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IN THE COURT OFAPPEALS FOR THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,
v. OLIVER W. WEAVER, JR., Appellant. No. 67558-3-1 DIVISION ONE UNPUBLISHED OPINION FILED: January 21, 2014 Leach, C.J. — Oliver Weaver appeals his resentencing for rape in the 

### second degree1 and rape of a child in the second degree,2 which followed two decisions from this court and two remands from the Washington Supreme Court. Weaver appeals his judgment and sentence as not reflecting the trial court's finding that his convictions violate the prohibition against double jeopardy. The State cross appeals, challenging the trial court's determination that the two convictions put Weaver in double jeopardy. Weaver also contends that the trial court lacked authority to impose an exceptional sentence and that certain of the court's instructions concerning the special verdict violated his rights to due process and a unanimous jury verdict. Weaver challenges his offender score, arguing that the State failed to meet its burden of proving his criminal history. And in a statement of additional grounds, Weaver raises further challenges to his 

### 1RCW9A.44.050(1)(a). 2RCW 9A.44.076.No. 67558-3-1 / 2 

### sentence andvarious factual allegations. Wehold thatin lightoftheWashington 

## Supreme Court's recent decision in State v. Smith,3 Weaver's convictions for both rape inthesecond degree and rape ofachild inthesecond degree did not 

## put him in double jeopardy. Because Weaver could have challenged his exceptional sentence in his first appeal but did not, we decline to address this claim here. We hold that Weaver's challenges to the trial court's special verdict 

### instructions and the allegations in his statement ofadditional grounds have no merit. And because the State adequately proved Weaver's priormisdemeanor 

### convictions atresentencing, weaffirm thetrial court's determination ofWeaver's offender score for sentencing purposes. We reverse the trial court's double 

## jeopardy determination, otherwise affirm, and remand for further proceedings consistentwith this opinion. 

### Background and Procedural History 

### In early December2002, appellantOliverWeaverviolently raped 13-yearold R.T., whom hehad employed since October2002 towash cars athis used
car lot and clean his house.4 R.T. was fearful because Weaver threatened her. 

## By the time she told afriend what had happened, she was atleast 11 weeks pregnant. On the advice ofher mother and her doctor, she had an abortion 5

3 177 Wn.2d 533, 303 P.3d 1047 (2013). 

### 4State v. Weaver, 140Wn. App. 349, 351, 166 P.3d 761 (2007), rey£, 171 Wn.2d 256, 251 P.3d 876 (2011). 5Weaver. 140 Wn. App. at 351.No. 67558-3-1 / 3 

### DNA (deoxyribonucleic acid) testing of fetal tissue indicated a 1 in 240 million 

## probabilitythatWeaverwas notthefather.6 The State charged Weaver with one count of rape in the second degree 

### and one count of rape of a child in the second degree. The State sought an 

### exceptional sentence based on the aggravating circumstance that the offense resulted in the pregnancy of a child victim of rape. After trial in February 2005, a 

### jury found Weaver guilty as charged, also finding the aggravating circumstance by special verdict. 

### For sentencing purposes, the court treated the two convictions as the
same criminal conduct and calculated Weaver's offender score as two, based 

### upon his two priorsecond degree burglary convictions.7 Weaverwas subjectto indeterminate sentencing underformer RCW9.94A.712 (2001). On both counts, 

### the court imposed an exceptional sentence with a minimum term of 250 months and a maximum sentence oflife.8 

### In his firstappeal to this court, Weaver contended that (1) the trial court 

### denied him his right to counsel and due process by denying his motions to substitute counsel and for a continuance, (2) the trial court lacked authority to 

### impose an exceptional sentence, and (3) the State failed to meet itsburden of proving his offender score. In his reply brief, Weaver abandoned his second

6Weaver, 140 Wn.App. at 351-52. 

