[No. 30578-0-II. Division Two. February 23, 2005.]
THE STATE OF WASHINGTON , Respondent , v. RYAN LEE WININGS , Appellant .
[1] Indictment and Information - Sufficiency - Notice of Charge - Essential Elements - Necessity. A charging document must state the essential elements of the crime charged in order to apprise the defendant of the nature of the charge so that the defendant can prepare an adequate defense.
[2] Indictment and Information - Sufficiency - Review - Failure To Raise in Trial Court - Standard of Review. When a challenge to a charging document is raised for the first time on appeal, the reviewing court will liberally construe the document in favor of validity. Under a liberal reading, a charging document challenged for the first time on appeal is constitutionally adequate if, by fair implication, it can be construed to give notice of all the essential elements of the crime it purports to charge. The test for sufficiency is (1) whether the necessary facts of the offense sought to be charged appear in any form or, by fair construction, can be found in the charging document and, if so, (2) whether the defendant was actually prejudiced by the inartful language that caused a lack of notice.
[3] Indictment and Information - Sufficiency - Vagueness - Remedy - Bill of Particulars - Failure To Request - Waiver. A charging document that states each statutory element of a crime but is vague as to some other significant matter may be corrected by a bill of particulars. A criminal defendant waives the right to challenge a charging document for vagueness on appeal by failing to request a bill of particulars at trial.
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[4] Indictment and Information - Sufficiency - Factual Sufficiency - In General. A charging document must adequately identify the crime charged and allege sufficient facts to support each element of the crime; a charging document need not allege facts beyond those that sufficiently support the elements of the crime or describe the facts with great specificity.
[5] Assault, Criminal - Second Degree Assault - With Deadly Weapon - Information - Sufficiency - Liberal Construction. Under the liberal construction standard, a charging document stating that the defendant assaulted another with a deadly weapon, that the defendant's actions violate RCW 9A.36.021 and constitute a class B felony, and that the incident occurred on or about a particular date in a particular county sets forth sufficient facts to charge the crime of second degree assault with a deadly weapon. The information is not necessarily required to state the victim, the weapon used, or the manner in which the accused used the weapon.
[6] Trial - Instructions - Proposed Instructions - Refusal - Review - Standard of Review. A trial court's refusal to give a proposed jury instruction is reviewed for an abuse of discretion.
[7] Trial - Instructions - Review - Error of Law - Standard of Review. Alleged errors of law in jury instructions are reviewed de novo.
[8] Trial - Instructions - Sufficiency - Test. Jury instructions are proper when they permit the parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of the applicable law.
[9] Criminal Law - Crimes - Degrees of Crime - Inferior Degree - Instruction - Necessity - Test. A criminal defendant is not entitled to an instruction on an uncharged inferior degree of a charged offense unless (1) the statutes for both offenses define the same offense, (2) the charged offense is divided into degrees and the uncharged offense is an inferior degree of the charged offense, and (3) the evidence in the case affirmatively supports a rational inference that only the inferior degree offense was committed to the exclusion of the charged offense.
[10] Criminal Law - Weapon - Deadly Weapon - What Constitutes - Statutory Definition - Categories. RCW 9A.04.110 (6) creates two categories of deadly weapons: (1) any explosive or loaded or unloaded firearm, which is deadly per se, and (2) any item that, under the circumstances in which it is used, is readily capable of causing death or substantial bodily harm.[11] Criminal Law - Weapon - Deadly Weapon - What Constitutes - Per Se Deadly Weapons - Sword. A sword is not a deadly weapon per se under RCW 9A.04.110 (6), which defines a
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"deadly weapon," in part, as "any explosive or loaded or unloaded firearm."
[12] Criminal Law - Weapon - Deadly Weapon - What Constitutes - Statutory Definition - "Circumstances". For purposes of RCW 9A.04.110 (6), which defines a "deadly weapon" as any item that, under the circumstances in which it is used, is readily capable of causing death or substantial bodily harm, "circumstances" include the intent and present ability of the user, the degree of force, the part of the body to which it was applied, and the physical injuries inflicted.
[13] Appeal - Disposition of Cause - Affirmance on Other Grounds - In General. An appellate court may sustain a trial court on any correct ground, even though that ground was not considered by the trial court.
[14] Criminal Law - Weapon - Deadly Weapon - What Constitutes - Sword - Circumstances of Use. A sword that an extremely intoxicated person grabs and flails around in a menacing manner and uses to stab another person in the foot is a deadly weapon within the meaning of RCW 9A.04.110 (6).
