                                                                               COURT   pF PEALS
                                                                                    DIVISION II

                                                                              2013_ EP 2 AM 9: 24
                                                                                  S



    IN THE COURT OF APPEALS OF THE STATE OF W

                                        DIVISION II


STATE OF WASHINGTON,                                              No. 425:


                              Respondent,

       V.




CHARLES TEWEE,                                            PART PUBLISHED OPINION




       JOHANSON J. — Charles Tewee appeals his first degree child molestation conviction

following a jury trial and his sentence. Tewee argues that ( ) trial court improperly included
                                                           1 the

Tewee's foreign conviction in calculating his offender score; 2) police detective's testimony
                                                              ( the

violated the "hue and cry"doctrine, 3) trial court abused its discretion in admitting hearsay
                                    ( the

statements from the victim's counselor under the medical treatment exception in ER 803(
                                                                                   4),a)(

and . 4)the State produced insufficient evidence to support the abuse of trust aggravating
      (

sentencing factor. In his statement of additional grounds (SAG),
                                                               Tewee also argues that the trial

court erroneously calculated his offender score without proof of his prior convictions and that the

victim's testimony was not credible.

       In the published portion of this opinion, we hold that the trial court improperly found

Tewee's foreign conviction comparable to a Washington conviction. In unpublished portion

of this opinion we hold that (1)Tewee failed to preserve for review the "hue and cry" and

medical treatment hearsay arguments; ( )credibility issues are for the jury; and (3)
                                     2                                              the State
No. 42538 6 II
          - -



produced sufficient evidence to support the abuse of trust aggravating factor and the existence of
the   prior   convictions.   Accordingly, we affirm the conviction, reverse in part, and remand for

resentencmg.

    COMPARABILITY OF OREGON CONVICTION UNDER FORMER OREGON REVISED
                                    STATUTE ( RS)164. 35 (
                                            O       1 2002)

         In September 2010, the State charged Tewee with first degree child rape and first degree

child molestation. The jury acquitted Tewee of first degree child rape. But it found.him guilty

of first degree child molestation and also found that he misused a trust relationship to gain access
to the   victim, AB. Before sentencing, the State filed a memorandum regarding Tewee's

offender score and attached copies of court records of Tewee's prior convictions and a

declaration of criminal history listing Tewee's prior convictions. Tewee did not stipulate to prior

convictions or to an offender score. The trial court counted offender score points for several

convictions and found Tewee's offender         score   to be nine.   Also at sentencing, the trial court

found     Tewee's Oregon conviction for unauthorized vehicle              use, former   ORS    164. 35,
                                                                                                  1


comparable to Washington's taking a motor vehicle without permission offense, and entered an

exceptional sentence. Former RCW 9A. 6.
                                 a)Tewee appeals.
                                 070(
                                    2)(
                                    5 2002). (

          Tewee argues that the trial court erred in finding that his Oregon conviction for

unauthorized vehicle use was comparable to the Washington crime of taking a motor vehicle

without permission. We hold the two offenses are not legally nor factually comparable, because

the Oregon conviction involved a "permissive"taking that is not recognized in Washington. We

remand for resentencing.


1
    We.use initials to protect sexual assault victims' privacy.


                                                       2
No.42538 6 II
         - -


                                       I. STANDARD OF REVIEW


         We review a sentencing court's calculation of an offender score de novo. State v. Mutch,

171 Wn. d 646, 653, 254 P. d 803 (2011).Where a defendant's criminal history includes but-
      2                  3

ofstate convictions, the court must classify the convictions " ccording to the comparable offense
   -                                                         a

definitions and sentences provided by Washington law."RCW 9. ); Ford,
                                                          525( 4A.State v.
                                                             3
                                                             9
137 Wn. d 472, 479, 973 P. d 452 (1999) quoting State v. Wiley, 124 Wn. d 679, 683, 880
      2                  2              (                             2

P. d 983 (1994)). also review this comparability determination de novo. State v. Werneth,
 2             We

147 Wn. App. 549, 552, 197 P. d 1195 (2008).
                            3

                                              II. DISCUSSION


         We   employ   a   two part test to
                               -              determine   a   foreign offense's comparability.   State v.