### 7Theburglaries werefrom 1981 and 1985. The misdemeanorconvictions occurred between 1987 and 1996. 

### 8The terms were to run concurrently.

-3-No. 67558-3-1 / 4 

### issue, conceding the court'sauthority underformer RCW9.94A.712to impose an exceptional sentence. 

### In the published portion of ouropinion, we addressed his challenge to his offender score.9 We held that the State's presentence statement of criminal 

### history, towhich Weaverdid notobject, was sufficient under the requirements of former RCW 9.94A.500 (2000) for "presentence reports" to prove his prior 

### misdemeanors and thus prevent the burglary convictionsfrom washing out. In 

### taking thisposition, we explicitly disagreedwith Division Two's decision in State
v. Mendoza.11 In that case, the trial court used only the prosecutor's statementof 

### Mendoza's prior convictions, to which Mendozadid not object, to determine his 

### criminal history.12 Division Two remanded for resentencing because "[t]he State relied solely on the argumentative statement of the prosecuting attorney [and] failed to prove Mendoza's criminal history by a preponderance of the evidence or 

### that Mendoza waived any challenge to the criminal history."13 By contrast, we held in our first Weaver decision that the State's presentence statement was 

### sufficient to establish prior criminal history and that Weaver acknowledged his 

## criminalhistorybyfailingtoobject. WeaffirmedWeaver'sconvictions.14

9 

### Weaver, 140 Wn. App. at 351-57. In the unpublished portion of our 

### opinion, werejectedWeaver's claims regarding his motions tosubstitute counsel and for a continuance. 

### 10Weaver, 140 Wn. App. at 352, 355-57. 

### 11 139 Wn. App. 693, 162 P.3d 439 (2007). 12 Mendoza, 139 Wn. App. at 697-98. 13 Mendoza, 139 Wn. App. at 712-13. 14Weaver, 140 Wn. App. at 356-57.No. 67558-3-1 / 5
Weaverfiled a petition for review. In April2009, the Washington Supreme 

### Court affirmed Mendoza.15 In July, the court granted Weaver'spetition "only on the offender score issue" and remanded to this court "for reconsideration in light 

### of Statev. Mendoza."16 In an unpublished opinion,17 we againaffirmedWeaver's convictions, reasoning that "[t]he Department of Corrections criminal history 

### report was before the court and was not objected to." We declined to address 

### Weaver's newargumentalleging adoublejeopardyviolation.18 Weaver again petitioned for review, which theWashington Supreme Court 

### granted. "Because Mendoza clearly entitles Weaverto relief," the court reversed 

### ourdecision andremanded to thesuperiorcourt.19 Thecourt noted thatWeaver
never appeared for a scheduled interview with the Department of Corrections, 

### and therefore the department never completed a presentence report.20 And because no Department of Corrections report or other evidence of criminal 

### historybesides the prosecution's statementwas before the court and Weaverdid not "'affirmatively acknowledge'" his criminal history as Mendoza requires, the State did not prove the existence of Weaver's misdemeanor convictions as 

### required by former RCW 9.94A.500.21 The court added in a footnote that although this court properly declined to considerWeaver's doublejeopardy claim 15 State v. Mendoza, 165 Wn.2d 913, 205 P.3d 113 (2009). 16 State v.Weaver, 166 Wn.2d 1014, 212 P.3d 557 (2009). 

### 17 State v. Weaver, noted at 156 Wn. App. 1015, 2010 WL 2165353, at *1, rev'd, 171 Wn.2d 256, 251 P.3d 876 (2011). 

### 18Weaver, 2010WL2165353, at *1. 19 State v. Weaver. 171 Wn.2d 256, 258, 260, 251 P.3d 876 (2011). 20Weaver, 171 Wn.2d at 258. 21 Weaver, 171 Wn.2d at 259-60.
-5-No. 67558-3-1 / 6



### as exceeding the scope of remand, Weaver could raise this issue at resentencing.22 At resentencing on July 7, 2011, the State again argued that Weaver's offender score was two, based on his twoprior burglaries. The State provided 

## thejudgments and sentences for Weaver's two felony burglary convictions and certified copies ofcomputer dockets forWeaver's misdemeanor criminal history 

### to prove that his prior felony convictions did not wash out. The trial court 

### acceptedthecourtdockets as admissible proofofhis convictions, concludedthat the burglary convictions did not wash out, and confirmed Weaver's offender

score as two. 

### The court also concluded that Weaver's two current convictions violated 

### double jeopardy. After some discussion, it imposed the same indeterminate sentence on the count of rape in the second degree but did not impose any 

## sentence on the count ofrape ofa child in the second degree.23 Despite the court'sdoublejeopardyruling, itdid notvacatethe rapeofachild conviction. Weaveragain appeals.

22Weaver. 171 Wn.2d at 260 n.2. 

