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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 73398-2-1
Respondent,
DIVISION ONE
UNPUBLISHED OPINION
CHRIS ROBERT MORTENSON,
Appellant. FILED: July 25, 2016
Appelwick, J. — Mortenson was convicted of felony DUI and attempting to
elude a pursuing police vehicle. We reversed the felony DUI conviction because
the trial court improperly informed the jury that Mortenson had four prior DUI
convictions within the last 10 years. On remand, Mortenson asked the court both
to adopt its previous rulings and to bifurcate the trial or the jury instructions. The
courtadopted the rulings ofthe previous judge. Mortenson was convicted offelony
DUI. He argues that the trial court improperly applied the law of the case doctrine
and abused its discretion in denying his motion to bifurcate the proceeding or give
bifurcated jury instructions. We affirm.
No. 73398-2-1/2
FACTS
On August 21, 2010, Deputy Jeffrey Petrenchak observed Chris Mortenson
driving 65 miles per hour on a road with a posted speed limit of 45 miles per hour.
State v. Mortenson. noted at 180Wn. App. 1013, 2014 WL 1286551, at *1. Deputy
Petrenchak pursued the vehicle, but Mortenson did not stop or slow down. Id.
After over a mile, Mortenson stopped the car and exited it, stumbling toward the
patrol car. Id. at *2. Mortenson did not comply with Deputy Petrenchak's orders
to get on the ground, and Deputy Petrenchak fired his stun gun multiple times until
Mortenson complied. Id. at *2.
Mortenson was charged with felony driving under the influence of
intoxicating liquor or any drug (DUI), attempting to elude a pursuing police vehicle,
driving while license suspended/revoked in the second degree, and tampering with
a witness. \± at *2. The State alleged that Mortenson had at least four prior DUI
offenses within 10 years of the current offense.1 The State dismissed the charge
of tampering with a witness, and Mortenson pleaded guilty to driving while license
suspended. ]dL
Mortenson's first trial on the felony DUI and attempting to elude charges
was before Judge Brian Gain. Id. Before trial, Mortenson moved to bifurcate the
proceedings so facts relevant to his prior DUI convictions would be presented in a
different proceeding than facts relevant to the charged DUI offense. Judge Gain
denied the motion. But, he ruled that he would bifurcate the jury instructions by
1An element of a felony DUI charge is that the person has four or more prior
convictions under RCW 46.61.5055 within 10 years. RCW 46.61.502(6)(a).
No. 73398-2-1/3
requiring the jury to first determine whether Mortenson drove under the influence
and then decide whether the State also proved that Mortenson had four prior
convictions. At trial, witnesses testified to evidence that had previously been
excluded, and Judge Gain declared a mistrial. Id.
Mortenson's second trial was before Judge Lori Smith. IdL Mortenson
asked Judge Smith to reconsider Judge Gain's decision not to bifurcate the trial.
Judge Smith adopted Judge Gain's rulings. With this in mind, Mortenson stipulated
that he had four prior convictions under RCW 46.61.5055. Mortenson, 2014 WL
1286551 at *2. At the beginning of jury selection, the court read the information to
the jury. Id. This informed the jury that Mortenson was charged with committing
felony DUI in violation of RCW 46.61.502 and RCW 46.61.5055, and that he had
at least four prior offenses under RCW 46.61.5055(14)(a) within 10 years of the
current offense. Mortenson. 2014 WL 1286551 at *2. Ultimately, Mortenson did
not offer bifurcated jury instructions. Mortenson was convicted of felony DUI and
attempting to elude a pursuing police vehicle. Mortenson, 2014 WL 1286551 at
*3.
On appeal, this court reversed Mortenson's conviction for felony DUI. Id at
*6. We held that by mentioning RCW 46.61.5055 in respect to both Mortenson's
prior convictions and the current offense, the trial court informed the jury that
Mortenson had four prior DUI convictions within the last 10 years. Id. at *4. This
was inherently prejudicial, because it made it more likely that the jury would convict
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Mortenson based on improper considerations of his propensity to commit the
crime. Id.
The case was remanded for a third trial on the felony DUI charge, this time
before Judge Tanya Thorp. Id. at *9. Before trial, Mortenson made several
motions. In his trial brief, he argued that the court should adopt all prior pretrial
rulings made in the case. He asserted that the pretrial rulings that had not been
objected to or raised on appeal had become the law of the case. In a separate
motion filed on the same day, Mortenson argued that the court should bifurcate the
trial into two proceedings: one involving the facts relating to the current charge of
felony DUI and one involving the facts relating to Mortenson's prior convictions.
