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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                          No. 73398-2-1
                      Respondent,
                                                          DIVISION ONE

                                                          UNPUBLISHED OPINION
CHRIS ROBERT MORTENSON,

                      Appellant.                          FILED: July 25, 2016


       Appelwick, J. — Mortenson was convicted of felony DUI and attempting to

elude a pursuing police vehicle. We reversed the felony DUI conviction because

the trial court improperly informed the jury that Mortenson had four prior DUI

convictions within the last 10 years. On remand, Mortenson asked the court both

to adopt its previous rulings and to bifurcate the trial or the jury instructions. The

courtadopted the rulings ofthe previous judge. Mortenson was convicted offelony

DUI. He argues that the trial court improperly applied the law of the case doctrine

and abused its discretion in denying his motion to bifurcate the proceeding or give

bifurcated jury instructions. We affirm.
No. 73398-2-1/2




                                      FACTS


      On August 21, 2010, Deputy Jeffrey Petrenchak observed Chris Mortenson

driving 65 miles per hour on a road with a posted speed limit of 45 miles per hour.

State v. Mortenson. noted at 180Wn. App. 1013, 2014 WL 1286551, at *1. Deputy

Petrenchak pursued the vehicle, but Mortenson did not stop or slow down. Id.

After over a mile, Mortenson stopped the car and exited it, stumbling toward the

patrol car. Id. at *2. Mortenson did not comply with Deputy Petrenchak's orders

to get on the ground, and Deputy Petrenchak fired his stun gun multiple times until

Mortenson complied. Id. at *2.

       Mortenson was charged with felony driving under the influence of

intoxicating liquor or any drug (DUI), attempting to elude a pursuing police vehicle,

driving while license suspended/revoked in the second degree, and tampering with

a witness. \± at *2. The State alleged that Mortenson had at least four prior DUI

offenses within 10 years of the current offense.1 The State dismissed the charge

of tampering with a witness, and Mortenson pleaded guilty to driving while license

suspended. ]dL

       Mortenson's first trial on the felony DUI and attempting to elude charges

was before Judge Brian Gain. Id. Before trial, Mortenson moved to bifurcate the

proceedings so facts relevant to his prior DUI convictions would be presented in a

different proceeding than facts relevant to the charged DUI offense. Judge Gain

denied the motion. But, he ruled that he would bifurcate the jury instructions by


       1An element of a felony DUI charge is that the person has four or more prior
convictions under RCW 46.61.5055 within 10 years. RCW 46.61.502(6)(a).
No. 73398-2-1/3




requiring the jury to first determine whether Mortenson drove under the influence

and then decide whether the State also proved that Mortenson had four prior

convictions.   At trial, witnesses testified to evidence that had previously been

excluded, and Judge Gain declared a mistrial. Id.

       Mortenson's second trial was before Judge Lori Smith.         IdL   Mortenson

asked Judge Smith to reconsider Judge Gain's decision not to bifurcate the trial.

Judge Smith adopted Judge Gain's rulings. With this in mind, Mortenson stipulated

that he had four prior convictions under RCW 46.61.5055. Mortenson, 2014 WL

1286551 at *2. At the beginning of jury selection, the court read the information to

the jury. Id. This informed the jury that Mortenson was charged with committing

felony DUI in violation of RCW 46.61.502 and RCW 46.61.5055, and that he had

at least four prior offenses under RCW 46.61.5055(14)(a) within 10 years of the

current offense. Mortenson. 2014 WL 1286551 at *2. Ultimately, Mortenson did

not offer bifurcated jury instructions. Mortenson was convicted of felony DUI and

attempting to elude a pursuing police vehicle. Mortenson, 2014 WL 1286551 at

*3.


       On appeal, this court reversed Mortenson's conviction for felony DUI. Id at

*6. We held that by mentioning RCW 46.61.5055 in respect to both Mortenson's

prior convictions and the current offense, the trial court informed the jury that

Mortenson had four prior DUI convictions within the last 10 years. Id. at *4. This

was inherently prejudicial, because it made it more likely that the jury would convict
No. 73398-2-1/4




Mortenson based on improper considerations of his propensity to commit the

crime. Id.


       The case was remanded for a third trial on the felony DUI charge, this time

before Judge Tanya Thorp.       Id. at *9.   Before trial, Mortenson made several

motions. In his trial brief, he argued that the court should adopt all prior pretrial

rulings made in the case. He asserted that the pretrial rulings that had not been

objected to or raised on appeal had become the law of the case. In a separate

motion filed on the same day, Mortenson argued that the court should bifurcate the

trial into two proceedings: one involving the facts relating to the current charge of

felony DUI and one involving the facts relating to Mortenson's prior convictions.