### 23 The court rejected Weaver's arguments about jury instructions and declined to consider factual arguments Weaver attempted to raise about the 

## accuracyofthe DNAtesting, ruling thatWeavermustpresentthis information to the Court of Appeals via personal restraintpetition.

-6-No. 67558-3-1 / 7 Analysis Double Jeopardy 

### Weaver argues that thetrial court's doublejeopardy determination should result in dismissal of his rape of a child conviction. The State cross appeals, 

### contending Weaver'stwo convictions did notviolate doublejeopardy. This court 

### stayed Weaver's second appealpending the SupremeCourt's decision in State
v. Smith, which the courtdecided on June 6, 2013. In light ofSmith, we hold that Weaver's two convictions did not put him indoublejeopardy. 

## Adoublejeopardyclaim presents aquestion oflawwe reviewde novo.24 Theguaranty againstdoublejeopardy intheUnited States andWashington State 

## Constitutions protects against multiple punishments for the same offense.25 A defendantmay raise a doublejeopardy challenge for the first time on appeal. 

### Multiple convictions may constitute a double jeopardy violation even when sentences run concurrently because separate convictions implicate other 

### adversecollateralconsequences.27 Within constitutional limits, a legislature has the power to defineprohibited 

### conduct and to assign punishment.28 To analyze a double jeopardy claim, a court must determine what punishments the legislative branch has authorized and if itintended to impose separate punishments for the acts that led to the
24 Statev. Frodert, 84 Wn. App. 20, 25, 924 P.2d 933 (1996). 25 State v. Calle, 125 Wn.2d 769, 776, 888 P.2d 155 (1995). 26 State v. Adel, 136Wn.2d 629, 631-32, 965 P.2d 1072 (1998). 27 Calle. 125 Wn.2d at 773-74. 28 Calle, 125Wn.2dat776.No. 67558-3-1 / 8


### defendant's convictions.29 First, the court examines the statutory language to 

### determineifthe applicablestatutes expresslypermitpunishment for the same act
ortransaction.30 Second, ifthe relevant statutes do not reveal an express intent 

### toimpose multiple punishments, Washington courts apply a "sameevidencetest" that issimilarto the rule setforth in Blockburqerv. United States:31 offenses are the "same offense" for purposes of double jeopardy when the crimes are the
same in fact and in law.32 "Offenses are the same in fact when they arise from 

### the same act or transaction. They are the same in lawwhen proofof one offense 

### would also provetheother."33 Third, when two offenses satisfytheBlockburqer/ "same evidence" test, courts look for any evidence of contrary legislative intent 

## thatwouldrebutthepresumptionthatmultipleconvictionsareappropriate.34

29 Calle, 125 Wn.2d at 776 (citing Whalen v. United States. 445 U.S. 684, 

### 688, 100 S. Ct. 1432, 63 L. Ed. 2d 715(1980)); Statev. Baldwin, 150Wn.2d448, 454, 78 P.3d 1005 (2003). 

### 30 Smith, 177 Wn.2d at 545 (quoting State v. Hughes, 166 Wn.2d 675, 

### 681, 212 P.3d 558 (2009)); Calle, 125Wn.2d at 776; State v. Martin, 149Wn. 

### App. 689, 698, 205 P.3d 931 (2009). RCW 9A.52.050, where the legislature explicitly provided for cumulative punishments for crimes committed during a burglary, is anexampleofthis express authorization. 31 284 U.S. 299, 304, 52 S. Ct. 180, 76 L Ed. 306 (1932). 32 State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983). 

### 33 Martin, 149 Wn.App. at 699 (citing Calle. 125Wn.2d at 777-78). 

### 34 Smith. 177Wn.2d at 545 (quoting Hughes. 166 Wn.2d at681-82); Calle, 125 Wn.2d at 780. For example, where the degree of one offense depends on 

### conductconstituting a separate offense, themergerdoctrine may help determine 

### legislativeintent: "[W]hen separatelycriminalized conductraises anotheroffense to a higher degree, we presume that the legislature intended to punish both offenses only once, namely, for the more serious crime with the greater sentence." State v. Leming, 133 Wn. App. 875, 882, 138 P.3d 1095 (2006) 

