perpetrator is at least 48 months older than the victim. RCW 9A.44. 079.


        Both offenses require proof that the victim be less than 16 years old. But the Oregon


offense is broader than the comparable Washington offense because the Washington offense


requires the   State to   prove additional elements —that       the victim and perpetrator are not married


and that the perpetrator is at least 48 months older than the victim. As a result, the Oregon


offense is not legally comparable to the Washington offense.



9 The State argues that Arndt did not make this argument in the sentencing court and cannot raise
the issue for the first time on appeal. However, Arndt did object to considering the Oregon
convictions on comparability grounds. In any event, improperly including an out -of state
                                                                                      -
conviction in the defendant' s offender score can be raised for the first time on appeal. Ford, 137
Wn.2d at 484 -85.


                                                        13
No. 43717 -141



              b.     Factual Comparability

       The    next   step is to determine   whether   the   offenses are   factually   comparable —i.e.,



whether Arndt' s conduct would have allowed conviction under the Washington statute. Here,


the State cannot establish the additional Washington requirement that the victim not be married


to the defendant. Arndt did not make any admission or stipulation regarding marital status and

the record from the Oregon proceeding does not reflect the marital status of Arndt or the victim.

       The State argues that the sentencing court may infer that Arndt and the victim were not

married because ( 1) most people who are married would know their spouse' s age and Arndt


testified at sentencing in the present case that he did not know the victim was under 16 at the

time that they had sex, and ( 2) the 16 year old victim was below the minimum age to marry in

Oregon, which is 18 years old or 17 years old with parental permission. ORS 106. 010, . 060. But


sentencing courts may only rely on facts in the out -of - tate record that are admitted or proved to
                                                        s

the fact finder beyond a reasonable doubt in the out - - tate conviction. Lavery, 154 Wn.2d at
                                                     of s

258; Ortega, 120 Wn. App. at 174. There was no evidence in the Oregon proceeding regarding

marital status, and a finding regarding marital status was not necessary for the conviction.

Inferences from Arndt' s testimony at sentencing in the present case or from the Oregon marriage

statute are not sufficient for a Washington sentencing court to conclude that the fact that Arndt

and the victim were not married was proved beyond a reasonable doubt in the Oregon

              10
proceeding.




io The State' s arguments do not show that it was impossible for Arndt and the victim to have
been married. It is possible that a person would not know his spouse' s age. And in California
there is no minimum age for marriage with a court order and written parental consent, Cal. Fam.
Code 302, while in Washington, a superior court judge may waive the age requirements on a
showing of necessity. RCW 26. 04. 010( 2).
                                                        14
No. 43717 -1 - II



          The State failed to prove legal or factual comparability between the Oregon third degree

rape statute and the Washington third degree rape of a child statute. Accordingly, the sentencing

court erred by including the Oregon third degree rape conviction in calculating Arndt' s offender

MIGMM



C.        EVIDENCE ALLOWED ON RESENTENCING


          Arndt contends with a citation to a single case and without argument that upon remand


the State is limited to the record as it existed at the prior sentencing hearing. The State does not

discuss whether it should have another opportunity to prove factual comparability of Arndt' s

Oregon attempted second degree assault, DUII, and third degree rape convictions on


resentencing. Whether the State may attempt to introduce evidence regarding these convictions

on remand is not before this court. State v. Lucero, 168 Wn.2d 785, 789 n. 1, 230 P. 3d 165


 2010).    We leave that issue to the sentencing court. Lucero, 168 Wn.2d at 789 n. l.

D.        CONCLUSION


          We hold that Arndt' s Oregon conviction for unauthorized use of a vehicle was


comparable to a Washington conviction and therefore was included properly in Arndt' s offender

score. However, we hold that Arndt' s Oregon convictions for attempted second degree assault,


DUII, and third degree rape were not legally or factually comparable to Washington convictions




                                                  15
No. 43717 -1 - II



and therefore should not have been included in Arndt' s offender score. Accordingly, we remand

for resentencing.


                                                I &             r-%

                                                                      ij     I
                                                            1         1
                                                MAXA, J.




We concur:




             A.C. J.




B.k RGE .




                                              16