       At oral argument on these motions, Mortenson argued that the court was

bound by the prior judges' rulings regarding the prior conviction evidence. But, he

asserted that if the court was willing to reconsider those issues, it should

completely bifurcate the proceedings or at least bifurcate the instructions. The trial

court denied Mortenson's motion to bifurcate. The court noted that Judge Smith's

trial jury was instructed as to the third element of felony DUI—that the defendant

has four or more prior offenses within 10 years.        11A Washington Practice:

Washington Pattern Jury Instructions: Criminal 92.26 (3d ed. 2008). The

court recognized that the parties could have challenged this instruction on appeal,

but they did not. As a result, the court ruled that the jury would receive the same

instructions.
No. 73398-2-1/5




       The parties again stipulated that Mortenson had four prior convictions under

RCW 46.61.5055(14)(a). The jury received a single "to convict" instruction, which

included as an element "[tjhat at the time of arrest, the defendant had been

previously convicted of four or more prior offenses within ten years pursuant to

RCW 46.61.5055(14)(a)." The jury was also instructed that the stipulation was

admitted solely to establish this element, and it was not permitted to speculate

about the nature of the convictions.


       Mortenson was convicted of felony DUI. He appeals.

                                DISCUSSION


       Mortenson asserts that the trial court erred in denying his motion to bifurcate

the proceedings or the jury instructions. And, Mortenson argues that the court

erred by failing to exercise its discretion to reconsider the previous judges' rulings.

       An essential element of felony DUI is that the person has four or more prior

convictions under RCW 46.61.5055 within 10 years.             RCW 46.61.502(6)(a).

Before trial, Mortenson moved the court to bifurcate the trial issues into (1) the

facts relating to the current charge and (2) the facts relating to any prior DUI

convictions. He argued that if the State were permitted to submit evidence that he

has committed prior crimes identical to the charged offense, the jury would be

unable to set aside that knowledge when weighing the evidence relating to the

current offense. To mitigate this potential prejudice, Mortenson asserted that the

court should first submit to the jury the question of whether the State has proved

that he drove while under the influence of intoxicating liquor. Under this theory
No. 73398-2-1/6



only if the jury found that the State had met its burden would the jury consider if

the State had also proved that Mortenson had the requisite prior convictions.

      The Washington Supreme Court has explicitly rejected the argument that a

defendant has a right to a bifurcated trial when prior convictions are an essential

element of the charged offense. State v. Roswell, 165 Wn.2d 186, 198, 196 P.3d

705 (2008). The defendant in Roswell relied on the United States Supreme Court's

decision in Old Chief v. United States, 519 U.S. 172, 191, 117 S. Ct. 644, 136 L.

Ed. 2d 574 (1997) to contend that proof of past convictions is necessarily

prejudicial. Roswell, 165 Wn.2d at 194-95. But, our Supreme Court disagreed,

noting that while Old Chief recognized that a defendant may stipulate to a prior

conviction to prevent the State from introducing details about the offense, it did not

hold that a jury must be completely shielded from any reference to the prior

conviction, jd. at 195.

       Under Roswell, Mortenson did not have a right to a bifurcated trial. His prior

convictions were an essential element of the crime charged, and it was not error

for the jury to hear evidence of that element. Roswell, 165 Wn.2d at 197. The trial

court did not abuse its discretion in denying his motion for a bifurcated trial.

       Alternatively, Mortenson asserts that the trial court should have bifurcated

the jury instructions and verdict form so that the jury was required to first find the

other elements of felony DUI were satisfied before finding that the prior conviction

element was met.
No. 73398-2-1/7




       In State v. Oster, our Supreme Court approved the use of bifurcated jury

instructions when prior convictions are an essential element of the crime charged.

147 Wn.2d 141, 147-48, 52 P.3d 26 (2002).           The court noted that bifurcated

instructions guard against unfair prejudice while clearly maintaining the State's

burden to prove each element beyond a reasonable doubt. Id. However, the

Roswell court clarified that Oster does not stand for the proposition that a

defendant has a right to bifurcated jury instructions. Roswell, 165 Wn.2d at 197.

The trial court simply did not err in giving bifurcated jury instructions in Oster, but

such a decision is reviewed for an abuse of discretion, jd. at 197-98.

