                                                                         FILED 

                                                                     OCTOBER 20, 2015 

                                                                  In the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                           )
                                               )         No. 32059-6-111
                     Respondent,               )
                                               )
       v.                                      )
                                               )
MICHAEL W. ROBISON,                            )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       SIDDOWAY, C.J. -     Michael Robison appeals his conviction of first degree

robbery, arguing that the court erred in permitting the State to elicit prejudicial testimony

about his drug use that it had earlier excluded; that his Fifth Amendment Right against

self-incrimination was violated when the State implied that Mr. Robison had refused a

request to provide a DNA 1 sample; and that the court's use of optional "abiding belief'

language in its instruction on the burden of proof impermissibly implied that the jury

must search for the truth. We find no error or abuse of discretion and affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       On an evening in January 2011, a lone employee working at an ice cream parlor

on Spokane's South Hill was robbed by a man who entered the store brandishing a gun



       1 Deoxyribonucleic   acid.
No. 32059-6-111
State v. Robison


and wearing what the employee described as "a red stocking cap" with holes for his eyes

and mouth "pulled down over his face" and a dark sweatshirt with the hood pulled up.

Report of Proceedings (RP) at 121. After the employee complied with the robber's order

to hand over all the cash in her register, the robber left the store and the employee called

911.

       Responding police officers were unable to locate any suspect but did find a

discarded red ski mask, an Airsoft pistol,2 and a sweatshirt in a nearby alley. A pair of

knit gloves and sweatpants were also found discarded near the store.

       The recovered evidence was submitted to the Washington State Patrol Crime

Laboratory, where it was analyzed for wearer DNA. DNA profiles created for an

individual who was a major contributor to the DNA on the knit gloves and the individual

who was a major contributor to the DNA on the red ski mask matched each other.

       Since there was no suspect against whom to compare the wearer profile, the DNA

profiles were attributed to "Unknown individual A." RP at 219. They were entered into

CODIS, a DNA database,3 but did not produce a match. Lacking any information to

pursue, investigation into the robbery was suspended.



        2 At trial, witnesses described the Airsoft pistol as a BB gun that looks like a real
weapon. An orange tip on the pistol used in the robbery had been painted black to make
it look more like a real firearm.
       3 A forensic scientist with the Washington State Patrol explained during her
testimony that "CODIS is a national and state level database that we can put DNA typing

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No. 32059-6-111
State v. Robison


       Later that year, Breanne Snyder was charged with a number of felonies, including

burglary, trafficking in stolen property, and unlawful issuance of a bad check. She spoke

with her defense lawyer about providing information about a first degree robbery as a

possible means of getting charges against her reduced. Her lawyer arranged for her to

provide information to detectives in a "free talk." 4 RP at 327. According to Ms. Snyder,

she and the defendant, Michael Robison, had been living together on the day of the

January 2011 robbery, and Ms. Snyder, who was then addicted to opiates, had been

suffering through withdrawals. She and Mr. Robison had arrived at a plan for Mr.

Robison to rob the ice cream parlor to get money to buy opiate pills. They anticipated,

correctly, that an ice cream parlor would not have many customers on a winter evening.

Ms. Snyder claims to have dropped Mr. Robison offnear the store, saw him commit the

robbery through the store's windows, and later picked him up.




profiles into from case work. . .. And those are continuously searched against different
databases, such as convicted offender databases and things like that." RP at 219.
      4  The detective who engaged in the free talk with Ms. Snyder explained, "A free
talk can be one of up to two or three different things. But, generally it is someone whom
has been charged or could potentially be charged with a crime. Through their attorney,
they contact the prosecutor's office and say that they want to provide information .... If
you are interested in that information, they want consideration back on the charges or
potential charges they may face." RP at 327.



                                            3

No. 32059-6-111
State v. Robison


       The information provided by Ms. Snyder led the State to charge Mr. Robison with

first degree robbery. The State obtained a search warrant for his DNA and analysis

produced a DNA profile that matched the profile of "Unknown individual A."