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

offense is legally comparable—
                             whether the foreign offense's elements are substantially similar

to the   Washington offense's    elements.    Thiefault, 160 Wn. d at 415. If so, the analysis stops
                                                               2

here. But if the foreign offense's elements are broader or different Washington's elements,

precluding legal comparability, we determine whether the offense is factually comparable.

Thiefault, 160 Wn. d at 415. To do so, we determine whether the conduct underlying the foreign
                 2

offense would have violated the comparable Washington statute. Thiefault, 160 Wn. d 409, 415,
                                                                                2

Thiefault, 160 Wn. d at 415. In making our factual comparison, we may rely on facts in the
                 2




2
    The statute has been amended several times since 2010,but the applicable language remains the
same.




                                                     3
No. 42538 6 II
          - -



foreign record that are admitted, stipulated to, or proved beyond a reasonable doubt. Thiefault,

160 Wn. d at 415. We may review the defendant's conduct, as evidenced by the facts alleged in
      2

the charging document and proved beyond a reasonable doubt, to determine whether his conduct

would have violated the comparable Washington statute. See State v. Duke, 77 Wn. App. 532,

535, 892 P. d 120 (1995).
          2

       Tewee's foreign offense occurred in December 2002. In 2002, in Washington, a person

committed second degree taking of a motor vehicle without permission when:

       W]
        ithout the permission of the owner or person entitled to possession, [the
       person] intentionally   takes   or   drives away any automobile ...   that is the property
       of another, or he or she voluntarily rides in or upon the automobile . ..            with
       knowledge of the fact that the automobile ... was unlawfully taken.

Former RCW 9A. 6.
           a)
           070(
              2)(
              5 2002).                                (

       In 2002, in Oregon, a person committed an unauthorized use of a motor vehicle when

                 a)
                  The person takes, operates, exercises control over, rides in or otherwise
       uses                      without consent of the owner; or
              another's vehicle ...
                 b)Having custody of a vehicle ... pursuant to an agreement between the
       person or another and the owner thereof whereby the person or another is to
       perform for compensation a specific service for the owner . . .        the person
       intentionally uses or operates it,without consent of the owner ...
                                                                      or
               c)  Having custody of a vehicle ...     pursuant to an agreement with the
       owner thereof whereby such vehicle . . .      is to be returned to the owner at a
       specified time, the person knowingly retains or withholds possession thereof
       without consent of the owner for so lengthy a period beyond the specified time.

Former ORS 164. 35 (2002)emphasis added).
              1           (

       We first compare the statutes' elements to determine whether the statutes are legally

comparable. In Washington, a person commits the offense by (1)intentionally taking, driving

away, or voluntarily and knowingly riding in (2)any automobile (3)that is the property of

another ( )
        4 without the owner's permission. Former RCW 9A. 6.
                                                     a).
                                                     070(
                                                        2)(
                                                        5



                                                      11
No. 42538 6 II
          - -



        In Oregon, a person commits the offense under former ORS 164. 35( by (1)
                                                                 a) taking,
                                                                    1

operating, exercising control over, riding in, or otherwise using (2)another's vehicle (3)
                                                                                         without

the owner's consent. A person can also commit the offense under former ORS 164. 35(by ( )
                                                                           b) 1       1

intentionally using or operating (2) vehicle (3) his custody pursuant to an agreement with the
                                    a           in

owner   to   perform   a   specific compensated   service (4)without the owner's consent.    Also, a

person can commit the offense under former ORS 164. 35( by (1)knowingly retaining or
                                               c) 1

withholding possession of ( )a vehicle (3)longer than the agreed upon time (4)when in his
                          2

custody pursuant to an agreement to return it at a specified time (5)without the owner's consent.

Thus, Oregon's elements are both broader and different than Washington's elements because

Oregon's statute specifies the effect of agreements with the owner.

