### FILED 

# COURTOFAPPEALS DIVISION I1 2015 

### MAR 10 

### AM 8 35 

## STATE" OF SW ' P1 BY



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, DIVISION II
Respondent,

v. PATRICK JOSEPH MULLEN, Appellant. No. 45013 -5 -II

PART PUBLISHED OPINION
JOHANSON, C.J. — 

### PatrickJoseph Mullen appeals hisjury convictions forfelony driving underthe 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 

### proposedjury 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 Mullen's remaining arguments are addressed in the unpublished portion of this opinion.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 

### felony DUI' —

based in part on a prior 2008 conviction for reckless driving2 — and with second degree DWLS.3 

### Mullen filed amotion to , exclude the 2008 reckless driving conviction as a qualifying prior offense forfelony DUI becausethere was no proofbeyond a reasonable doubtthat alcohol ordrugs were involved in the 2008 offense. The trial court denied this motion. 

### Mullen proposed the followingjury instruction, defining a "prior offense" forfelony DUI: A "prior offense" means any ofthe 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 

### resultofachargethatwas originallyfiled as aviolation ofRCW46.61. 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).
2No. 45013 -5 -II



### Thejury convicted Mullen offelony 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 orderto
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 ofWalla 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 ajury and thatthe trial courtviolated his due process rights when it refusedto give his proposedjury 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

3No. 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 forthe courtto 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 

### ajury should determine whether alcohol or drugs were involved in the prior offense because he did not move for reconsideration ofthe trial court' s denial ofhis 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 offact for

### jury determination. CP at 7 ( " There remains an unproven question of fact as to whether the
4No. 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 ajury 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 aboutjury instructions, Mullen stated, 

### Ijustwantto formally object. I don'tthinkthatthe State' s proffered instruction of a prior offense is a correct statement ofthe 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 thatwas not proven beyond a reasonable doubtto be a qualifying offense. Report of Proceedings ( RP) ( June 14, 2013) at 106. Mullen did not waive his due process argument. 

### Becausethe State' s invited error argumentfails andthe proposedjury 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 offelony 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 orderto elevate the misdemeanor DUI to a felony DUI.

5No. 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 authorityto decide it,is aquestion oflawthatwe reviewde 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 orderto 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" ofthe offense charged. Alleyne, 133 S. Ct. at 2158. A person is guilty of

### felony DUI ifhe ( 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 " ifthe conviction is the result ofa 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 anyvehicle in willful orwanton disregard forthe safety ofpersons 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 ifthe priorconviction exists andthe [State] can establish that intoxicating 6No. 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 whetherthe involvement 

### ofalcohol 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 elementthat must be proven to ajurywhere it was not an essential element ofthe prior conviction itself. 2. DISCUSSION

a. WHAT IS AN ESSENTIAL ELEMENT OF A CRIME 

### The United States Supreme Court has recently decided several casesthatprovide 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] utfor afinding ofbrandishing,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 unlikeAlleyne this case does not involve sentencing,the issue is similarwhere butfora finding thatthe 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 ofan 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
7No. 45013 -5 -II



### when a defendant is sentenced to morethan 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 

### defendantwas entitled to ajury determination ofanyfactorthat 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 relevantto Mullen because itsupports arequirementthatfacts thatjustify an increased penalty be tried to ajury. In Washington, similar reasoning has been applied to offenses that rely on past convictions 

### to elevate acrime from amisdemeanorto afelony. See, e.g.,Roswell, 165 Wn.2d at 192 - 93; Oster, 

### 147 Wn.2d at 145 -47. Although neither Osternor Roswell are directly on point,their reasoning is persuasive. In Oster, the defendant was charged with felonyviolation ofa domestic violence nocontactorder. 147 Wn.2d at 143. The charge was elevated to afelony because he hadtwo ormore 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 thejury 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 priorfelony sex offense convictions, he could not have been charged or convicted of 

### felony communication with a minor for immoral purposes." Roswell,
8No. 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 ofthe 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 ofthe prior convictions was sufficientto elevate the current offense to a felony. Although helpful, neither Oster nor Roswell are precisely on point because in those cases 

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

### Mullen argues that the mere existence ofthe 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 orderto elevate the misdemeanor DUI to felony DUI.

b. CITYOF WALLA WALLA V. GREENE 

### It is undisputed thatthe existence ofMullen's priorconviction forreckless 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 athreshold question oflawthatthetrial court hadthe authorityto decide. Mullen asserts, however, that Greene establishes the involvement of alcohol or drugs as part ofthe definition of a 

### prior offense, that it is an element of the crime, and that it must be found by ajury beyond a reasonable doubt. We agree with Mullen because, after Greene, unless alcohol or drugs were

