                                                                                                         FILED
                                                                                               COURT OF APPEALS
                                                                                                       DIVISION I1
                                                                                              2015 MAR 10 AM 8 35

                                                                                              STATE"   OF    SW '    P1
                                                                                              BY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II

 STATE OF WASHINGTON,                                                            No. 45013 -5 -II


                                      Respondent,


         v.



 PATRICK JOSEPH MULLEN,                                                 PART PUBLISHED OPINION


                                      Appellant.


         JOHANSON, C. J. —         Patrick Joseph Mullen appeals his jury convictions for felony driving

under the influence (DUI) and second degree driving while license suspended or revoked (DWLS).

Mullen argues that the trial court violated his due process rights when it declined to give his


proposed jury instruction requiring the State to prove beyond a reasonable doubt that alcohol or

drugs   were   involved in his    prior   conviction for   reckless   driving.   In the published portion of this


opinion, we agree with Mullen. Mullen' s remaining arguments are addressed in the unpublished

portion of    this   opinion.   We reverse Mullen' s felony DUI conviction, remand to the trial court to

enter a misdemeanor        DUI   conviction, and affirm     his   second   degree DWLS    conviction.
No. 45013 -5 - II



                                                          FACTS


              In March 2013, State Trooper Cliff Roberts arrested Mullen after he observed Mullen' s

erratic   driving        and suspected     that he   was under      the influence.   The State charged Mullen with

                                                                                            driving2 —
felony    DUI' —based in            part on a prior   2008   conviction    for   reckless            and with second



degree DWLS.3

              Mullen filed a motion to ,exclude the 2008 reckless driving conviction as a qualifying prior

offense for felony DUI because there was no proof beyond a reasonable doubt that alcohol or drugs

were involved in the 2008 offense. The trial court denied this motion.


              Mullen proposed the following jury instruction, defining a " prior offense" for felony DUI:

                      A "prior offense" means any of the following:
                       1) A conviction for a violation of RCW 46.61. 502 ( Driving Under the
              Influence) or an equivalent local ordinance;
                         2) A conviction for a violation of RCW 46. 61. 504 ( Physical Control) or an
              equivalent local ordinance;
                         3) A conviction for a violation of RCW 46. 61. 5249 ( Negligent Driving in
              the   First Degree),   RCW 46.61. 500 ( Reckless Driving), or RCW 9A.36. 050
              Reckless Endangerment) or an equivalent local ordinance, if the conviction is the
              result of a charge that was originally filed as a violation of RCW 46. 61. 502 (Driving
              Under the Influence)         or   RCW 46. 61. 504 ( Physical Control) and the State has

          proven beyond a reasonable doubt that the prior incident was alcohol or drug
              related.



Clerk'    s    Papers ( CP)    at   77 (   emphasis   added).       The trial court declined to give his proposed


instruction.




1 RCW 46. 61. 502( 6)( a).

2 Former RCW 46. 61. 500 ( 1990).

3 RCW 46. 20. 342( 1)( b).


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No. 45013 -5 -II



          The jury convicted Mullen of felony DUI and second degree DWLS. Mullen appeals both

convictions.



                                                      ANALYSIS


          This    case presents an    issue   of   first impression:    whether the State must prove beyond a


reasonable doubt that a prior conviction for reckless driving involved alcohol or drugs in order to

use'   that   conviction as a prior offense    to    elevate a misdemeanor      DUI to   a   felony.   Mullen argues


that after our Supreme Court' s decision in City of Walla Walla v. Greene, 154 Wn.2d 722, 116

P. 3d 1008 ( 2005),      cert.   denied, 546 U.S. 1174 ( 2006), the involvement of alcohol or drugs in a


prior conviction for reckless driving is an essential element when the State seeks to use that

conviction      to   elevate misdemeanor      DUI to    a   felony.   Because it is an essential element, Mullen


argues that due process requires it be proven beyond a reasonable doubt and to a jury and that the

trial court violated his due process rights when it refused to give his proposed jury instruction. The

State argues that whether alcohol or drugs was involved in the prior conviction is a threshold legal


question for the trial court to decide. We agree with Mullen.


                            A. THRESHOLD ISSUES: INVITED ERROR AND WAIVER


1.   INVITED ERROR


          The State argues that invited error applies because Mullen' s " Motion to Exclude Prior


Offense" created the circumstance in which the trial court determined, as a matter of law, whether


the reckless driving conviction qualified as a prior offense. We disagree.

               I]nvited error doctrine is a strict rule that precludes a criminal defendant from seeking

appellate review of an error he helped create, even when the alleged error involves constitutional




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No. 45013 -5 -II



rights."       State v. Carson, 179 Wn. App. 961, 973, 320 P. 3d 185, review granted, 181 Wn.2d 1001

2014).


              The State argues that Mullen invited error here because he improperly framed the issue in

his motion as a request for the court to determine whether his reckless driving should be excluded

as a prior offense.         But the State misunderstands Mullen' s motion. Mullen' s motion requested a


finding that, in light of Greene, and as a matter of law, the State could not prove beyond a

reasonable doubt that drugs and alcohol were involved in the prior conviction. Mullen did not ask


the court to determine a solely legal question; instead, he asked it to consider the facts that the

State intended to establish and to find that the State could not prove an essential element beyond a


reasonable doubt. We, therefore, reject the State' s invited error argument.


2. WAIVER


              The State next argues that Mullen waived his right to argue for the first time on appeal that


a jury should determine whether alcohol or drugs were involved in the prior offense because he

did not move for reconsideration of the trial court' s denial of his motion to exclude. We disagree.