### (citing Statev. Freeman. 153Wn.2d765, 772-73, 108 P.3d753 (2005)).

-8-No. 67558-3-1 / 9
In Smith, a jury convicted the defendant of rape in the first degree and 

### rape of a child in thesecond degreefor his assault on 12-year-old L.S.35 Like Weaver, Smith contended that his two convictions arising from the same assault 

### violatedtheprohibition againstdoublejeopardy.36 Specifically, Smith arguedthat several cases from the Supreme Court and Court of Appeals stand for the proposition that force-based and status-based sex offenses cannot be punished 

### as separate crimes when both arise from the same incident.37 Smith relied heavily on State v. Hughes.38 in which the defendant had sexually assaulted a 12-year-old child with cerebral palsy. Hughes pleaded guilty to rape in the second degree based on the victim's inability to consent because of physical 

### helplessness or mental incapacity and also to rape of a child in the second degree. The Washington Supreme Court held in Hughes that because both crimes "require proof ofnonconsent because ofthe victim's status," they are the
same in fact and law under Blockburqer, and convictions for separate offenses 

### would violatedoublejeopardy.39 The court distinguished Smith from Hughes. While in Hughes the offenses were the same in law because both were based on the victim's status,


### one of Smith's crimes required proof of force, while the other required proof of the victim's status based on age. Therefore the two offenses in Smith were not
35 Smith, 177Wn.2dat538. 36 Smith. 177Wn.2dat545. 37 Smith, 177Wn.2dat546. 

### 38 166 Wn.2d 675, 679, 212 P.3d 558 (2009). 39 Hughes, 166 Wn.2d at 683-84.
-9-No. 67558-3-1/10 

### the same in law.40 Thecourtalsofound Statev. Calle41 "a closeanalogue."42 In Calle. the court held that the defendant's separate convictions for incest and second degree rape arising from the same act of intercourse did not violate 

### doublejeopardy.43 The court reasoned that the crimes were not the same in law under the Blockburger test because "[ijncest requires proof of relationship," 

### whereas "rape requires proofofforce."44 In Smith, the courtconcluded, "Smith suffered no double jeopardy when he was convicted of first degree rape and 

### second degree rape of achild."45 The court's holding in Smith controls our double jeopardy analysis here. As in Smith, one of Weaver's offenses required proof of forcible compulsion, while the other required proofofthe victim's status based on age. Although both crimes arise from the same act of rape and thus are the same in fact under Blockburqer, they are notthe same in law. We hold thatWeaver's convictions for both rape in the second degree and rape of a child in the second degree do not violate the prohibition againstdoublejeopardy. Exceptional Sentence Weaver revives an argument he raised and then abandoned in his first appeal—that the trial court "imposed an exceptional sentence that was not authorized by statute or jury verdict." Weaver contends that because the 40 Smith. 177Wn.2dat548. 

### 41 125Wn.2d 769, 888 P.2d 155(1995). 42 Smith, 177Wn.2dat550. 43 Calle. 125Wn.2dat782. 44 Calle. 125Wn.2dat778. 45 Smith. 177Wn.2dat550.
-10-No. 67558-3-1 /11 legislative amendments passed in response to the United States Supreme 

### Court's decision in Blakelv v. Washington46 took effect after his trial, the court erred in "empaneling a jury and creating its own procedures for imposing an exceptional sentence." 

### The defendant in State v. Barberio47 likewise did not challenge his exceptional sentence in his first appeal but then raised the issue in his second appeal following remand. The trial court in Barberio declined to reconsider its prior exceptional sentence on remand, and the Court ofAppeals and Washington 

### SupremeCourtaffirmed.48 The SupremeCourtcitedtoRAP2.5(c)(1):49 Clearly the rule is permissive for both the trial court and the appellate court. It is discretionary for the trial court to decide whetherto revisit an issue which was not the subject of appeal. If it does so, RAP 2.5(c)(1) states that the appellate court may review such issue.[50] The court emphasized that the exceptional sentence was "a clear and obvious issue" which Barberio should have raised in his first appeal. The court concluded that "[t]his case well illustrates the necessity ofthe rule which denies 

### review atthis latestage."51
46 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). 47 121 Wn.2d 48, 49-50, 846 P.2d 519 (1993). 48 Barberio. 121 Wn.2d at 50, 51. 

