      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                         )
                                             )      DIVISION ONE
                         Respondent,
                                             )      No.71134-2-I
                v.                           )
                                             )      UNPUBLISHED OPINION
KEVIN LEE GARRISON,                          )                                    =      Q~cD


                         Appellant.          )      FILED: April 6, 2015          ~
_______________                                                                    1     ,~
                                                                                  C’~

      DwYER, J.      —   Kevin Lee Garrison was found guilty of child molestation,i~i    ~0

the second degree for touching the breasts of a sleeping 12-year-old girl. He1?          ~
                                                                             co          ~<

was sentenced to life in prison as a persistent offender. On appeal, Garrison

contends that (I) the trial court improperly admitted ER 404(b) evidence that he

had touched the same victim on other occasions and that he had committed

similar acts against another young girl approximately 10 years before, (2) the trial

court’s limiting instruction with respect to this ER 404(b) evidence was incorrect,

and (3) he was improperly sentenced as a persistent offender because one of his

prior convictions was comparable to a Washington class C felony, not a class B

felony, and, therefore, should not have been included in his offender score or

deemed to be a strike offense. Because Garrison does not establish an

entitlement to relief on either the evidentiary or instructional issues, we affirm the

conviction. However, because one of his prior convictions was improperly

counted as a strike offense, we reverse the sentence imposed and remand for

further proceedings.
No. 71134-2-1/2




       A.W. was twelve years old and in sixth grade in December of 2011. She

spent a significant amount of time at the home of her best friend, Sincerity,

including spending the night there three or four times a week. Garrison was

Sincerity’s stepfather. A.W. considered Garrison and Sincerity’s mother, Rosie

Garrison, to be like family, and called them “Uncle Kevin” and “Aunt Rosie.”

Garrison, in turn, bought A.W. gifts and was kind to her.

       Normally, when A.W. wanted to spend the night at the Garrisons’ house,

she would call her mother to ask permission. One night in December of 2011,

however, it was Garrison who called A.W.’s mother to ask if A.W. could spend

the night. A.W.’s mother gave permission, and spent part of the evening at the

Garrisons’ home herself, socializing with the Garrisons.

       When A.W. spent the night at the Garrisons’ house, she frequently shared

Sincerity’s bed, but also sometimes slept on the family’s living room couch. After

A.W.’s mother went home on the night in question, Garrison and Rosie went to

 bed and A.W. went to sleep on the couch. A.W. was wearing a shirt, bra, zip-up

 hooded sweatshirt, and jeans. Before going to sleep, A.W. zipped her sweatshirt

 all the way up.

        Shortly before 5:00 in the morning, A.W. was awakened by the feeling of a

 hand rubbing and squeezing her breast underneath her bra. She opened her

 eyes and saw Garrison withdraw his hand from her chest and quickly walk back

 to his bedroom a few feet away. A.W. discovered that her sweatshirt was

 unzipped, the neckline of her shirt was pulled down below her bra, and the cup of
                                         -2-
No. 71134-2-1/3


her bra was folded inwards, exposing part of her breast and nipple. A.W. fixed

her clothes and turned to face the back of the couch, with her back toward

Garrison’s open bedroom doorway, hoping that Garrison would think she was still

sleeping. After a minute or two, Garrison came out of his bedroom and went to

the kitchen. Garrison returned to his bedroom soon thereafter. A.W. waited a

few minutes in the hope that he would fall asleep, then fled to Sincerety’s room.

       Upon entering Sincerety’s room, A.W. climbed into the far side of

Sincerity’s bed, placing Sincerity between her and the doorway. Fearing that

Sincerety would not believe her, she did not tell her what had happened. A.W.

forced herself to go back to sleep.

       Upon arising for the day, and believing that Garrison would be suspicious

if she acted unusually, A.W. acted as if nothing was wrong. Despite her

reluctance to get into a car with him, as was customary, A.W. accepted a ride

home from Garrison. Garrison said nothing during the short ride. When she

arrived home, A.W. found that her mother had already left for work and her aunt

was still asleep. A.W. decided to go to school but tried to reach her mother

throughout the day. When her mother finally arrived home that night, a tearful

A.W. met her in the driveway and told her what had happened the night before.

The next day, A.W.’s mother took her to the police station to report what Garrison

 had done.

       The State charged Garrison with child molestation in the second degree.

 During pretrial motions, the State requested a ruling on the admissibility of

 evidence of prior sexual misconduct by Garrison against both A.W. and a prior

                                         -3-
No. 71134-2-1/4


victim, A.F. Some of the evidence proffered by the State was that, while sleeping
on the Garrisons’ couch a month or two before the charged incident, A.W. had

awakened to Garrison rubbing her upper thigh over her clothes. When she

moved her leg, Garrison stopped. Because she trusted Garrison not to do

anything inappropriate, A.W. did not think it was serious and went back to sleep.

       The State also sought to admit the testimony of A.W. that, on several

occasions prior to December of 2011, she had awoken on the Garrisons’ couch

with her shirt and bra in disarray, but did not know how that had occurred. This

only happened when A.W. slept on the couch, and never when she slept in

Sincerity’s bed.

       The State also sought to admit evidence that Garrison had previously

molested another young girl, A.F. During the summer of 2000, A.F. was twelve

years old and had just finished sixth grade. Her mother was dating Garrison,

who lived next door. Like A.W., A.F. was more physically developed than most

girls her age. Garrison was kind to A.F., and she began to view him as a father-

or uncle-like figure.