[15] Criminal Law - Trial - Instructions - Invited Error - Requested Instruction - Constitutional Deficiency. Under the doctrine of invited error, an appellate court is precluded from reviewing an instruction, even where constitutional rights are involved, if the defendant proposed the instruction or agreed to its wording.
[16] Criminal Law - Crimes - Alternative Means of Committing Offense - Source - Definitions - Definitional Instructions. Definitional instructions do not create alternative means of committing an offense on which jurors must unanimously agree before they may find a defendant guilty of the offense.
[17] Assault, Criminal - Elements - Three Definitions - Alternative Means of Committing Offense. The three definitions of assault recognized in this jurisdiction do not create alternative means of committing criminal assault. The three kinds are (1) an attempt, with unlawful force, to inflict bodily injury upon another (attempted battery); (2) an unlawful touching with criminal intent (battery); and (3) putting another in apprehension of harm whether or not the actor actually intends to inflict or is capable of inflicting that harm (common law assault).
[18] Trial - Instructions - Comment on Evidence - Correct Statement of Law. An instruction that correctly states the law and is pertinent to the issues raised in the case does not constitute a comment on the evidence as prohibited by Const. art. IV, § 16.[19] Criminal Law - Weapon - Deadly Weapon - What Constitutes - Element of Crime and Special Allegation - Instruc
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tions - Comment on Evidence. In the trial of a defendant charged with a crime requiring proof of use of a deadly weapon and with being armed with a deadly weapon for sentence enhancement purposes, the court does not impermissibly comment on the evidence by instructing the jury that "deadly weapon" means "any weapon which under the circumstances in which it is used is readily capable of causing death or substantial bodily injury" and that "for purposes of a special verdict, a deadly weapon is any knife having a blade longer than three inches." The instructions do not suggest that the jury should find that the use of a weapon having a blade longer than three inches is a deadly weapon per se for purposes of finding the defendant guilty of the crime charged. The instructions correctly state the law and inform the jury that it should find that the weapon was a deadly weapon per se only for purposes of the special verdict.
[20] Criminal Law - Review - Issues Not Raised in Trial Court - Sentence - Erroneous Offender Score. A criminal defendant's claim that the trial court misapplied the law in calculating the defendant's offender score for sentencing purposes may be raised for the first time on appeal.
[21] Criminal Law - Punishment - Sentence - Criminal History - Offender Score - Review - Standard of Review. A trial court's calculation of a criminal defendant's offender score is reviewed de novo.
[22] Criminal Law - Punishment - Sentence - Criminal History - Prior Convictions - Proof - Degree of Proof. A prior conviction may be counted as part of an offender's criminal history for sentencing purposes if the State proves the existence of the conviction by a preponderance of the evidence.
[23] Criminal Law - Punishment - Sentence - Criminal History - Foreign Offenses - Proof - Certified Copy of Judgment - Document of Record. For purposes of calculating a defendant's offender score, the existence of a prior foreign conviction may be proved by a certified copy of the judgment or by comparable documents of record or transcripts of prior proceedings.
[24] Criminal Law - Punishment - Sentence - Criminal History - Foreign Offenses - Statutory Provisions - Purpose. RCW 9.94A.525 (3), which provides that out-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law, is intended to give an out-of-state conviction the same effect as if it had been rendered in-state or to treat a person convicted outside of the state as if he or she had been convicted in Washington.[25] Criminal Law - Punishment - Sentence - Criminal History - Foreign Offenses - Classification - Procedure. For purposes of calculating a criminal defendant's offender score, a prior felony conviction from another jurisdiction is classified by (1) iden
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tifying whether there is a comparable offense in Washington, (2) classifying the comparable offense in Washington, and (3) treating the out-of-state conviction as if it were a conviction for the comparable offense in Washington. In identifying the comparable offense in Washington, a court compares the elements of the out-of-state crime with the elements of potentially comparable offenses in Washington. In classifying the comparable offense in Washington, a court asks whether it is a felony under the laws of this state, and if so, whether it is an A, B, or C felony.
[26] Criminal Law - Punishment - Sentence - Criminal History - Foreign Offenses - Classification - Stipulation - Acknowledgment - Effect. When a criminal defendant stipulates to or affirmatively acknowledges the State's classification of the defendant's prior out-of-state conviction as a felony under the laws of this state, the trial court may include the prior out-of-state conviction in the calculation of the defendant's offender score for sentencing purposes without requiring the State to prove that the conviction would be classified as a felony under the laws of this state.
