Opinion
65943-0-I
02-13-2012
STATE OF WASHINGTON, Respondent, v. ELIJAH K. VINCENT, Appellant.
UNPUBLISHED
COX, J.
Elijah Vincent appeals his judgment and sentence for failure to register as a sex offender. He argues that there is insufficient evidence to support his conviction. We hold that the Hawaii first degree sexual assault statute, which a Hawaii court convicted Vincent of violating beyond a reasonable doubt, is legally comparable to elements of Washington statutes of first degree or second degree rape. Accordingly, we affirm.
Brief of Appellant at 1.
In 2007, the Hawaii Family Court convicted Vincent of one count of first degree sexual assault and other crimes not relevant to the analysis in this appeal. Because of these convictions, Vincent registered as a convicted sex offender when he moved to Washington. He changed addresses within the state four times and re-registered each time he moved. On his fifth move in November 2009, he failed to register. Vincent's step-father notified the Snohomish County Sheriff's Department that Vincent had not re-registered.
The State charged Vincent with failure to register as a sex offender. At a bench trial, Vincent argued that Hawaii's first degree sexual assault statute was not comparable to Washington's first or second degree rape statute because it was broader. The trial court disagreed, concluding that the statutes were legally comparable. Thus, the trial court did not determine whether they were factually comparable.
Thereafter, Vincent proceeded with a stipulated facts trial, and the court found him guilty as charged. Vincent appeals.
COMPARABILITY OF STATUTES
Vincent argues that there is insufficient evidence to support his failure to register as a sex offender in Washington. More specifically, he claims that the Hawaii first degree sexual assault statute is broader than Washington's and is not legally comparable. Accordingly, he claims the State was required to prove factual comparability and that it failed to present sufficient evidence to do so.We hold that the Hawaii statute and relevant Washington statutes are comparable. Thus, there is no need to address factual comparability.
Brief of Appellant at 4.
Where an individual's failure to register rests on a prior foreign conviction, the court must engage in a comparability analysis to determine whether the out-of-state crime is comparable to one in Washington. The court employs a two- part test to determine the comparability of the foreign offense.
State v. Morley, 134 Wn.2d 588, 605-06, 952 P.2d 167 (1998); In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005); State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007).
Morley, 134 Wn.2d at 605-06.
In the first step, the court must examine the elements of the out-of-state statute. "A court must first query whether the foreign offense is legally comparable-that is, whether the elements of the foreign offense are substantially similar to the elements of the Washington offense." If the elements of the foreign offense are broader, the 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. If the elements of the foreign offense are not broader, but rather have "similar elements, the analysis is complete" and, there is no need for the court to determine whether the offense is factually comparable.
Id.
Thiefault, 160 Wn.2d at 415.
Morley, 134 Wn.2d at 606; Thiefault, 160 Wn.2d at 415.
State v. Howe, 151 Wn.App. 338, 344, 212 P.3d 565 (2009) (citing Morley, 134 Wn.2d at 606).
Here, the threshold legal question is whether the Hawaii first degree sexual assault crime is comparable to any Washington crime. First degree sexual assault is defined by Haw. Rev. Stat. § 707-730:
A person commits the offense of sexual assault in the first degree if:
(a) The person knowingly subjects another person to an act of sexual penetration by strong compulsion;
(b) The person knowingly engages in sexual penetration with another person who is less than fourteen years old;
(Emphasis added.)
Haw. Rev. Stat. § 707-700 defines "strong compulsion" as:
the use of or attempt to use one or more of the following to overcome a person:
(1)A threat, express or implied, that places a person in fear of bodily injury to the individual or another person, or in fear that the person or another person will be kidnapped;
(2)A dangerous instrument; or
(3)Physical force.
The State argues that there are two Washington statutes, first and second degree rape, that are comparable to the Hawaii statute. RCW 9A.44.050 defines one of several alternatives of second degree rape as:
(1) A person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, the person engages in sexual intercourse with another person:
(a) By forcible compulsion;
RCW 9A.44.040 defines first degree rape, in part, as:
(1) A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory:
(a) Uses or threatens to use a deadly weapon or what appears to be a deadly weapon. Both first and second degree rape requires "forcible compulsion." RCW 9A.44.010 defines "forcible compulsion" as: physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.
(Emphasis added.)
There is no dispute here that "sexual intercourse, " as defined in Washington, is substantially the same as Hawaii's definition of "sexual penetration." Thus, the respective statutes are comparable to this extent.
Under RCW 9A.44.010, "sexual intercourse"
Vincent's challenge centers on the question whether "strong compulsion, " under Hawaii law, is comparable to "forcible compulsion, " under Washington law. We conclude that it is.