              We generally decline to      review claims    that      are raised   for the first time   on appeal.   RAP


2. 5(   a).    We will, however, review an argument for the first time if it concerns a " manifest error


affecting       a constitutional    right."   RAP 2. 5(   a)(   3).   An error affecting a constitutional right is

manifest        if the   appellant can show actual prejudice.          State v. Gordon, 172 Wn.2d 671, 676, 260


P. 3d 884 ( 2011).


              We disagree that Mullen waived his due process argument by failing to move for

reconsideration for three reasons. First, Mullen' s motion to exclude anticipated a question of fact

for     jury   determination. CP     at   7 ( " There remains an unproven question of fact as to whether the



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No. 45013 -5 -II



prior   incident involved      alcohol or   drugs. "). Second, the State points us to no case law to support


the proposition that preserving this argument for appeal required a motion for reconsideration.

And third, Mullen preserved this argument when he proposed a jury instruction that required proof

 beyond        a reasonable   doubt that the   prior   incident   was alcohol or   drug   related."   CP at 77. It was


squarely within the trial court' s authority to give Mullen' s proposed jury instruction and it

declined. During discussion about jury instructions, Mullen stated,

           I just want to formally object. I don' t think that the State' s proffered instruction of
           a prior offense is a correct statement of the law. It would violate due process, In re
           Winship[, 397 U. S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 ( 1970)], allowing him to
           potentially be found guilty for an offense that was not proven beyond a reasonable
           doubt to be a qualifying offense.

Report     of    Proceedings ( RP) ( June 14, 2013)          at   106.   Mullen did not waive his due process


argument.




           Because the State' s invited error argument fails and the proposed jury instruction preserved

Mullen' s argument for appeal, we continue to the merits of Mullen' s argument.


                     B. WHETHER A PRIOR CONVICTION INVOLVED ALCOHOL OR DRUGS
                                   IS AN ESSENTIAL ELEMENT OF FELONY DUI


           Mullen argues that, after Greene, the involvement of alcohol or drugs in the prior

conviction is an essential element of felony DUI that must be proven beyond a reasonable doubt

and   to   a   jury. The State argues that whether the reckless driving conviction qualifies as a prior

offense    is   a threshold   legal   question   for the trial court to decide. We agree with Mullen that the


State must prove beyond a reasonable doubt that his prior reckless driving conviction involved

alcohol or drugs in order to elevate the misdemeanor DUI to a felony DUI.




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No. 45013 -5 -II



1.   STANDARD OF REVIEW AND RELEVANT LAW


         The Sixth Amendment to the United States Constitution guarantees a criminal defendant' s


right   to have   elements     determined           by   a   jury. U. S. CONST. amend. VI; Alleyne v. United States,

     U. S. ,      133 S. Ct. 2151, 2155, 186 L. Ed. 2d 314 ( 2013); State v. Roswell, 165 Wn.2d 186,


192, 196 P. 3d 705 ( 2008); State              v.   Oster, 147 Wn.2d 141, 146, 52 P. 3d 26 ( 2002).                       Due process


requires    the State to     prove       each essential element of a crime                 beyond    a reasonable         doubt. U.S.


CONST.     amend.      XIV; WASH. CONST.             art.    I, § 22;   In re Winship, 397 U.S. at 364; Oster, 147 Wn.2d

at 146. Whether an issue presents a question of law or fact and, thus, whether the trial court has


the authority to decide it, is a question of law that we review de novo. State v. Chambers, 157 Wn.

App.    465, 474, 237 P. 3d 352 ( 2010),              review     denied, 170 Wn.2d 1031 ( 2011); State v. Miller, 156


Wn.2d 23, 27, 123 P. 3d 827 ( 2005). Therefore, in order to determine whether a fact must be found


by a jury beyond a reasonable doubt, this court must first determine whether the fact is an

 element" of the offense charged. Alleyne, 133 S. Ct. at 2158.


          A person is guilty        of   felony DUI if he ( 1) "        drives   a vehicle within    this    state," (   2) has " within


two hours      after   driving,     an alcohol concentration of              0. 08   or   higher,"   and (   3) " has four or more


prior offenses within         ten   years as        defined in RCW 46. 61. 5055."              RCW 46. 61. 502( 1)(           a), (   6)( a).


Reckless driving may qualify as a prior offense " if the conviction is the result of a charge that was

originally filed       as   a violation of      RCW 46. 61. 502 [ DUI]."                  RCW 46. 61. 5055( 14)(          a)( x). "    Any

person who drives any vehicle in willful or wanton disregard for the safety of persons or property

is guilty   of reckless     driving."      RCW 46. 61. 500( 1).


          In Greene, our Supreme Court held that " due process is satisfied for the purposes of this


mandatory enhancement if the prior conviction exists and the [ State] can establish that intoxicating


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No. 45013 -5 -II



liquor      or    drugs   were    involved in that       prior   offense."       154 Wn.2d         at   728 ( applied to a prior


conviction         for first degree      negligent   driving).   Therefore, the issue here is whether the involvement


of alcohol or drugs is an essential element of a felony DUI or a threshold legal question for the

trial   court     to determine.       We hold that because the legislature' s intent was to charge defendants

who are guilty of prior alcohol- or drug -related offenses with felony DUI, the involvement of

alcohol or drugs in prior convictions is an essential element that must be proven to a jury where it

was not an essential element of the prior conviction itself.


2. DISCUSSION


            a. WHAT IS AN ESSENTIAL ELEMENT OF A CRIME


            The United States Supreme Court has recently decided several cases that provide guidance

in   determining          what   facts   are essential elements        that   must   be   proven   to   a   jury.   In Alleyne, the


Supreme Court held that whether the defendant had brandished his weapon was a fact and must be


tried to    a    jury because "[ b] ut for a finding of brandishing, the penalty is five years to life in prison;

with    a   finding       of   brandishing,   the penalty becomes             seven years    to life."       133 S. Ct. at 2160.


