 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                    No. 77783-1-1
                      Respondent,
                                                   DIVISION ONE
               V.
                                                   UNPUBLISHED OPINION
 ROBERT GUY OSBORN,

                      Appellant.                   FILED: April 15, 2019


       APPELWICK, C.J. — A jury found Osborn guilty of possession of a controlled

substance—heroin. He argues that the trial court erred in finding that he did not

have immunity from prosecution under RCW 69.50.315. He also argues that the

trial court erred by including an out-of-state prior conviction in his offender score,

without conducting a comparability analysis. We affirm the conviction, but remand

for resentencing.

                                      FACTS

       On September 29, 2015, Police Officer Geoffrey Albright responded to a

requestfrom the fire department to assist at the scene near Virginia Avenue. When

Albright arrived, he was told that there had been a report of someone passed out

behind the wheel of a car parked in an alley. The firefighters woke up the person

in the car, and that man, Robert Osborn, gave a firefighter a plastic bag that

contained a needle, pieces of dirty cotton, and a brown substance that was later

tested and determined to be heroin. Osborn told Officer Albright that he did not
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know where the bag came from and that it was not his. Osborn told the officer that

it was his car, and that he was currently living in it. Albright arrested Osborn and

read him his Mirandal rights.

       The State charged Osborn with possession of heroin. Pursuant to RCW

69.50.315, Osborn moved to suppress the evidence. He argued that police

discovered the heroin as a result of someone reporting what he or she believed

was an overdose, and that this incident fell within the protection of the statute.

       The trial court found that the statute "provides protection to two classes:(1)

a person who calls for medical help to report someone having an overdose; and

(2) a person who experiences an overdose calling for help." It concluded that

Osborn did not fit either of those categories, and denied his motion to suppress.

       After the first trial, the jury was deadlocked and the court declared a mistrial.

The second jury found Osborn guilty of possession of a controlled substance. At

sentencing, the State calculated Osborn's offender score, and included an Idaho

burglary conviction. It stated,"The defendant's criminal history includes nine adult

felonies. Two of those effectively wash, though. There were three felonies

stemming from one case in Idaho." The State calculated Osborne's offender score

as a six. The court imposed a sentence based on the State's calculation of the

offender score, which included one Idaho felony conviction. Osborn appeals.




      1 Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

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                                    DISCUSSION

       Osborn makes two arguments. First, he argues that the trial court erred in

concluding that he was not immune from prosecution under RCW 69.50.315.

Second, he argues that the trial court erred in including the Idaho prior conviction

in his offender score, because it failed to conduct the required comparability

analysis.

  I.   Immunity from Prosecution

       Osborn argues first that the trial court erred in concluding that he was not

protected from prosecution by RCW 69.50.315. He asserts that, under the plain

language of the statute, he was immune from prosecution for possession.

Alternatively, he argues that, if this court finds the statute ambiguous, it must be

construed in his favor.

   A. Statutory Interpretation

       We review a question of statutory construction de novo.                State v.

Roggenkamp, 153 Wn.2d 614,621, 106 P.3d 196(2005). The purpose of statutory

interpretation is to determine and give effect to the intent of the legislature. State

v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724(2013). When interpreting a statute,

the court first looks to the "plain language enacted by the legislature, considering

the text of the provision in question, the context of the statute in which the provision

is found, related provisions, and the statutory scheme as a whole." Id. Plain

language that is not ambiguous does not require construction. Id. Courts neither

add language to nor delete language from an unambiguous statute; instead, all

language must be given effect, without rendering any part of the statute


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meaningless or superfluous. State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318

(2003).

       Where statutory language is amenable to more than one reasonable

interpretation, it is deemed to be ambiguous. Rowenkamp, 153 Wn.2d at 621.

Legislative history, principles of statutory construction, and relevant case law may

provide guidance in construing the meaning of an ambiguous statute. Id.

   B. RCW 69.50.315

       Osborn asserts that he was immune from prosecution pursuant to RCW

69.50.315(2). The statute provides,

      A person who experiences a drug-related overdose and is in need of
      medical assistance shall not be charged or prosecuted for
      possession of a controlled substance pursuant to RCW 69.50.4013,
      or penalized under RCW 69.50.4014, if the evidence for the charge
      of possession of a controlled substance was obtained as a result of
      the overdose and the need for medical assistance.

RCW 69.50.315(2).

      The State charged Osborn under RCW 69.50.4013 for possession of

heroin. He argues that, because firefighters found him unconscious when they

arrived at the scene, a reasonable inference was that he was experiencing a "drug-

related overdose" as the term is used in the statute. He points to Officer Albright's

testimony, in which he stated that the fire department was called to the scene to

respond to a report of a "slumper," a term that is commonly associated with heroin

use or an overdose. Albright also testified that the initial call was to respond to

someone "passed out behind the wheel of a vehicle in the alleyway." Albright

stated that the first responder, firefighter Timothy Mann, had arrived at the scene



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before him and "somehow roused" Osborn. Osborn asserts that, under these

facts, he was immune from prosecution under the plain language of the statute.

