      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                             DIVISION ONE
                Respondent,
                                                             No. 69923-7-1

                                                             UNPUBLISHED OPINION
JOHN JAMES BUCKO,

                Appellant.                                   FILED: April 28, 2014


       Dwyer, J. — John Bucko appeals his conviction and sentence for identity

theft in the second degree.1 Bucko contends that the prosecutor committed

misconduct by stating, during closing argument, that reasonable doubt can be

described as "an abiding belief in the truth of this charge." Additionally, Bucko

contends that the trial court erred by declining to grant a continuance to allowjpr ^
                                                                                                            -~-lC


Drug Offender Sentence Alternative (DOSA) screening. Because neither of                             33«
                                                                                                    -a
                                                                                                            m~~'
                                                                                                             V i
                                                                                                    ZXJ     a —i

                                                                                                    ro
Bucko's arguments have merit, we affirm.                                                            CO      Zz-O',
                                                                                                            J>~t7r
                                                                                                    2=»
                                                                                                            cftpV,
                1(1) No person may knowingly obtain, possess, use, or transfer a means              «-^.
                                                                                                             ~>'- r~

       of identification or financial information of another person, living or dead, with the       v£>      ifj <-r<
                                                                                                     *•      ~~j t~j
       intent to commit, or to aid or abet, any crime.                                               (*•)    a—
                                                                                                             ~?i "^
                                                                                                     CO
               (2) Violation of this section when the accused or an accomplice violates
       subsection (1) of this section and obtains credit, money, goods, services, or
       anything else of value in excess of one thousand five hundred dollars in value
       shall constitute identity theft in the first degree. Identity theft in the first degree is
       a class B felony punishable according to chapter 9A.20 RCW.
               (3) A person is guilty of identity theft in the second degree when he or
       she violates subsection (1) of this section under circumstances not amounting to
       identity theft in the first degree. Identity theft in the second degree is a class C
       felony punishable according to chapter 9A.20 RCW.
RCW 9.35.020.
No. 69923-7-1/2



                                          I


       On April 22, 2011, Trooper Sean O'Connell initiated a traffic stop of a

Chevrolet pickup truck for a suspected seat belt infraction. After stopping the

vehicle, Trooper O'Connell requested the driver's vehicle registration, license,

and proof of insurance. The driver, Bucko, provided the officer with a driver's

license issued to Patrick Ridgeway. Because Bucko and Ridgeway are similar in

appearance, Trooper O'Connell did not question the validity of the driver's

license. Trooper O'Connell issued Bucko a citation in Ridgeway's name.

       Ridgeway discovered that his driver's license had been stolen after he

learned about the April 22 traffic citation. Ridgeway met with Trooper O'Connell,

who then realized that Ridgeway had not been the person he pulled over.

       Ultimately, the State charged Bucko with identity theft in the second

degree. Prior to closing arguments, the trial court provided the jury with the

following instruction:

       It also is your duty to accept the law as I explain it to you regardless
       of what you personally believe the law is or what you personally
       think it should be.


       As to the comments of the lawyers during this trial, they are
       intended to help you understand the evidence and apply the law.
       However, it's important for you to remember that the lawyers'
       remarks, statements, and arguments are not evidence. You should
       disregard any remark, statement, or argument that is not supported
       by the evidence or the law as I have explained it to you.

Jury Instruction 1.

       During closing argument, the prosecutor defined "reasonable doubt" for

the jurors.
No. 69923-7-1/3



      One way to describe what beyond a reasonable doubt is is if you
      have an abiding belief in the truth of the charge, does the fact that
      three separate witnesses who have no connection who all came
      and testified separately, if you're convinced that that evidence is
      credible, if you have an abiding belief in that evidence, then you are
      satisfied beyond a reasonable doubt. Few things in life we know
      with absolute certainty. The law doesn't require it. It does require,
      however, you have an abiding belief in the truth of this charge.

      Defense counsel defined "reasonable doubt" in a different manner:

      I would note Mr. Hendrix added a bunch of language to reasonable
      doubt that you won't see in your instructions. It's one for which
      reason exists and may arise from the evidence or lack of evidence.
      It is such a doubt as would exist in the mind of a reasonable person
      after fully, fairly, and carefully considering all the evidence or lack of
      evidence.