        One night, A.F. was awakened by Garrison rubbing her head and

 shoulders. Though A.F. found it awkward, she did not mention this to anyone at

 the time. On a later occasion, A.F. awoke to find Garrison touching her back with

 his hands under her clothes. He then moved his hands to fondle her breast and

 touch her vaginal area. A.F. pretended that she was asleep throughout the

 incident.

        A.F. did not immediately report the molestation both because she did not

                                        -4-
No. 71134-2-1/5


want to hurt her mother and because she feared she would not be believed. In

the ensuing months, A.F. was awakened more than 20 times by Garrison

fondling her. The molestation escalated to more serious abuse that occurred

while A.F. was awake, including incidents of vaginal penetration with Garrison’s

fingers and with a dildo. A.F. eventually disclosed the abuse, and Garrison was

charged with rape of a child and child molestation in 2004 but, pursuant to a plea

agreement, was allowed to enter an Alford1 plea to assault in the second degree.

       The State argued that evidence of the prior misconduct with A.W. was

admissible for the purposes of demonstrating lusiful disposition, res gestae, and

absence of mistake, and that testimony concerning the prior misconduct with A.F.

was admissible for the purposes of demonstrating a common scheme or plan

and the absence of mistake. The State indicated that it believed lustful

disposition and common scheme or plan were essentially the same concept

when considering prior misconduct against the victim of the current offense. The

 State’s argument regarding the absence of mistake was that, because evidence

 of a common scheme or plan was relevant to prove that the charged act had in

 fact occurred, the evidence would contradict Garrison’s expected claim that A.W.

 was mistaken in her belief that Garrison had touched her and had instead simply

 dreamed about it.

        The trial court ruled that testimony about the thigh-touching incident with

 A.W. and the incidents of touching while A.F. was asleep were admissible. The

 court found that the incidents involving A.W. awakening with her clothing in
        1   North Carolina v. Alford, 400 u.s. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

                                                 -5-
No. 71134-2-1/6


disarray were insufficiently connected to any action by Garrison for their

relevance to outweigh their prejudice, and excluded evidence of those incidents.

The court also found that evidence of the incidents of more serious molestation

of A.F., after Garrison had progressed from fondling A.F. while she slept to

molesting her while she was awake, was not admissible. The trial court

reasoned that this evidence was not helpful to the jury because the incidents

described were less similar to the conduct alleged by A.W. than were the

incidents that occurred when A.F. was asleep. The trial court did not explicitly

state for which purposes evidence of the thigh-touching incident with A.W. was

admissible, but did state that evidence of the incidents of molestation while A.F.

was asleep were admissible as evidence of a common scheme or plan and the

absence of mistake.

       The parties later submitted proposed limiting instructions setting out

“common scheme or plan” and “absence of mistake or accident” as permissible

 purposes for A.F.’s testimony in accordance with the court’s ruling. The State’s

 proposed instruction set out “lustful disposition” and “absence of mistake” as

 permissible purposes for A.W.’s testimony concerning prior misconduct.

 However, Garrison’s proposed instruction listed “absence of mistake or accident”

 as the only permissible purpose for this testimony.

        Garrison’s counsel argued that the term lustful disposition was unduly

 prejudicial and that the term common scheme or plan could be substituted for it.

 The trial court agreed with Garrison’s counsel and clarified that, in any case, its

 pretrial ruling had admitted the prior misconduct with A.W. as evidence of a

                                          -6-
No. 71134-2-1/7


common scheme or plan and lack of accident, similar to the evidence of prior

misconduct with A.F. The trial court crafted and gave the jury its own instruction.

Instead of differentiating between the prior misconduct against A.W. and A.F.,

this instruction simply stated that testimony concerning the alleged prior sexual

misconduct could be considered in evaluating whether the evidence

demonstrated a common scheme or plan or absence of mistake or accident.

       The jury found Garrison guilty as charged. At sentencing, the trial court

found Garrison to be a persistent offender and sentenced him to life in prison

without the possibility of release. Garrison timely appealed.
                                          II

       Garrison first contends that the trial court erred when it admitted evidence

of his prior sexual misconduct. This is so, he asserts, because the prior bad act

evidence should not have been admitted for the purpose of establishing absence

of mistake or accident. Garrison is correct that this evidence was admitted, in

part, for an improper purpose. Nevertheless, the error was harmless.

       An appellate court reviews a trial court’s interpretation of an evidentiary

 rule de novo. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003).

 However, once the rule is correctly interpreted, a trial court’s decision to admit or

 exclude evidence is reviewed for abuse of discretion. DeVincentis, 150 Wn.2d at

 17.

        Pursuant to ER 404(b), “[e]vidence of other crimes, wrongs, or acts is not

 admissible to prove the character of a person in order to show action in

 conformity therewith. It may, however, be admissible for other purposes, such as

                                          -7-
No. 71134-2-1/8


proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.”

         “[A] material issue of accident arises where the defense is denial and the

defendant affirmatively asserts that the victim’s injuries occurred by

happenstance or misfortune.” State v. Roth, 75 Wn. App. 808, 819, 881 P.2d

268 (1994), abrogated by State v. Hampton, 182 Wn. App. 805, 332 P.3d 1020

(2014). Evidence is admissible under a lack of accident or absence of mistake

theory “only if the defendant actually claims that the charged crime was an

accident or mistake, or that he or she was acting in good faith.” 5 KARL B.

TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRAcTICE           § 404.21, at 551
(5th ed. 2007); see, e.g., State v. Dewey, 93 Wn. App. 50, 58, 966 P.2d 414

(1998) (in prosecution for rape, defendant’s previous rape of another woman was

not admissible to show a lack of mistake; the defendant’s defense was consent,

not mistake), overruled on other grounds by DeVincentis, 150 Wn.2d 11. In a

sex offense case, it is the defendant’s claim of accidental touching that triggers

the absence of mistake theory of admissibility. There was no such claim in this

 case.