        Therefore, we must perform a factual inquiry to determine whether Tewee's conduct

leading to his 'Oregon conviction would have violated Washington's statute. According to the

information filed, the Oregon prosecutor charged Tewee with "unlawfully and knowingly

tak[ng] and operat[ing]a vehicle, to wit: a Toyota 4-
   i                                 -              Runner, without the consent of the owner

     contrary   to the statutes in such cases made and     provided." Clerk's Papers   at   466. The


indictment provided that Tewee and the vehicle's owner agreed that Tewee would return the

vehicle but that Tewee retained possession of the vehicle for at least two days longer without the
owner's consent.       In his petition to enter a guilty plea, Tewee admitted that he intentionally

retained possession of the 4-
                            Runner in excess of the specifically agreed to time.

        We conclude that Tewee's criminal actions that led to his Oregon conviction did not

constitute Washington's taking of a motor vehicle without permission. In Washington, once a

person obtains permission to use an automobile he cannot violate former RCW 9A. 6.
                                                                            070(
                                                                               1
                                                                               5 )



                                                     5
No. 42538 6 II
          - -



1975)even if he exceeds the scope of that permission. State v. Clark, 96 Wn. d 686, 692, 638
                                                                           2

P. d 572 (1982). Because
 2                             the indictment provided that Tewee obtained permission from the

vehicle's owner, Tewee's Oregon conviction is not factually comparable to the Washington's

taking   a   motor vehicle   statute.   Therefore, the trial court erred in reaching the opposite

conclusion    during sentencing. See State v. Thomas, 135 Wn. App. 474, 480 144 P. d 1178
                                                                                 3

2006),
     review denied, 161 Wn. d 1009( 007).
                          2       2

         Because the trial court erred in finding that Tewee's Oregon conviction was comparable

to a Washington taking a motor vehicle without permission conviction, it also erred in adding a

point to Tewee's offender score for that conviction. Therefore we remand for resentencing.
         A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record in accordance with RCW 2.6.it is so ordered.
                              040,
                               0

                               TEWEE'S REMAINING ASSERTIONS


         Tewee is AB's maternal uncle. In 2010, 11-
                                                  year old AB, her younger brother MB, and
                                                       -

Tewee                  s maternal
          lived with AB' "               grandparents.   AB slept with her grandmother in her.

grandmother's room and Tewee slept on the couch while her grandfather had his own room and


3
    Clark addressed the 1975 version of the statute. It was amended in 2002, but the applicable
language remained consistent.
4
    On resentencing the trial court is free to compare the 2003 Oregon unauthorized use of a motor
vehicle conviction to other Washington offenses. Tewee is entitled to a full resentencing on
remand and the trial court has discretion to consider issues not raised at his initial sentencing or
in this appeal. State v. Davenport, 140 Wn. App. 925, 932, 167 P. d 1221 ( 2007),
                                                                          3                  review
denied, 163 Wn. d 1041 (2008).And at resentencing, the parties shall have the opportunity to
               2                                      "
present and the court to consider all relevant evidence regarding criminal history, including
criminal history not previously presented."RCW 9. ).
                                               530( 4A.
                                                  2
                                                  9



                                                   Col
No. 42538 6 II
          - -



MB slept on the floor. One night in January or February 2010,AB got out of bed to get a glass
of water and as she walked by Tewee who was lying on the couch, he asked her to come give

him   a   hug. AB commonly hugged       Tewee and she did    so   on   this occasion.   While doing so,

Tewee pulled her on top of him, reached under her pajamas and underwear, and began touching

and rubbing her vagina.

          About a month later, AB and MB went to live with AB's father BB, BB's girlfriend

Jennifer Lastiri, and Lastiri's   daughter   NJ. BB became concerned about AB'
                                                                             s behavior and


attitude and thought that counseling might help her. BB and Lastiri made AB an appointment to

see a counselor. Meanwhile, AB had told NJ that she had been molested but asked NJ not to tell

anyone because she was scared. Nonetheless, NJ told Lastiri what AB told her. Later, Lastiri

asked AB about it and AB told Lastiri what happened but told her that she was scared to tell BB.