9No. 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 ofthe offense offelony DUI. In Greene, the State charged the defendant with misdemeanor DUI, but she pleaded guilty 

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

### alcohol or drugs.4 154 Wn.2d at 724. She was laterconvicted ofan additional DUI,and the City sought to use the negligent driving conviction as a prioroffensebecause 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 ofWalla 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 ofintoxicating liquor or drugs. Thus, due process is satisfied forthe purposes ofthis mandatory enhancement ifthe prior conviction exists and the prosecution can establish that intoxicating liquor ordrugs were involved in thatprioroffense. - Greene, 154 Wn.2d at 727 - 28 (footnote omitted). Because the legislature intended onlyto 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 thatthe prior conviction exists and that it was alcohol or 

### drug related. See 154 Wn.2d at 728. Since the 

### 4 " Aperson is guilty ofnegligent driving in the first degree ifhe or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person orproperty, and exhibits the effects of 

### having consumed liquor or marijuana or any 

### drug." RCW 46.61. 5249( 1)( a) ( emphasis added). 10No. 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 ofthe 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 thatthe State must prove boththe existence ofthe prior offense and the fact ofalcohol 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). 

### Butaperson is guiltyofreckless drivingwhen he "drives anyvehicle inwillful orwanton disregard for the safety of persons or property." RCW 46.61. 500( 1). 

### Therefore, a person may be guilty of 

### reckless driving even ifhe is not engaged in an activitythat involves alcohol or drugs. In contrast, a person is guilty offirst 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 ofhaving consumed liquor or marijuana

or any drug." RCW 46.61. 5249( 1)( a). 

### Aperson maynot be guiltyoffirstdegree 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 orderto satisfy his due process rights. See 154 Wn.2d at 728. The difference
11No. 45013 -5 -II



### in Mullen's case isthatthe State cannot provethat alcohol ordrugs were involved merely byvirtue ofhis conviction for reckless driving. The Greene courtwas clearwhen it heldthatthe legislature intended only for prior offenses that involved alcohol or drugs to be used to support afelony 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 nowturnto the State' s arguments to the contrary. The State argues thatthe statute and 

### Greene only require itto 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 ofGreene. We disagree. 

### This argument is misplacedforthree reasons. First, it ignoresthe Greene court' s reasoning 

### in overruling Shaffer. The court overruled Shaffer because it disagreedthatthefelony DUI statute required the State to prove the underlying DUI. Greene, 154 Wn.2d at 727. The court held that 

### the legislature soughtto applyfelony DUI onlytothose defendants whowere convicted ofmultiple
5 " BAC" refers to atest for blood alcohol content. In this case, this was a breath test. 12No. 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 ifthe 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 andthat alcohol ordrugs are an essential element ofthatoffense. 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 ofan alcohol- or drug-related offense. 

### Mullen, in contrast,pleaded guiltyto a nonalcohol- or drug - related prior offense, reckless driving, which the State nowseeks to use to convict him ofa 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 qualifyas aprioroffense. 157 Wn.App. at474- 77. 

### In Chambers, Division One ofthis court held that while it is forthejuryto 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 forthe trial court to determine and, in part, requires the 13No. 45013 - 5 -II

court to decide whether the elements ofthe 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 oftwo 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 ofthe felony crime. This is afactual 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 ofthe 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 ofa prior conviction, but it is insufficient to prove the conviction was alcohol or drug related. 14No. 45013 -5 -II

legislature intended only for alcohol- 

### or drug-related convictions to be used to elevate misdemeanor DUI to afelony. See Greene, 154 Wn.2d at 728. Because we hold thatthe involvement ofalcohol 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 forfelony DUI and remandtothetrial courtfor entry ofamisdemeanor DUI
conviction. 

### A majority ofthe panel having determined that only the foregoing portion ofthis 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 thistestimony. 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 ofthe felony DUI, the State offered copies ofthejudgment and sentence for three of Mullen' s prior offenses. 

### Because the Chelan County District Court had destroyed its
15No. 45013 -5 -II



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

### documentary evidence ofthatprioroffense. This docket statesthat Mullenwasoriginally charged with DUI andthathewas found guiltyofreckless driving. It also notedthat Mullenfileda "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 ofthe doubt to Mr. 

