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State v. Mullen

Court of Appeals of Washington, Division 2

March 10, 2015

The State of Washington, Respondent ,
v.
Patrick Joseph Mullen, Appellant

Oral Argument October 14, 2014.

Appeal from Pierce County Superior Court. Docket No: 13-1-01340-3. Judge signing: Honorable Katherine M Stolz, John A. McCarthy. Date filed: 06/19/2013.

Kathryn A. Russell Selk (of Russell Selk Law Office ), for appellant.

Mark E. Lindquist, Prosecuting Attorney, and Jason Ruyf, Deputy, for respondent.

Authored by Jill M Johanson. Concurring: Thomas R Bjorgen. Dissenting: Rich Melnick.

OPINION

Page 27

Jill M Johanson, C.J.

[186 Wn.App. 324] [¶1] Patrick Joseph Mullen appeals his jury convictions for felony driving under the influence (DUI) and second degree driving while license suspended or revoked (DWLS). Mullen argues that the trial court violated his due process rights when it declined to give his proposed jury instruction requiring the State to prove beyond a reasonable doubt that alcohol or drugs were involved in his prior conviction for reckless driving. In the published portion of this opinion, we agree with Mullen. Mullen's remaining arguments are addressed in the unpublished portion of this opinion. We reverse Mullen's felony DUI conviction, remand to the trial court to enter a misdemeanor DUI conviction, and affirm his second degree DWLS conviction.

Page 28

FACTS

[¶2] 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[1]--based in part on a prior 2008 conviction for reckless driving[2]--and with second degree DWLS.[3]

[¶3] Mullen filed a motion to exclude the 2008 reckless driving conviction as a qualifying prior offense for felony DUI because there was no proof beyond a reasonable doubt that alcohol or drugs were involved in the 2008 offense. The trial court denied this motion.

[¶4] [186 Wn.App. 325] Mullen proposed the following jury instruction, defining a " prior offense" for felony DUI:

A " prior offense" means any of the following:
(1) A conviction for a violation of RCW 46.61.502 (Driving Under the Influence) or an equivalent local ordinance;
(2) A conviction for a violation of RCW 46.61.504 (Physical Control) or an equivalent local ordinance;
(3) A conviction for a violation of RCW 46.61.5249 (Negligent Driving in the First Degree), RCW 46.61.500 (Reckless Driving), or RCW 9A.36.050 (Reckless Endangerment) or an equivalent local ordinance, if the conviction is the result of a charge that was originally filed as a violation of RCW 46.61.502 (Driving Under the Influence) or RCW 46.61.504 (Physical Control) and the State has proven beyond a reasonable doubt that the prior incident was alcohol or drug related.

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

[¶5] The jury convicted Mullen of felony DUI and second degree DWLS. Mullen appeals both convictions.

ANALYSIS

[¶6] This case presents an issue of first impression: whether the State must prove beyond a reasonable doubt that a prior conviction for reckless driving involved alcohol or drugs in order to use that conviction as a prior offense to elevate a misdemeanor DUI to a felony. Mullen argues that after our Supreme Court's decision in City of Walla Walla v. Greene, 154 Wn.2d 722, 116 P.3d 1008 (2005), cert. denied, 546 U.S. 1174 (2006), the involvement of alcohol or drugs in a prior conviction for reckless driving is an essential element when the State seeks to use that conviction to elevate misdemeanor DUI to a felony. Because it is an essential element, Mullen argues that due process requires it be proved beyond a reasonable doubt and to a jury and that the trial court violated his due process rights when it refused to give his proposed jury instruction. The State argues that [186 Wn.App. 326] whether alcohol or drugs were 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

[¶7] 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.

[¶8] " [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 rights." State v. Carson, 179 Wn.App. 961, 973, 320 P.3d 185, review granted, 181 Wn.2d 1001 (2014).

[¶9] The State argues that Mullen invited error here because he improperly framed the issue in his motion as a request for the court

Page 29

to determine whether his reckless driving should be excluded as a prior offense. But the State misunderstands Mullen's motion. Mullen's motion requested a finding that in light of Greene and as a matter of law, the State could not prove beyond a reasonable doubt that drugs and alcohol were involved in the prior conviction. Mullen did not ask the court to determine a solely legal question; instead, he asked it to consider the facts that the State intended to establish and to find that the State could not prove an essential element beyond a reasonable doubt. We, therefore, reject the State's invited error argument.

2. Waiver

[¶10] The State next argues that Mullen waived his right to argue for the first time on appeal that a jury should determine whether alcohol or drugs were involved in the prior offense because he did not move for reconsideration of the trial court's denial of his motion to exclude. We disagree.

[186 Wn.App. 327] [¶ 11] 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).

[¶12] We disagree that Mullen waived his due process argument by failing to move for reconsideration for three reasons. First, Mullen's motion to exclude anticipated a question of fact for jury determination. CP at 7 (" There remains an unproven question of fact as to whether the prior incident involved alcohol or drugs." ). Second, the State points us to no case law to support the proposition that preserving this argument for appeal required a motion for reconsideration. And third, Mullen preserved this argument when he proposed a jury instruction that required proof " beyond a reasonable doubt that the prior incident was alcohol or drug related." CP at 77. It was squarely within the trial court's authority to give Mullen's proposed jury instruction, and it declined. During discussion about jury instructions, Mullen stated,

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

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

[¶13] Because the State's invited error argument fails and the proposed jury instruction preserved Mullen's argument for appeal, we continue to the merits of Mullen's argument.

[186 Wn.App. 328] B. Whether a Prior Conviction Involved Alcohol or Drugs Is an Essential Element of Felony DUI

[¶14] Mullen argues that after Greene, the involvement of alcohol or drugs in the prior conviction is an essential element of felony DUI that must be proved 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 ...


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