          Garrison did not raise a defense of accident. His defense was that he

 never touched A.W.’s breasts or intimate parts, not that he touched them by

 mistake or accident. In fact, the prosecutor argued in closing that there was no

 evidence of an accidental touching. Likewise, there was no evidence that

 Garrison had touched A.F. by mistake or accident. A coincidental or mistaken

 touching was not at issue.
                                           -8-
No. 71134-2-1/9


      Without citation to relevant authority, the State argued to the trial court that

the prior touching of A.W. or A.F. negated the defense theory that A.W. was

mistaken in her belief that someone had improperly touched her. That is not the

type of mistake that triggers admissibility under an absence of mistake rationale.

Indeed, the State’s arguments regarding this basis for admission make clear that

the State, and as a result the trial court, was using the term “absence of mistake

or accident” to express the concept that, because the prior misconduct tended to

establish a common scheme or plan, the existence of which tended to make it

more likely that the charged misconduct in fact occurred, evidence of the prior

misconduct tended to disprove Garrison’s claim that A.W. was mistaken in her

belief that he had molested her. This framing of absence of mistake or accident

rendered the notion functionally equivalent to common scheme or plan, but the

two concepts, in fact, are not the same.

       Thus, the trial court abused its discretion in basing its ruling on an

erroneous view of the law. State v. Quismundo, 164 Wn.2d 499, 504, 192 P.3d

 342 (2008); State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007).

 However, this observation does not end our inquiry.

        The erroneous admission of ER 404(b) evidence is a nonconstitutional

 error and is therefore harmless unless there is a reasonable probability that the

 result of the trial would have been different had the error not occurred. State v.

 Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984). The admission of ER 404(b)

 evidence for an improper purpose is harmless if the evidence was also admitted

 for a proper purpose. See State v. Powell, 126 Wn.2d 244, 264-65, 893 P.2d

                                           -9-
No. 71134-2-1/10


615 (1995) (trial court’s decision to admit prior misconduct evidence under ER

404(b) will be upheld if one of the bases is justified).

       ER 404(b) evidence may be admitted to establish a common scheme or

plan. In a child sexual abuse case, evidence of “the existence of a design to

fulfill sexual compulsions evidenced by a pattern of past behavior” is relevant to

whether the crime occurred. DeVincentis, 150 Wn.2d at 17-18. Admission of

evidence for this purpose “requires substantial similarity between the prior bad

acts and the charged crime.” DeVincentis, 150 Wn.2d at 21. “Sufficient similarity

is reached only when the trial court determines that the ‘various acts are naturally

to be explained as caused by a general plan      .   .   .   .“   DeVincentis, 150 Wn.2d at

21 (alteration in original) (quoting State v. Lough, 125 Wn.2d 847, 860, 889 P.2d

487 (1995)). There is no uniqueness requirement; the similarities need not “be

~atypical or unique to the way the crime is usually committed.” DeVincentis, 150

Wn.2d at 13.

        With both A.F. and A.W., Garrison gained the victim’s trust, and access to

 her, by being close to someone the victim cared for and also treating the victim

 with kindness. In the instant case, Garrison established a strong and trusting

 relationship with A.W. as a result of being often around her. It was only after

 creating this bond that Garrison molested A.W. as she slept. Likewise, Garrison

 established a strong relationship with A.F. as a result of the significant amount of

 time he spent around her. It was only after creating that bond that Garrison

 started to molest A.F. as she slept. The defendant ingratiated himself with

 A.W.’s mother, thus ensuring access to A.W. Likewise, Garrison ingratiated

                                          -10-
No. 71134-2-I/Il


himself with A.F.’s mother to facilitate access to her daughter. By being close to

those around A.W. and A.F., Garrison was also able to evade suspicion. While

A.W. never lived with Garrison, Garrison and A.W. would often sleep in the same

house. Similarly, while Garrison never lived with A.F., Garrison would have

access to A.F. multiple times a week when she slept or was getting ready for

bed.

       Additionally, the first time A.W. woke up to Garrison touching her, he was

touching her in a somewhat innocuous manner; specifically, he was rubbing her

upper thigh. A.W. did not protest or respond negatively, apparently emboldening

Garrison. From there, Garrison’s touching progressed to the point where he

touched A.W.’s breast as she slept. The touching that A.F. experienced while

she slept or was getting ready for bed was similar. First, she woke up to

Garrison rubbing her head and back. A.F. did not protest or respond negatively.

Later, A.F. was awakened by Garrison’s hands touching her breast and vagina.

       These significant similarities are naturally explained by Garrison having a

general plan. The evidence was properly admitted to show this common scheme

or plan. Therefore, any error in the trial court’s ruling admitting the same

 evidence to show an absence of mistake or accident was harmless.
                                          III

        Garrison next contends that the trial court erred in the manner in which it

 analyzed and admitted the ER 404(b) evidence. This is so, he asserts, because

 the trial court did not properly make a record of its balancing of the probative



                                         -Il    -
No. 71134-2-1/12


value of the evidence against its prejudicial effect. Garrison’s argument is

unavailing.

       “A trial court must always begin with the presumption that evidence of

prior bad acts is inadmissible.” DeVincentis, 150 Wn.2d at 17. When

determining admissibility under ER 404(b), the trial court must (1) find the alleged

misconduct occurred by a preponderance of the evidence, (2) identify the

purpose for admission, (3) determine whether the evidence is relevant to prove

an element of the crime charged, and (4) weigh the probative value against its

prejudicial effect. Foxhoven, 161 Wn.2d at 175.