       Before trial, the court ruled on a State motion in limine asking the court to admit

evidence of Mr. Robison's alleged addiction to opiates at the time of the robbery. No

record of that motion or the resulting orderis in our record, other than the State's

description when it raised the issue again on the first day of trial. At that time, the

prosecutor explained:

       [T]he court had earlier ruled that we were not going to be talking about
       what particular drug Mr. Robison was using and the fact that, in at least Ms.
       Snyder's mind, he was addicted to that drug. The drugs we are talking
       about are opiate based pills and heroin.
              Based on the information and the interview that we had with Ms.
       Snyder on Friday ... she said at the time of this incident while neither one
       of them were high, they were both withdrawing from their opiates and that
       placed them on edge. 1 do think that that is relevant to the motive for the
       crime in this case.
               1 don't want to--I still don't think 1 have to talk about the defendant
       himself being addicted to heroin or opiates, but 1 do think it is relevant for
       her to say that, We were coming down from those on this particular day and
       that made us desperate and on edge to get money in order to be able to get
       high again.
               So 1 am asking the court to look at that ruling again and broaden it
       slightly for the [S]tate.

RP at 10-11.

       The court stood by its original ruling, explaining that discussion of addiction and

coming down from withdrawals "has a little bit more of an edge to it," and "I am not

                                              4

No. 32059-6-III
State v. Robison


persuaded that we need to go there. I have already indicated that she could testify that

they needed the money for drugs. That I think is beyond sufficient, and I don't think we

need to go beyond that." RP at 18.

       Among witnesses called by the State at the time of trial were Ms. Snyder, the clerk

who was robbed, police detectives, and a DNA analyst.

       The defense theory was that while Ms. Snyder and one of her other junkie friends

might have committed the robbery, Mr. Robison was not with Ms. Snyder on the day of

the robbery. His lawyer argued that in providing information to the State to alleviate

some of her own criminal problems, Ms. Snyder had falsely named Mr. Robison, from

whom she was estranged, rather than the actual robber. Mr. Robison testified on his own

behalf, telling the jury that he never lived with Ms. Snyder but stayed with her on

occasion and that he had left some clothing at her home. He testified that he and Ms.

Snyder spent time outdoors during the winter and that he had worn her red ski mask in

the past.

       During cross-examination, Mr. Robison was asked about Ms. Snyder's drug use

and testified that he was trying to help her to "change her ways" by "[t]ry[ing] to get her

to go to meetings and not hang out with people she was hanging out with." RP at 381.

Wlien the prosecutor then asked, "Like you?", Mr. Robison testified "I am not a drug

addict." ld. The prosecutor's questioning about drugs continued and defense counsel




                                             5

No. 32059-6-III
State v. Robison


eventually objected, citing "a pre-trial ruling by the court." RP at 383. The court

responded, "The door is opened. Overruled." Id.

       At the conclusion of the evidence, the jury returned a verdict of guilty. Mr.

Robison appeals.

                                          ANALYSIS

       Mr. Robison assigns error to a trial court ruling that testimony by Mr. Robison had

"opened the door" to examination about his drug use, that the State's questioning of a

police officer was an unconstitutional comment on his silence, and that the burden of

proofinstruction misstated the law. We address the assignments of error in tum.

                       Trial court ruling that Mr. Robison's testimony
                                      "opened the door"

       Mr. Robison first argues that he was denied a fair trial when the court admitted

evidence contrary to its own pretrial ruling on the rationale that Mr. Robison's testimony

had "opened the door."

       Our record on appeal does not include the original motion or ruling on the State's

request that it be permitted to offer evidence that Mr. Robison was addicted to opiates at

the time of the robbery. But the argument and ruling when the State renewed the motion

on the first day of trial suffices to establish that the trial court had ruled that it would

admit evidence that Mr. Robison was alleged by Ms. Snyder to have committed the




                                                6

No. 32059-6-111
State v. Robison


robbery to obtain money for drugs. s What the court excluded was evidence that Mr.