Although unlike Alleyne this case does not involve sentencing, the issue is similar where but for a

finding that the reckless driving conviction involved alcohol or drugs, the penalty is one year for

a misdemeanor DUI, and with a finding that alcohol or drugs were involved, Mullen' s standard

range sentence is 22 to 29 months for a felony DUI. Mullen' s case is even stronger than Alleyne

because without a finding that alcohol or drugs were involved in his reckless driving conviction,

Mullen is guilty of an entirely different offense, misdemeanor DUI.

            Applying the same principle to upward deviations in sentencing in Blakely v. Washington,

542 U. S. 296, 303 -05, 124 S. Ct. 2531, 159 L Ed. 2d 403 ( 2004), the Supreme Court held that



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No. 45013 -5 -II



when a defendant is sentenced to more than the statutory maximum standard range, he is entitled

to   a   jury   determination   of   any facts that justified the   upward   deviation. The Court held that the


defendant was entitled to a jury determination of any factor that could increase his standard range

sentence. Blakely, 542 U.S. at 303 -04. Although Blakely involved an upward deviation from the

standard sentencing range and Mullen received a standard range sentence, Alleyne' s and Blakely' s

reasoning is relevant to Mullen because it supports a requirement that facts that justify an increased

penalty be tried to a jury.

            In Washington, similar reasoning has been applied to offenses that rely on past convictions

to elevate a crime from a misdemeanor to a felony. See, e. g., Roswell, 165 Wn.2d at 192 -93; Oster,

147 Wn.2d at 145 -47. Although neither Oster nor Roswell are directly on point, their reasoning is

persuasive. In Oster, the defendant was charged with felony violation of a domestic violence no-

contact order. 147 Wn.2d at 143. The charge was elevated to a felony because he had two or more

prior convictions       for violating     a no- contact order.   Oster, 147 Wn.2d         at   143 -44.   Our Supreme


Court held that "[      ajs set forth in the statute, the prior convictions function as an element of the

felony violation of a no        contact order."     Oster, 147 Wn.2d at 146. Because the trial court properly

instructed the jury on finding prior convictions beyond a reasonable doubt, however, our Supreme

Court affirmed Oster' s felony conviction. Oster, 147 Wn.2d at 145 -47.

            Similarly, in Roswell, the defendant was charged with communication with a minor for

immoral purposes, a gross misdemeanor that would be elevated to a felony if he had been

previously        convicted of a     felony   sexual offense.   165 Wn.2d    at   190.   Our Supreme Court stated,


 For example, here, if Roswell had had no prior felony sex offense convictions, he could not have

been      charged or   convicted     offelony communication with a minor for immoral purposes."               Roswell,




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No. 45013 -5 -II



165 Wn.2d at 192. Although it was not the central issue in that case, the court held that Roswell' s


prior convictions were elements of the felony charge because he could never be convicted of a

felony absent the prior convictions. Roswell, 165 Wn.2d at 194. As in Oster, the mere existence

of the prior convictions was sufficient to elevate the current offense to a felony.

         Although helpful, neither Oster nor Roswell are precisely on point because in those cases

the mere existence of the prior conviction was sufficient to elevate the offense to a felony. Here,

Mullen argues that the mere existence of the prior reckless driving conviction is insufficient to

elevate the current DUI to a felony DUI because the involvement of alcohol or drugs is not an

essential element of reckless       driving.   See Greene, 154 Wn.2d        at   727 -28.   Mullen argues that


Greene interpreted the legislature' s intent in defining which past convictions could serve as " prior

offenses" to elevate a misdemeanor DUI to a felony. His position is that, post -Greene, the State

must prove beyond a reasonable doubt that his prior reckless driving conviction was alcohol or

drug related in order to elevate the misdemeanor DUI to felony DUI.

         b. CITY OF WALLA WALLA V. GREENE


         It is undisputed that the existence of Mullen' s prior conviction for reckless driving must be

proven   to   a   jury   beyond   a reasonable   doubt.       The State asserts that Greene stands for the


proposition that, unlike the existence of the prior conviction itself, involvement of drugs and


alcohol is a threshold question of law that the trial court had the authority to decide. Mullen asserts,

however, that Greene establishes the involvement of alcohol or drugs as part of the definition of a


prior offense, that it is an element of the crime, and that it must be found by a jury beyond a

reasonable    doubt.     We agree with Mullen because, after Greene, unless alcohol or drugs were




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No. 45013 -5 -II



involved in his reckless driving conviction, Mullen could not have been charged with felony DUI

and, therefore, it is an essential element of the offense of felony DUI.

             In Greene, the State charged the defendant with misdemeanor DUI, but she pleaded guilty

to first degree negligent driving, an offense that requires proof of driving under the influence of

alcohol or drugs.4 154 Wn.2d at 724. She was later convicted of an additional DUI, and the City

sought to use the negligent driving conviction as a prior offense because it was originally charged

as a   DUI.      Greene, 154 Wn.2d        at   724 -25.   She successfully argued to the trial court that under

State   v.   Shaffer, 113 Wn.    App.    812, 55 P. 3d 668 ( 2002),      overruled by Greene, 154 Wn.2d 722, the

sentence enhancement violated due process because it was based on an unproven prior offense.


Greene, 154 Wn.2d at 725. The City of Walla Walla appealed..

             Our Supreme Court      reversed     the trial   court and overruled    Shaffer. Greene, 154 Wn.2d at


725.    In rejecting Shaffer, the Supreme Court held that

             the statute requires the State to establish that a prior driving conviction involved
             use of intoxicating liquor or drugs. Thus, due process is satisfied for the purposes
             of this mandatory enhancement if the prior conviction exists and the prosecution
             can establish that intoxicating liquor or drugs were involved in that prior offense. -

Greene, 154 Wn.2d         at   727 -28 ( footnote   omitted).       Because the legislature intended only to impose

enhanced penalties on those who repeatedly commit alcohol- or drug- related driving offenses, the

definition      of a " prior offense,"   as interpreted by Greene, requires the State to prove both that the

prior conviction exists and         that it    was alcohol or
                                                                drug    related.   See 154 Wn.2d   at   728.   Since the




4 " A person is guilty of negligent driving in the first degree if he or she operates a motor vehicle
in a manner that is both negligent and endangers or is likely to endanger any person or property,
and exhibits the effects of having consumed liquor or marijuana or any drug."              RCW
46. 61. 5249( 1)(    a) ( emphasis added).