So Lastiri promised to keep it a secret so long as AB agreed to talk to her counselor about it. AB

agreed.

          A short time later, BB took AB to her initial counseling appointment with a child intake

specialist therapist   at Columbia River Mental Health ( child         therapist).    AB told the child


therapist about the touching incident. Later, AB talked with a detective, who was assigned to

investigate AB's allegations.

          In September 2010, the State charged Tewee with first degree child rape and first degree

child molestation. During motions in limine, the parties discussed AB's hearsay statements and
                                  1 Verbatim   Report of Proceedings (VRP) at        130. The trial court
the "hue and    cry" doctrine.



5 AB testified that it occurred "[ round February"in 2010. 2 Verbatim Report of Proceedings at
                                a]
196. The information alleged that it happened between January 1 and February 28,2010.


                                                    7
No. 42538 6 II
          - -



decided that AB's disclosures were timely under "hue and cry" and that the detective could

testify as to the facts of AB's disclosure to her, without the details and without the identifier.

Also during motions in limine, the trial court found that AB's statements to the child therapist

were admissible under the medical diagnosis or treatment hearsay exception, ER 803(
                                                                               4).a)(

        At trial, AB testified about her relationship with Tewee prior to and after the touching

incident and about the incident,but she could not remember whether he touched her on the inside

part of her vagina or on the outside part of her vagina and also she could not remember how long

the touching contact lasted. Also, Lastiri and NJ testified about what AB had told them about the

touching incident. And BB testified about AB's actions and demeanor when she came to live

with him,her relationship with Tewee, and his concerns about her.

        The State also called two    police   officers: the officer' ho received BB'
                                                                   w               s initial sexual


abuse report, and the detective who interviewed AB. The detective testified that she interviewed

AB. Specifically, the State asked:

        Q     Okay. And without going into the details of what [AB] told you, what was
        the basic general thing that she was talking to you about?
        A    About an inappropriate contact with her uncle.

2 VRP at 274. Tewee did not object.

        The child therapist testified about her appointment with AB and that she first had talked
with AB and BB but that AB had asked that BB leave the room before she told the child therapist

about the sexual abuse by her uncle. The child therapist testified that AB told her that Tewee
had   penetrated   her   vagina with his finger, causing pain. After the appointment, the child

therapist referred AB to another therapist for ongoing treatment and reported the abuse to Child
Protective Services. Tewee did not    object to   the child   therapist's testimony.
No. 42538 6 II
          - -



       Tewee called three family members to testify, recalled AB, and also testified himself,

generally denying the allegation that he touched AB in a sexual manner. He testified about his

relationship with AB. The jury acquitted Tewee of first degree child rape. But it found Tewee

guilty of first degree child molestation and also found that he misused a trust relationship to gain

access to AB. At sentencing, the trial court entered an exceptional sentence based on the jury's

finding that Tewee misused a trust relationship under RCW 9.
                                                          n).
                                                          535( 4A.
                                                             3)(
                                                             9

                                     I. ISSUE PRESERVATION


       The appellate court may refuse to review any claim of error which was not raised in the

trial court." RAP    2. ( The purpose behind issue preservation rules is to encourage the
                     a).
                      5

efficient use of judicial resources by ensuring that the trial court has the opportunity to correct

any errors, thereby avoiding unnecessary appeals. State v. Robinson, 171 Wn. d 292, 304 05,
                                                                           2            -

253 P. d 84 (2011).A party must specifically object to evidence at trial to preserve the matter
     3

for appellate review and a party's failure to object can waive an error even when the trial court

made a pretrial ruling on the evidence. State v. Stein, 140 Wn. App. 43, 68 165 P. d 16
                                                                                 3
     review denied,
2007),                   163 Wn. d 1045 - 2008). Thus,
                               2          (                 even when the trial court has already

excluded evidence through a pretrial order, the complaining party should object at trial to any

allegedly inadmissible evidence or testimony that violates the pretrial order in order to preserve

the issue for review. State v. Weber, 159 Wn. d 252, 272, 149 P. d 646 (2006),
                                            2                  3             cent. denied,

551 U. . 1137 (2007).An objection at trial allows the trial court the opportunity to instruct the
     S

jury and limit such evidence. Stein, 140 Wn. App. at 69.




