                                                                                        FILED
                                                                                  COURT OF APPEALS
                                                                                      DIVISION II

                                                                                 2015MAR 10       AM 8. 140

                                                                                  STAT        A       G TON

                                                                                  BY




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II

    STATE OF WASHINGTON,                                                No. 45753 -9 -II


                                     Respondent,


           v.



    RYAN JOSEPH SMITH,                                            UNPUBLISHED OPINION


                                     Appellant.


          JOHANSON, C. J. —     Ryan Joseph Smith appeals his sentence for second degree burglary .

and possession of methamphetamine.           He argues that the trial court erred when it increased his


offender score based on an Oregon conviction for assaulting a public safety officer. Because the

Oregon statute is not legally comparable to Washington' s third degree assault statute and the

record does not establish factual comparability, we agree with Smith, reverse his sentence, and

remand for resentencing.

                                                   FACTS


          After a bench trial, Smith was convicted of second degree burglary and possession of

methamphetamine. At sentencing, the State argued that a prior Oregon conviction for assaulting

a public safety officer' should increase Smith' s offender score because it was comparable to


1
    OR. REV. STAT. § 163. 208( 1).
No. 45753 -9 -II



Washington' s third degree assault against a law enforcement officer statute.2 Smith argued that

his Oregon conviction was not comparable because Oregon' s assaulting a public safety officer

statute has a broader mens rea requirement and the State provided insufficient facts to prove factual


comparability.     The trial court agreed with the State and increased Smith' s offender score based


on his Oregon assaulting a public safety officer conviction. Smith appeals his sentence.

                                                     ANALYSIS


                                   I. STANDARD OF REVIEW AND RULES OF LAW


        We   review a      trial   court' s calculation of a      defendant'   s offender score   de   novo.       State v.


Olsen, 180 Wn.2d 468, 472, 325 P. 3d 187,              cert.      denied, 135 S. Ct. 287 ( 2014).      A defendant' s


offender score may be increased for an out -of -state conviction if the State meets its burden to prove

the existence of the out -of s-tate conviction and can establish that the out -of s-tate conviction is


 comparable"     to   a   Washington     offense.    RCW 9. 94A.525( 3);        Olsen, 180 Wn.2d       at   472.    When


determining whether a foreign conviction is comparable to a similar Washington offense, we apply

a two -part test. State v. Thiefault, 160 Wn.2d 409, 415, 158 P. 3d 580 ( 2007).


        The comparability test requires us to first compare the elements of the foreign conviction

with a similar Washington offense to determine whether the offenses are legally comparable.

Olsen, 180 Wn.2d at 472. If the out -of s
                                        - tate conviction is identical to or narrower than the similar


Washington offense, the offenses are legally comparable and the out -of s-tate conviction may be

used   to increase    a   defendant' s    offender   score.       Olsen, 180 Wn.2d     at   472 -73.    If the foreign


conviction   is broader than the Washington               offense,       however, the statutes are not legally




2 RCW 9A.36.031( 1)( g).

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No. 45753 -9 -II



comparable and we            continue to determine factual comparability.                  Thiefault, 160 Wn.2d at 415.


When performing          a   factual comparability        analysis,     we     ask "   whether the defendant' s conduct


would    have   violated     the   comparable      Washington      statute."    Olsen, 180 Wn.2d at 473.


                                              II. LEGAL COMPARABILITY


          Here, the State claimed at sentencing that Smith' s Oregon conviction for assaulting a public

safety   officer,   Or. Rev. Stat. § 163. 208( 1),      should be used to increase his offender score because it


is comparable to Washington' s third degree assault of a law enforcement officer statute, RCW


9A. 36. 031( 1)( g).    The State argues that the statutes are legally comparable because Washington' s

assault statute     is broader      and covers more conduct.           Smith argues that the Oregon statute is not


legally comparable to Washington' s statute because Washington requires that the assault be

committed with intent while Oregon requires either an intentional or a knowing mental state. We

agree with Smith.