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No. 45013 -5 -II



parties agree that due process requires the State to prove the existence of the prior conviction


beyond a reasonable doubt, it is logical, based on the language of Greene, to apply that same

standard     to the   requirement   that the State "       establish that intoxicating liquor or drugs were

involved." 154 Wn.2d at 728.


           Because involvement of alcohol or drugs is an essential element of first degree negligent


driving,    the State in Greene   needed   to    prove   only the   existence of   the   prior offense.   154 Wn.2d at


728. But because the involvement of alcohol or drugs was not an essential element in Mullen' s


prior reckless driving conviction, Mullen argues that the State must prove both the existence of the

prior offense and the fact of alcohol or drug involvement.

           C. APPLICATION


           Because Mullen' s reckless driving conviction was originally charged as a DUI, it may be

a qualifying prior offense to elevate misdemeanor DUI to a felony. RCW 46.61. 5055( 14)( a)( x).

But a person is guilty of reckless driving when he " drives any vehicle in willful or wanton disregard

for the safety    of persons or   property."     RCW 46. 61. 500( 1).      Therefore, a person may be guilty of

reckless driving even if he is not engaged in an activity that involves alcohol or drugs. In contrast,

a person is guilty of first degree negligent driving, the prior offense at issue in Greene, when " he

or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to

endanger any person or property, and exhibits the effects of having consumed liquor or marijuana

or   any   drug." RCW 46. 61. 5249( 1)(    a).   A person may not be guilty of first degree negligent driving

unless he is under the influence of alcohol or drugs.


           As in Greene, the State must prove that Mullen' s reckless driving conviction involved

alcohol or drugs in order to satisfy his due process rights. See 154 Wn.2d at 728. The difference


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No. 45013 -5 -II



in Mullen' s case is that the State cannot prove that alcohol or drugs were involved merely by virtue

of his conviction for reckless driving. The Greene court was clear when it held that the legislature

intended only for prior offenses that involved alcohol or drugs to be used to support a felony DUI

conviction.    See 154 Wn.2d        at   727.   In Mullen' s case, however, the trial court ignored this


legislative intent. Instead, Mullen' s reckless driving conviction was used to elevate misdemeanor

DUI to a felony without a determination beyond a reasonable doubt that alcohol or drugs were

involved.     Because Mullen could not be charged with felony DUI unless his prior conviction

involved alcohol or drugs, it is an essential element that must be proven to a jury beyond a

reasonable doubt. Roswell, 165 Wn.2d at 194.


         d. THE STATE' S ARGUMENTS


         We now turn to the State' s arguments to the contrary. The State argues that the statute and

Greene only require it to produce the docket sheet confirming that Mullen was originally charged

with a   DUI and that he    pleaded      guilty to   reckless   driving.   The State also argues that the docket


and the entry in the docket for " Motion to Suppress [ blood/breath alcohol concentration] BAC "5

are sufficient evidence for the trial court to determine that the prior offense was alcohol or drug

related under its reading of Greene. We disagree.

         This argument is misplaced for three reasons. First, it ignores the Greene court' s reasoning

in overruling Shaffer. The court overruled Shaffer because it disagreed that the felony DUI statute

required   the State to   prove   the underlying DUI. Greene, 154 Wn.2d             at   727. The court held that


the legislature sought to apply felony DUI only to those defendants who were convicted of multiple




5 " BAC" refers to a test for blood alcohol content. In this case, this was a breath test.


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No. 45013 -5 -II



alcohol- or    drug -related     offenses.      Greene, 154 Wn.2d        at   727 -28.   The way to accomplish this is

to prove that alcohol or drugs were involved in the prior offense and does not require the State to


reprove the offense.



           Second, the State' s argument is misguided because if the Greene court sought merely to

require the State to prove that ( 1) the prior conviction existed and ( 2) the prior conviction was


originally charged as a DUI, the Greene court could have relied solely on the language of the

statute.   See RCW 46. 61. 5055( 14)(           a)( x).   Instead Greene states that due process requires the State


to "   establish"   that   alcohol or   drugs   were      involved. 154 Wn.2d at 728.


           Finally, the State' s argument ignores the fact that the defendant in Greene pleaded guilty

to first degree negligent driving and that alcohol or drugs are an essential element of that offense.

RCW 46. 61. 5249; see also 154 Wn.2d at 728. This is an important difference from Mullen' s case


because Greene was convicted beyond a reasonable doubt of an alcohol- or drug- related offense.

Mullen, in contrast, pleaded guilty to a nonalcohol- or drug -related prior offense, reckless driving,

which the State now seeks to use to convict him of a more serious alcohol- or drug- related offense.

           The State also relies on Chambers. But we distinguish Chambers from this case because

in Chambers the defendant argued that a California DUI conviction was not " equivalent" to a


Washington DUI conviction and, thus, should not qualify as a prior offense. 157 Wn. App. at 474-

77.