                                                  9
No.42538 6 II
         - -



                                 A. Hue and Cry"Testimony
                                    "

       Tewee argues that the detective's identification of him violated the "hue and cry"

doctrine and that this identification is not'armless because the identification undoubtedly made
                                            h

an impression on the jury, especially coming from law enforcement. We disagree.

       Here, the trial court made a pretrial ruling regarding the "hue and cry"testimony. The

hue and cry"doctrine is also known as the "fact of complaint"and refers to the general rule that

in criminal trials for sex offenses, the prosecution may present evidence that the victim

complained to someone after the assault. State v. Ferguson, 100 Wn. d 131, 135, 667 P. d 68
                                                                  2                  2

1983). The rule admits only the evidence that establishes that the complaint was made and

excludes details of the complaint, including the offender's identity and the act's nature.

Ferguson, 100 Wn. d at 135 36.
                2          -

       The trial court decided that AB's disclosure was timely and that the fact of the complaint,

without the details and without the identifier, was admissible. Because Tewee did not object to

the detective's trial testimony regarding AB's inappropriate contact with her uncle," VRP at
                                                "                                   2

274, we hold the identification was an inadvertent remark and unresponsive to the State's

question of what was the basic general thing that she was talking to you about," violated the
            "                                                                  and

trial court's pretrial order. 2 VRP at 274. Thus, Tewee was required to object, move to strike, or

take other curative action in order to preserve the issue for appeal. Any prejudicial effect from

this very limited testimony could easily have been corrected by a timely motion to strike the
answer and instruction from the court. Tewee took no curative action, and we decline to review

this issue.




                                                10
No.42538 6 II
         - -



                             B. Hearsay Statements From Counselor

       Tewee next argues that the trial court abused its discretion in admitting hearsay

                  s counselor because AB did not seek medical treatment.
statements from AB'                                                                  Again, Tewee

failed to preserve this argument for review.

       Here, during motions in limine, the trial court found that the child therapist's testimony

fit within the medical diagnosis or treatment hearsay exception. ER 801( )( that the
                                                                    4).a It ruled
child counselor's statements were admissible under the medical treatment exception to the

hearsay rule. Then, before the State called the child therapist to testify during trial, Tewee noted

his previous objection to her testifying and the trial court responded "[
                                                                       fJeel free to object during

the testimony if you feel it' inappropriate." 3 VRP at 288. Tewee did not then object during
                            s

her testimony. 3 VRP at 288 94. We hold that the trial court's instruction to Tewee to object if
                            -

he felt that any of the child therapist's testimony was inappropriate required Tewee to do so in

order to give the trial court a chance to correct any errors and that Tewee's failure to do so

resulted in a failure to preserve the issue for appeal.

                                   II. SUFFICIENCY OF EVIDENCE


        Tewee fiirther argues that insufficient evidence supports the abuse of trust aggravating

factor because his relationship with AB did not satisfy the facilitation element of the aggravator.

We affirm the jury's finding because sufficient evidence supports the jury's abuse of trust.


6 ER 803( )
        a provides:
        The following are not excluded by the hearsay rule ....
                4) ...Statements made for purposes of medical diagnosis or treatment
        and describing medical history, or past or present symptoms, pain, or sensations,
        or the inception or general character of the cause or external source thereof
        insofar as reasonably pertinent to diagnosis or treatment.


                                                  11
No. 42538 6 II
          - -



                                         A. Standard of Review


         We review a jury's special verdict finding under the sufficiency of the evidence standard.