      Osborn challenges the trial court's conclusion that "[m]edical personnel

delivered no aid. No facts suggest that Osborn was using drugs, or needed aid."

      Albright testified that the firefighters who arrived before him "were able to

awake[n]the person in the vehicle." Albright did not administer medical treatment

to Osborn, nor did he see anyone administer medical treatment. When asked if

there was anything in his report indicating that the fire department administered

any medical treatment such as Naloxone2 or Narcan, Albright responded,

      Not directly. In a way -- if the fire department administers Naloxone,
      they transport to the hospital 100 percent of the time. So the fact
      that they did not transport him, I know that they did not give him
      Naloxone.

          Likewise they would transported [sic] him if they gave him
      [cardiopulmonary resuscitation] and any other kind of things
      commonly associated with a heroin overdose. In this case it was
      simply waking him up.

      There was no evidence that established that medical aid was given to

Osborn. Nor was there evidence that Osborn used drugs prior to his interaction

with the fire department and law enforcement, or that he needed aid when they

arrived. Under the plain language of the statute, a person who experiences a drug-

related overdose and is in need of medical assistance will not be charged or

prosecuted for possession of a controlled substance, if the evidence was obtained

as a result of the overdose and need for medical assistance. RCW 69.50.315(2).



      2 Naloxone is used to counteract the effects of heroin, and is administered
to a person experiencing an overdose.

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We must give effect to all the language of the statute, without rendering any part

of the statute meaningless or superfluous. Here, there is no evidence that Osborn

experienced an overdose and needed medical assistance. The evidence supports

the trial court's conclusion.

       Therefore, the trial court did not err in concluding that Osborn was not

immune from prosecution under RCW 69.50.315(2).

   C. Ambiguity in Statute

       Osborn also asserts that the language used in RCW 69.50.315(2) is similar

to that in RCW 69.41.095, and that the definition of "opioid-related overdose" of

RCW 69.41.095(5)(c) should apply to the term "drug-related overdose" in RCW

69.50.312(2). He argues that he was experiencing an "opioid-related overdose"

as defined in RCW 69.41.095(5)(c). Osborn stresses that he was suffering from

"at least a 'decreased level of consciousness." Moreover, Osborn argues that if

the statute "remains ambiguous," the rule of lenity requires courts to interpret the

statute in his favor.

       RCW 69.41.095(5) provides,

       For purposes of this section, the following terms have the following
       meanings unless the context clearly requires otherwise:



             (c)"Opioid-related overdose" means a condition including, but
       not limited to, extreme physical illness, decreased level of
       consciousness, respiratory depression, coma, or death that: (i)
       Results from the consumption or use of an opioid or another
       substance with which an opioid was combined; or (ii) a lay person
       would reasonably believe to be an opioid-related overdose requiring
       medical assistance.



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This definition is in the context of a statute which authorizes a practitioner to

prescribe or administer opioid overdose medication. See RCW 69.41.095. That

definition has no application here. RCW 69.50.315(2) applies when a person is

actually experiencing a drug-related overdose and needs medical assistance. The

existence of the definition in RCW 69.41.095 does not render RCW 69.50.315(2)

ambiguous. The rule of lenity does not apply.

 II.   Offender Score

       Osborn argues second that the trial court erred in including the Idaho prior

conviction in his offender score. The State concedes that it was error for the court

to include the conviction without conducting the comparability analysis. It agrees

with Osborn that this court should remand for resentencing for the trial court to

conduct a legal and factual comparability analysis.

       To properly calculate a defendant's offender score, the Sentencing Reform

Act of 1981 (SRA), chapter 9.94A RCW,requires that sentencing courts determine

a defendant's criminal history based on his prior convictions and the level of

seriousness of the current offense. State v. Ross, 152 Wn.2d 220, 229, 95 P.3d

1225 (2004).      The SRA also requires that prior out-of-state convictions be

classified according to the comparable offense definitions and sentences provided

by Washington law. Id.; RCW 9.94A.525(3).

       A challenge to the offender score calculation may be raised for the first time

on appeal. State v. Ford, 137 Wn.2d 472, 477-78, 973 P.2d 542 (1999). Where

evidence is insufficient to support the conclusion that the disputed convictions

would be classified as felonies under Washington law, resentencing is required.


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Id. at 485. On remand, both parties may present and the court may consider all

relevant evidence regarding criminal history, including history and information not

previously presented. State v. Cobos, 182 Wn.2d 12, 15-16, 338 P.3d 283(2014).

      There is no evidence that the court below conducted a comparability

analysis. Osborn did not object to the court including his Idaho burglary conviction

in his offender score. But, Osborn did not affirmatively accept the inclusion. The

evidence is insufficient to support the conclusion that the Idaho prior conviction is

legally or factually comparable to a felony under Washington law.

       We affirm the conviction but remand for the court to conduct a legal and

factual comparability analysis on resentencing.




WE CONCUR:




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