       In a footnote, the Roswell court offered an alternative procedure that could

be used rather than bifurcation to mitigate prejudice in these situations, jd. at 198

n.6. Under this procedure, the defendant could stipulate to the prior conviction

element, but the offense would be identified by statutory citations rather than the

name of the offense. Id The jury would be instructed that the charge requires a

certain number of prior offenses, and the defendant has stipulated to the existence

of the requisite number of prior offenses. Jd. And, the jurywould be instructed that

it is not to speculate as to the nature of the prior convictions or use the stipulation

for any other purpose. Id_.

       The trial court followed this procedure here. No evidence was presented of

the facts surrounding Mortenson's prior convictions. Mortenson was permitted to

stipulate to the existence ofthose prior convictions. This stipulation did not identify

Mortenson's prior convictions as prior DUI convictions. Instead, it merely stated
No. 73398-2-1/8




"[tjhat at the time of the arrest, the defendant had been previously convicted of four

or more prior offenses within ten years pursuant to RCW 46.61.5055." The jury

was instructed that it was to consider this stipulation solely to establish the prior

conviction element, and it was not to speculate as to the nature of the convictions

or use this evidence for any other purpose. This procedure was sufficient to

mitigate the potential unfair prejudice of prior criminal history while still permitting

the State to meet its burden. The trial court did not abuse its discretion in denying

Mortenson's motion to bifurcate the jury instructions.

       Mortenson also suggests that the court abused its discretion in failing to

exercise its discretion to reconsider the question of the prior conviction evidence.

He argues that the court erroneously believed that under the law of the case

doctrine, it was bound by the decision of the prior judges on whether to bifurcate

the proceedings or the instructions.

       Generally, the law of the case doctrine prevents a court from considering

an issue that was already decided in a previous appeal in that case. State v.

Harrison, 148 Wn.2d 550, 562, 61 P.3d 1104(2003). But, the trial court on remand

may exercise its independentjudgment as to an issue not raised in the first appeal.

RAP 2.5(c)(1); 2A Karl B. Tegland, Washington Practice: Rules Practice RAP

2.5 task force cmt. at 263 (7th ed. 2014). On remand, the trial court has discretion

to decide to revisit an issue that was not the subject of an earlier appeal. State v.

Barberio, 121 Wn.2d 48, 51, 846 P.2d 519 (1993).




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No. 73398-2-1/9




       Mortenson's assertion that the trial court believed it was bound by the prior

judges' decisions is not supported by the record.            After oral argument on

Mortenson's motion to bifurcate, the trial court recognized that there was an issue

with Judge Gain's trial ending in a mistrial. And, it noted, "Judge Smith's trial jury

was instructed as to [the prior conviction element of felony DUI]. Parties had an

opportunity to raise that to the court of appeals, they did not. The jury will be so

instructed." The court did not mention that it had no discretion to revisit the issue—

it merely decided that it would not do so. The court did not abuse its discretion in

giving the jury the same instructions that were provided in the second trial.

       Moreover, even if the trial court did conclude that it lacked discretion to

reconsider the prior judges' rulings on bifurcation, Mortenson affirmatively asked

the court to reach that conclusion. In his trial brief, Mortenson moved the court to

adopt all prior pretrial rulings, because all pretrial motions that were not objected

to or raised on appeal had become the law of the case. Mortenson vigorously

advocated for the court to adopt this position, asserting, "The issues before this

Court have been litigated three times and to revisit these issues would only deprive

Mr. Mortenson his right to due process and a fair trial that is based upon the

evidence and not the randomness of what judges happens to be available to

preside over his trial." He reiterated this request at oral argument on the motions,

stating that "the case law directs the court to adopt all prior rulings."

       A criminal defendant cannot seek review of an error he helped create. State

v, Bover, 91 Wn.2d 342, 345, 588 P.2d 1151 (1979) (applying the invited error
No. 73398-2-1/10




doctrine where the defendant requested a particular jury instruction); State v.

Carson, 179 Wn. App. 961, 973-74, 320 P.3d 185 (2014) (applying the invited error

doctrine where the defendant strenuously opposed the trial court's proposed jury

instructions), affdJ84 Wn.2d 207, 357 P.2d 1064 (2015). We conclude that if the

trial court did reach this decision because it believed it was bound by the prior

judges' rulings, it did so at Mortenson's request. Therefore, any error was invited.

       We affirm.




WE CONCUR:




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