       “The court’s balancing of the prejudicial nature of ER 404(b) evidence

must take place on the record.” State v. Carleton, 82 Wn. App. 680, 685, 919

P.2d 128 (1996). However, there is no magic words requirement. Thus, where

the trial court did not explicitly weigh the probative value of prior misconduct

evidence against its prejudicial effect, but admitted only some evidence of the

defendant’s prior acts while excluding evidence of the acts that were most

 inflammatory, our Supreme Court concluded that the record as a whole

 demonstrated that the trial court had fulfilled the requirements of the rule.

 Powell, 126 Wn.2d at 264-65. Likewise, where the record reflected that the trial

 court adopted the express argument of one of the parties as to the relative

 weights of probative value and prejudice, there was no error. State v. Pirtle, 127

 Wn.2d 628, 650-51, 904 P.2d 245 (1995). “But these variations serve to

 reinforce the general rule.   .   .   : the record must in some way show that the court,

 after weighing the consequences of admission, made a ‘conscious determination’

                                               -   12-
No. 71134-2-1113

to admit or exclude the evidence.’ Carleton. 82 Wn. App. at 885 (quotIng State
v. Tharo. 98 Wn.2d 591, 597,837 P2d 981 (1981)).
       Here, In making Its ruling, the trial court explicitly considered the probative
value and prejudicial effect of the testimony the State sought to admit. In
explaining why ft was admitting evidence of the prior incident In which akW.
awoke to see Garrison touching her thigh, but was excluding evidence of the
prior Incidents of A.W. awakening with her clothing In disarray for no apparent
reason, the trial court stated that the clothing Incidents were ‘too Indefinite’
compared to the thigh-touching Incident The court explained that the clothing
Incidents were ‘highly prejudicial’ and there was an Insufficient   B~



conclude Its related to (the charged event].’
       In explaining why ft was admitting evidence of Garrison touching AS.
while she slept but excluding evidence of the more serious abuse that occurred
once Garrison started molesting A.F. while she was awake, the court
 acknowledged that ‘it Is highly prejudicial to have any mention of sexual
 Impropriety with a young person.’ The court observed that the incidents while
 AS. was asleep were nonetheless very similar to the current allegations lnvoMng
 A.W., while the Incidents that occurred after Garrison progressed beyond
 touching A.F. In her sleep were less ‘helpful to the jury In deciding’ whether
 Garrison was guilty of the charged crime.
        At the end of the trial courts oral ruling, the prosecutor asked the court
 whether ft was finding that the probative value of the evidence the court ruled


                                          -13-
No. 71134-2-1/14


admissible was not outweighed by its unfair prejudice, and the court confirmed,

“That’s correct.”

       Although the trial court’s oral ruling may not be as organized and neatly

set out as appellate counsel might wish, the record is clear that the trial court did

indeed consider the probative value and prejudicial effect of the evidence the

State sought to admit in making its rulings. Because the trial court balanced the

probative value of the proffered testimony against its prejudice on the record, and

only admitted those portions for which the probative value was not outweighed by

the danger of unfair prejudice, the trial court properly exercised its discretion in

admitting portions of the prior misconduct evidence offered by the State.

        However, even were we to conclude that the trial court should have been

more explicit in its balancing as to each individual piece of evidence, any error

would be harmless. A failure to articulate the balance between probative value

and prejudice does not necessarily require reversal. There are at least two

different circumstances in which the failure to weigh prejudice on the record,

while admitting ER 404(b) evidence, constitutes harmless error. The first is when

 the record is sufficient for the reviewing court to determine that the trial court, if it

 had considered the relative weight of probative value and prejudice, would still

 have admitted the evidence. Carleton, 82 Wn. App. at 686. The second

 circumstance is when, considering the untainted evidence, the appellate court

 concludes that the result of the trial would have been the same even if the trial

 court had not admitted the evidence. Carleton, 82 Wn. App. at 686-87.



                                           -   14   -
No. 71134-2-1/15


      The record in this case is sufficient to evaluate these circumstances. The

pretrial argument on just the issue of ER 404(b) admissibility spans

approximately 70 pages of the verbatim report of proceedings. Each attorney

repeatedly spoke at length and both attorneys framed their arguments in terms of

the established framework for admitting evidence pursuant to ER 404(b). The

trial judge participated by asking questions throughout the argument. This issue

was also discussed a number of times at other stages of the proceedings. Here,

it is clear from the record that, had the trial court more explicitly articulated its

weighing of probative value against prejudicial effect for each instance of prior

misconduct evidence, it would still have admitted and excluded the same

portions of the proffered evidence. Any error was harmless.
                                            lv
       Garrison next contends that the trial court gave an incorrect limiting

instruction concerning the ER 404(b) evidence. This is so, he asserts, because

the jury should not have been instructed that it could consider this evidence to

 establish an absence of mistake or accident. Garrison is correct that this

 purpose should not have been included in the limiting instruction; however, the

 error was harmless.

        If evidence of a defendant’s prior crimes, wrongs, or acts is admissible for

 a proper purpose, the defendant is entitled to a limiting instruction upon request.

 Foxhoven, 161 Wn.2d at 175; State v. Saltarelli, 98 Wn.2d 358, 362, 655 P.2d

 697 (1982). “[O]nce a criminal defendant requests a limiting instruction, the trial

 court has a duty to correctly instruct the jury, notwithstanding defense counsel’s
                                           -15-
No. 71134-2-1/16


failure to propose a correct instruction.” State v. Gresham, 173 Wn.2d 405, 424,

269 P.3d 207 (2012).

       The court gave the following written limiting instruction to the jury:

       Certain evidence has been admitted in this case for only a limited
       purpose. Evidence of the defendant’s alleged prior sexual
       misconduct may be considered by you only for the purpose of
       considering whether such evidence demonstrated 1) a common
       scheme or plan, or 2) absence of mistake or accident. You may not
       consider it for any other purpose. Any discussion of the evidence
       during your deliberations must be consistent with this limitation.

