           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                              NO. 72304-9-1

                     Respondent,
                                                  DIVISION ONE
                v.



TIMOTHY GRANT BEESON,                             UNPUBLISHED OPINION

                     Appellant.                   FILED: November 23, 2015




       LAU, J.— Timothy Beeson appeals his conviction of unlawful possession of a

firearm in the first degree, asserting instructional error. Because the trial court defined

reasonable doubt in accordance with the instruction that Beeson agreed to, using

language approved by our Supreme Court, and because Beeson fails to raise a

meritorious issue in his statement of additional grounds, we affirm.

                                          FACTS

       At Beeson's trial, the trial court gave the jury instructions proposed by the State.

Beeson offered no alternative instructions. Jury instruction 3 defined reasonable doubt

in accordance with the Washington Pattern Jury Instruction: Criminal 4.01 (WPIC) as

follows:
No. 72304-9-1/2


      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.

Clerk's Papers (CP) at 69. Defense counsel expressly declined to raise any objection to

the reasonable doubt instruction and confirmed that the defense "adoptfed] this

instruction" as its own. Report of Proceedings (RP) (March 27, 2014) at 62.

      The jury convicted Beeson of unlawful possession of a firearm in the first degree

as charged. The court imposed a drug offender sentencing alternative sentence of

57.75 months. Beeson appeals.

                                          ANALYSIS

       Reasonable Doubt Instruction

       Beeson contends that the instruction defining reasonable doubt as a doubt "for

which a reason exists" was constitutionally deficient because it required the jury to

articulate a reason for having a reasonable doubt. Relying on State v. Emery. 174

Wn.2d 741, 760, 278 P.3d 653 (2012), Beeson also argues that the instruction

resembles improper "fill in the blank" arguments that impermissibly shift the burden of

proof and may constitute prosecutorial misconduct. In a supplemental assignment of

error, Beeson contends that he was denied effective assistance when defense counsel

"endorse[d]" the reasonable doubt instruction, rather than objecting to it. Appellant's

Supplemental Br. at 1.

       Beeson concedes that the trial court's instruction mirrors WPIC 4.01 and that our

Supreme Court has directed trial courts to use WPIC 4.01 to instruct juries on the

burden of proof and the definition of reasonable doubt. State v. Bennett. 161 Wn.2d

303, 318, 165 P.3d 1241 (2007): see also State v. Castillo. 150 Wn. App. 466, 469, 208
No. 72304-9-1/3


P.3d 1201 (2009). In State v. Kalebauah. 183 Wn.2d 578, 586, 355 P.3d 253 (2015)

our Supreme Court recently reaffirmed that WPIC 4.01 is "the correct legal instruction

on reasonable doubt...." After correctly instructing the jury during preliminary remarks

that reasonable doubt was "a doubt for which a reason exists," the trial judge in

Kalebauah paraphrased the explanation as "a doubt for which a reason can be given."

Kalebauah. 183 Wn.2d at 585. In concluding that the error in the trial judge's "offhand

explanation of reasonable doubt" was harmless beyond a reasonable doubt, the court

rejected any suggestion that WPIC 4.01 required the jury to articulate a reason for

having a reasonable doubt or was akin to an improper "fill in the blank" argument.

Kalebauah. 183 Wn.2d at 585, 586 ("We do not agree that the judge's effort to explain

reasonable doubt was a directive to convict unless a reason was given or akin to the "fill

in the blank" approach that we held improper in State v. Emery."): See also State v.

Thompson. 13 Wn. App. 1, 4-5, 533 P.2d 395 (1975) (the phrase "a doubt for which a

reason exists" does not direct the jury "to assign a reason for their doubt"). Beeson's

challenge to WPIC 4.01 must be directed to our Supreme Court.

       Because the trial court did not err in giving the reasonable doubt instruction,

Beeson's claim of ineffective assistance of counsel likewise fails.

       Statement of Additional Grounds for Review

       Beeson contends in a statement of additional grounds for review that the search

warrant failed to establish probable cause to search his vehicle. Probable cause exists

where there are facts and circumstances sufficient to establish a reasonable inference

that the defendant is involved in criminal activity and that evidence of the criminal

activity can be found at the place to be searched. State v. Maddox. 152 Wn.2d 499,
No. 72304-9-1/4


505, 98 P.3d 1199 (2004). Specifically, Beeson claims that the warrant was based on

untrue statements because the police had confirmed his identity before they secured

the warrant to search his vehicle. But the trial court specifically found that the officer

who applied for the warrant "did not know that the defendant's identity had been

confirmed at the time of the writing or the submission of the warrant." CP at 92. The

officer's testimony at the suppression hearing supports this finding. The court also

concluded that "confirmation of the defendant's identity does not affect the finding that

the warrant was supported by probable cause." CP at 94.

       Beeson also contends that police officers exceeded the scope of the search

warrant by opening a cloth bag that contained the firearm. The search warrant

authorized the officers to seize evidence of stolen property, evidence relating to identity

theft, and evidence of drugs. Beeson provides no legal authority to support his

assertion, nor does he assert that the cloth bag was not a plausible repository for the

items identified in the warrant. See State v. Hill. 123 Wn.2d 641, 643, 870 P.2d 313

(1994) (under a search warrant for a premises, personal effects of the owner may be

searched provided they are plausible repositories for the objects named in the warrant).

The trial court did not err in concluding that the warrant "allowed the officers to los& ing

the bag containing the gun." CP at 94.

       We affirm.




WE CONCUR



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