### 49 RAP 2.5(c)(1) states, If a trial court decision is otherwise properly before the appellate court, the appellate court may at the instance of a party review and determine the propriety of a decision of the trial court even 

### though a similardecision was notdisputed in an earlier review of the same case. 50 Barberio. 121 Wn.2d at 51. 51 Barberio. 121 Wn.2d at 52.
-11-No. 67558-3-1/12
Weaver's case similarly illustrates the necessity ofthis rule. Like Barberio, Weaver did not challenge his exceptional sentence in his first appeal, though his abandoned argument demonstrates that he could have done so. Like the court in Barberio, the trial court at Weaver's resentencing did not "exercise its 

### independentjudgment to review and reconsider its earlier sentence"52 but only reviewed thejudgment and sentence in light of its doublejeopardy determination, affirming in all other respects. Pursuant to the permissive rule of RAP 2.5(c)(1),
we also decline to address Weaver's challenge to his exceptional sentence. Special Verdict Jury Instructions Weaver takes issue with the special verdict jury form and unanimity instructions for three reasons: (1) he argues that the aggravating factor of the victim's age was also an essential elementofthe offense and thus could not be a 

### valid aggravating circumstance, (2) he contends that the special verdict form did not ensure that thejury unanimously found that the aggravating factor applied to 

### a particular count, and (3) he argues that the special verdict instruction failed to advise the jury that they did not need to be unanimous to answer "no" to the special verdict. The State counters that because Weaver did not raise these 

### specific objections at trial, under RAP 2.5(a) he has not preserved this issue for appeal. Weaver did, however, take exception at trial to the special verdict instructions and form, and we address his challenges here, reviewing jury

52 Barberio, 121 Wn.2d at 51.
-12-No. 67558-3-1/13 

### instructions de novo.53 Wefind nomeritinWeaver'sfirst and second arguments, 

### and the Supreme Court's decision in Statev. Guzman Nunez,54 decided during this pending appeal, disposes of his third challenge. Weaver first challenges the special verdict form, asserting that an aggravating factor that forms the basis for an exceptional sentence may not be based on "the very facts which constituted the elements ofthe offense proven at 

### trial."55 He argues that because R.T.'s age was an element of thecrime of rape of a child, her age cannot also serve as an aggravating circumstance that justifies an exceptional sentence. We disagree. The aggravating circumstance
was not only the victim's age—it was the fact that the crime resulted in the 

### pregnancyof achildvictim ofrape.56 This isnotanelementof thecrimeof rape
of a child. The special verdictform contained two questions, both of which thejurors answered "yes": "Was R.T. a child at the time ofthe commission ofthe crime in either count one or count two?" and "Did the defendant impregnate R.T. as a result of the commission of the crime in either count one or count two?" In 

### instruction 12, the trial court told thejury, "Since this is a criminal case, each of 

### you must agree for you to return a verdict." Instruction 13 read as follows:



### 53 Singh v. Edwards Lifesciences Corp., 151 Wn. App. 137, 150, 210 P.3d 337 (2009) (citing Thompson v. King Feed & Nutrition Serv.. Inc.. 153 Wn.2d 447, 453, 105 P.3d 378 (2005)). 

### 54 174 Wn.2d 707, 285 P.3d 21 (2012). 55 State v. Ferguson. 142 Wn.2d 631, 648, 15P.3d1271 (2001). 

### 56 Former RCW9.94A.535(2)(k) (2002).
-13-No. 67558-3-1 /14 If you find the defendant guilty ofeither count one or counttwo, you willthen use the special verdict form and fill in the blanks with the answer "yes" or "no" according to the decisions you reach. Inorder to answer the special verdict form "yes," you must unanimously be satisfied beyond a reasonable doubt that "yes" is the correct answer. If you have a reasonable doubt as to the question, you must answer "no." Weaver's second argument is that "[b]y instructing the jurors that their
answers . .. could be based on either count, the court did not ensure the jury verdict rested on unanimous agreement that the aggravating factor applied to a particular count." This argument fails. When Weaver's counsel raised this issue at his resentencing, the trial court concluded that there was only one act of intercourse, she was necessarily a child at the time of the commission of the act of intercourse which led to both guilty verdicts, and since itwas one act of intercourse that led to a pregnancy, that pregnancy occurred with respect to both crimes. It was impossible for the jury to find that the aggravating factor applied to the rape of a child count but not to the rape in the second degree count. We reject Weaver's contention that the verdict form did not ensure a unanimous verdict. Finally, Weaver argued in his opening brief that the jury's verdict on the aggravating factors, and therefore the exceptional sentence, is flawed because the court's instructions inaccurately explained the process for reaching a 

### nonunanimous verdict. Citing Statev. Bashaw,57Weaver contended that thetrial court erred by instructing the jury that it needed to be unanimous not only to
answer "yes" to the special verdict but also to answer "no."


