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     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                              No. 67558-3-1
                    Respondent,
      v.                                      DIVISION ONE


OLIVER W. WEAVER, JR.,                        UNPUBLISHED OPINION

                    Appellant.                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).
      2 RCW 9A.44.076.
No. 67558-3-1 / 2



sentence and various factual allegations. We hold that in light of the Washington

Supreme Court's recent decision in State v. Smith,3 Weaver's convictions for
both rape in the second degree and rape of a child in the second 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 of additional grounds have no

merit. And because the State adequately proved Weaver's prior misdemeanor

convictions at resentencing, we affirm the trial court's determination of Weaver's

offender score for sentencing purposes. We reverse the trial court's double

jeopardy determination, otherwise affirm, and remand for further proceedings
consistent with this opinion.

                        Background and Procedural History

       In early December 2002, appellant Oliver Weaver violently raped 13-year-
old R.T., whom he had employed since October 2002 to wash cars at his used
car lot and clean his house.4 R.T. was fearful because Weaver threatened her.

 By the time she told a friend what had happened, she was at least 11 weeks
                                                                                    5
 pregnant. On the advice of her mother and her doctor, she had an abortion




        3 177 Wn.2d 533, 303 P.3d 1047 (2013).
        4 State v. Weaver, 140 Wn. App. 349, 351, 166 P.3d 761 (2007), rey£,
 171 Wn.2d 256, 251 P.3d 876 (2011).
      5 Weaver. 140 Wn. App. at 351.
No. 67558-3-1 / 3




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

probability that Weaver was not the father.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 prior second degree burglary convictions.7 Weaver was subject to
indeterminate sentencing under former RCW 9.94A.712 (2001). On both counts,

the court imposed an exceptional sentence with a minimum term of 250 months

and a maximum sentence of life.8

       In his first appeal 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 its burden of

proving his offender score. In his reply brief, Weaver abandoned his second



       6Weaver, 140 Wn. App. at 351-52.
       7The burglaries were from 1981 and 1985. The misdemeanor convictions
occurred between 1987 and 1996.
       8 The terms were to run concurrently.

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



issue, conceding the court's authority under former RCW 9.94A.712 to impose an

exceptional sentence.

       In the published portion of our opinion, we addressed his challenge to his

offender score.9 We held that the State's presentence statement of criminal

history, to which Weaver did not object, 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 convictions from washing out.         In

taking this position, we explicitly disagreed with Division Two's decision in State

v. Mendoza.11 In that case, the trial court used only the prosecutor's statement of

Mendoza's prior convictions, to which Mendoza did 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

criminal history by failing to object. We affirmed Weaver's convictions.14


       9
           Weaver, 140 Wn. App. at 351-57. In the unpublished portion of our
opinion, we rejected Weaver's claims regarding his motions to substitute counsel
and for a continuance.
       10 Weaver, 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.
       14 Weaver, 140 Wn. App. at 356-57.
No. 67558-3-1 / 5




       Weaver filed a petition for review. In April 2009, the Washington Supreme

Court affirmed Mendoza.15 In July, the court granted Weaver's petition "only on

the offender score issue" and remanded to this court "for reconsideration in light

of State v. Mendoza."16 In an unpublished opinion,17 we again affirmed Weaver'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 new argument alleging a double jeopardy violation.18
       Weaver again petitioned for review, which the Washington Supreme Court

granted. "Because Mendoza clearly entitles Weaver to relief," the court reversed

our decision and remanded to the superior court.19 The court noted that Weaver

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

history besides the prosecution's statement was before the court and Weaver did

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 consider Weaver's double jeopardy 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).
       18 Weaver, 2010 WL 2165353, at *1.
       19 State v. Weaver. 171 Wn.2d 256, 258, 260, 251 P.3d 876 (2011).
       20 Weaver, 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 two prior burglaries. The State provided

the judgments and sentences for Weaver's two felony burglary convictions and
certified copies of computer dockets for Weaver's misdemeanor criminal history

to prove that his prior felony convictions did not wash out. The trial court
accepted the court dockets as admissible proof of his convictions, concluded that
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 of rape of a child in the second degree.23 Despite the
court's double jeopardy ruling, it did not vacate the rape ofa child conviction.

       Weaver again appeals.




       22 Weaver. 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
 accuracy of the DNA testing, ruling that Weaver must present this information to
 the Court of Appeals via personal restraint petition.

                                          -6-
No. 67558-3-1 / 7



                                     Analysis

Double Jeopardy

       Weaver argues that the trial court's double jeopardy determination should

result in dismissal of his rape of a child conviction. The State cross appeals,

contending Weaver's two convictions did not violate double jeopardy. This court

stayed Weaver's second appeal pending the Supreme Court's decision in State

v. Smith, which the court decided on June 6, 2013. In light of Smith, we hold that

Weaver's two convictions did not put him in double jeopardy.