           In Chambers, Division One of this court held that while it is for the jury to decide whether

the prior offenses happened, whether two statutes were equivalent is a " threshold question of law"


and not a question of         fact for the   jury.     157 Wn.    App.   at   477. It is well settled that whether two


similar statutes are legally comparable is for the trial court to determine and, in part, requires the


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court   to decide     whether     the   elements of     the   offenses at   issue   are "   substantially   similar."   See, e. g.,

State   v.   Farnsworth, 133 Wn.           App.   1, 17 -18, 130 P. 3d 389 ( 2006), remanded, 159 Wn.2d 1004


 2007); In     re   Pers. Restraint ofLavery, 154 Wn.2d 249, 255, 111 P. 3d 837 ( 2005);                       State v. Morley,

134 Wn.2d 588, 606, 952 P. 2d 167 ( 1998).. Whether alcohol or drugs was involved in Mullen' s


prior offense is distinguishable from a comparison between the elements of a California and


Washington DUI. Here, we are not comparing elements of two offenses. But instead determining

whether a fact that is used to elevate a crime from a misdemeanor to a felony, and thereby

increasing the penalty, is an essential element of the felony crime. This is a factual determination

more    like the      existence    of a prior offense and not a             legal    question.     Therefore, Chambers is


inapplicable. 6

                                                        C. CONCLUSION


             In sum, in order to elevate a misdemeanor DUI to a felony DUI, the State must prove the

existence of the prior conviction beyond a reasonable doubt, and to satisfy due process, it must

also establish that alcohol or drugs were involved in that prior conviction. Where the involvement


of alcohol or drugs is not an essential element of the qualifying prior offense, like in reckless

driving, the State has the burden to establish that alcohol or drugs were involved because the




6 The State and the dissent also rely on State v. Chandler, 158 Wn. App. 1, 6 -8, 240 P. 3d 159
 2010), where we held that if the judgment and sentence are not available, the docket sheets are
sufficient     to   prove   the   existence of    the   conviction.       This   case   is   not relevant.    Mullen does not
argue   that the docket       sheets are    insufficient to       prove   the    existence of    the   conviction.      He argues
only that the docket sheets here are insufficient to prove the prior offense was alcohol- or drug -
related as a matter of law. We agree with Mullen that the docket sheet is sufficient to prove the
existence of a prior conviction, but it is insufficient to prove the conviction was alcohol or drug
related.


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legislature intended only for                  alcohol-      or drug- related convictions to be used to elevate

misdemeanor DUI to a felony. See Greene, 154 Wn.2d at 728.

         Because we hold that the involvement of alcohol or drugs in the prior offense is an essential


element of felony DUI, due process requires that it be tried to a jury and proven beyond a

reasonable      doubt.       Accordingly, we conclude that the trial court violated Mullen' s due process

rights when      it declined to        give    the   jury   Mullen' s   proposed   instruction.   We, therefore, reverse


Mullen' s conviction for felony DUI and remand to the trial court for entry of a misdemeanor DUI

conviction.




         A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public


record in accordance with RCW 2. 06. 040, it is so ordered.


                                                      ADDITIONAL FACTS


         At trial, Trooper Roberts and Joseph Templeton, a supervisor at the Washington State


Department       of   Licensing ( DOL),            testified for the State.   Trooper Roberts testified that he had


conducted a records check during Mullen' s arrest and that he had learned from a dispatcher that

Mullen'   s   driver'   s   license   was "   in   a revoked status, revoked second       degree."   RP ( June 13, 2013)


at 15. The trial court overruled Mullen' s hearsay objection to this testimony. During Templeton' s

testimony, the State offered Mullen' s abstract of complete driving record ( ACDR) as exhibit. 9.

Templeton testified that based on the ACDR, Mullen' s driver' s license was in a second degree


revoked status in March 2013.


         As evidence of the felony DUI, the State offered copies of the judgment and sentence for

three   of    Mullen' s     prior offenses.          Because the Chelan County District Court had destroyed its


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records of Mullen' s 2008 reckless driving conviction, the State offered a docket as the only

documentary evidence of that prior offense. This docket states that Mullen was originally charged

with DUI and that he was found guilty of reckless driving. It also noted that Mullen filed a " Motion

to Suppress BAC."      CP at 18.


       Mullen did      not     call   any    witnesses.     In closing argument, Mullen argued that he was

 entitled   to the benefit     of   the doubt in this     case."   RP ( June 17, 2013)   at   133.   In an attempt to


clarify the law in   rebuttal,      the   prosecutor stated, "     Counsel stated the benefit of the doubt to Mr.


Mullen. It' s reasonable doubt. It' s not the benefit of the doubt. You are to apply the law and the

instructions   as given   to   you.       A reasonable doubt, as it states in the instructions, is a doubt for


which a reason exists."        RP ( June 17, 2013) at 146. Mullen did not object contemporaneous with


this explanation of the burden of proof. After closing arguments, however, Mullen moved for a

mistrial because of "cumulative issues" including the prosecutor' s comment which he claimed

misstated the burden ofproof. The prosecutor conceded that his comment may have been improper

and suggested a curative instruction, but the trial court declined to give further instructions and


denied the mistrial motion.


                                             ADDITIONAL ANALYSIS


                                           I. THE CONFRONTATION CLAUSE


        Mullen argues that his confrontation clause rights were violated when the trial court


admitted ( 1) a certified ACDR and ( 2) Trooper Roberts' s testimony regarding a records check on

the night of Mullen' s arrest. Even assuming a confrontation clause violation, any error is harmless

beyond a reasonable doubt. We hold that Mullen' s confrontation clause argument fails and affirm

his second degree DWLS conviction.



