Mr. Howe argues on appeal that his conviction for two counts of failure to register as a sex offender should be dismissed because the State failed to prove an element of the crime. Mr. Howe had been convicted in California for lewd acts on a child and for failing to register as a sex offender in California, both the basis of his recent charge and conviction in Washington. He argues that the California crimes, underlying the conviction of failure to register as a sex offender, were not legally or factually comparable to the Washington crimes and thus the State failed to prove an element of the crime.
There is a two-step process to determine if an out of state conviction qualifies as a “sex offense” qualifying under RCW 9A.44.130(a)(iv) to require a person to register as a sex offender. The first step requires the court to compare the elements of the out of state crime with the Washington crime. The Appellate Court compared the Washington statute with the California statute finding that the California statute for lewd conduct was much broader than Washington requiring only the touching of a child on any body party with the required intent. By contrast, the Court found that in Washington the statute required touching a child on a private part, therefore, the statutes were not legally comparable.
In analyzing the second step of the process, the factual comparability, the court looked to the record to determine if the State introduced any documents or evidence setting out facts underlying the lewd acts conviction. The Court agreed with Mr. Howe and held that, “nothing in the records supports a finding of factual comparability.” The Court further held that, “because the California failure to register conviction encompasses underlying acts that are a crime in California but are not necessarily a crime in Washington, this conviction also fails a comparability test.”
The Court found that the remedy for insufficient evidence is dismissal. The Court reversed, vacated the convictions, and remanded for dismissal.
Judge Quinn-Brintall wrote separately agreeing with the majority’s holding that the California crimes and the Washington crimes were not legally comparable, however, disagrees with the majority that the convictions be reversed and dismissed. Judge Quinn-Brintall argues that the issue is not one of insufficiency of evidence but rather an error relating to the admissibility of evidence, therefore, the remedy should be remand, which allows the State the opportunity to prove the facts underlying California’s convictions satisfy Washington’s sex offense statute that requires registration.