          We review de novo the comparability of two statutes, beginning with a legal comparability

analysis.    Olsen, 180 Wn.2d          at   472.    In Oregon, a person is guilty of assaulting a public safety

officer when he " intentionally or knowingly causes physical injury to the other person, knowing

the other person to be a peace officer, corrections officer, youth correction officer, parole and


probation officer, animal control officer, firefighter or staff member, and while the other person is


acting in the   course of official      duty."      OR. REV. STAT. § 163. 208( 1).         A person acts " intentionally"

in Oregon when he " acts with a conscious objective to cause the result or to engage in the conduct


so   described."     OR. REV. STAT. § 161. 085( 7).          A person acts " knowingly" when he acts " with an

awareness that the conduct of the person is of a nature so described or that a circumstance so

described    exists."    OR. REV. STAT. § 161. 085( 8).



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No. 45753 -9 -II



              In Washington,       a person     is guilty   of third   degree      assault   if he "[ a] ssaults a law enforcement


officer or other employee of a law enforcement agency who was performing his or her official

duties   at    the time      of the assault."     RCW 9A.36. 031( 1)( g).            Assault is defined not by statute but by

common         law    and covers     three types     of conduct: "(         1)   an unlawful   touching ( actual battery); ( 2)   an


attempt with unlawful force to inflict bodily injury upon another, tending but failing to accomplish

it (attempted         battery);   and ( 3)   putting   another   in    apprehension of        harm." State v. Elmi, 166 Wn.2d


209,   215, 207 P. 3d 439 ( 2009). In Washington, assault is a specific intent crime. State v. Willams,


159 Wn. App. 298, 307, 244 P. 3d 1018 ( citing State v. Byrd, 125 Wn.2d 707, 713, 887 P. 2d 396

 1995)),       review      denied, 171 Wn.2d 1025 ( 2011). In other words, a defendant must act with specific


intent to commit an actual battery or to put his victim in apprehension of harm. Williams, 159 Wn.

App. at 307.

              The mens rea element of the Oregon offense is broader than Washington' s and dispositive

of   the legal comparability           question     in this   case.        In Oregon, an assault may be committed either

knowingly         or   intentionally,        Or. Rev. Stat. § 163. 208( 1),          while in Washington, assault must be


committed        intentionally. Williams, 159 Wn. App. at 307.

              In In   re   Personal Restraint of Lavery, 154 Wn.2d 249, 255 -56, 111 P. 3d 837 ( 2005),                           our




Supreme Court decided a similar issue when it held that the federal bank robbery statute was not

legally comparable to Washington' s second degree robbery statute because the federal statute had

a   broader      mens rea.        The mens rea for federal bank robbery is general intent, Carter v. United

States, 530 U.S. 255, 268 -69, 120 S. Ct. 2159, 147 L. Ed. 2d 203 ( 2000), while in Washington, the

mens rea for second degree bank robbery is specific intent. Lavery, 154 Wn.2d at 255 -56 ( citing

State    v.   Kjorsvik, 117 Wn.2d 93, 98, 812 P. 2d 86 ( 1991)).                     In Lavery, our Supreme Court held that


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No. 45753 -9 -II



the federal statute was broader and, therefore, not legally comparable because " a person could be

convicted of federal bank robbery without having been guilty of second degree robbery in

Washington."       154 Wn.2d at 256.


           Similar to the federal bank robbery statute in Lavery, the Oregon statute here requires either

a   knowing or an intentional mental   state.   OR. REV. STAT. § 163. 208( 1).   Washington' s third degree


assault statute requires specific intent. This is the exact problem that our Supreme Court identified


in   Lavery —because      Oregon' s mens rea requirement is broader, some conduct that would violate


the Oregon statute would not violate Washington' s third degree assault statute.