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No. 45013 -5 -II



                                      A. STANDARD OF REVIEW AND RULES OF LAW


         Under the Sixth Amendment to the United States Constitution, criminal defendants have


the   right   to   confront or cross -examine                 those   who offer    testimony       against   them.       U.S. CONST.


amend.    VI; State    v.   Jasper, 174 Wn.2d 96, 109, 271 P. 3d 876 ( 2012). The right to confrontation


means    that the defendant            must     have the opportunity to            confront   those   who '    bear testimony. "'

Jasper, 174 Wn.2d           at    109 ( internal       quotation marks omitted) (           quoting Crawford v. Washington,

541 U. S. 36, 51, 124 S. Ct. 1354, 158 L. Ed 2d 177 ( 2004)). We review an alleged confrontation


clause violation       de    novo.       Jasper, 174 Wn.2d             at   108.   Where there is a confrontation clause


violation, we review          for harmless           error.   Jasper, 174 Wn.2d        at   108.   This puts the burden on the


State to show beyond a reasonable doubt that the error did not contribute to the verdict. Jasper,


174 Wn.2d at 117.


                                                              B. DISCUSSION


         Here, the State' s evidence to support Mullen' s conviction for DWLS was based on


Templeton' s testimony, supported by the ACDR, and Trooper Roberts' s brief testimony that the

dispatcher told him Mullen' s driving status was suspended or revoked. Mullen' s ACDR includes

the " Status"       of his driver' s license on the day that the ACDR was printed, but it was not

accompanied by an opinion as to the status of his license on the day he was arrested. The State,

here, relied on Templeton' s interpretation of the ACDR for that information.


         At trial, the State           asked        Templeton, " Sir, can you tell me whether you know what Mr.


Patrick Joseph Mullen'            s   driver'   s   license   status was on   March 2, 2013 [ the       day   of   his   arrest ?]"   RP


 June 13, 2013)       at    48.    Templeton          replied   that "[ h]e was revoked in the second degree, as I read




                                                                      17
No. 45013 -5 -II



this ...    due to     an    Admin Per Se."       RP ( June 13, 2013)      at   49.    Mullen had ample opportunity to

cross -examine Templeton and took full advantage of that opportunity.

           In a recent decision, Division One of this court upheld a defendant' s conviction for first

degree DWLS.            State v. Mecham, 181 Wn. App. 932, 948 -51, 331 P. 3d 80, review granted, 337

P. 3d 325 ( 2014). At trial, a DOL employee testified about the defendant' s revocation and that he


was a habitual offender. Mecham, 181 Wn. App. at 940. As in Mecham, the ACDR here did not

provide    the   essential     fact to be   proven at   trial —that Mullen' s license was suspended or revoked


on    March 2, 2013.         In order to be guilty of second degree DWLS, a person must be ( 1) driving his

car   while (    2) his license is      suspended       or revoked       and   not    eligible   for   reinstatement.   RCW


46. 20. 342( 1)( b).        Trooper Roberts' s testimony established that Mullen was driving his car, and

Templeton' s testimony interpreting the ACDR, not the ACDR itself, established that Mullen' s

license was revoked on the day of his arrest.

           Even if the trial court erred when it admitted Trooper Roberts' s testimony regarding the

dispatcher' s records check, Mullen' s claim does not survive a harmless error analysis. See Jasper,


174 Wn.2d        at   108.    It is clear from the State' s closing argument that it rested its argument for the

DWLS       charge      on     the ACDR      and   on   Templeton'    s   testimony.        Trooper Roberts' s testimony

regarding the records check was brief and merely cumulative to Templeton' s testimony.

           Because Templeton' s testimony established Mullen' s driver' s license status on the day he

was arrested for DUI, any error in admitting the ACDR or Trooper Roberts' s brief testimony was

harmless beyond a reasonable doubt. Thus, Mullen' s confrontation clause argument fails, and we

affirm his conviction for second degree DWLS.




                                                             18
No. 45013 -5 -II



                                            II. PROSECUTORIAL MISCONDUCT


        Mullen next argues that the State committed prejudicial misconduct that requires reversal


when it argued that the beyond a reasonable doubt standard does not mean that Mullen should get

 the benefit of the doubt" and that the trial court should have attempted to cure with an instruction.


Even if we assume without deciding that the comments were improper, Mullen must show there

was a substantial      likelihood that the State'         s comments affected   the   verdict.   State v. Emery, 174

Wn.2d 741, 760, 278 P. 3d 653 ( 2012).                     Because Mullen fails to demonstrate a substantial


likelihood that the comment affected the verdict, his prosecutorial misconduct claim fails.


                                    A. STANDARD OF REVIEW AND RULES OF LAW


        In order to prevail on a claim of prosecutorial misconduct, the defendant carries the burden


of demonstrating that the prosecutor' s comments were improper and that the comments were

prejudicial.   Emery,       174 Wn.2d       at   760.   We review a prosecutor' s allegedly improper comments

in the context of the total argument, the issues in the case, the evidence presented, and the


instructions   given.      State    v.   Yates, 161 Wn.2d 714, 774, 168 P. 3d 359 ( 2007), cert. denied, 554


U.S. 922 ( 2008); State        v.   Russell, 125 Wn.2d 24, 85 -86, 882 P. 2d 747 ( 1994), cert. denied, 514


U. S. 1129 ( 1995).        If the comments were improper and the defendant objected, we must consider


whether there was a substantial likelihood that the statements affected the jury' s verdict. Emery,

174 Wn.2d      at   760.    If the defendant failed to object during the closing argument, he must show

that the comment was so flagrant or ill intentioned that an instruction could not have cured the

prejudice. Emery, 174 Wn.2d 760 -61.




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No. 45013 -5 -II



                                                    B. DISCUSSION


          Here, Mullen did not immediately object to the State' s comment about the reasonable doubt

standard during closing argument but waited to make a motion for a new trial based on cumulative

error,   including     the   prosecutor' s   arguably improper    reasonable   doubt   comment.     The trial court


denied his motion for a mistrial and declined to give a curative instruction regarding reasonable

doubt. Because the court declined to give a curative instruction, it is reasonable that we apply the

less onerous " substantial likelihood that the statements affected the jury" standard.

          Mullen contends that because our Supreme Court in State v. Warren, 165 Wn.2d 17, 28,


195 P. 3d 940 ( 2008), cert. denied, 556 U. S. 1192 ( 2009), was prepared to reverse based on similar


comments if a curative instruction had not been given, reversal is appropriate here where the trial

court    declined to    give   further instructions. We hold that Mullen has failed to prove the required


prejudice.