       Adouble jeopardy claim presents a question of law we review de novo.24
The guaranty against double jeopardy in the United States and Washington State

Constitutions protects against multiple punishments for the same offense.25 A
defendant may raise a double jeopardy 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

adverse collateral consequences.27
       Within constitutional limits, a legislature has the power to define prohibited

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 it intended to impose separate punishments for the acts that led to the


       24 State v. 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, 136 Wn.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

determine if the applicable statutes expressly permit punishment for the same act

or transaction.30 Second, if the relevant statutes do not reveal an express intent

to impose multiple punishments, Washington courts apply a "same evidence test"

that is similar to the rule set forth in Blockburqer v. 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 proof of one offense

would also prove the other."33 Third, when two offenses satisfy the Blockburqer/
"same evidence" test, courts look for any evidence of contrary legislative intent

that would rebut the presumption that multiple convictions are appropriate.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)); State v. Baldwin, 150 Wn.2d 448,
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, 125 Wn.2d at 776; State v. Martin, 149 Wn.
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 an example ofthis 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. 125 Wn.2d at 777-78).
     34 Smith. 177 Wn.2d at 545 (quoting Hughes. 166 Wn.2d at 681-82); Calle,
125 Wn.2d at 780. For example, where the degree of one offense depends on
conduct constituting a separate offense, the merger doctrine may help determine
legislative intent: "[W]hen separately criminalized conduct raises another offense
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 State v. Freeman. 153 Wn.2d 765, 772-73, 108 P.3d 753 (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 the second degree for his assault on 12-year-old L.S.35 Like
Weaver, Smith contended that his two convictions arising from the same assault

violated the prohibition against double jeopardy.36 Specifically, Smith argued that

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 of nonconsent because of the victim's status," they are the

same in fact and law under Blockburqer, and convictions for separate offenses

would violate double jeopardy.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 The court also found State v. Calle41 "a close analogue."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

double jeopardy.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 proof of force."44 In Smith, the court concluded, "Smith

suffered no double jeopardy when he was convicted of first degree rape and

second degree rape of a child."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 proof of the 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 not the same in law. We hold that Weaver's convictions for

both rape in the second degree and rape of a child in the second degree do not

violate the prohibition against double jeopardy.

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.
      41 125 Wn.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 of Appeals and Washington

Supreme Court affirmed.48 The Supreme Court cited to RAP 2.5(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
       whether to 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 of the rule which denies

review at this late stage."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 similar decision was not disputed 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 of this 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

independent judgment to review and reconsider its earlier sentence"52 but only

reviewed the judgment and sentence in light of its double jeopardy 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 element of the offense and thus could not be a

valid aggravating circumstance, (2) he contends that the special verdict form did

not ensure that the jury 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 We find no merit in Weaver's first and second arguments,

and the Supreme Court's decision in State v. 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 of the offense proven at

trial."55 He argues that because R.T.'s age was an element of the crime 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

pregnancy of a child victim of rape.56 This is not an element of the crime of rape

of a child.


       The special verdict form contained two questions, both of which the jurors

answered "yes": "Was R.T. a child at the time of the commission of the 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 the jury, "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 RCW 9.94A.535(2)(k) (2002).

                                        -13-
No. 67558-3-1 /14


       If you find the defendant guilty of either count one or count two, you
       will then use the special verdict form and fill in the blanks with the
       answer "yes" or "no" according to the decisions you reach. In order
       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 it was 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 State v. Bashaw,57 Weaver contended that the trial

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 of Guzman Nunez, his arguments about "the apparent

flaw in the 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 requirement for 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 of computer 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

just a traffic infraction.

        The relevant offender score washout rule provides,

        Class B prior felony convictions other than sex offenses shall not be
        included in the offender score, if since 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 in the community without
        committing any crime that subsequently results in a conviction.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 insufficient to satisfy

due process, as is a defendant's mere failure to object to such a summary

statement.62 When a matter must be remanded for resentencing, the State may

offer additional evidence to prove the defendant's prior convictions.63 While the

Supreme Court stated in Mendoza that the best evidence will "generally" be a

certified copy of the judgment and sentence,64 in In re Personal Restraint of
Adolph,65 the court reiterated that '"the State may introduce other comparable

documents of record ... to establish criminal history.'" The court concluded that

        60 Former RCW 9.94A.525(2) (2002). Former RCW 9.94A.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 State v. 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 ofthe record."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

established by statute or court rule."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



       66 Adolph. 170 Wn.2d at 569 (quoting Ford, 137 Wn.2d at 480-81).
       67 Former RCW 9.94A.500(1) (2000).
       68 Adolph, 170 Wn.2d at 570.
       69 158 Wn. App. 1,7, 240 P.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

of dockets 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 the dockets.71 While the dockets 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 by former 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 of reliability" that satisfies due

       70 Chandler. 158 Wn. App. at 7.
       71 The driver's license and docket from Ferndale Municipal Court also
contain details of Weaver's physical description, which also match.
       72 SMC 11.56.320(B), (C), and (D) provide that driving a motor vehicle
while license is suspended or revoked is either a misdemeanor (third degree
DWLS) or a gross misdemeanor (first or second degree DWLS).
       73 Former RCW 46.20.021(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 of Additional 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 that the 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

equipment used in DNA testing and accuses the State's expert of lying.

          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 If Weaver wishes to raise new factual allegations, he must do so in a

collateral attack on his conviction via a personal restraint petition.75

                                     Conclusion


          Weaver's convictions for rape in the 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 State v. 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).


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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 double jeopardy determination, otherwise affirm, and

remand for further proceedings consistent with this opinion.



                                                   A^J.e.
WE CONCUR:




                                               &?Q^W)Q                €^-c




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