[27] Criminal Law - Punishment - Sentence - Criminal History - Foreign Offenses - Classification - Burglary of Inhabited Dwelling House - Comparability to Residential Burglary. For purposes of calculating a criminal defendant's offender score, a foreign conviction of burglary that the foreign jurisdiction defines as "willfully and unlawfully entering an inhabited dwelling house with the intent to commit larceny and any felony" is comparable to the offense of residential burglary under RCW 9A.52.025 , which is a class B felony.
[28] Criminal Law - Punishment - Sentence - Criminal History - Foreign Offenses - Classification - Possession of Controlled Substance - Comparability to Possession of Controlled Substance. For purposes of calculating a criminal defendant's offender score, a foreign conviction of possession of a controlled substance that the foreign jurisdiction defines as "willfully and unlawfully having in his or her possession a controlled substance, to wit: cocaine" is comparable to the offense of unlawful possession of a controlled substance under RCW 69.50.4013 , which is a class C felony.
[29] Criminal Law - Punishment - Sentence - Criminal History - Foreign Offenses - Classification - Possession of Controlled Substance for Sale - Comparability to Possession of Controlled Substance With Intent To Deliver. For purposes of calculating a criminal defendant's offender score, a foreign conviction of possession of a controlled substance for sale that the foreign jurisdiction defines as "willfully and unlawfully possessing for sale and purchasing for sale a controlled substance, to wit: cocaine" is comparable to the offense of unlawful possession of a controlled substance with intent to deliver under RCW 69.50.401 (1), which, with respect to cocaine, is a class B felony.
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[30] Criminal Law - Punishment - Sentence - Criminal History - "Wash Out" of Convictions - Statutory Provisions - Amendment - 2002 Amendment. Under RCW 9.94A.525 and RCW 9.94A.030 , as amended by Laws of 2002, ch. 107, a trial court sentencing a defendant for an offense committed on or after June 13, 2002 must include in the defendant's offender score calculation the defendant's prior felony convictions that would have "washed out" for sentencing purposes under the former versions of the statutes.
Nature of Action: Prosecution for second degree assault while armed with a deadly weapon.
Superior Court: The Superior Court for Clallam County, No. 03-1-00123-5, Kenneth D. Williams, J., on June 20, 2003, entered a judgment on a verdict of guilty and a special verdict finding that the defendant was armed with a deadly weapon at the time of the assault.
Court of Appeals: Holding that the charging document was factually sufficient, that the trial court properly denied the defendant's request for a jury instruction on the lesser degree offense of fourth degree assault, that the jury instructions were sufficient and did not constitute an improper comment on the evidence, and that the trial court properly calculated the defendant's offender score, the court affirms the judgment.
Jodi R. Backlund (of Backlund & Mistry ), for appellant .
Deborah S. Kelly , Prosecuting Attorney, and Cheryl Taylor , Deputy, for respondent .
¶1 BRIDGEWATER , J . - Ryan Lee Winings appeals his conviction of second degree assault while armed with a deadly weapon. We affirm.
¶2 On March 24, 2003, Daniel Warner went to Tracy Neitzel's residence to show him a sword that his employer had given him. Several people were present at the residence
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when Mr. Warner arrived, including Ryan Winings. Some of the guests were drinking, and Winings was heavily intoxicated. At trial, Neitzel testified that Winings had been on a "3-day drunk." 3 Report of Proceedings (RP) (June 25, 2003) at 60.
¶3 Mr. Warner was showing the sword to his friends, when Winings grabbed the sword out of his hands and pulled it out of its sheath. Winings began swinging the sword in the air. Mr. Warner testified that he initially believed that Winings was just "playing around," but things "got a little out of hand" when Winings began poking him in the chest with the sword. 3 RP at 24, 33. Mr. Warner said, " 'ow' that hurts," and then Winings stabbed Mr. Warner in the foot with the sword. 3 RP at 25. The sword cut a hole into Mr. Warner's leather shoe. Mr. Warner was not seriously injured, but he received a small cut on his toe. He testified that during the incident, he believed that his life was in danger. He felt "uneasy" and ran out of the house. 3 RP at 26. Mr. Warner did not seek medical attention for his foot.
¶4 Winings was charged with second degree assault while armed with a deadly weapon. The information states:
In the County of Clallam, State of Washington, on or about the 24th day of March, 2003, the Defendant did assault another with a deadly weapon; in violation of RCW 9A.36.021 , a Class B felony.