Instruction 9.

       As previously discussed, the ER 404(b) evidence was admissible to show

a common scheme or plan but was not properly admissible to show absence of

mistake or accident. Thus, the trial court erred by instructing the jury that the

challenged evidence could be used for the latter purposes. The State concedes

 as much in its appellate briefing: “If this Court concludes that the trial court erred

 in admitting the prior misconduct for that purpose, then it was also error to

 instruct the jury on that purpose.” Resp’t’s Amended Br. at 22.

        Failure to give a proper ER 404(b) limiting instruction may be harmless.

 State v. Mason, 160 Wn.2d 910, 935, 162 P.3d 396 (2007). The error is

 harmless “unless, within reasonable probabilities, had the error not occurred, the

 outcome of the trial would have been materially affected.” State v. Smith, 106

 Wn.2d 772, 780, 725 P.2d 951 (1986) (quoting State v. Cunningham, 93 Wn.2d

 823, 831, 613 P.2d 1139 (1980)). Thus, the relevant question iswhethera

 reasonable probability exists that, had a correct limiting instruction been given,

 the outcome of Garrison’s trial would have been materially affected.
                                          -   16-
No. 71134-2-1/17


       The jury was first given an oral limiting instruction after A.W. and A.F. had

finished testifying. At that time, the trial court only mentioned the common

scheme or plan purpose.

               Certain evidence has been admitted in this case for only a
       limited purpose. This evidence of the defendant’s alleged prior
       sexual misconduct may be considered by you only for the purpose
       of considering whether such evidence demonstrated a common
       scheme or plan. You may not consider it for any other purpose.
       Any discussion of the evidence during your deliberations must be
       consistent with this limitation.

Later, at the close of the evidence, when the trial judge instructed the jury,

Instruction 9, quoted above, which mentioned both common scheme or plan and

absence of mistake or accident, was given.

       The only other mention of absence of mistake or accident during the trial

was by defense counsel during his closing argument. It was brief and

misleading—presumably to Garrison’s benefit:

               [A.F.]’s evidence is about common scheme and plan.
        Common scheme and plan that goes over a period well, it was
                                                               --


        2011, eleven years. It’s about absence and mistake, because there
        can’t be any mistake. It has to be true. There’s not a real
        possibility that it couldn’t be true, or that it might not be true. And
        that’s what’s so important.

        It is inconceivable that a handful of words in the written limiting

 instruction—offered without any further guidance—changed the outcome of this

 trial. The testimony of A.W. and A.F. was powerful because it described a sexual

 predator who employed similar tactics to gain access to his victims and grow

 their trust in him, and then attacked them when they were most vulnerable, while

 they were sleeping and alone—not because the testimony tended to disprove


                                          -   17   -
No. 71134-2-1/18


some hypothetical mistake or accident. In fact, as discussed above, there was

absolutely no evidence that Garrison’s alleged touching of A.W. or A.F. was by

mistake or accident. The issue was whether the touching occurred at all. There

is no reasonable probability that the jury’s verdict would have been different had

it been instructed only on the common scheme or plan purpose.
                                         V

       Garrison’s final contention is that he was improperly sentenced as a

persistent offender pursuant to the Persistent Offender Accountability Act, RCW

9.94A.570. This is so, he asserts, because the trial court incorrectly concluded

that one of his prior convictions was comparable to a Washington class B felony,

rather than a class C felony, which would have washed out and would not have

counted as a strike. Garrison is correct.
                                            A

       A “persistent offender” is an offender who:

              (a)(i) Has been convicted in this state of any felony
       considered a most serious offense; and
              (ii) Has, before the commission of the offense under (a) of
       this subsection, been convicted as an offender on at least two
       separate occasions, whether in this state or elsewhere, of felonies
       that under the laws of this state would be considered most serious
       offenses and would be included in the offender score under RCW
       9.94A.525.

 RCW 9.94A.030(37).

       As our Supreme Court has noted, application of this provision can be

 broken down into four steps:

        After a defendant has been convicted in this state of a most serious
        offense, RCW 9.94A.030[(37)](a)(i), four more elements must be

                                        -18-
No. 71134-2-1/19


      present for a defendant to be declared a persistent offender: (1)
      The defendant must have been previously convicted on at least two
      separate occasions, (2) in this state or elsewhere, (3) of felonies
      that, under the laws of this state, would be considered most serious
      offenses (defined in RCW 9.94A.030[(32)fl, and (4) would be
      included in the offender score under RCW 9.94A. [525].[2]

State v. Morley, 134 Wn.2d 588, 603, 952 P.2d 167 (1998). The fourth step is

herein at issue.

       RCW 9.94A.525 governs offender scores. The “wash out” provision of

that statute provides, in pertinent part:

              (2)(a) Class A. prior felony convictions shall always be
                                            .   .


       included in the offender score.
              (b) Class B prior felony convictions other than sex offenses
       shall not be included in the offender score if. the offender had
                                                                   .   .


       spent ten consecutive years in the community without committing
       any crime that. results in a conviction.
                                    .   .


              (c)     [C]lass C prior felony convictions other than sex
                        .   .   .


       offenses shall not be included in the offender score if. the        .   .


       offender had spent five consecutive years in the community without
       committing any crime that. results in a conviction.
                                                    .   .




