                                                                                                         F iL     G
                                                                                                  GOJr21 OF i A,PPE,13J S
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGT                                                   N(`'
                                                                                                 C( S SEP - 9
                                               DIVISION II                                                            11 ab
                                                                                                 ST
    STATE OF WASHINGTON,                                                       No. 46308- 3- I


                                     Respondent,


            MM



    CHRISTIAN REED BAILEY,                                               UNPUBLISHED OPINION


                                     I.

         MELNICK, J. —      Christian Bailey appeals his conviction for unlawful possession of a stolen

vehicle.'        He argues that the State' s direct examination opened the door to an otherwise


inadmissible hearsay statement and therefore, the trial court erred by refusing to admit the

statement.       He also argues that the trial court erred by instructing the jury on reasonable doubt.

We disagree and affirm.


                                                    FACTS


         On January 28, 2013, Bambi Hope reported her vehicle, a 1982 Chevy truck, stolen from

her   place of    business in   Spanaway. On June 10, Douglas Laisy reported two motorcycles stolen

from his residential property in Eatonville.

                                                                              property in Graham.     Hope took
         In late June, acting     on a   tip, Hope located her   truck   on




photographs of her truck and turned them over to law enforcement. Law enforcement obtained a


search warrant for the Graham property based on the information Hope supplied.

          When officers arrived to execute the search warrant, they contacted Bailey, the primary

resident on the property, and showed him the warrant. An officer read Bailey his Miranda2 rights.


1
    RCW 9A. 56. 068,. 140.

2
    Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
46308 -3 -II




Bailey   waived         his   rights and agreed        to talk to the   officers.   Bailey accompanied the officers on .

their search and used his keys to unlock various outbuildings.

         In      one of   the   outbuildings, officers       found two     motorcycles— one        belonging   to   Laisy.   In


response to a question about the motorcycles, Bailey told officers that he owned the motorcycles.

He also stated that he had purchased one of the motorcycles.


         Officers        also   found Hope'    s   truck    on   the property.      The truck looked like it was being

scrappedtaken apart to be sold. Bailey told officers that David Dean brought the truck onto the

property some time ago.

         The State charged Bailey with two counts of unlawful possession of a stolen vehicle for

possessing Hope' s truck and Laisy' s motorcycle.

         Pretrial, the State moved to exclude Bailey' s statement to law enforcement that he
                                                   3
purchased         one    of   the   motorcycles.         The State argued the statement constituted inadmissible


hearsay     if   offered      by Bailey. The State indicated that it planned to offer Bailey' s statement that

he owned the motorcycles, but it would not offer Bailey' s statement that he purchased the

motorcycle.         Bailey argued that once the State elicited Bailey' s statement that the motorcycles

were   his, it     opened       the door   for the     remainder of     Bailey' s   statement,   i. e., that he purchased the


motorcycle. After a confession hearing pursuant to CrR 3. 5, the trial court ruled against Bailey.

          Bailey objected to the trial court' s instruction on reasonable doubt, which was the standard

WPIC 4.01 instruction with the optional abiding belief language included in the last paragraph. 11

WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL ( WPIC) 4. 0 1, at

 85 ( 3rd   ed.    2008).       The trial court rejected Bailey' s request to omit the optional abiding belief



 3 Because the parties do not raise the issue, we assume for purposes of this opinion that the
 motorcycle that Bailey claimed to have purchased is the motorcycle underlying Bailey' s unlawful
 possession of stolen property charge.


                                                                   F)
46308 -3 - II




language from the WPIC 4. 01 instruction or to provide an additional instruction defining " abiding

belief."       The trial court stated that it understood counsel' s attempt to better define abiding belief,

but that the court did not believe it had legal authority to do so.

           The jury found Bailey not guilty of unlawful possession of Hope' s stolen truck and guilty

of unlawful possession of Laisy' s stolen motorcycle. Bailey appeals his conviction.

                                                             ANALYSIS


I.            EVIDENTIARY RULING


              Bailey argues that the trial court erred by excluding his statement to officers that he
purchased        one of    the   motorcycles.         He argues that the State opened the door to his complete


response when it presented testimony that Bailey responded to an officer' s question about the
                                                  4
motorcycles        by    claiming ownership.


              A trial   court    has   considerable     discretion in administering the         open- door   rule.   Ang v.

Martin, 118 Wn.           App.     553, 562, 76 P. 3d 787 ( 2003), affd, 154 Wn.2d 477, 114 P. 3d 637 ( 2005).


Therefore, we review a trial court' s decision under the open-door rule for an abuse of discretion.