Clerk's Papers (CP) at 78.
¶5 Winings was tried before a jury on June 25, 2003. During the trial, Winings requested that the court give a jury instruction on the lesser degree offense of fourth degree assault. The court denied his request, stating that courts need only instruct the jury as to a lesser degree offense where the evidence supports a finding that only the lesser degree offense was committed. The court found that the sword was a deadly weapon per se because its blade was longer than three inches and, thus, the evidence did not support any finding that only fourth degree assault was committed. Winings objected to the court's ruling.
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¶6 In addition, the court gave the following instructions:
No. 6
An assault is an intentional touching or striking or cutting of another person that is harmful or offensive regardless of whether any physical injury is done to the person. A touching or striking or cutting is offensive, if the touching or striking or cutting would offend an ordinary person who is not unduly sensitive.
An assault is also an act done with intent to inflict bodily injury upon another, tending, but failing to accomplish it, and accompanied with the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted.
An assault is an act done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.
CP at 26.
No. 7
Deadly weapon means any weapon, device, instrument, substance or article 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 injury.
CP at 27.
No. 12
For purposes of a special verdict the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of the commission of the crime.
A deadly weapon for purposes of the special verdict is an implement or instrument which has the capacity to inflict death and from the manner in which it is used, is likely to produce or may easily and readily produce death. The following instruments are examples of deadly weapons: blackjack, sling shot, metal knuckles, any dirk, dagger, pistol, revolver or any other firearm, any knife having a blade longer than three inches, any razor with an unguarded blade, and any metal pipe or bar used or intended to be used as a club.
CP at 32.
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¶7 The jury convicted Winings as charged and returned a special verdict finding that he was armed with a deadly weapon at the time of the assault. At sentencing, the State offered evidence that Winings had five prior California felony convictions from 1992. These offenses include three felony first degree burglary convictions for unlawfully entering a dwelling with intent to commit larceny and any other felony, one conviction for felony possession of a controlled substance - cocaine for sale, and one conviction for felony possession of a controlled substance - cocaine. Winings pleaded guilty to each of these offenses. The State submitted what appear to be certified copies of the minute orders,1 Winings' guilty pleas, and the charging documents identifying the crimes Winings had been charged with and their elements. Additionally, the State submitted an abstract of judgment, which shows that Winings was convicted of three counts of first degree burglary and possession of a controlled substance and his sentence. These documents were not offered as exhibits, but were presented to the court at the time of sentencing.2
¶8 Winings objected to the use of his guilty plea to felony possession of a controlled substance for sale in calculating his offender score because he believed it was part of his plea bargain with regard to the simple possession charge. As such, he argued that his offender score should be four. The court denied his objection, and held that the State had sufficiently proved the conviction. Winings raised no other objections to the use of his California convictions. The court determined that Winings had an offender score of five and sentenced him to 34 months, the low end of the standard range.
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I. Information
¶9 Winings first contends that the information is factually deficient because it failed to identify the victim, the weapon used, or the circumstances that made the "weapon deadly." Br. of Appellant at 15. Winings is in error.
[1, 2]¶10 A charging document must contain " '[a]ll essential elements of a crime' " so as to give the defendant notice of the charges and allow the defendant to prepare a defense. State v. Tresenriter , 101 Wn. App. 486 , 491, 4 P.3d 145 (2000) (quoting State v. Kjorsvik , 117 Wn.2d 93 , 97, 812 P.2d 86 (1991)). When, as here, the defendant challenges the charging document for the first time on appeal, we liberally construe the document in favor of validity. Tresenriter , 101 Wn. App. at 491 . Under the liberal construction rule, if an apparently missing element may be fairly implied from language within the charging document, we will uphold the charging document on appeal. Tresenriter , 101 Wn. App. at 491 . The test is: " '(1) do the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice?' " Tresenriter , 101 Wn. App. at 491 (quoting Kjorsvik , 117 Wn.2d at 105 -06).
[3]¶11 We distinguish between charging documents that are constitutionally deficient - i.e., documents that fail to allege sufficient facts supporting each element of the crime charged - and those that are merely vague. State v. Leach , 113 Wn.2d 679 , 686, 782 P.2d 552 (1989). A charging document that states each statutory element of a crime, but is vague as to some other significant matter, may be corrected under a bill of particulars. Leach , 113 Wn.2d at 687 . A defendant may not challenge a charging document for "vagueness" on appeal if he or she failed to request a bill of particulars at trial. Leach , 113 Wn.2d at 687 .