          In Warren, the court held that the prosecutor' s comments were flagrant because she made


the same misstatement multiple times.              165 Wn.2d at 27. Despite the defendant' s objection after


the first misstatement, the prosecutor misstated the burden of proof again, and after the defendant' s


second objection, the trial court orally instructed the jury on the appropriate standard and directed

it to   review   the   packet of    jury   instructions.    Warren, 165 Wn.2d    at    24 -25.   The facts here are


distinguishable from the facts in Warren because Mullen did not object during rebuttal and the

prosecutor did not make multiple misstatements over Mullen' s objection. Unlike in Warren, the


prosecutor here did not attempt to undermine the State' s burden of proof. In Warren, the court


held that the prosecutor' s repeated misstatements of the burden of proof was flagrant misconduct,

a   holding   that the facts here do       not support.    165 Wn.2d at 27.



                                                             20
No. 45013 -5 -II



        Mullen' s argument also ignores the appropriate standard of review: we are to review this


comment     in the    context of   the total      argument,   the    evidence, and         the facts.   Warren, 165 Wn.2d at


28 ( citing Yates, 161 Wn.2d            at   774).   The context here demonstrates that the prosecutor did not


attempt   to   undermine    the State'       s   burden   of proof or      to   mislead    the   jury. Immediately after his

misstatement of       the burden of proof, the           prosecutor stated       that "[   y] ou are to apply the law and the

instructions     as given   to   you.    A reasonable doubt, as it states in the instructions, is a doubt for


which a reason exists."           RP ( June 17, 2013)         at    146.    Based on the prosecutor' s argument both


before and after his misstatement, Mullen has not carried his burden to prove a substantial


likelihood that the statements affected the jury. The prosecutor made just one arguably, improper

statement, and Mullen has failed to provide any argument or citations to the record apart from

conclusory statements that suggest that, in the context of the total argument, there is a " substantial

likelihood that the statements affected" the verdict here. Thus, Mullen' s prosecutorial misconduct


argument fails.


                                   III. STATEMENTS OF ADDITIONAL GROUNDS


                                     THE OTHER PATRICK MULLEN AND BAIL


          In his first and second SAG issues, Mullen argues that because of another pending case

against a different Patrick Mullen, he did not get a fair trial and unconstitutional bail was ordered.


At trial, Mullen asked Templeton several questions to see if Mullen' s driving records were

confused       with   another    Patrick Mullen.           But apart from his suggestions, Mullen provides no


evidence to demonstrate that a second Patrick Mullen actually existed or was charged with

vehicular      homicide. Nor does he             argue   why the trial     was unfair      to him. On this record, we hold




                                                                21
No. 45013 -5 -II



that Mullen suffered no unfairness from any confusion about a different Patrick Mullen and deny

this claim.


         Mullen next argues that the trial court ordered an unreasonable bail at his arraignment. But


a bail order is not a final order subject to review by this court. RAP 2. 2( a)( 1).

         Mullen' s third and fourth SAG issues concern the number of prior offenses to support the


felony   DUI   conviction.      Because we reverse the felony DUI conviction, we need not reach his

concern about    the   prior offenses.    Moreover, sufficient evidence exists on the record to establish


the   existence of   his four   prior offenses:   a judgment and sentence for three and the docket for the


reckless driving conviction. Each of these was presented to the jury. The docket is sufficient to

establish the existence of a prior conviction where the judgment and sentence is unavailable. State


v. Chandler, 158 Wn. App. 1, 6 -8, 240 P. 3d 159 ( 2010):

         Accordingly, we reverse Mullen' s felony DUI conviction, remand for the trial court to

enter a misdemeanor DUI conviction, and affirm his second degree DWLS conviction.




 I concur:




                                                        22
No. 45013 -5 -II



         MELNICK, J. (     Concurring in   part,   Dissenting   in   part) —   I, like the majority, would affirm

Patrick Joseph Mullen' s conviction for driving while license suspended or revoked in the second

degree. However, I respectfully dissent with the majority' s result reversing Mullen' s conviction

for   felony driving     under   the influence ( DUI).   I   would affirm      this   conviction. I agree with the


majority' s determination that proof of a prior conviction is an element of the crime that must be

proven beyond a reasonable doubt when it alters the crime charged from a misdemeanor or gross


misdemeanor     to   a   felony.    See State v. Roswell, 165 Wn.2d 186, 192, 196 P. 3d 705 ( 2008).


However, I disagree with the majority' s conclusion that the determination of whether Mullen' s

prior reckless driving conviction involved alcohol is a question of fact for the jury to decide.

I.       PRIOR CONVICTION DETERMINED BY JUDGE


         The penalties for the crime of DUI may be increased if the defendant has certain prior

offenses. Here, the State' s allegation that Mullen had four or more prior offenses within ten years

                                                                                                                         8
elevated   his DUI to     a   felony.   At issue here is Mullen' s 2008         conviction   for   reckless   driving.

This crime had originally been filed as a DUI. Because the original charging document, judgment

and sentence, plea of guilty, and other documents had been destroyed, the State presented proof of

the conviction through a certified court docket sheet. The docket sheet showed entries for both a


motion to suppress a " breath test" and a motion to suppress the conditions of Mullen' s sentence


relating to alcohol. These conditions included the installation of




7 RCW 46. 61. 502( 6)( a).

8 RCW 46. 61. 500. The legislature amended RCW 46. 61. 500 in 2011 and 2012. LAws OF 2011,
ch.96 § 34; LAWS OF 2012, ch. 183 § 11. The amendments did not alter the statute in any way
relevant to this case; accordingly, we cite the current version of the statute.
                                                         23
No. 45013 -5 - II



an ignition interlock device, a prohibition on using alcohol or drugs, attendance at a DUI victim' s

panel, and completion of an alcohol assessment. The State argued that because the reckless driving

conviction had originally been charged as a DUI and there were other indicia of alcohol use, the

reckless driving must have involved intoxicating liquor or drugs. The trial court agreed.