State v. Stubbs, 170 Wn. d 117, 123, 240 P. d 143 (2010).Evidence is sufficient if it permits a
                       2                  3

reasonable fact finder to find each element of the charged crime beyond a reasonable doubt.

State v. Green, 94 Wn. d 216, 221 22,616 P. d 628 (1980).An insufficiency claim admits the
                     2            -       2

truth of the State's evidence and all reasonable inferences that can be drawn from it. State v.


Drum, 168 Wn. d 23, 35,
            2                   225 P. d 237 (2010). We defer to the trier of fact on issues of
                                     3


conflicting testimony, witness credibility, and the evidence's persuasiveness. State v. Camarillo,

115 Wn. d
      2        60, 71, 794 P. d 850 ( 1990). Circumstantial evidence and direct evidence are
                            2


equally reliable. State v. Delmarter, 94. n.634, 638, 618 P. d 99 (1980).
                                      2dW                  2

                                             B. Discussion


         To establish the abuse of trust aggravating factor, the State must prove that the

defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate

the commission of the current offense." RCW 9.
                                            n).
                                            535( 4A. We consider two factors in
                                               3)(
                                               9

determining whether the defendant abused a position of trust to merit an exceptional sentence:

the   relationship's   duration and   degree. State v. Grewe, 117 Wn. d 211, 218, 813 P. d 1238
                                                                    2                  2

1991). "` relationship extending over a longer period of time, or one within the same
       A

household, would indicate a more significant trust relationship, such that the offender's abuse of

that relationship would be a more substantial reason for imposing an exceptional sentence. "'

Grewe, 117 Wn. d at 219 (quoting State v. Fisher, 108 Wn. d 419, 427, 739 P. d 683 (1987)).
             2                                          2                  2


7
    The statute has been amended several times since 2010, but the applicable language remains the
same.




                                                   12
No.42538 6 II
         - -



The victim's vulnerability to trust due to the victim's age and the degree of the defendant's

culpability are also important factors to consider. State v. Bedker, 74 Wn. App. 87, 95, 871 P. d
                                                                                              2

673, review denied, 125 Wn. d 1004 (1994).
                          2

       Here, the evidence supporting the abuse of trust aggravator is overwhelming. At the time

of the offense, AB lived at her grandmother's house with her grandmother, grandfather, brother,

and Tewee. AB     slept   in her   grandmother's   room   while Tewee   slept   on   the couch. She also


testified that she got along with Tewee well and that she commonly hugged him. Further, BB

testified that AB and Tewee got along well, that they had a typical uncle and niece relationship,

and that   they commonly spent      time   together. Also BB and NJ testified that AB and Tewee

would engage in horseplay and wrestle and tickle each other. Tewee himself even testified about

his relationship with AB, saying that he loved her, that he would wrestle with her and tickle

hereven testifying about where her "tickle spot[ ]" and that he would always help her
   —                                           s were

with anything she needed. 3 VRP at 412. And the offense happened at the home in the middle

of the night while others slept, where AB and Tewee both lived, and when Tewee asked AB to

hug him.     Therefore, a reasonable fact finder could determine that Tewee used the hug

something AB had been comfortable with before, to facilitate the offense in this case. These

facts clearly allow a reasonable fact finder to determine that Tewee and AB had a close

relationship of trust and that Tewee used that relationship to facilitate the offense.



8 Tewee relies on State v. P. .67 Wn. App. 292, 834 P. d 1051 (1992),
                           T.,
                            B                            2               review denied, 120
Wn. d 1021 (1993), argue that a defendant's access to a victim, without more, does not satisfy
   2                to
the facilitation element.         Appellant at 20. But Tewee takes language of P. . out of
                             Br. of                                            T.
                                                                                B
context and the case actually supports the State's position here.