State    v.   Ortega, 134 Wn.          App.   617, 626, 142 P. 3d 175 ( 2006). A trial court abuses its discretion


when     its decision is manifestly           unreasonable or    based      on untenable grounds or reasons.         State v.


Lord, 161 Wn.2d 276, 283- 84, 165 P. 3d 1251 ( 2007).


                W]hen a party opens up a subject of inquiry on direct or cross- examination, he
contemplates that the rules will permit cross- examination or redirect examination, as the case may


be,    within    the    scope of   the   examination    in   which   the   subject matter was   first introduced." State v.


Gefeller, 76 Wn.2d 449, 455, 458 P. 2d 17 ( 1969).                    Under the " open door" rule, if one party raises




4
     Bailey' s sole argument for admissibility to the trial court was the open-door rule; he did not argue
that the statement was admissible under the rule of completeness.



                                                                 3
46308 -3 -II




a material issue, the opposing party is generally permitted to " explain, clarify, or contradict the

evidence."       State   v.    Berg, 147         Wn.    App. 923,     939, 198 P. 3d 529 ( 2008),       abrogated on           other



grounds      by    State      v.   Mutch,    171       Wn.2d 464, 254 P. 3d 803 ( 2011);             5 KARL B. TEGLAND,


WASHINGTON PRACTICE: EVIDENCE LAW                           AND PRACTICE §       103. 14,   at   66- 67 ( 5th   ed.   2007).    The


doctrine promotes fairness and truth -seeking:

            It would be a curious rule of evidence which allowed one party to bring up a
           subject, .drop it at a point where it might appear advantageous to him, and then bar
           the other party from all further inquiries about it. Rules of evidence are designed to
           aid in establishing the truth. To close the door after receiving only -a part of the
           evidence not only leaves the matter suspended in air at a point markedly
           advantageous to the party who opened the door, but might well limit the proof to
           half-truths."


Ang, 118 Wn. App. at 562 ( quoting Gefeller, 76 Wn.2d at 455).

           Opening the door to otherwise inadmissible evidence is another way of saying that the

scope of relevant evidence                has been     expanded.      ER 401.   It is done in the interest of fairness.


           Here, one of the State' s law enforcement witnesses testified that Bailey told him that he

owned      the    motorcycles        found in      one    of   the   outbuildings.    Bailey sought to inquire on cross-

examination about an additional statement that he made to the officer during the same conversation

that he had       purchased one of          the   motorcycles.        The statement Bailey sought to admit is hearsay.

He wanted to offer his out-of-court statement for the truth of the matter contained therein. ER 801.

Hearsay is        inadmissible       absent an exception.            ER 802. Self-serving out-of-court statements of a


defendant are not admissible under the admission of a party -opponent exception to the hearsay

rule, when offered on               his   own    behalf.   State v. Bennett, 20 Wn. App. 783, 787, 582 P. 2d 569

  1978).


           Bailey' s     acquisition        of   the   motorcycle      is extremely   relevant    to the   case.      There is no


question that the trial court allowed Bailey to present evidence that he purchased the motorcycle.



                                                                      M
46308 -3 -II




The admissibility of this evidence does not depend on the State opening the door to this subject.

Rather, evidence that Bailey purchased the motorcycle is admissible in its own right. The question

presented here is whether the evidence is admissible in the manner Bailey sought to introduce it,

i. e., whether the State' s introduction of Bailey' s admission that he owned the motorcycle opened

the door to Bailey' s hearsay statement that he purchased the motorcycles. We conclude that it did

not.



          The   proffered evidence          does    not   fit   within   the   open- door rule.   First, the State introduced


Bailey' s statement admitting ownership of the motorcycle to prove possession. Bailey' s proffered

statement that he purchased the motorcycle does not " explain, clarify, or contradict" that evidence.

See    Berg,   147 Wn.       App.   at   939.    Evidence that Bailey purchased the motorcycle is more detailed

information about his ownership, but it is cumulative on the issue of possession.

          Second, admitting the hearsay evidence is inconsistent with the open-door rule' s purpose

of promoting fairness and truth seeking. Presumably, Bailey sought to admit his statement that he

purchased the motorcycle in order to argue that he did not know the motorcycle was stolen. But,

because the State cannot compel Bailey' s testimony, admitting Bailey' s statement that he

purchased the motorcycle would actually create the very problem that the " open-door" rule was

meant to avoid.



          Admitting the statement would allow Bailey to point to his statement as evidence that he

did not know the motorcycle was stolen while also barring the State from inquiring about any of

the details of the alleged transaction, e. g., from whom he purchased it, the circumstances of the

purchase,      the   purchase   date,      and   the   purchase price as compared           to the   market value.   The trial


court expressed        its   concerns with         this very      problem.       The trial court explained that admitting

Bailey' s statement to law enforcement about purchasing the motorcycle was problematic because.



