State v. Howe

212 P.3d 565

151 Wn. App. 338

STATE of Washington, Respondent, v. Kenneth Eugene HOWE, III, Appellant.

No. 37361-1-II.

Court of Appeals of Washington, Division 2.

July 21, 2009.

John A. Hays, Attorney at Law, Longview, WA, for Appellant.

Michael C. Kinnie, Attorney at Law, Vancouver, WA, for Respondent.

VAN DEREN, C.J.

¶ 1 Kenneth Howe appeals his convictions for two counts of failure to register as a sex offender, arguing that substantial evidence does not support his conviction. He argues that the State failed to prove that his prior California convictions for lewd acts on a child and for failure to register as a sex offender were comparable to any Washington sex offense.¹ We hold that the California convictions are not comparable to Washington sex offenses, thus, the State failed to prove an element of the crime of failure to register as a sex offender in Washington. We reverse, vacate the convictions, and remand for dismissal.

FACTS

¶ 2 The State charged Kenneth E. Howe, III, with two counts of failing to register as a sex offender. Count 1 was based on Howe's 2002 California conviction for lewd acts on a child. Count 2 was predicated on the fact that he had committed the felony of failing to register as a sex offender in California in 2004.

¶ 3 Howe refused to stipulate that the elements of the California sex offenses were comparable to Washington sex offenses. The trial court conducted a comparability analysis of the California lewd acts and failure to register convictions. After reading the California statutes into the record and comparing them with similar Washington statutes, the trial court concluded the California offenses were legally comparable to Washington sex offenses. Neither the State nor the trial court addressed the facts underlying the convictions as the second part of the comparability analysis.

¶ 4 The jury instructions required the jury to find, as an element of the offense, that Howe either had "previously been convicted of a sex offense"[²] to wit: "Lewd Conduct with a Child, as charged in Count 1" or "Failure to Register, as charged in Count 2."³ Clerk's Papers (CP) at 29, 30. The instructions further provided that "Lewd Acts Upon a Child" and "Failure to Register" are sex offenses. CP at 32, 33.

¶ 5 The jury returned a guilty verdict on both counts. The trial court sentenced Howe to two 24 month, concurrent sentences.

ANALYSIS

I. Comparability of California Offenses

¶ 6 Howe argues that the State failed to prove every element of the crime charged. Br. of Appellant at 9. In particular, he contends that the State "failed to prove that the two California convictions underlying the failure to register charges were, in fact, sex offenses under Washington law." Br. of Appellant at 10. We agree.

¶ 7 When facing a challenge to the sufficiency of the evidence — here, characterized as the State's failure to prove an element of the crime charged — we ask whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wash.2d 216, 221, 616 P.2d 628 (1980). The State has the burden of proving every element of the crime charged beyond a reasonable doubt. State v. Baeza, 100 Wash.2d 487, 488, 670 P.2d 646 (1983). The duty to register arises only after a conviction for a previous sex offense. Oostra v. Holstine, 86 Wash.App. 536, 544-45, 937 P.2d 195 (1997).

¶ 8 Under RCW 9A.44.130(1)(a),⁴ any person convicted of a sex offense must register with the sheriff of the county in which he resides. The definition of "sex offense" includes, "Any federal or out-of-state conviction for an offense that under the laws of this state would be classified as a sex offense under this subsection." RCW 9A.44.130(10)(a)(iv).

¶ 9 To determine whether an out-of-state conviction qualifies as a "sex offense," a trial court compares the out-of-state statute with comparable laws of this state. See State v. Morley, 134 Wash.2d 588, 605-06, 952 P.2d 167 (1998). This is a two step process, addressing both the legal definitions of the crimes and the facts underlying the convictions. First, the trial court must examine the elements of the out-of-state crime and compare them to the elements of the comparable Washington crime. Morley, 134 Wash.2d at 606, 952 P.2d 167; see also State v. Werneth, 147 Wash.App. 549, 554, 197 P.3d 1195 (2008). If the crimes have similar elements, the analysis is complete. Morley, 134 Wash.2d at 606, 952 P.2d 167. But, "[i]f the elements are not identical, or the foreign statute is broader than the Washington definition of the particular crime," then, as a second step, the trial court may examine the facts of the out-of-state crime "`as evidenced by the indictment or information.'" Morley, 134 Wash.2d at 606, 952 P.2d 167 (quoting State v. Mutch, 87 Wash.App. 433, 437, 942 P.2d 1018 (1997)); see also Werneth, 147 Wash.App. at 554-55, 197 P.3d 1195.