At oral argument on these motions, Mortenson argued that the court was
bound by the prior judges' rulings regarding the prior conviction evidence. But, he
asserted that if the court was willing to reconsider those issues, it should
completely bifurcate the proceedings or at least bifurcate the instructions. The trial
court denied Mortenson's motion to bifurcate. The court noted that Judge Smith's
trial jury was instructed as to the third element of felony DUI—that the defendant
has four or more prior offenses within 10 years. 11A Washington Practice:
Washington Pattern Jury Instructions: Criminal 92.26 (3d ed. 2008). The
court recognized that the parties could have challenged this instruction on appeal,
but they did not. As a result, the court ruled that the jury would receive the same
instructions.
No. 73398-2-1/5
The parties again stipulated that Mortenson had four prior convictions under
RCW 46.61.5055(14)(a). The jury received a single "to convict" instruction, which
included as an element "[tjhat at the time of arrest, the defendant had been
previously convicted of four or more prior offenses within ten years pursuant to
RCW 46.61.5055(14)(a)." The jury was also instructed that the stipulation was
admitted solely to establish this element, and it was not permitted to speculate
about the nature of the convictions.
Mortenson was convicted of felony DUI. He appeals.
DISCUSSION
Mortenson asserts that the trial court erred in denying his motion to bifurcate
the proceedings or the jury instructions. And, Mortenson argues that the court
erred by failing to exercise its discretion to reconsider the previous judges' rulings.
An essential element of felony DUI is that the person has four or more prior
convictions under RCW 46.61.5055 within 10 years. RCW 46.61.502(6)(a).
Before trial, Mortenson moved the court to bifurcate the trial issues into (1) the
facts relating to the current charge and (2) the facts relating to any prior DUI
convictions. He argued that if the State were permitted to submit evidence that he
has committed prior crimes identical to the charged offense, the jury would be
unable to set aside that knowledge when weighing the evidence relating to the
current offense. To mitigate this potential prejudice, Mortenson asserted that the
court should first submit to the jury the question of whether the State has proved
that he drove while under the influence of intoxicating liquor. Under this theory
No. 73398-2-1/6
only if the jury found that the State had met its burden would the jury consider if
the State had also proved that Mortenson had the requisite prior convictions.
The Washington Supreme Court has explicitly rejected the argument that a
defendant has a right to a bifurcated trial when prior convictions are an essential
element of the charged offense. State v. Roswell, 165 Wn.2d 186, 198, 196 P.3d
705 (2008). The defendant in Roswell relied on the United States Supreme Court's
decision in Old Chief v. United States, 519 U.S. 172, 191, 117 S. Ct. 644, 136 L.
Ed. 2d 574 (1997) to contend that proof of past convictions is necessarily
prejudicial. Roswell, 165 Wn.2d at 194-95. But, our Supreme Court disagreed,
noting that while Old Chief recognized that a defendant may stipulate to a prior
conviction to prevent the State from introducing details about the offense, it did not
hold that a jury must be completely shielded from any reference to the prior
conviction, jd. at 195.
Under Roswell, Mortenson did not have a right to a bifurcated trial. His prior
convictions were an essential element of the crime charged, and it was not error
for the jury to hear evidence of that element. Roswell, 165 Wn.2d at 197. The trial
court did not abuse its discretion in denying his motion for a bifurcated trial.
Alternatively, Mortenson asserts that the trial court should have bifurcated
the jury instructions and verdict form so that the jury was required to first find the
other elements of felony DUI were satisfied before finding that the prior conviction
element was met.
No. 73398-2-1/7
In State v. Oster, our Supreme Court approved the use of bifurcated jury
instructions when prior convictions are an essential element of the crime charged.
147 Wn.2d 141, 147-48, 52 P.3d 26 (2002). The court noted that bifurcated
instructions guard against unfair prejudice while clearly maintaining the State's
burden to prove each element beyond a reasonable doubt. Id. However, the
Roswell court clarified that Oster does not stand for the proposition that a
defendant has a right to bifurcated jury instructions. Roswell, 165 Wn.2d at 197.
The trial court simply did not err in giving bifurcated jury instructions in Oster, but
such a decision is reviewed for an abuse of discretion, jd. at 197-98.