### 57 169 Wn.2d 133, 147, 234 P.3d 195 (2010), rev'd. Guzman Nunez. 174 Wn.2d at 709-10.
-14-No. 67558-3-1/15
Weaver submitted his opening brief before the Washington Supreme Court decided Guzman Nunez, in which the court overruled Bashaw and held that a jury must also be unanimous in order to reject aggravating circumstances 

### alleged on a special verdict form.58 In his reply brief, Weaver appropriately acknowledges that in light ofGuzman Nunez, his arguments about "the apparent flaw inthe unanimity instruction are no longer endorsed by the Supreme Court." 

### His remaining argument that the special verdict form was "confusing" is not persuasive. The court's unanimity instruction here is identical to the instruction 

### that the Supreme Court found proper in Guzman Nunez59 and thus properly stated the requirementfor jury unanimity. Offender Score At resentencing on July 7, 2011, the State again argued that Weaver's offender score was two, based on his two prior burglaries. The State provided 

### the judgments and sentences for Weaver's two felony burglary convictions, certified copies ofcomputer dockets for Weaver's misdemeanor criminal history 

### to prove that the burglary convictions did not wash out, and a certified copy of his driver's license. Weaver did not affirmatively acknowledge his criminal history. 

### Weaver calls the State's proof "assertions coupled with documents of unsupported reliability," arguing that the dockets "use abbreviations that have

58 Guzman Nunez, 174 Wn.2d at 718-19. 59 Guzman Nunez. 174 Wn.2d at 710.
-15-No. 67558-3-1/16 

### ambiguous meaning" and do not explain that he was convicted of a crime and not justa traffic infraction. The relevant offender score washout rule provides, Class B priorfelony convictions otherthan sex offenses shall not be included in the offender score, ifsince the last date of release from confinement (including full-time residential treatment) pursuant to a felony conviction, if any, or entry of judgment and sentence, the offender had spent ten consecutive years inthe community without 

### committing anycrimethatsubsequentlyresults in aconviction.1601 Absent an affirmative acknowledgement by the defendant of facts and information introduced for the purposes of sentencing, the State must establish 

### the criminal history by a preponderance of the evidence.61 An unsworn document such as a prosecutor's summary, without more, is insufficientto satisfy due process, as is a defendant's mere failure to object to such a summary 

### statement.62 When a matter must be remandedfor resentencing, the State may 

### offer additional evidence toprove thedefendant's priorconvictions.63 While the Supreme Court stated in Mendoza that the best evidence will "generally" be a 

### certified copy of thejudgment and sentence,64 in In re Personal Restraint of Adolph,65 the court reiterated that '"the State may introduce other comparable documents ofrecord
... to establish criminal history.'" The court concluded that 

### 60 FormerRCW9.94A.525(2) (2002). FormerRCW9.94A.525(7) and (12) (2002) direct the court to assign one point to each conviction for burglary in the second degree. 61 Mendoza, 165 Wn.2d at 928-29. 

### 62 Statev. Hunlev, 175 Wn.2d 901, 913-14, 287 P.3d 584 (2012). 63 Mendoza, 165 Wn.2d at 930. 64 Mendoza, 165 Wn.2d at 930. 

### 65 170 Wn.2d 556, 566, 243 P.3d 540 (2010) (quoting State v. Ford. 137 Wn.2d 472, 480, 973 P.2d 452 (1999)).
-16-No. 67558-3-1 /17

the State's burden is "'not overly difficult to meet' and may be satisfied by 

### evidence that bears some 'minimum indicia of reliability.'"66 "If the court is satisfied by a preponderance of the evidence that the defendant has a criminal history, the court shall specify the convictions it has found to exist. All of this 