(Emphasis added.) Thus, the class of a felony generally determines its wash out

period.

          The same statute governs the classification of out-of-state convictions:

“Out-of-state convictions for offenses shall be classified according to the

comparable offense definitions and sentences provided by Washington law.”

 RCW 9.94A.525(3). “If the foreign conviction is comparable to a Washington

crime, it counts toward the offender score as if it were the equivalent Washington

 offense.” Morley, 134 Wn.2d at 606. Thus, if an out-of-state conviction is



          2   The current provisions are bracketed.

                                                            -19-
No. 71134-2-1/20


comparable to a Washington class B felony, the 10-year wash-out period applies,

and if it is comparable to a class C felony, the five year period applies.

       “Washington law employs a two-part test to determine the comparability of

a foreign offense. A court must first query whether the foreign offense is legally

comparable.” State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007). To

do so, the court compares the elements of the out-of-state offense “to the

elements of Washington criminal statutes in effect when the foreign crime was

committed.” Morley, 134 Wn.2d at 606.

       “If the elements of the foreign offense are broader than the Washington

counterpart, the sentencing court must then determine whether the offense is

factually comparable—that is, whether the conduct underlying the foreign offense

would have violated the comparable Washington statute.” Thiefault, 160 Wn.2d

at 415. “[B]ecause the judicial determination of the facts related to a prior out-of-

state conviction implicates the concerns underlying Apprendi3 and Blakely,4

judicial fact finding must be limited.” State v. Thomas, 135 Wn. App. 474, 482,

 144 P.3d 1178 (2006). Thus, in making its factual comparison, the sentencing

 court may rely only on facts in the foreign record “that are admitted, stipulated to,

 or proved beyond a reasonable doubt.” Thiefault, 160 Wn.2d at 415.

        “[T]he State.   .   .   bears the burden of proving the convictions are

 comparable to Washington crimes.” In re Pers. Restraint of Cadwallader, 155

 Wn.2d 867, 876, 880, 123 P.3d 456 (2005). Our review is de novo. State v.


        ~ Ajprendi v. New Jersey, 530 U.s. 466, 120 5. Ct. 2348, 147 L. Ed. 2d 435 (2000).
        ~ Blakely v. Washington, 542 U.s. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

                                               -   20   -
No. 71134-2-1/21


Beals, 100 Wn. App. 189, 196, 997 P.2d 941 (2000).

       At sentencing, the State argued that Garrison’s 1981 Texas voluntary

manslaughter conviction was comparable to two Washington class B felony

offenses, manslaughter in the first degree and assault in the second degree. The

trial court agreed that it was comparable to manslaughter in the first degree. On

appeal, Garrison contends that this conclusion was incorrect. The parties agree,

however, that, at a minimum, Garrison’s Texas conviction is comparable to the

Washington offense of manslaughter in the second degree, a class C felony.
                                                  B

        Garrison pleaded guilty to voluntary manslaughter in Texas in 1981. At

that time, V.T.C.A., Penal Code         § 19.04(a) defined the offense of “voluntary
manslaughter” as follows:

        A person commits an offense if he causes the death of an individual
        under circumstances that would constitute murder under Section
        19.02 of this code, except that he caused the death under the
        immediate influence of sudden passion arising from an adequate
        cause.~51

 (Emphasis added.)

         In 1981, the murder statute referenced therein provided, in pertinent part:

 “(a) A person commits an offense if he:          .   .   .   (2) intends to cause serious bodily




          ~ “Sudden passion’ means passion directly caused by and arising out of provocation by
 the individual killed or another acting with the person killed which passion arises at the time of the
 offense and is not solely the result of former provocation.” Former V.T.C.A., Penal Code
 §19.04(b) (1974). “Adequate cause’ means cause that would commonly produce a degree of
 anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind
 incapable of cool reflection.” Former V.T.C.A., Penal Code §19.04(c) (1974).

                                                 -21-
No. 71134-2-1/22


injury and commits an act clearly dangerous to human life that causes the death

of an individual.” V.T.C.A., Penal Code     §   19.02.

       Under then-applicable Texas law, there was no culpable mental state for

the act alleged to be “clearly dangerous to human life that causes the death of an

individual” under   §   19.02(a)(2). Peterson v. State, 659 S.W.2d 59, 61 (Tex. Ct.

App. 1983); Luqo-Luqo v. State, 650 S.W.2d 72, 80-82 (Tex. Crim. App. 1983).

In Luqo-Luc~o, the court held that an indictment charging voluntary manslaughter

under section 19.02(a)(2) was proper in not stating a culpable mental state for

“committing an act clearly dangerous to human life.” 650 S.W.2d at 73, 80, 82.

The statute only required the specific intent to cause serious bodily injury, while

“the act clearly dangerous to human life” was an objective standard untied to any

culpable mental state. Luqo-Luqo, 650 S.W.2d at 81-82. The statute thus

“focuses the mental state of the individual on the particular result and not on the

conduct that causes death.” Luqo-Lu~io, 650 S.W.2d at 82. For this reason, the

Lugo-Luqo court, sitting en banc, condemned and withdrew an earlier panel

decision that had held that an indictment alleging voluntary manslaughter under

 section 1 9.02(a)(2) was deficient in failing to allege that the defendant

 intentionally or knowingly committed an act clearly dangerous to human life. 650

 S.W.2d at 74-75, 82.
                                                C

        The State first contends that Garrison’s Texas conviction is for an offense

 comparable to Washington’s manslaughter in the first degree.

        Under applicable Washington law, a person was guilty of manslaughter in

                                            -   22   -
No. 71134-2-1/23


the first degree when he “recklessly causes the death of another person.”

