FACTS:

The defendant was involved in a three-person fight during which the complaining witness was stabbed. He was charged with first degree assault and at trial he argued that he was acting in defense of the third person involved in the fight. The jury convicted him of second degree assault and found he was armed with a deadly weapon. The defendant appealed his conviction, arguing the court improperly instructed the jury and disputing his offender score.

ANALYSIS: On appeal the defendant argued that the jury instructions misstated the law of defense of another. The trial court instructed the jury that to convict the defendant of first degree assault they had to find he acted with intent to inflict great bodily harm. The court then defined "great bodily harm" in that context using WPIC 2.04:

bodily injury that creates a probability of death, or which causes significant serious permanent disfigurement, or that causes a significant permanent loss or impairment of the function of any bodily part or organ.

The trial court also instructed the jury on defense of another, explaining, in part, that a person may act in defense of another if he "believes in good faith and on reasonable grounds that another is in actual danger of great bodily harm." The trial court did not define "great bodily harm" in the context of defense of another.

On appeal the defendant argued that it was error for the trial court not to define "great bodily harm" as it was used in the instruction on defense of another. The definition of "great bodily harm" as used to clarify the instruction on first degree assault was misleading when read into the defense of another instruction. A juror could read the combined instructions "to prohibit consideration of the defendant’s subjective impression. . . [as to] whether. . . the battery at issue would result in great personal injury." Because a defendant’s subjective belief is important in determining whether he acted legally in defending another, a trial court must combine an instruction on that defense with one telling the jury "to decide whether the defendant reasonably believed. . . another was in danger of suffering great personal injury."

The State conceded the error regarding the instruction on defense of another but argued the error was invited. The Court of Appeals agreed. Under the invited error doctrine, a defendant may not challenge on appeal an error he introduced at trial as the result of "an affirmative, knowing, and voluntary act." Here, the defendant’s attorney proposed the instruction the court used to explain defense of another to the jury. Therefore, the giving of the instruction was invited error, and the defendant could not challenge it on appeal.

The defendant also argued on appeal that the trial court erred in not giving a jury instruction saying he had no duty to retreat. However, the Court of Appeals found that because the defendant did not request such an instruction at trial, he could not challenge its omission on appeal.

Finally, the defendant challenged his offender score of 7 because the trial court included two California convictions that were not comparable to Washington felonies in his offender score. The Court of Appeals found the defendant had waived this issue and refused to do a comparability analysis.

Under the SRA an out-of-state conviction should count toward a defendant’s offender score only if it comparable to a Washington crime that would count toward the offender score. If the elements of the out-of-state crime are not the same as those of the Washington crime, the trial court may examine the record of the out-of-state conviction to determine if the defendant’s conduct would have violated the Washington statute. Here, the defendant had a California conviction for burglary, and the California and Washington burglary statutes have different elements. The State conceded that the trial court did not look at the facts included in the record of the California burglary conviction to determine whether the defendant’s conduct would have violated the Washington statute. The State also conceded that, although the defendant had a California conviction for possessing drugs, the record did not establish which drug he was convicted of possessing, making the necessary comparability analysis impossible. However, the State argued that the defendant could not challenge on appeal the inclusion of the California convictions in his offender score because he acknowledged both convictions to the trial court. The Court of Appeals agreed with the State.

The SRA’s requirement that out-of-state crimes be comparable to Washington crimes is met if a defendant affirmatively acknowledges that his out-of-state convictions are properly included in his offender score. Here, the defendant’s attorney argued unsuccessfully at sentencing that the California possession conviction should wash out and not be included in the offender score. In so doing, the defense attorney told the trial court that if that conviction washed out, the offender score would be 6 instead of 7. The Court of Appeals held that, by arguing the possession conviction washed out, the defendant conceded that it "would otherwise count toward his score." And by agreeing that without the possession conviction his score would be 6, the defendant "acknowledged the comparability of the burglary offense." Division I of the Court of Appeals acknowledged that its holding was in conflict with the decision of Division II in State v. Jackson, 129 Wn. App. 95 (2005). In Jackson Division II held that a defendant’s mere agreement with the State’s calculation of an offender score is not affirmative acknowledgement that establishes the comparability of out-of-state convictions.