                                                    13
No. 42538 6 II
          - -



Consequently, taken in the light most favorable to the State, sufficient evidence supports the

jury's special verdict finding that Tewee used his position of trust to facilitate the offense.
                                       III. SAG ASSERTIONS


        In his SAG, Tewee asserts that the trial court improperly included points for prior

convictions because the State failed to    properly   prove the   prior convictions.   The State must


prove a defendant's criminal history by a preponderance of the evidence. State v. Hunley, 175

Wn. d 901, 909 10,287 P. d 584 (2012).The Sentencing Reform Act ( RA) places the burden
  2            -       3                                        S

on the State to "introduce evidence of some kind to support the alleged criminal history,

including   the classification of out ofstate convictions." Ford, 137 Wn. d at 480. The best
                                      -  -                              2


evidence of a prior conviction is a certified copy of the judgment; however, the State may

introduce other comparable documents of record or transcripts of prior proceedings to establish

criminal history. Ford, 137 Wn. d at 480. A prosecutor's bare allegations are not evidence,
                              2

whether asserted orally or in a written document. Hunley, 175 Wn. d at 915. If the State has
                                                                2

failed to prove a defendant's prior convictions, the remedy is to remand for resentencing.
Hunley, 175 Wn. d at 915 16:
              2          -

        Before sentencing, the State filed a memorandum regarding Tewee's offender score and

attached copies of court records of Tewee's prior convictions and a declaration of criminal
history listing Tewee's prior convictions. The trial court counted seven prior convictions and
found Tewee's offender score to be nine. The convictions that the trial court relied on included

 1) 1991 conviction for second degree malicious mischief, which was supported by a certified
   a
 copy of the judgment and sentence; 2)the 2003 Oregon conviction for unauthorized use of a
                                    (


 9We address this issue because it is likely to recur at resentencing.

                                                   14
No. 42538 6 I1
          - -



motor vehicle, which was also supported by a certified copy of the judgment and sentence; 3)
                                                                                          ( a

1997 conviction for possession of a controlled substance, which was supported by a date

stamped, signed copy of Tewee's petition to plead guilty and an uncertified but date stamped

copy of the judgment and sentence signed by the court; and ( 4) a 1992 conviction for

communication with a minor for immoral purposes, which was supported by an uncertified copy

of a judgment and sentence that was signed by Tewee and the judge.

       Tewee's    remaining three counted convictions included               two    1986 convictions for


attempted indecent liberties and a 1991 conviction for taking a motor vehicle without permission.

The State proved these convictions with declarations of criminal history and judgment and
sentences from other    prior   convictions.     For example, in 1991 when Tewee was convicted of

second degree malicious mischief,he stipulated that he had two prior attempted indecent liberties
convictions and   one   prior taking   of    a   motor vehicle conviction.    The State introduced the


stipulation attached to , hat judgment and sentence and another stipulation that Tewee signed as
                        t

part of his guilty plea for that crime. Also the State introduced Tewee's guilty plea for the 1992
conviction of communication with         a   minor for immoral purposes.           Elements of that crime


included Tewee's prior convictions of two counts of indecent liberties, which he stipulated to.

We hold that the State proved all seven_convictions by a preponderance of the evidence as
             o
required.l

       Finally, Tewee asserts that AB was not a credible witness. But 'we defer to the trier of

fact on issues of conflicting testimony, witness credibility, and the evidence's persuasiveness.


io
  Although as noted above, we have determined that Tewee's Oregon unauthorized use of a
vehicle conviction is not comparable to Washington's taking a motor vehicle without permission
offense.



                                                      15
No. 42538 6 II
          - -



Camarillo, 115 Wn. d at 71. And Tewee mentions facts that apparently were not raised during
                 2

trial that Tewee believes would have rebutted AB'
                                                s        credibility. Tewee may be attempting to

raise an ineffective assistance of counsel claim for counsel's failure to bring that evidence at trial

but, if so, his argument is based on facts outside our record and therefore we cannot review it on

appeal. State v. Grier, 171 Wn. d 17, 29,246 P. d 1260 (2011).
                              2               3

        We affirm the conviction, reverse in part, and remand for resentencing.



                                                                      Johanson, J.




                                                  16