Former RCW 9A.32.060(1)(a) (1975).

       Although the State concedes on appeal that the prong of Texas’s

voluntary manslaughter statute under which Garrison was convicted is not legally

comparable to Washington’s manslaughter in the first degree,6 it contends that

the two offenses are nevertheless factually comparable. This is so, the State

asserts, because Garrison admitted the allegation in the information that he

“intentionally and knowingly commit[ted] an act clearly dangerous to human life,”

when he pleaded guilty. This is incorrect.

        In its attempt to establish factual comparability, the State relies entirely on

two documents related to the Texas conviction—the information and the

judgment and sentence. In particular, it relies on the following allegation from the

 information: “GARRISON did then and there:                 .   .   .   intentionally and knowingly

 commit an act clearly dangerous to human life, to-wit: striking the head and body

 of the said [T.M.C.],” and the following statement in the judgment and sentence:

              IT IS THEREFORE ORDERED, ADJUDGED AND
        DECREED by the Court that on this the 15th day of September,
        1981,   . GARRISON is guilty of the offense of voluntary
                    .   .


        manslaughter as charged in the information in this cause, and as
        confessed by him in his plea of guilty herein made.

 (Emphasis added.) The State contends that, together, these statements mean

          6 We agree. Under the Texas statute, no culpable mental state attaches to the result. By

 contrast, the Washington statute does require a culpable mental state—recklessness—with
 respect to the result. A person could be convicted of Texas voluntary manslaughter without
 having any culpable mental state connected to the result of death, whereas the Washington
 offense of first degree manslaughter requires that a person recklessly cause a person’s death.
 Thus, the Texas statute is broader than the Washington statute, and the offenses are not legally
 comparable.

                                               -   23   -
No. 71134-2-1/24


that Garrison admitted to acting “intentionally and knowingly” when he committed

the 1981 offense. This contention is foreclosed by our decision in State v.

Thomas, 135 Wn. App. 474.

       In Thomas, the State sought to establish that the defendant’s California

burglary convictions were comparable to Washington’s burglary offense. The

State conceded that the California crime of burglary was not legally comparable

because the Washington crime required proof of unlawful entry. However, the

State argued that the burglary convictions were factually comparable to

Washington’s burglary offense. To establish the comparability of one of the

defendant’s convictions, the State relied on an allegation in the charging

instrument that the defendant “did willfully, unlawfully, and feloniously enter,” and

a statement in the judgment that the defendant “pled guilty.   .   .   as alleged in the

Complaint.” Thomas, 135 Wn. App. at 479, 485.

       Rejecting the State’s contention, we explained that, when determining

whether an out-of-state conviction is comparable to a Washington crime, a

 sentencing court may not assume that “facts alleged in the charging document

 [thati are not directly related to the elements” of the charged offense have been

 proved or admitted. Thomas, 135 Wn. App. at 486.

        Moreover, this case is unlike State v. Releford, 148 Wn. App. 478, 200

 P.3d 729 (2009). In that case, we affirmed the trial court’s conclusion that an

 Oklahoma burglary conviction was factually comparable to the Washington

 burglary offense based in part on factual allegations contained in the charging



                                         -   24   -
No. 71134-2-1/25


document. As we explained, our holding in that case was grounded in Oklahoma

law.

              In Oklahoma, “[a] plea of guilty admits the facts pleaded in
       the Information.” .   There is no basis for us to conclude that,
                             .   .


       where a defendant enters a plea of guilty at a point in time and in a
       foreign jurisdiction where such a plea constitutes an admission of
       the facts alleged by the government in the charging document,
       such an admission cannot be later relied upon to prove factual
       comparability for purposes of a subsequent sentencing in
       Washington.

Releford, 148 Wn. App. at 488 (first alteration in original).

       There is no equivalent rule in the law of Texas. In Texas, on a plea of

guilty before a judge, “the defendant may consent to the proffer of evidence in

testimonial or documentary form, or to an oral or written stipulation of what the

evidence against him would be, without necessarily admitting to its veracity or

accuracy.” Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009).

Alternatively, a defendant “may enter a sworn written statement, or may testify

under oath in open court, specifically admitting his culpability or at least

acknowledging generally that the allegations against him are in fact true and

 correct.” Menefee, 287 S.W.3d at 13.

        The State produced no evidence herein of an evidentiary stipulation or

 “judicial confession” in Garrison’s Texas case. The Texas paperwork related to

 the manslaughter conviction sets forth no underlying facts of the crime that were

 admitted, stipulated to, or proven beyond a reasonable doubt. Thus, Thomas

 governs our inquiry, not Releford.




                                          -   25   -
No. 71134-2-1/26


      There is no way for us to determine, as a factual matter, whether Garrison

recklessly caused the death in the Texas case. Therefore, the State has not met

its burden of establishing that Garrison’s Texas offense is factually comparable to

Washington’s offense of manslaughter in the first degree.
                                          D

       The State next contends that Garrison’s Texas conviction is comparable to

Washington’s offense of assault in the second degree.

       In 1981, a person was guilty of second degree assault if he “[s]hall

knowingly inflict grievous bodily harm upon another with or without a weapon.”

Former RCW 9A.36.020(1)(b) (1975).

       To be convicted of assault in the second degree, a person must

“knowingly” inflict grievous bodily harm upon another. By contrast, there is no

such mens rea counterpart to the Texas manslaughter offense. The statute

requires the specific intent to cause serious bodily injury, but “an act clearly

dangerous to human life” is an objective standard untied to any culpable mental

state. Luqo-Luqo, 650 S.W.2d at 81-82. In other words, the intent to inflict a

certain level of injury is uncoupled from any mens rea tied to the commission of

the act.

