Opinion
No. 37023-9-II.
March 31, 2009.
Appeal from a judgment of the Superior Court for Lewis County, No. 07-1-00507-7, James J. Stonier and Nelson E. Hunt, JJ., entered November 26, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, C.J., and Houghton, J.
UNPUBLISHED OPINION
A jury convicted Danny Lee Seppa of driving under the influence with four prior convictions for the same offense — a class C felony. We affirm.
A state trooper arrested Seppa for driving under the influence (DUI) after the trooper observed Seppa drive his vehicle through a red light in Centralia, Washington. The State charged Seppa with one count of driving under the influence (DUI), alleging that he had four or more prior DUI convictions.
Seppa was also charged with operating a vehicle without an ignition interlock (count II), and second degree driving while license suspended (count III). Seppa pleaded guilty to counts II and III, and does not challenge his convictions on those counts. He proceeded to trial on the DUI count (count I).
Just prior to trial, defense counsel offered a proposed stipulation that listed Seppa's prior DUI convictions over the preceding nine-year period. The proposed stipulation included six DUI convictions and one physical control conviction. Defense counsel sought to have all knowledge of the prior DUIs kept from the jury.
The pretrial court refused to accept the stipulation as proposed. The pretrial court explained that the present circumstance was different from cases where a defendant stipulated generally to having a prior felony conviction as an element of a charged crime ( e.g. unlawful possession of a firearm), and so stipulated in order to avoid having the State submit evidence of a prior heinous offense that could possibly inflame the jury's passions. The court explained that here, proof of four or more prior DUI convictions was the essential element that raised the DUI to a class C felony. It was an essential element that the State was required to prove and that the jury was required to decide.
Later at trial, a visiting judge presided over the proceedings. Defense counsel again asked the court to accept a stipulation that Seppa had four prior DUI convictions and to exclude the element from the jury. The court declined. But defense counsel then came to an agreement with the prosecutor and submitted yet another proposed stipulation that simply stated defendant had four prior DUI convictions, and asked the court to read the stipulation to the jury at the close of the State's case. The court accepted the stipulation and read it to the jury at the end of the State's case. The jury convicted Seppa on the felony DUI charge.
Seppa purports to appeal from the pretrial court's refusal to consider the parties' proposed stipulation. As a threshold matter, Seppa's assertions of error regarding the pretrial court's rejection of his proposed stipulation are resolved by his action of submitting a revised stipulation later at trial that admitted his DUI history. As noted, Seppa asked the court to read the stipulation to the jury at the close of the State's case and the court did so. By proceeding in this fashion, Seppa waived any challenge on the issue. Where a defendant stipulates to facts to be presented to a jury, proposes such presentation, assisted in its drafting, and agreed to its content, he cannot later be heard to complain on appeal that the trial court did as he requested. See State v. Elmore, 139 Wn.2d 250, 280, 985 P.2d 289 (1999), cert. denied, 531 U.S. 837 (2000). Although Seppa's challenge focuses on the court's rejection of his earlier proposed stipulation, rather than its admission of the later revised stipulation, the admission of the subsequent stipulation resolves any issue here.
Even if we addressed the merits we would hold that the rejection of the proposed stipulation was not error. See State v. Gladden, 116 Wn. App. 561, 566, 66 P.3d 1095 (2003) (rejecting similar stipulation to "delete" a required element). And none of the cases upon which Seppa relies, Bowcutt v. Delta North Star Corp., 95 Wn. App. 311, 976 P.2d 643 (1999); Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997); State v. Johnson, 90 Wn. App. 54, 950 P.2d 981 (1998); and State v. Wolf, 134 Wn. App. 196, 139 P.3d 414 (2006), review denied, 160 Wn.2d 1015 (2007), requires a different result here.
We also find that Seppa's pro se statement of additional grounds (SAG) is meritless. All of his contentions — that he recognized a woman in the venire, that another venire member stated she was his bartender, and that an out-of-county judge presided over his trial — address matters outside the record. Seppa has the burden to provide an adequate record to review issues he seeks to raise; the trial court's decision must stand if this burden is not met. See RAP 9.2. See also State v. Slanaker, 58 Wn. App. 161, 165, 791 P.2d 575, review denied, 115 Wn.2d 1031 (1990). Our review is limited to issues contained in the record. See State v. McFarland, 127 Wn.2d 322, 338 n. 5, 899 P.2d 1251 (1995) (a personal restraint petition is the proper vehicle for review of matters outside the record).
The transcript of jury voir dire was not included in the record on appeal. And, while the trial transcript identifies the visiting judge that presided over Seppa's trial, it provides no explanation as to why a visiting judge was assigned to Seppa's trial.
The record that is provided does not indicate any objection to the visiting judge presiding over Seppa's trial. We will not consider arguments that were not raised in the trial court unless they concern a manifest error affecting a constitutional right. RAP 2.5(a). State v. Sengxay, 80 Wn. App. 11, 15, 906 P.2d 368 (1995) (failure to timely object at trial waives appellate review of non-constitutional issues).
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and VAN DEREN, C.J., concur.