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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

CHRIS ROBERT MORTENSON, Appellant. No. 73398-2-1 DIVISION ONE UNPUBLISHED OPINION
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 convictionswithin the last 10years. On remand, Mortensonasked the court both 

### to adopt itsprevious rulings and tobifurcate the trial or thejury instructions. The courtadopted therulings ofthepreviousjudge. Mortensonwasconvicted offelony DUI. He argues that thetrial courtimproperly applied the law ofthe case doctrine and abused its discretionin denying hismotion to bifurcate the proceeding or give bifurcatedjury 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 of45 miles per hour. Statev. Mortenson. noted at 180Wn. App. 1013, 2014WL 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 Petrenchakfired his stun gun multipletimes 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 inthe second degree, and tampering with
a witness. \± at *2. The State alleged that Mortenson had at leastfour priorDUI 

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

### 1Anelementof a felonyDUI charge is that the person hasfour or more prior convictions under RCW 46.61.5055 within 10 years. RCW 46.61.502(6)(a).No. 73398-2-1/3 requiring thejury 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 priorconvictions under RCW 46.61.5055. Mortenson, 2014 WL 1286551 at *2. Atthe 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 RCW46.61.502 and RCW46.61.5055, and that he had at least four prioroffenses 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 RCW46.61.5055 inrespect to both Mortenson's 

### prior convictions and the current offense, the trial court informed the jury that Mortenson had four priorDUI convictions withinthe last 10 years. Id. at *4. This 

### was inherently prejudicial,because itmade it more likelythatthe jury would convictNo. 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 DUIcharge, 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 inthe case. He asserted that the pretrial rulings that had not been objected to or raised on appeal had become the law ofthe case. In a separate motion filed on the same day, Mortenson argued thatthe court should bifurcatethe 

### 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 priorjudges' rulings regarding the priorconviction 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. Thetrial court denied Mortenson's motion to bifurcate. The court noted that Judge Smith's 

### trialjury was instructed as to the third element offelony DUI—thatthe 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). Thejury 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 ofthe convictions. Mortenson was convicted offelony DUI. He appeals. DISCUSSION Mortenson asserts thatthetrialcourterred indenying his motion to bifurcate 

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

### erred byfailing to exercise its discretion to reconsiderthe previousjudges' rulings. Anessential element of felony DUI isthatthe 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. Heargued that ifthe State were permitted to submitevidence 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 thejury the question ofwhether the State has proved that he drove while under the influence of intoxicating liquor. Under this theoryNo. 73398-2-1/6 only ifthe 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 argumentthat a defendant has a right to a bifurcated trial when prior convictions are an essential element ofthe charged offense. State v. Roswell, 165 Wn.2d 186, 198, 196 P.3d 705 (2008). The defendantinRoswell 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 preventthe Statefrom introducing details aboutthe 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 itwas not error 

### for the jury to hearevidence of that element. Roswell, 165 Wn.2dat 197. The trial court did not abuse its discretion indenying his motion for a bifurcated trial. 

### Alternatively, Mortenson asserts that the trial court should have bifurcated 

### the jury instructions and verdictform so that the jurywas required to firstfind the otherelements of felony DUI were satisfied before finding thatthe 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 ofthe 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 bifurcatedjury instructions. Roswell, 165 Wn.2d at 197. 

### The trial court simply did not err ingiving 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 ratherthan bifurcation to mitigate prejudice inthese 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 ofprioroffenses, and the defendanthas stipulated to the existence 

### ofthe requisite number ofprioroffenses. Jd. And, the jurywould be instructedthat it is not to speculate as to the nature of the priorconvictions or use the stipulation for any other purpose. Id_. 

### The trial courtfollowed this procedure here. Noevidence was presented of 

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

### stipulateto the existence ofthosepriorconvictions. This stipulationdid notidentify Mortenson's prior convictions as prior DUI convictions. Instead, it merely statedNo. 73398-2-1/8 "[tjhatatthe time ofthe 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 itwas to consider this stipulation solely to establish the prior conviction element, and itwas not to speculate as to the nature ofthe 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 thejury instructions. 

### Mortenson also suggests that the court abused its discretion in failing to exercise its discretion to reconsider the question ofthe 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 priorjudges on whether to bifurcate the proceedings or the instructions. 

### Generally, the law of the case doctrine prevents a courtfrom 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,thetrial court on remand 

### mayexerciseits independent judgmentas to an issue not raisedinthefirstappeal. RAP 2.5(c)(1); 2A Karl B. Tegland, Washington Practice: Rules Practice RAP 2.5 taskforce cmt. at 263 (7th ed. 2014). On remand, the trial court has discretion to decide to revisit an issue thatwas notthe subject of an earlier appeal. State v. Barberio, 121 Wn.2d 48, 51, 846 P.2d 519 (1993).

8No. 73398-2-1/9

Mortenson's assertion that the trial court believed itwas 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 withJudge Gain's trial ending in a mistrial. And, itnoted, "Judge Smith's trial jury
was instructed as to [the prior conviction element offelony DUI]. Parties had an opportunity to raise that to the court ofappeals, they did not. Thejury will be so instructed." The courtdid not mention that it had no discretion to revisitthe 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 ifthe trial court did conclude that it lacked discretion to 

### reconsider the priorjudges' rulings on bifurcation, Mortenson affirmatively asked the court to reach that conclusion. In his trial brief, Mortenson moved the court to 

### adoptall prior pretrial rulings, because all pretrial motions that were notobjected 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 threetimes and to revisitthese issueswould onlydeprive 

### 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 histrial." Hereiterated this request atoral argument on the motions, stating that "thecase lawdirects the court to adopt all priorrulings." A criminal defendantcannotseekreview ofan errorhe helped create. State 

### v, Bover, 91 Wn.2d 342, 345, 588 P.2d 1151 (1979) (applying the invited errorNo. 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 invitederror 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 ifthe 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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