¶12 In this case, Winings was charged with second degree assault while armed with a deadly weapon in
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violation of RCW 9A.36.021 , which provides in relevant part:
(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:
. . . .
(c) Assaults another with a deadly weapon .
RCW 9A.36.021 (1)(c) (emphasis added).
¶13 Winings concedes that the information includes each essential legal element of the charge of second degree assault while armed with a deadly weapon. But he argues that Leach imposes two requirements for a valid charging document: a defendant must be notified of both the legal elements of the offense and the essential facts supporting those elements. Because the information does not state the victim, the weapon used, or the manner in which Winings used the weapon, he contends that the information fails to allege all of the essential facts supporting every element of second degree assault and is thereby defective.
[4, 5]¶14 Leach requires only that the charging instrument allege "sufficient facts to support every element of the crime charged" - it does not impose any additional requirement that the State allege facts beyond those that sufficiently support the elements of the crime charged or that the State describe the facts with great specificity.3 Leach , 113 Wn.2d at 688 . Construed liberally, the information
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sufficiently lists facts supporting each element of second degree assault with a deadly weapon. It alleges that Winings assaulted another with a deadly weapon, that his actions violated RCW 9A.36.021 and constituted a class B felony,4 and that the incident occurred on or about March 24, 2003, in Clallam County. The information is not constitutionally deficient. And although it may be vague, Winings failed to request a bill of particulars and may not now raise this issue on appeal.
II. Jury Instructions
[6-8]¶15 Winings next challenges the trial court's jury instructions. We review a trial court's refusal to give a proposed jury instruction for an abuse of discretion. State v. Picard , 90 Wn. App. 890 , 902, 954 P.2d 336, review denied , 136 Wn.2d 1021 (1998). But we review de novo alleged errors of law in jury instructions. Del Rosario v. Del Rosario , 152 Wn.2d 375 , 382, 97 P.3d 11 (2004). Jury instructions are proper when they permit the parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of the applicable law. Del Rosario , 97 P.3d at 382.
A. Lesser Degree Offense
¶16 Winings contends that the trial court improperly denied his request for a jury instruction on the lesser degree offense of fourth degree assault.
[9]¶17 An instruction on an inferior degree offense is warranted where: (1) the statutes for both the charged offense and the proposed inferior degree offense proscribe but one offense; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior
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offense. State v. Fernandez-Medina , 141 Wn.2d 448 , 454, 6 P.3d 1150 (2000). Winings challenges only the third prong of this test.
¶18 Fourth degree assault requires proof that, under circumstances not amounting to first, second, or third degree assault, or custodial assault, the defendant assaults another. RCW 9A.36.041 (1). Thus, we must determine whether "substantial evidence in the record supports a rational inference that [Winings] committed only the . . . inferior degree offense [of fourth degree assault] to the exclusion of the greater offense [of second degree assault]." Fernandez-Medina , 141 Wn.2d at 461 (emphasis added). Put another way, the record must support an inference that the assault was only committed with a nondeadly weapon .
[10]¶19 A "[d]eadly weapon" is any explosive or loaded or unloaded firearm, and includes any other weapon, device, instrument, article, or substance, including a "vehicle" as defined in RCW 9A.04.110 , 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. RCW 9A.04.110 (6). This provision creates two categories of deadly weapons. State v. Taylor , 97 Wn. App. 123 , 126, 982 P.2d 687 (1999). The first includes explosives or firearms, which are deadly per se. Taylor , 97 Wn. App. at 126 . The second category includes any other weapon that is readily capable of causing death or substantial bodily harm under the circumstances in which it is used. Taylor , 97 Wn. App. at 126 . "Substantial bodily harm" means bodily injury that involves a temporary but substantial disfigurement, or which causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part. RCW 9A.04.110 (4)(b).
[11-13]¶20 Winings correctly asserts that the trial court erred in finding that the sword used to commit the crime was a deadly weapon per se under RCW 9.94A.602 because its blade was longer than three inches. It is
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apparent that in making its ruling, the court incorrectly relied upon the definition of "deadly weapon" from RCW 9.94A.602 , the deadly weapon enhancement statute.5 A sword is neither an explosive nor a firearm and thus is not a deadly weapon per se under RCW 9A.04.110 (6).6 Nevertheless, this court may consider whether the sword was readily capable of causing death or substantial bodily harm under the circumstances in which it was used by Winings.7 The circumstances of a weapon's use include the intent and present ability of the use, the degree of force, the part of the body to which it was applied, and the physical injuries inflicted. State v. Shilling , 77 Wn. App. 166 , 171, 889 P.2d 948, review denied , 127 Wn.2d 1006 (1995).