                                                                    5
46308 -3. -II




it would place Bailey' s version of the facts before the jury while depriving the State of the benefit

of testing the credibility of the statements through cross- examination, and it would deny the jury

an objective basis for weighing the probative value of the evidence.

           Finally, it is important to note that the trial court did not bar all evidence of Bailey having

purchased       the   motorcycle.    Bailey could have submitted other evidence of the transaction or he

could have decided to testify on his own behalf. Under these circumstances, the trial court did not

abuse its considerable discretion in applying the open- door rule and excluding the evidence.

II.        REASONABLE DOUBT INSTRUCTION


           Bailey argues that the trial court' s reasonable doubt instruction undercut the State' s burden

of proof    by     erroneously   inviting    the   jury   to   search   for the truth. He further argues that the trial


court erred      by   refusing to define " abiding belief' in its           jury instructions. We disagree.

            Jury instructions, taken in their entirety, must inform the jury that the State bears the

burden     of   proving every    essential element of a criminal offense             beyond   a reasonable      doubt." State


v.    Pirtle, 127 Wn.2d 628, 656, 904 P. 2d 245 ( 1995). "                  It is reversible error to instruct the jury in a

manner      that   would relieve     the State     of   this burden."       Pirtle, 127 Wn.2d     at   656. "   We review a


challenged jury instruction de novo, evaluating it in the context of the instructions as a whole."

Pirtle, 127 Wn.2d at 656.


           The instruction that       Bailey       complains     of   has   never   been held to be improper.         To the


contrary, our Supreme Court has directed the use of WPIC 4. 01 to instruct juries of the nature of

the    government' s     burden. State .v. Bennett, 161 Wn.2d 303, 318, 165 P. 3d 1241 ( 2007). The trial


court did exactly that, reproducing WPIC 4. 01 verbatim. See 11 WPIC 4. 01.

           Bailey argues that WPIC 4.01 improperly suggests that the jury's role is to search for the

truth". But WPIC 4. 01        does   not   tell the jury to find the truth— it       tells the jury to acquit the defendant




                                                                  0
46308 -3 -II




unless the government convinces the jury of the truth of the charge. WPIC 4. 01 does not misstate

the State' s burden, and therefore, we hold that the trial court did not err by giving the WPIC 4. 01

instruction.


           Bailey also argues that the trial court erred by declining to define " abiding belief' based
                                                                                             5
on   its   erroneous     understanding that it lacked authority to do                  so.        It is within the trial court' s


discretion to determine         whether words used            in   an   instruction   require      definition. State v. Castro,


32 Wn.      App.   559, 565, 648 P. 2d 485 ( 1982).           Although the trial court did have authority to define

abiding belief, it is clear that the court did not want to define the term without clear guidance from

the appellate courts or the WPIC committee. The reasonable doubt instruction the trial court used


has been approved by our Supreme Court and upheld without the inclusion of additional

instructions      defining " abiding     belief." See Bennett, 161 Wn.2d                 at      318.   Therefore, we hold that




5 The trial court oral ruling is as follows:

                      Definitions are also contained within the Washington Pattern Instructions. And at
           this   point   in time, there is       no   instruction for abiding belief.                  Counsel has proposed
           instructions that would help define abiding belief. I don' t have any authority under statute
           and/ or case law where that issue has been tackled by the Court of Appeals or any trial court
           that I'm aware of where we've gotten some feedback other than to say that the use of that
           phrase   has been    upheld    by   our [ U. S.]   Supreme Court.
                      But there' s no definition in the WPICs that the committee who puts these
           instructions together meets on a regular basis, and as of this date, I'm not aware of any
            attempt   to define " abiding       belief."      So I don't believe I have the authority to contain a
            definition    of " abiding       I don't have any authority from any legislative or judicial
                                         belief."
            decision.     And I completely understand counsel' s attempt to better define it, but I don't
            believe I have legal authority to attempt to do that.
                      And it may be that        our—   the committee for these instructions will at some point
            allow a definition of "abiding belief' and/or our Supreme Court or Court of Appeals will
            help us define it, but I'm not going to make new case law when I don' t have any authority
            to do so. So I will respectfully decline to include the additional definitions as requested by
            counsel in Instructions 1 through 4.


RP at 226- 27.



                                                                   7
46308 -3 - II




the trial court did not err by instructing the jury on reasonable doubt without defining " abiding

belief."


           We affirm.


           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 in accordance with RCW 2. 06. 040,

it is so ordered.



                                                                    a




                                                             Melnick, J. +


We concur:




           Johanson, C. J