          As   applicable   to this   case, "' prior offense' means ...    A conviction for a violation of RCW


      46. 61. 500, ...   if the conviction is the result of a charge that was originally filed as a violation

of   RCW 46. 61. 502."      RCW 46. 61. 5055( 14)( a),       ( x).



          In   City   of Walla Walla       v.   Greene, 154 Wn.2d 722, 116 P. 3d 1008 ( 2005), the court


interpreted " prior offense" for purposes of determining mandatory minimum sentences. I believe

the same analysis applies here where the same statute defining " prior offense" elevates Mullen' s

crime to a felony. Our Supreme Court held that it is not enough that the original charge, prior to

amendment, was           DUI. Greene, 154 Wn. 2d        at   727. "[ T] he statute requires the State to establish


that a prior driving conviction involved use of intoxicating liquor or drugs. Thus, due process is

satisfied for the purposes of this mandatory enhancement if the prior conviction exists and the

prosecution can establish that intoxicating liquor or drugs were involved in that prior offense."

Greene,        154 Wn. 2d    at    727 -28.      It reasoned that this interpretation rendered the statute


constitutional     because, "     all elements of that offense are established by virtue of the conviction

itself." Greene, 154 Wn.2d at 728.




                                                             24
No. 45013 -5 -II



          The State asserts that involvement of drugs and alcohol is a threshold question of law and


that the trial court had the authority to decide it. I agree and believe the trial court should determine

the admissibility of the proffered prior conviction as a question of law. It is not an issue of fact

for the jury to decide. The jury should then determine whether the State has proven the predicate

offense beyond a reasonable doubt.


          While the fact that a person has four prior DUI offenses is an essential element of the crime


of   felony   DUI   under   RCW 46. 61. 502( 6),   that must be proved to the jury beyond a reasonable

doubt, whether a prior offense meets the statutory definition in RCW 46. 61. 5055( 13) is not an

essential element of the crime. Rather, the question of whether a prior offense meets the statutory

definition is a threshold question of law to be decided by the trial court before admitting a prior

offense into evidence at trial. State v. Chambers, 157 Wn. App. 465, 468, 237 P. 3d 352 ( 2010).

Division I of this court reaffirmed the proposition that " whether a prior conviction qualifies as a


predicate offense is a threshold question of law for the court, and not an essential element of the


crime of felony DUI" in State v. Cochrane, 160 Wn. App. 18, 27, 253 P. 3d 95 ( 2011).

          Based on the foregoing, I would hold that whether Mullen' s reckless driving conviction

involved alcohol and thus qualified as a predicate offense is for the judge to decide as a matter of

law. Whether the conviction has been proved beyond a reasonable doubt is for a jury to decide.

In other words, the jury would decide whether the prior offenses happened.9




9
    Assuming that the majority' s analysis is correct, its remedy is contrary to its reasoning. If a
jury is to determine as a matter of fact whether a prior conviction qualifies as a predicate offense,
this case should be remanded for a new trial on this issue.


                                                       25
No. 45013 -5 -II



II.     SUFFICIENCY OF PROOF OF PRIOR CONVICTION


        We review the trial court' s decision to admit evidence for an abuse of discretion. State v.


Demery,    144 Wn.2d 753, 758, 30 P. 3d 1278 ( 2001).                   A trial court is given considerable discretion


to determine the admissibility                 of evidence.   Demery,    144 Wn.2d      at   758.   However, an abuse of


discretion occurs if evidence is admitted contrary to law. State v. Neal, 144 Wn.2d 600, 609, 30

P. 3d 1255 ( 2001).      The admissibility of evidence shall be determined by the court. ER 104.

        The       proof of   Mullen'       s   2008   conviction was   sufficiently   proven   by   the State.   Generally a

certified copy of the judgment and sentence is the best evidence of a conviction. State v. Lopez,

147 Wn.2d 515, 519, 55 P. 3d 609 ( 2002).                  However, if the State shows why a certified copy of the

judgment     and sentence        is   not available,       other comparable evidence          may be    used.    Lopez, 147


Wn.2d at 519. The State then must show the sentencing court that the comparable evidence bears

  some minimal        indicium        of   reliability beyond   mere allegation.'"       State v. Mendoza, 165 Wn.2d


913, 920, 205 P. 3d 113 ( 2009) ( quoting                State v. Ford, 137 Wn.2d 472, 481, 973 P.2d 452 ( 1999))

 emphasis     in    original).    The use of court dockets to prove a defendant has been previously

convicted    is   proper.    State    v.   Vickers, 148 Wn.2d 91, 120, 59 P. 3d 58 ( 2002); State v. Blunt, 118


Wn.   App.   1, 8 -9, 71 P. 3d 657 ( 2003).            In State v. Chandler, 158 Wn. App. 1, 240 P. 3d 159 ( 2010),

the State provided certified copies of docket sheets from various district and municipal courts in

Washington.         We found these              sheets were reliable.    I do not believe the trial court abused its


discretion in admitting the prior conviction.




                                                                26
No. 45013 -5 -II



       Because I disagree with the majority' s conclusion that the determination of whether

Mullen' s prior reckless driving conviction involved alcohol and, thus, qualifies as a predicate

offense, as opposed to whether the prior, conviction occurred, is a question of fact for the jury to

decide, the constitutional issue is removed from consideration. I believe the decision whether to


admit prior convictions for the jury to consider is within the province of the trial court and it is for

the jury to determine if the prior convictions have been proven.

        For the reasons stated above, I respectfully dissent.




                                                   27