      During his rebuttal argument, the prosecutor took exception to defense

counsel's suggestion that he had defined reasonable doubt incorrectly:

      But there's two things, one you were read this abiding belief
      language at the beginning by the judge; number two, ifthat is not a
      true description of the legal standard beyond a reasonable doubt, I
      would not have been allowed to say it.

Bucko did not object to either of the prosecutor's comments.

      The jury convicted Bucko as charged. During the sentencing hearing,

Bucko requested "the opportunity to be evaluated for [a DOSA]." The trial court

denied Bucko's request, stating,

      I don't think it's appropriate, and the information from the
      Department of Corrections also indicates that the DOSA sentences,
      while they are effective for drug cases, per se, drug possession or
      drug dealing, there isn't any research that I'm aware of to show that
      those sentences have proven to be of value for folks convicted of
      charges that aren't directly drug charges.

      So given that and what I gather is some extensive criminal history, I
      don't think it's appropriate. I think there should just be a straight
      prison term.
No. 69923-7-1/4




The trial court further noted, "I'm really looking at what I see as a history of

criminal conduct that's unabated and unending notwithstanding substantial

commitments to prison." The trial court sentenced Bucko to 57 months of

confinement.

       Bucko appeals.

                                           II

       Bucko first contends that the prosecutor engaged in misconduct during

closing argument by arguing that reasonable doubt meant "an abiding belief in

the truth of this charge." This is so, he asserts, because defining "reasonable

doubt" in this manner lowered the State's burden of proof. Bucko's contention

lacks merit.

       "A defendant claiming prosecutorial misconduct must show that the

prosecutor's conductwas both improper and prejudicial in the context of the
entire record and circumstances at trial." State v. Miles, 139 Wn. App. 879, 885,

162 P.3d 1169 (2007). "'Counsel may not remain silent, speculating upon a

favorable verdict, and then, when it is adverse, use the claimed misconduct as a

life preserver on a motion for new trial or on appeal.'" State v. Russell, 125

Wn.2d 24, 93, 882 P.2d 747 (1994) (quoting Jones v. Hoqan, 56 Wn.2d 23, 27,

351 P.2d 153 (1960)). Consequently, where a defendant chooses not to object

and request a curative instruction, the argument is waived unless the

prosecutor's comment "'is so flagrant and ill-intentioned that it causes an

enduring and resulting prejudice that could not have been neutralized by a
No. 69923-7-1/5



curative instruction to the jury.'" State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d

221 (2006) (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).

      Here, Bucko did not object during either closing argument or rebuttal when

the prosecutor described reasonable doubt as an "abiding belief in the truth of

the charge." As Bucko fails to demonstrate enduring and resulting prejudice from

the prosecutor's statements, he has waived his challenges as to both comments.

      With respect to the prosecutor's statement during his closing argument,

Bucko fails to demonstrate any misconduct on behalf of the prosecutor. The

prosecutor did not commit misconduct when he stated during closing argument,

"One way to describe what beyond a reasonable doubt is is if you have an

abiding belief in the truth of the charge." Describing reasonable doubt as "an

abiding belief in the truth ofthe charge" is well-accepted in Washington. "'[A]n
instruction cast in terms of an abiding conviction as to guilt, without reference to

moral certainty, correctly states the government's burden of proof.'" State v.

Pirtle, 127 Wn.2d 628, 658, 904 P.2d 245 (1995) (alteration in original) (quoting

Victor v. Nebraska, 511 U.S. 1, 14-15, 114 S. Ct. 1239, 127 L Ed. 2d 583

(1994)). The "abiding belief language is so well-accepted, in fact, that it has

been incorporated into the Washington Pattern Jury Instructions (WPIC). WPIC

4.01 states,

              [The] [Each] defendant has entered a plea of not guilty. That
       plea puts in issue every element of [the] [each] crime charged. The
       [State] [City] [County] is the plaintiff and has the burden of proving
       each element of [the] [each] crime beyond a reasonable doubt.
       The defendant has no burden of proving that a reasonable doubt
       exists [as to these elements].
No. 69923-7-1/6



              A defendant is presumed innocent. This presumption
       continues throughout the entire trial unless during your
       deliberations you find it has been overcome by the evidence
       beyond a reasonable doubt.
                A reasonable doubt is one for which a reason exists and
       may arise from the evidence or lack of evidence. It is such a doubt
       as would exist in the mind of a reasonable person after fully, fairly,
       and carefully considering all of the evidence or lack of evidence. [If,
       from such consideration, you have an abiding belief in the truth of
       the charge, you are satisfied beyond a reasonable doubt.]