### information shall be part oftherecord."67 In Adolph. the court held that a Department of Licensing driving record abstract and a copy of the defendant's case history from the District and Municipal Court Information System was sufficient evidence for the trial court to find by a preponderance that Adolph had been convicted of DUI (driving under the influence of an intoxicant). The court reasoned that these records are "comparable to a certified judgment and sentence because they are official 

### government records, based on information obtained directly from the courts, and
can be created or modified only by government personnel following procedures 

### establishedbystatute orcourtrule."68 In State v. Chandler,69 the reviewing court considered certified copies of court docket sheets presented in conjunction with a certified copy of Chandler's driver's license. Despite Chandler's contentions that the documents were "unreliable as a result of unsupervised data entry," the court concluded that "the cross-referenced identifying information supports the finding that the docket


### 66Adolph. 170Wn.2d at 569 (quoting Ford, 137Wn.2d at480-81). 67 Former RCW9.94A.500(1) (2000). 68 Adolph, 170 Wn.2d at570. 

### 69 158Wn. App. 1,7, 240P.3d 159(2010).

-17-No. 67558-3-1/18
sheets are, at the very least, minimally reliable" to prove Chandler's prior DUI convictions.70 To prove Weaver's four misdemeanors, the State provided certified copies ofdockets from the municipal courts of Seattle and Ferndale and a certified copy of Weaver's driver's license showing his birth date and driver's license number, 

### which match the identifying information on thedockets.71 While thedockets do contain some abbreviations that the State does not explain, important identifying features (date of birth, driver's license number) clearly pertain to Weaver. Moreover, each docket lists the code provision of each offense: Seattle 

### Municipal Code (SMC) 11.56.320 (driving while license suspended) (DWLS)72 and former RCW 46.20.021 (1991) (driving without a valid license).73 All four offenses are misdemeanors, not traffic offenses, and each docket shows a 

### finding of either "Guilty" or "G." The certified copies are part of the record as required byformer RCW 9.94A.500. The trial court did not err in determining that the State had proved 

### Weaver's criminal history by a preponderance of the evidence. The certified 

### copies of court dockets, especially when cross-referenced to Weaver's driver's license, provide more than the "minimum indicia ofreliability" that satisfies due 

### 70 Chandler. 158Wn. App. at 7. 71 The driver's license and docket from Ferndale Municipal Court also contain details ofWeaver's physical description, which also match. 

### 72 SMC 11.56.320(B), (C), and (D) provide that driving a motorvehicle while license is suspended or revoked is either a misdemeanor (third degree 

### DWLS) or a gross misdemeanor (firstorsecond degree DWLS). 

### 73 Former RCW46.20.021(1) provides that "violation of this subsection is a misdemeanor."
•18-No. 67558-3-1/19

process and former RCW 9.94A.500(1). The court correctly determined that Weaver's felony burglary convictions do not wash out and that his offender score is two. Statement ofAdditional Grounds In a statement of additional grounds, Weaver claims that his sentence should have been 20 months to life instead of not less than 250 months. He contends thatthe trial court "denies any and all evidence of my sterility" and that the court "denied factual information" concerning problems with the DNA evidence at trial. He questions the absence of a calibration record for the equipmentused in DNAtesting and accuses the State's expert oflying. We reject Weaver's additional claims. As discussed above, Weaver was 

### subject to indeterminate sentencing and received an exceptional minimum term sentence that he did not challenge in his first appeal and that we affirm. As for his other allegations, we do not disturb the jury's factual determinations on 

### appeal.74 IfWeaverwishes to raisenew factual allegations, he must do so in a collateral attackonhis conviction via apersonal restraintpetition.75
Conclusion 

### Weaver's convictions for rape inthe second degree and rape of a child in the second degree do not violate the prohibition against double jeopardy. We decline to address his untimely challenge to his exceptional sentence, and we 

### 74 See Statev. Raleigh, 157 Wn.App. 728, 736-37, 238 P.3d 1211 (2010). 75 RAP 16.3; State v. Norman, 61 Wn. App. 16, 27-28, 808 P.2d 1159 (1991).
-19-No. 67558-3-1 / 20 

### reject his claims of error concerning the special verdict and his offender score. We find no merit in the claims he raises in his statement of additional grounds. We reverse the trial court's doublejeopardy determination, otherwise affirm, and remand forfurther proceedings consistentwith this opinion. 

# A^J.e.

WE CONCUR: 

# &?Q^W)Q€^-c

-20-