[14]¶21 Here, the record does not support any rational inference that the assault was committed only with a nondeadly weapon. Winings was extremely intoxicated and had been on a "3-day drunk." 3 RP at 60. He grabbed Mr. Warner's sword from him, flailed it around in the air, and then used it to stab Mr. Warner in the foot. Winings argues that this evidence supports an inference that only fourth degree assault was committed (and that the sword was not a deadly weapon) because his present abilities were unclear, the degree of force used was minimal, and Mr. Warner was only injured slightly and did not seek medical assistance. This argument is without merit. Although Mr. Warner was not seriously injured, the evidence clearly
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shows that, as used, the sword was a deadly weapon readily capable of causing substantial bodily harm. The degree of force used was great enough to cut a hole through a leather shoe, and had Mr. Warner been wearing no socks and different shoes, perhaps ones in which his toes were exposed, or had the sword landed in a slightly different manner, the sword easily could have seriously injured his toe or even severed it. Winings was not entitled to the lesser degree offense instruction.
B. Alternative Means
[15]¶22 In addition, Winings asserts that his conviction must be reversed because the jury was instructed on each alternative means of committing assault, and one of these means - attempted battery - was not supported by sufficient evidence. But he proposed a nearly identical instruction defining assault, which states "[a]n assault is also an act . . . done with intent to inflict bodily injury upon another, tending, but failing to accomplish it." CP at 55. Under the doctrine of invited error, even where constitutional rights are involved, we are precluded from reviewing jury instructions when the defendant has proposed an instruction or agreed to its wording. State v. Bradley , 141 Wn.2d 731 , 736, 10 P.3d 358 (2000); In re Det. of Gaff , 90 Wn. App. 834 , 845, 954 P.2d 943 (1998). Moreover, even if this court considers his claims, they fail.
[16, 17]¶23 Three definitions of assault are recognized in Washington: (1) an attempt, with unlawful force, to inflict bodily injury upon another (attempted battery); (2) an unlawful touching with criminal intent (battery); and (3) putting another in apprehension of harm whether or not the actor intends to inflict or is capable of inflicting that harm (common law assault). State v. Nicholson , 119 Wn. App. 855 , 860, 84 P.3d 877 (2003). Because definitional instructions do not create alternative means of committing the crime, necessitating jury unanimity, Winings' argument fails. State v. Linehan , 147 Wn.2d 638 , 648-49, 56 P.3d 542
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(2002), cert. denied , 538 U.S. 945 (2003); State v. Marko , 107 Wn. App. 215 , 219-20, 27 P.3d 228 (2001).8
C. Comment on the Evidence
¶24 Winings also contends that the trial court improperly commented on the evidence. Specifically, he argues that by instructing the jury regarding the definition of "deadly weapon" pursuant to RCW 9A.04.110 (6) in instruction 7 and the definition of "deadly weapon" under the deadly weapon enhancement statute in instruction 12, the trial court effectively "comment[ed] on the evidence by suggesting that the sword here was a per se deadly weapon, regardless of its use." Br. of Appellant at 26. He further argues that the court should have bifurcated the trial or at least explained to the jury that the enhancement definition should not influence its decision as to Winings' guilt. This argument is meritless.
[18]¶25 The Washington Constitution forbids a judge from conveying to a jury the court's opinion about the merits or facts of a case. WASH. CONST . art. IV, § 16. But an instruction that states the law correctly and is pertinent to the issues raised in the case does not constitute a comment on the evidence. State v. Johnson , 29 Wn. App. 807 , 811, 631 P.2d 413, review denied , 96 Wn.2d 1009 (1981).
[19]¶26 Here, the court properly instructed the jury as to the meaning of "deadly weapon" for purposes of determining whether Winings committed second degree assault. CP at 27. The instruction clearly provides, "[d]eadly weapon means any weapon . . . 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
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bodily injury ." CP at 27 (emphasis added). And this instruction followed the court's instructions regarding the elements of second degree assault and the three recognized definitions of assault. The court also properly instructed the jury regarding the meaning of "deadly weapon" for purposes of determining whether Winings was armed with a deadly weapon at the time of the crime. The instruction explicitly states, "[f]or purposes of a special verdict [,] the State must prove beyond a reasonable doubt that the defendant was armed with a deadly weapon at the time of commission of the crime. A deadly weapon . . . is . . . any knife having a blade longer than three inches." CP at 32 (emphasis added). Nothing in the language of these instructions suggests that the jury should find that the sword was a deadly weapon per se for purposes of determining guilt. Rather, these instructions correctly state the law and informed the jury that it should find that the sword was a deadly weapon per se only for "purposes of [its] special verdict." CP at 32.