           Therefore, because the   mens rea element of      Or. Rev. Stat. § 163. 208( 1)   is broader than


RCW 9A.36.031( 1)( g), the statutes are not legally comparable.3
                                      III. FACTUAL COMPARABILITY


           Next,   we   turn to the factual comparability     analysis.   Smith argues that his Oregon


conviction is not factually comparable because the facts fail to establish that Smith' s conduct was

an intentional assault. The State argues that Smith' s conviction is factually comparable because

the information provides enough facts to establish that Smith' s conduct underlying his Oregon

assaulting a public safety officer conviction would violate the Washington statute. We agree with

Smith.


           When doing a factual comparability analysis we may consider the " defendant' s conduct,

as evidenced by the indictment or information, to determine if the conduct itself would have



3 Although the State correctly argues that Washington' s assault statute may cover more conduct-
i. e.,      battery, attempted battery, and putting the victim in apprehension of harm —while
         actual

Oregon' s statute only criminalizes actual battery, the problem identified in Lavery remains. Elmi,
166 Wn.2d at 215. A defendant who commits an actual battery assault in Oregon knowingly would
not have violated Washington' s intentional assault statute. See Lavery, 154 Wn.2d at 256.
                                                       5
No. 45753 -9 -II



violated a comparable           Washington      statute."       Lavery,    154 Wn.2d       at   255.   We may also consider

evidence that was admitted or proven beyond a reasonable doubt in the out -of -state proceeding.

Lavery, 154 Wn.2d at 258. The sentencing court may not consider evidence that was not presented

in the foreign proceeding. Lavery, 154 Wn.2d at 258.

           Here, the parties agree that the information and judgment and sentence from Smith' s

Oregon       conviction provide      the only facts that         we can consider.          Therefore, the issue is whether,


based      on   the facts in those     pleadings,     Smith' s " conduct would have violated the comparable


Washington         statute."    Olsen, 180 Wn.2d          at   473.    Unlike the Oregon statute, Washington' s law

requires     that the   criminal act   be   committed with specific            intent. RCW 9A.36. 031( 1)( g); Williams,


159 Wn. App. at 307.

             The Oregon information establishes that Smith was charged with " knowingly caus[ ing]

physical injury to Officer Kyle S. Williams of the Eugene Police Department, knowing that person

to be   a peace officer     acting in the    course of official
                                                                       duty."    Ex. 8. The language of the information


is   almost     identical to the language      of   the   statute     itself, Or. Rev. Stat. § 163. 208( 1),     and provides



no additional facts about Smith' s conduct except the name of the officer he assaulted and the date


of   the   offense.     The judgment and sentence establishes that Smith pleaded guilty to and was

convicted of       that   charge.
                                    Neither the judgment and sentence nor any other document includes

more specific facts about Smith' s actual criminal acts or mental state from which we could infer


that   his   conduct was       intentional   and,   thus,      would    have    violated   the Washington      statute.   These


facts merely establish that Smith acted knowingly ' and fail to establish that Smith acted

intentionally.




                                                                  6
No. 45753 -9 -II



        Therefore, because the information and judgment and sentence from Smith' s Oregon


conviction fail to establish that Smith assaulted a law enforcement officer in Oregon intentionally,

we hold that these statutes are not factually comparable.

                                        IV. REMEDY ON REMAND


        Because Smith' s Oregon conviction is not comparable to Washington' s third degree assault


statute, we must reverse his sentence and remand for resentencing. Smith argues that, on remand,

the sentencing      court should not   be   permitted   to   consider   the Oregon   assault conviction.   We


disagree.


        Under State     v.   Jones, 182 Wn.2d 1,    10 -11, 338 P. 3d 278 ( 2014),      a sentencing court is

permitted to consider new, permissible evidence on remand. We, therefore, reverse the trial court' s


sentence and remand for resentencing, permitting the State to provide additional relevant evidence

regarding Smith' s criminal history.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,


it is so ordered.




 We concur:




 MAXA




SUTTON, J.



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