PUBLISHED IN PART
Appeal from Clark Superior Court. Docket No: 10-1-01517-5. Date filed: 08/31/2011. Judge signing: Honorable John F Nichols.
Peter B. Tiller (of The Tiller Law Firm ), for appellant.
Anthony F. Golik, Prosecuting Attorney, and Anne M. Cruser, Deputy, for respondent.
AUTHOR: Jill M Johanson, J. We concur: Lisa Worswick, C.J., Linda CJ Lee, J.P.T.
[176 Wn.App. 966] ¶ 1 -- Charles Tewee appeals his first degree child molestation conviction following a jury trial and his sentence. Tewee argues that (1) the trial court improperly included Tewee's foreign conviction in calculating his offender score, (2) the police detective's testimony violated the " hue and cry" doctrine, (3) the trial court abused its discretion in admitting hearsay statements from the victim's counselor under the medical treatment exception in ER 803(a)(4), 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.
¶ 2 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 In the unpublished portion of this opinion we hold that (1) Tewee failed to preserve for review the " hue and cry" and medical treatment hearsay arguments, (2) credibility issues are for the jury, and (3) the State 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 resentencing.
COMPARABILITY OF OREGON CONVICTION UNDER FORMER OREGON REVISED STATUTE (ORS) SECTION 164.135 (2001)
¶ 3 In September 2010, the State charged Tewee with first degree child rape and first degree child molestation. [176 Wn.App. 967] 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 § 164.135, comparable to Washington's taking a motor vehicle without permission offense, and entered an exceptional sentence. Former RCW 9A.56.070(2)(a) (2002). Tewee appeals.
¶ 4 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.
I. Standard of Review
¶ 5 We review a sentencing court's calculation of an offender score de novo. State v. Mutch, 171 Wn.2d 646, 653, 254 P.3d 803 (2011). Where a defendant's criminal history includes out-of-state convictions, the court must classify the convictions " according to the comparable offense definitions and sentences provided by Washington law." RCW 9.94A.525(3);  State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999) (quoting State v. Wiley, 124 Wn.2d 679, 683, 880 [176 Wn.App. 968] P.2d 983 (1994)). We also review this comparability determination de novo. State v. Werneth, 147 Wn.App. 549, 552, 197 P.3d 1195 (2008).
¶ 6 We employ a two-part test to determine a foreign offense's comparability. State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007). First, we determine whether the foreign offense is legally comparable--whether the foreign offense's elements are substantially similar to the Washington offense's elements. Thiefault, 160 Wn.2d at 415. If so, the analysis stops here. But if the foreign offense's elements are broader or different than Washington's elements, precluding legal comparability, we determine whether the offense is factually comparable. Thiefault, 160 Wn.2d at 415. To do so, we determine whether the conduct underlying the foreign offense would have violated the comparable Washington statute. Thiefault, 160 Wn.2d 409, 415. In making our factual comparison, we may rely on facts in the foreign record that are admitted, stipulated to, or proved beyond a reasonable doubt. Thiefault, 160 Wn.2d at 415. We may review the defendant's conduct, as evidenced by the facts alleged in 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.2d 120 (1995).
¶ 7 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
without 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 ...