       As a result, a person could be guilty of voluntary manslaughter under

 Texas law if he intends to cause serious bodily injury, even if he does not

 knowingly commit an act that is clearly dangerous to human life that causes the

 death of an individual. Stated in different terms, a person could be guilty of

 voluntary manslaughter if he intends to cause serious bodily injury but then

                                         -   26   -
No. 71134-2-1/27


recklessly or negligently commits an act that is clearly dangerous to human life.

The Texas statute is therefore broader than the Washington second degree

assault statute in terms of the mens rea required for the commission of the act

that causes the harm. In 1981, the Washington second degree assault offense

was not legally comparable to the Texas offense of voluntary manslaughter.

        Moreover, the State cannot prove factual comparability because, as set

forth above, Garrison did not admit to the unnecessary charging language

consisting of “intentionally and knowingly” committing an act clearly dangerous to

human life, “to-wit: striking the head and body of the said [T.M.C.], thereby

causing the death of an individual, namely: [T.M.C.j.” The record does not

otherwise factually show that Garrison stipulated to this unnecessary language or

that the State proved the unnecessary allegation beyond a reasonable doubt.7
                                                       E

        The parties agree that Garrison’s 1981 Texas voluntary manslaughter

conviction is comparable to Washington’s offense of manslaughter in the second

 degree.

         “A person is guilty of manslaughter in the second degree when, with

         ~‘ The State contends that the proper comparison is to the current assault in the second
 degree statute, which was the version in effect when the legislature first defined “most serious
 offense.” The State relies on State v. Failey, 165 Wn.2d 673, 201 P.3d 328 (2009), in support of
 this position. Failey is inapposite for two reasons. First, it concerns whether an offense is a
 “most serious offense,” not whether an offense counts toward a defendant’s offender score. ~
 Morley, 134 Wn.2d at 605 (whether an out-of-state offense is comparable to a Washington
 offense has two aspects: “First, it must be determined if Defendants’ [out-of-state convictions].
                                                                                                 .

 are included in their offender scores..   .   It must then be determined whether their particular
                                               .

 [convictions] are comparable to most serious offenses.”). Second, Failey concerns the
 classification of prior Washington crimes for purposes of persistent offender sentencing, not out-
  of-state offenses. It is the rule of Morley, not language from Failey, that controls our
  comparability inquiry.

                                                   -   27   -
No. 71134-2-1/28


criminal negligence, he causes the death of another person.” Former RCW

9A.32.070(1) (1975). In 1981, second degree manslaughter was a class C

felony.8 Former RCW 9A.32.070(2).

       As previously set forth, the offender score statute governs when class C

felony convictions may be included in a defendant’s offender score. The relevant

subsection provides, in pertinent part:

        [Cilass C prior felony convictions other than sex offenses shall not
        be included in the offender score if, since the last date of release
        from confinement (including full-time residential treatment) pursuant
        to a felony conviction, if any, or entry of judgment and sentence, the
        offender had spent five consecutive years in the community without
        committing any crime that subsequently results in a conviction.

RCW 9.94A.525(2)(c).

        The statute contains a “trigger” clause, which identifies the beginning of

the five-year period, and a “continuity/interruption” clause, which sets forth the

substantive requirements a person must satisfy during the five-year period. State

v. Ervin, 169 Wn.2d 815, 821, 239 P.3d 354 (2010). Any offense committed after

the trigger date that results in a conviction resets the five-year clock. Ervin, 169

Wn.2d at 821. For instance, incarceration for a probation violation constitutes

 confinement pursuant to a felony conviction within the meaning of the statutory

 washout provision. State v. Mehrabian, 175 Wn. App. 678, 714, 308 P.3d 660,

 review denied, 178 Wn.2d 1022 (2013). However, once a conviction washes out,


          8 It is now a class B felony. This legislative reclassification has no effect on Garrison’s

 prior conviction. See Rivard v. State, 168 Wn.2d 775, 781-82, 231 P.3d 186 (2010) (‘[T]he
 subsequent reclassification of an offense from a class B to a class A felony has no effect on a
 prior conviction for that offense and does not retroactively convert the conviction to a class A
 felony.”).

                                                  -28-
No. 71134-2-1/29


it cannot count as a “most serious offense” in the defendant’s criminal history.

~ State v. Failey, 165 Wn.2d 673, 678, 201 P.3d 328 (2009) (prior conviction

that washes out is not counted as a strike offense).

       The wash out provision pertaining to prior class C felonies requires that

the offender, “since the last date of release from confinement.   .   .   pursuant to a

felony conviction,” spend “five consecutive years in the community without

committing any crime that subsequently results in a conviction.” RCW

9.94A.525(2)(c).

       Garrison did just that. The latest five year clock began to run when he

was released from confinement on the second degree assault conviction in May

2005. The offense for which he was convicted in the present case occurred in

December 2011. Garrison spent five years in the community “since the last date

of release from confinement” without committing any new crime that resulted in

conviction. Garrison’s prior Texas conviction for voluntary manslaughter washed

 out and cannot be counted as a “most serious offense” because he committed no

 crimes resulting in conviction for a five year period while in the community since

 his last release from confinement.

        The trial court’s conclusion that Garrison must be sentenced as a

 persistent offender because he was convicted on two prior occasions of a “most

 serious offense” is, therefore, incorrect. His case must be remanded for

 resentencing.




                                         -   29   -
No. 71134-2-1/30


      Affirmed in part, reversed in part, and remanded for resentencing.



                                                N~~d(T)
We concur:


                                                    ~T




                                       -   30   -