A. Waiver

¶ 10 Initially, the State contends that Howe failed to object to the trial court's comparability conclusions and, thus, cannot challenge them on appeal. The State raised the issue of comparability during trial. The State took the position that the California offenses are comparable to Washington sex offenses and asked "if [defense] counsel is prepared to stipulate that there is comparability on the elements of either of the two crimes from the state of California." Report of Proceedings (RP) at 346. Defense counsel responded that his client would not stipulate that the statutes are comparable. The trial court then conducted a comparability analysis limited to the legal elements of the California and Washington sex offenses on the record. It found them comparable.

¶ 11 At sentencing, Howe again refused to stipulate to comparability of the prior California convictions. He proceeded with his sentencing objections on the assumption that he previously presented a trial objection to the comparability analysis done by the trial court for the California sex offenses. He stated, "[T]he Court has already done a comparison of the out-of-state convictions to Washington felonies, and so I made my objection at trial to those things." RP at 433. The State did not argue that Howe had not presented such an objection at trial. Consequently, Howe did not waive any right to appeal the comparability issue.⁵

B. Comparability Analysis

1. Lewd Acts

¶ 12 Howe argues that his 2002 California conviction for violation of lewd acts upon a child⁶ is not legally comparable to second degree child molestation⁷ under Washington law. He contends that the California statute is broader because the physical touching it requires "need not be of the sexual or intimate parts and it need not be inherently sexual in nature." Br. of Appellant at 17. In contrast, the Washington statute requires the touching of "sexual or other intimate parts." Br. of Appellant at 18 (quoting RCW 9A.44.010(2). The State responds that the recent case of State v. Jackson, 145 Wash.App. 814, 187 P.3d 321 (2008)), demonstrates that the Washington statute is as broad as the California statute. We disagree.

¶ 13 In Jackson, the court analyzed whether ejaculation onto a victim constitutes "touching," under RCW 9A.44.010(2). 145 Wash.App. at 822-23, 187 P.3d 321. The opinion also briefly discussed the definition of "intimate parts of a person." RCW 9A.44.010(2). First the court noted that the body parts can be either clothed or unclothed. Jackson, 145 Wash.App. at 819, 187 P.3d 321. It then stated:

Contact is "intimate" within the meaning of the statute if the conduct is of such a nature that a person of common intelligence could fairly be expected to know that, under the circumstances, the parts touched were intimate and therefore the touching was improper. Which anatomical areas, apart from genitalia and breast, are "intimate" is a question for the trier of fact.

Jackson, 145 Wash.App. at 819, 187 P.3d 321 (footnotes omitted). In State v. R.P., 67 Wash.App. 663, 668-69, 838 P.2d 701 (1992), aff'd in part, rev'd in part, 122 Wash.2d 735, 862 P.2d 127 (1993), Division One of this court discussed the definition of "intimate." It stated, "[T]he phrase `intimate parts' must refer to parts of the human body commonly associated with sexual intimacy." R.P., 67 Wash.App. at 668-69, 838 P.2d 701. Our Supreme Court affirmed in part, reversed in part because kissing of the victim's neck was not considered sexual contact sufficient to support an indecent liberties conviction and clarified that the term "intimate parts" does not mean every body part. R.P., 122 Wash.2d at 736, 862 P.2d 127.

¶ 14 In In re Welfare of Adams, 24 Wash. App. 517, 521, 601 P.2d 995 (1979), we said, "The statute is directed to protecting the parts of the body in close proximity to the primary erogenous areas which a reasonable person could deem private with respect to salacious touching by another." In addition, in State v. Marcum, 61 Wash.App. 611, 612 n. 1, 811 P.2d 963 (1991), we noted that evidence of kissing a minor's cheeks and touching his face was insufficient to support a first degree child molestation conviction.

¶ 15 In contrast, in California, touching of any body part appears to satisfy the statutory requirements, so long as it was done with the requisite "intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." Cal.Penal Code § 288(a). Specifically:

According to the California Supreme Court, a lewd act for purposes of section 288 requires "a touching of the body of a child under the age of 14, with the specific intent of arousing, appealing to, or gratifying the lust of the child or the accused. [Citations.] Touching of a sexual organ is not required." (People v. Raley (1992) 2 Cal.4th 870, 907, 8 Cal.Rptr.2d 678, 830 P.2d 712, italics added; see also People v. Gilbert (1992) 5 Cal.App.4th 1372, 1380, 7...