III. Calculation of Offender Score
¶27 Winings asserts that the trial court improperly calculated his offender score. He argues the following: (1) the State failed to establish his out-of-state convictions; (2) the State failed to provide any evidence regarding the classification of his convictions; and (3) the court improperly included these convictions in his offender score because they had "washed out." Br. of Appellant at 37. We address each issue in turn.
[20, 21]¶28 Illegal or erroneous computations of an offender score may be raised for the first time on appeal. State v. Ford , 137 Wn.2d 472 , 477, 973 P.2d 452 (1999). We review an offender score de novo unless it involves factual or discretionary determinations. State v. Wilson , 113 Wn. App. 122 , 136, 52 P.3d 545 (2002), review denied , 149 Wn.2d 1006 (2003); In re Pers. Restraint of Goodwin , 146 Wn.2d 861 , 874, 50 P.3d 618 (2002).
[22]¶29 First, Winings contends that the State failed to prove his California convictions. The use of a prior convic
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tion as a basis for sentencing under the Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, is constitutionally permissible if the State proves the existence of the prior conviction by a preponderance of the evidence. Ford , 137 Wn.2d at 479 -80. Winings argues that the documents purporting to establish his criminal history were neither offered nor admitted into evidence and thus, cannot be included in his offender score. Additionally, he argues that the sentencing court should not have considered these documents because they were not certified.
¶30 Here, the record amply demonstrates that the State submitted, and the trial court considered, copies of the minute orders, Winings' guilty pleas, and the charging documents identifying the crimes Wining was charged with and their elements. Additionally, the State submitted an abstract of judgment, which shows that Winings was convicted of three counts of first degree burglary and possession of a controlled substance and his sentence. While these documents appear to be certified,9 this determination is immaterial.
[23]¶31 Our Supreme Court has stated that the submission of uncertified copies of court records is a "loose practice" that it does not condone. In re Pers. Restraint of Connick , 144 Wn.2d 442 , 455, 28 P.3d 729 (2001). But in Ford , the court held that, while the best evidence of a prior conviction is a certified copy of the judgment, the State "may introduce other comparable documents of record or transcripts of prior proceedings to establish criminal his
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tory." Ford , 137 Wn.2d at 480 (emphasis added). The court further held that "the nature of the State's burden under the SRA . . . is not overly difficult to meet. The State must introduce evidence of some kind to support the alleged criminal history." Ford , 137 Wn.2d at 480 (emphasis added).
¶32 Exhibit 1 is Winings' statement on plea of guilty, which he signed in cause no. 93392 on June 3, 1992. He pleaded guilty to three counts of first degree (residential) burglary and possession of a controlled substance.10 The minute order states that these crimes were felonies and that Winings was sentenced to two years in jail and fined $100 by Judge Arthur Koelle of the Orange County Superior Court.
¶33 Exhibit 2 is the felony complaint filed in cause no. 93392 in the Municipal Court of the South Judicial District of Orange County, California on May 26, 1992. The complaint alleged that on May 23, 1992, Winings committed three counts of first degree burglary of an inhabited dwelling house and one count of felony possession of a controlled substance.
¶34 Exhibit 3 is Winings' statement on plea of guilty in cause no. 93395 for felony possession of a controlled substance for sale, which was also signed on June 3, 1992. The minute order states that this crime was a felony and that Winings was sentenced to 10 days in jail by Judge Arthur Koelle of the Orange County Superior Court. Exhibit 3 also includes the felony complaint, alleging that Winings committed this crime on May 20, 1992.
¶35 Finally, exhibit 5 is a certified abstract of judgment, showing that on June 3, 1992, Winings was convicted of three counts of first degree burglary and possession of a controlled substance. Together, these documents amply demonstrate that Winings was convicted of three counts of first degree burglary, possession of a controlled substance, and possession of a controlled substance for sale.