11 Washington Practice: Washington Pattern Jury Instructions: Criminal

4.01 (3d ed. 2008). The prosecutor's statement during his closing argument did
no more than rephrase the final sentence ofthis pattern instruction.2 Contrary to
Bucko's assertion, the prosecutor properly represented the burden of proof.

Thus, the prosecutor did not commit misconduct during his closing argument.

       With respect to the prosecutor's statement during rebuttal, Bucko fails to

demonstrate that the statement could not have been cured by an instruction to

the jury. The prosecutor's statement during rebuttal that "if that is not a true

description ofthe legal standard beyond a reasonable doubt, Iwould not have
been allowed to say it," while perhaps ill-advised, was not so flagrant or ill-

intentioned such that Bucko is merited a new trial. The prosecutor's comment

could easily have been cured by a curative instruction. At the close of the

evidence, the trial court instructed the jury that

        As to the comments of the lawyers during this trial, they are
        intended to help you understand the evidence and apply the law.
        However, it's important for you to remember that the lawyers'

        2Although the trial court chose not to use the "abiding belief sentence in its instructions
to thejury defining reasonable doubt, the court no doubt could have. Pirtle, 127 Wn.2d at 658.
Thus, the prosecutor's use ofthe abiding belief language can hardly be viewed as constituting an
incurable error such that a fair trial was denied to Bucko.
No. 69923-7-1/7



       remarks, statements, and arguments are not evidence. You should
       disregard any remark, statement, or argument that is not supported
       by the evidence or the law as I have explained it to you.

Jury Instruction 1. The trial court also instructed the jury that "It also is your duty

to accept the law as I explain it to you regardless of what you personally believe

the law is or what you personally think it should be." Jury Instruction 1. Had

Bucko objected, the trial court could have informed the jury to disregard the

prosecutor's comment and reminded them of these two passages in the jury's

instructions. Such an instruction would have adequately addressed the

prosecutor's improper comment. Accordingly, Bucko has failed to establish an

entitlement to appellate relief.

                                           Ill


       Bucko additionally contends that the trial court erred by denying his

request for a continuance to allow for DOSA screening. This is so, he asserts,

because the trial court denied his request based on Bucko's exercise of his

constitutional right to a jury trial. We disagree.

       We review a trial court's decision to grant or deny a motion for a

continuance for an abuse of discretion. State v. Ollivier, 178 Wn.2d 813, 822-23,

312 P.3d 1 (2013). "Ordinarily, a DOSA, as an alternate form of a standard

range sentence, may not be appealed. But '[t]his prohibition does not. . . bar a
party from challenging legal errors or abuses of discretion.'" State v. Gronnert,
122 Wn. App. 214, 225, 93 P.3d 200 (2004) (alterations in original). Here, the
record demonstrates that the trial court did not abuse its discretion by denying

Bucko's request for a continuance for DOSA screening.

                                          -7-
No. 69923-7-1/8



      The trial court denied Bucko's request for a continuance because it

believed that a DOSA was not appropriate. In order for a defendant to be

approved for a DOSA, the trial court must not only determine that a defendant is

eligible, but also must determine that a DOSA would be appropriate. RCW

9.94A.660(3). One factor that the trial court considers is "[w]hether the offender

and the community will benefit from the use of the alternative." RCW

9.94A.660(5)(a)(iv). The trial court explained that the community would not

benefit from a DOSA in this case because the current conviction was not a drug

conviction and Bucko had an "unabated and unending" criminal history.

Accordingly, the trial court determined that a DOSA was not appropriate in this

case. Because the trial court concluded that the community would not benefit

from granting Bucko a DOSA, a continuance for screening purposes was

unwarranted. The trial court did not abuse its discretion.

      Affirmed.
                                              ^




We concur:
                                                  ^rfy
 fr^or.                                           Cut A*


                                         8