### Mullen. It's reasonable doubt. It's not the benefit ofthe doubt. You are to applythe 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 ofthe burden ofproof. 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 concededthat his commentmayhave 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 ofMullen's arrest. Even assuming aconfrontation 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.
16No. 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 bythe ACDR, and Trooper Roberts' s brieftestimony thatthe dispatchertold 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 ofhis license on the day he was arrested. The State, here, relied on Templeton' s interpretation ofthe 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

17No. 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 tookfull advantage ofthat 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 orderto be guilty ofsecond 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 ofhis 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 briefand 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 orTrooper Roberts' s brieftestimony was harmless beyond a reasonable doubt. Thus, Mullen' s confrontation clause argument fails, and we affirm his conviction for second degree DWLS.

18No. 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 ofthe doubt" and that the trial court should have attempted to cure with an instruction. 

### Even ifwe 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 ofprosecutorial 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). Ifthe comments were improper and the defendant objected, we must consider 

### whetherthere was a substantial likelihood that the statements affected thejury's verdict. Emery, 174 Wn.2d at 760. 

### Ifthe 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.

19No. 45013 -5 -II B. DISCUSSION



### Here,Mullen did not immediately objecttothe State' s comment aboutthe reasonable doubt 

### standard during closing argument butwaited to make amotion foranewtrial 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 thatwe applythe 

### less onerous " substantial likelihoodthatthe statements affected thejury" 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 ofproofagain, and afterthe defendant' s 

### second objection,thetrial courtorally instructed thejuryon 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 ofthe burden ofproofwas flagrant misconduct,

a holding that the facts here do not support. 165 Wn.2d at 27.
20No. 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 ofthe burden of proof,the prosecutor stated that "[

### y]ou are to applythe 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 thejury. The prosecutor madejust one arguably,improper statement, and Mullen has failed to provide any argument or citations to the record apart from 

### conclusory statements that suggestthat, in the context ofthetotal 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

21No. 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 afinal order subjectto review bythis 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: ajudgment and sentence for three and the docket for the 

### reckless driving conviction. Each ofthese was presented to thejury. The docket is sufficient to establish the existence ofa prior conviction where thejudgment 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:

22No. 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 ofa prior conviction is an element ofthe 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 ofwhether Mullen's 

### prior reckless driving conviction involved alcohol is a question offact forthejuryto 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
elevated his DUI to a 

### felony. At issue here is Mullen' s 2008 conviction for reckless 

### driving. 8 

### This crime had originally been filed as a DUI. Because the original charging document,judgment and sentence, plea ofguilty, and other documents had been destroyed,the State presented proofof 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 alterthe statute in any way relevantto this case; accordingly, we cite the current version ofthe statute. 23No. 45013 -5 -II



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

### panel, and completion ofan alcohol assessment. The State arguedthatbecausethe 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, ... ifthe conviction is the result ofa charge thatwas originally filed as aviolation
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 ofdetermining 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 thatthe original charge, priorto 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 ifthe 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 ofthat offense are established by virtue ofthe conviction itself." Greene, 154 Wn.2d at 728.

24No. 45013 -5 -II The State asserts that involvement of drugs and alcohol is a threshold question of law and 

### thatthe trial court hadthe authorityto decide it. I agree and believe the trial court should determine 

### the admissibility ofthe proffered prior conviction as a question of law. It is not an issue offact forthejuryto decide. Thejury should then determine whetherthe 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 ofthe 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 ofthe crime. Rather,the question ofwhether a prior offense meets the statutory 

### definition is a threshold question of lawto 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 ofthis 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 ofthe 

### crime offelony 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 forthejudge to decide as a matter of 

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

### In otherwords,thejurywould decide whetherthe prioroffenses happened.9

9

### Assuming thatthe majority's analysis is correct, its remedy is contraryto its reasoning. Ifa jury is to determine as a matter offact whether a prior conviction qualifies as a predicate offense, this case should be remanded for a new trial on this issue. 25No. 45013 -5 -II

II. SUFFICIENCY OF PROOF OF PRIOR CONVICTION We review the trial court' s decision to admit evidence for an abuse ofdiscretion. 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 ifevidence is admitted contrary to law. State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 ( 2001). 

### The admissibility ofevidence shall be determined bythe court. ER 104.

The proof of Mullen' s 2008 conviction was sufficiently proven 

### by the State. Generally a certified copy ofthejudgment and sentence is the best evidence ofa conviction. State v. Lopez, 147 Wn.2d 515, 519, 55 P.3d 609 (2002). 

### However, ifthe State shows why a certified copy ofthe judgment and sentence is not available, other comparable evidence may be used. Lopez, 147 

### Wn.2d at 519. The State then must showthe sentencing courtthat 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.

26No. 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 offact for thejury to decide, the constitutional issue is removed from consideration. I believe the decision whether to 

### admit prior convictions forthejuryto consider is within the province ofthetrial court and it is for thejury to determine ifthe prior convictions have been proven. Forthe reasons stated above, I respectfully dissent.

27