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[24]¶36 Second, Winings asserts that the State failed to prove that his out-of-state convictions are comparable to Washington felonies. Under RCW 9.94A.525 (3), "[o]ut-of-state convictions for offenses shall be classified according to the comparable offense definitions and sentences provided by Washington law." The statute's purpose is to give an out-of-state conviction the same effect as if it had been rendered in state, or to treat a person convicted outside the state as if he or she had been convicted in Washington. State v. Cameron , 80 Wn. App. 374 , 378, 909 P.2d 309 (1996).
[25]¶37 To carry out this purpose, we (1) identify the comparable Washington offense; (2) classify the comparable Washington offense; and (3) treat the out-of-state conviction as if it were a conviction for the comparable Washington offense. Cameron , 80 Wn. App. at 378 -79. In identifying the comparable Washington offense, we compare the elements of the out-of-state crime with the elements of potentially comparable Washington crimes. Cameron , 80 Wn. App. at 379 . And in classifying the comparable Washington offense, we ask whether it is a felony under Washington law, and if so, whether it is an A, B, or C felony. Cameron , 80 Wn. App. at 379 .
[26]¶38 The State bears the burden of establishing the classification of prior out-of-state convictions, but the sentencing court may properly rely on a stipulation or acknowledgment to support a determination of classification. State v. Hunter , 116 Wn. App. 300 , 301, 65 P.3d 371 (2003), aff'd sub nom . State v. Ross , 152 Wn.2d 220 , 95 P.3d 1225 (2004). Where a defendant affirmatively agrees with the State's classification of out-of-state convictions, the sentencing court may include the convictions in the defendant's offender score without further proof of classification. Hunter , 116 Wn. App. at 301 .
¶39 Here, Winings affirmatively acknowledged the correctness of the State's classification of his California convictions. At sentencing, the prosecutor argued that the three first degree burglary counts are comparable to resi
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dential burglary offenses in Washington and that the possession of a controlled substance and possession of a controlled substance for sale counts are comparable to Washington offenses of the same title, giving Winings an offender score of five. In response, Winings argued that his offender score was four because his guilty plea to possession of a controlled substance for sale was part of his plea bargain regarding the simple possession charge. But he did not challenge the State's classification of these crimes. In arguing that his offender score was four, Winings indicated that he agreed with the State's classification of his California convictions under Washington law. Consequently, the court was not required to consider any further proof.
[27-29]¶40 Moreover, the State provided ample evidence regarding the classification of his California convictions. On June 3, 1992, Winings pleaded guilty to felony complaints charging that he (1) committed first degree burglary of an inhabited dwelling house by "willfully and unlawfully enter[ing] an inhabited dwelling house . . . with the intent to commit larceny and any felony"; (2) committed possession of a controlled substance by "willfully and unlawfully hav[ing] in his[ ] possession a controlled substance, to wit, COCAINE"; and (3) committed possession of a controlled substance for sale by "willfully and unlawfully possess[ing] for sale and purchas[ing] for sale a controlled substance, to wit: COCAINE."11 Exs. 2-3.
¶41 Winings' conviction of first degree burglary is comparable to residential burglary as defined in RCW 9A.52.025 . That statute provides that "[a] person is guilty of residential burglary if, with intent to commit a crime against a person or property therein , the person enters or remains unlawfully in a dwelling other than a vehicle," and classifies residential burglary as a class B felony. RCW 9A.52.025 (1) (emphasis added). Winings' conviction of pos
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session of a controlled substance is comparable to RCW 69.50.4013 , which provides that "[i]t is unlawful for any person to possess a controlled substance " and classifies that crime as a class C felony. (Emphasis added.) And Winings' conviction of possession of a controlled substance for sale is comparable to RCW 69.50.401 (1), which provides that "it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver , a controlled substance." (Emphasis added.) Under that statute, a violation with respect to cocaine, which is a schedule II drug, is a class B felony. RCW 69.50.206 (a) and (b)(4)-(6); RCW 69.50.401 (2)(a).
[30]¶42 Third, Winings argues that his out-of-state convictions should not have been included in his offender score because they had "washed out." Br. of Appellant at 37. Winings is in error. In State v. Varga , 151 Wn.2d 179 , 183, 86 P.3d 139 (2004), our Supreme Court held that the 2002 amendments to the SRA require that sentencing courts include previously "washed out" prior convictions in calculating a defendant's offender score at sentencing for crimes committed on or after June 13, 2002. Since Winings committed his crime on March 24, 2003, the sentencing court properly included his previously "washed out" convictions.
¶43 A majority of the panel having determined that the following portion of the opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040 , it is so ordered.
¶44 Affirmed.
QUINN-BRINTNALL , C.J ., and HOUGHTON , J ., concur .