In a footnote, the Roswell court offered an alternative procedure that could
be used rather than bifurcation to mitigate prejudice in these situations, jd. at 198
n.6. Under this procedure, the defendant could stipulate to the prior conviction
element, but the offense would be identified by statutory citations rather than the
name of the offense. Id The jury would be instructed that the charge requires a
certain number of prior offenses, and the defendant has stipulated to the existence
of the requisite number of prior offenses. Jd. And, the jurywould be instructed that
it is not to speculate as to the nature of the prior convictions or use the stipulation
for any other purpose. Id_.
The trial court followed this procedure here. No evidence was presented of
the facts surrounding Mortenson's prior convictions. Mortenson was permitted to
stipulate to the existence ofthose prior convictions. This stipulation did not identify
Mortenson's prior convictions as prior DUI convictions. Instead, it merely stated
No. 73398-2-1/8
"[tjhat at the time of the arrest, the defendant had been previously convicted of four
or more prior offenses within ten years pursuant to RCW 46.61.5055." The jury
was instructed that it was to consider this stipulation solely to establish the prior
conviction element, and it was not to speculate as to the nature of the convictions
or use this evidence for any other purpose. This procedure was sufficient to
mitigate the potential unfair prejudice of prior criminal history while still permitting
the State to meet its burden. The trial court did not abuse its discretion in denying
Mortenson's motion to bifurcate the jury instructions.
Mortenson also suggests that the court abused its discretion in failing to
exercise its discretion to reconsider the question of the prior conviction evidence.
He argues that the court erroneously believed that under the law of the case
doctrine, it was bound by the decision of the prior judges on whether to bifurcate
the proceedings or the instructions.
Generally, the law of the case doctrine prevents a court from considering
an issue that was already decided in a previous appeal in that case. State v.
Harrison, 148 Wn.2d 550, 562, 61 P.3d 1104(2003). But, the trial court on remand
may exercise its independentjudgment as to an issue not raised in the first appeal.
RAP 2.5(c)(1); 2A Karl B. Tegland, Washington Practice: Rules Practice RAP
2.5 task force cmt. at 263 (7th ed. 2014). On remand, the trial court has discretion
to decide to revisit an issue that was not the subject of an earlier appeal. State v.
Barberio, 121 Wn.2d 48, 51, 846 P.2d 519 (1993).
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No. 73398-2-1/9
Mortenson's assertion that the trial court believed it was bound by the prior
judges' decisions is not supported by the record. After oral argument on
Mortenson's motion to bifurcate, the trial court recognized that there was an issue
with Judge Gain's trial ending in a mistrial. And, it noted, "Judge Smith's trial jury
was instructed as to [the prior conviction element of felony DUI]. Parties had an
opportunity to raise that to the court of appeals, they did not. The jury will be so
instructed." The court did not mention that it had no discretion to revisit the issue—
it merely decided that it would not do so. The court did not abuse its discretion in
giving the jury the same instructions that were provided in the second trial.
Moreover, even if the trial court did conclude that it lacked discretion to
reconsider the prior judges' rulings on bifurcation, Mortenson affirmatively asked
the court to reach that conclusion. In his trial brief, Mortenson moved the court to
adopt all prior pretrial rulings, because all pretrial motions that were not objected
to or raised on appeal had become the law of the case. Mortenson vigorously
advocated for the court to adopt this position, asserting, "The issues before this
Court have been litigated three times and to revisit these issues would only deprive
Mr. Mortenson his right to due process and a fair trial that is based upon the
evidence and not the randomness of what judges happens to be available to
preside over his trial." He reiterated this request at oral argument on the motions,
stating that "the case law directs the court to adopt all prior rulings."
A criminal defendant cannot seek review of an error he helped create. State
v, Bover, 91 Wn.2d 342, 345, 588 P.2d 1151 (1979) (applying the invited error
No. 73398-2-1/10
doctrine where the defendant requested a particular jury instruction); State v.
Carson, 179 Wn. App. 961, 973-74, 320 P.3d 185 (2014) (applying the invited error
doctrine where the defendant strenuously opposed the trial court's proposed jury
instructions), affdJ84 Wn.2d 207, 357 P.2d 1064 (2015). We conclude that if the
trial court did reach this decision because it believed it was bound by the prior
judges' rulings, it did so at Mortenson's request. Therefore, any error was invited.
We affirm.
WE CONCUR:
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