Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                          )         No. 65943-0-I
                                              )
                      Respondent,             )         DIVISION ONE
                                              )
              v.                              )
                                              )
ELIJAH K. VINCENT,                            )         UNPUBLISHED
                                              )
                      Appellant.              )         FILED: February 13, 2012
                                              )
                                              )

       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.1 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.  

       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 

       1 Brief of Appellant at 1.   

No. 65943-0-I/2

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.2  

We hold that the Hawaii statute and relevant Washington statutes are 

comparable.  Thus, there is no need to address factual comparability. 

       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.3 The court employs a two-

       2 Brief of Appellant at 4.
       3 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. 

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No. 65943-0-I/3

part test to determine the comparability of the foreign offense.4  

       In the first step, the court must examine the elements of the out-of-state 
statute.5  "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."6 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.7 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.8

       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 

Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007).

       4 Morley, 134 Wn.2d at 605-06. 

       5 Id.

       6 Thiefault, 160 Wn.2d at 415. 

       7 Morley, 134 Wn.2d at 606; Thiefault, 160 Wn.2d at 415. 

       8 State v. Howe, 151 Wn. App. 338, 344, 212 P.3d 565 (2009) (citing 
Morley, 134 Wn.2d at 606). 

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No. 65943-0-I/4

              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;[9]

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.[10]

Both first and second degree rape requires "forcible compulsion." RCW 

9A.44.010 defines "forcible compulsion" as:

       9 (Emphasis added.)

       10 (Emphasis added.)

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       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.

       There is no dispute here that "sexual intercourse," as defined in 

Washington, is substantially the same as Hawaii's definition of "sexual 
penetration."11 Thus, the respective statutes are comparable to this extent.

       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, 

       11 Under RCW 9A.44.010, "sexual intercourse"

       (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. 

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No. 65943-0-I/6

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.12  

       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.13

       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 . . . ."14 The Washington definition of a 

"deadly weapon" and Hawaii's definition of a "dangerous instrument" are 

       12 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."

       13 The first part of RCW 9A.44.010 defines forcible compulsion as: 
"physical force which overcomes resistance . . . ."

       14 (Emphasis added.)

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No. 65943-0-I/7

substantially the same.15  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.  

       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.16  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.  

       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 

       15 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."

       16 Brief of Appellant at 4. 

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No. 65943-0-I/8

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.17  

       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).[18]

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 

       17 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)).

       18 Clerk's Papers at 67. 

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No. 65943-0-I/9

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.

WE CONCUR:

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