Haw. Rev. Stat. § 707-700(1) defines "strong compulsion" as "[a] threat, express or implied, that places a person in fear of bodily injury to the individual or another person, or in fear that the person or another person will be kidnapped." This definition is substantially the same and, thus, comparable to the second part of the Washington definition of forcible compulsion.
The second part of RCW 9A.44.010 defines forcible compulsion as: "a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped."
Similarly, Haw. Rev. Stat. § 707-700(3) also defines "strong compulsion" as "the use or attempt to use [physical force, among other alternatives, ] to overcome a person." That is substantially the same and, thus, comparable to the first part of the Washington definition of forcible compulsion.
The first part of RCW 9A.44.010 defines forcible compulsion as: "physical force which overcomes resistance . . . ."
Because Haw. Rev. Stat. § 707-700(2) also defines "strong compulsion" as the use or attempt to use "a dangerous instrument" to overcome a person, we must next determine the effect of this additional definition on the comparability analysis.
This second definition is not included in Washington's second degree rape statute. But, RCW 9A.44.040 defines first degree rape as engaging in sexual intercourse "with another person by forcible compulsion where the perpetrator or an accessory: (a) Uses or threatens to use a deadly weapon or what appears to be a deadly weapon . . . ." The Washington definition of a "deadly weapon" and Hawaii's definition of a "dangerous instrument" are substantially the same. Thus, if an offender violates Haw. Rev. Stat. § 707-730 by use of a dangerous instrument, the crime would be comparable to first degree rape in Washington. Consequently, Vincent's first degree sexual assault conviction in Hawaii is legally comparable to either Washington's first or second degree rape statutes.
(Emphasis added.)
Under RCW 9A.04.110, a "deadly weapon" is defined as "any explosive or loaded or unloaded firearm, and shall include any other weapon, device, instrument, article, or substance, including a 'vehicle' as defined in this section, which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm. . . ." "Dangerous instrument" under Haw. Rev. Stat. § 707-700 is defined as "any firearm, whether loaded or not, and whether operable or not, or other weapon, device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury."
Vincent argues that the Hawaii first degree sexual assault statute is broader than Washington's statute because the definition of strong compulsion is broader than that of forcible compulsion. We disagree. Under Haw. Rev. Stat. § 707-700, first degree sexual assault requires strong compulsion, which can be achieved through the use of a "dangerous instrument[, ]" and first degree rape is achieved through use of a deadly weapon. Consequently, Haw. Rev. Stat. § 707-730 is comparable to either Washington's first degree rape statute or second degree rape statute.
Brief of Appellant at 4.
Vincent also appears to argue that there is insufficient evidence of the Hawaii conviction for first degree sexual assault. Specifically, he contends there is no evidence that he admitted to any alleged facts when he plead guilty, nor that a trial was actually conducted. We disagree and hold that there is sufficient evidence of the Hawaii conviction to support Vincent's Washington conviction for failure to register.
Evidence is sufficient to support a conviction if, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime.
State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
Here, the record contains a "Decree re: Law Violation Petitions" issued by The First Circuit Family Court in Hawaii. It reads:
This matter was heard in this court on January 2, 2007 and an inquiry was made into the validity of the allegation(s) purporting to bring the minor within the court's jurisdiction.
After full consideration of the admitted evidence the Court finds that the material allegations of the petition(s) have been proved beyond a reasonable doubt and that the minor is a law violator within the purview of [Haw. Rev. Stat.] Section 571-11(1).
Clerk's Papers at 67.
This document plainly states that the court found "beyond a reasonable doubt' that Vincent violated Haw. Rev. Stat. 571-11(1) (the Hawaiian statute providing the state's courts jurisdiction over juveniles). Further, above the quoted statement, the Decree lists the crimes Vincent was found to have violated, including a reference to "SxAsslt1." This document provides sufficient evidence to support Vincent's conviction.
To summarize, the Hawaii offense of first degree sexual assault is legally comparable to first or second degree rape in Washington. Accordingly, factual comparability is not at issue. And, there is sufficient evidence of the Hawaii conviction to support Vincent's Washington conviction for failure to register as a sex offender.
We affirm the judgment and sentence.
(a) has its ordinary meaning and occurs upon any penetration, however slight, and
(b) Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes, and
(c) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.
Under Haw. Rev. Stat. §707-700, "sexual penetration" means:
(1) Vaginal intercourse, anal intercourse, fellatio, deviate sexual intercourse, or any intrusion of any part of a person's body or of any object into the genital or anal opening of another person's body; it occurs upon any penetration, however slight, but emission is not required. As used in this definition, "genital opening" includes the anterior surface of the vulva or labia majora; or
(2) Cunnilingus or anilingus, whether or not actual penetration has occurred.