Robison was addicted or was going through withdrawals at the time of the crime. The

court also excluded any reference of opiates being the type of drug Mr. Robison wanted

to purchase. Consistent with the ruling, the State only asked about Ms. Snyder's drug use

up until the point at which Mr. Robison volunteered that he was not a drug addict. 6

       Moreover, when the State relied on that opening to inquire further, including into

"what ... [Mr. Robison] use[d]," defense counsel did not initially object based on the

pretrial ruling. Mr. Robison testified without objection that he used opiate pills,

specifically "Roxy and Oxy" prior to any objection by his lawyer. RP at 381-82. After

defense counsel objected, the prosecutor posed only a couple more, inconsequential

questions about drug use:

             Q. (BY MR. MARTIN) You would use these items with Ms.
       Snyder?


       SThe State asks us to refuse to review this claimed error because Mr. Robison has
not provided an adequate record or record citations, in violation of RAP 10.3(a)(5) and
(6). We find Mr. Robison's citations sufficient for review.
       6   The following questions preceded Mr. Robison's statement:
             Q. SO why were you dating somebody who was addicted to drugs?
             A. 1 was hoping she would change her ways.
             Q. What steps were you taking to help her change her ways?
             A. Try to get her to go to meetings and not hang out with people she
       was hanging out with.
             Q. Like you?
             A. I am not a drug addict.

RP at 381.

                                              7

No. 32059-6-II1
State v. Robison


              A. On occasions.
              Q. How did you think that using these items with Ms. Snyder was
       going to assist her in getting her over her drug addiction?
              A. I don't know.

RP at 383.

       "Otherwise inadmissible evidence is admissible on cross examination if the

witness 'opens the door' ... and the evidence is relevant to some issue at trial." State v.

Stockton, 91 Wn. App. 35,40,955 P.2d 805 (1998) (footnote omitted). Once Mr.

Robison offered what might be considered evidence of his good character, the State

apparently concluded that he had opened the door for the State to rebut this evidence. ER

404(a)(1). "[I]t is a sound general rule that, when 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).

       Even if the State's initial assessment was wrong, the testimony given thereafter-

before any defense objection--opened the door widely. A timely defense objection was

required. Mr. Robison prevailed on the pretrial in limine argument when the trial court

ruled that the State could offer only evidence "that they needed the money for drugs. .. 1

don't think we need to go beyond that." RP at 18. "In a situation where a party prevails

on a motion in limine and thereafter suspects a violation of that ruling, the party has a


                                              8

No. 32059-6-III
State v. Robison


duty to bring the violation to the attention o/the court and allow the court to decide what

remedy,   if any, to direct.   A standing objection to evidence in violation of a motion in

limine, preserving the issue for appeal, is allowed only to the party losing the motion."

A.C. v. Bellingham Sch. Dist., 125 Wn. App. 511, 525, 105 P.3d 400 (2004) (footnotes

omitted).

       In light of all of the testimony by Mr. Robison about his use of opiates before any

objection by the defense, the trial court did not abuse its discretion in concluding that the

door had been opened to the State's examination.

                               Fifth Amendment right to remain silent

       Mr. Robison next argues that the State violated his right to remain silent when

State questioning implied that he would have refused to provide a buccal swab for DNA

analysis had the court not issued a search warrant.

       "The right against self-incrimination is protected by the Fifth Amendment, which

provides that no person 'shall be compelled in any criminal case to be a witness against

himself.'" City o/Seattle v. Stalsbroten, 138 Wn.2d 227,232,978 P.2d 1059 (1999)

(footnote omitted) (quoting U.S. CONST. amend. V). "Because taking a DNA sample

constitutes a search ... individuals have a constitutional right to refuse consent to

warrantless sampling of their DNA." State v. Gauthier, 174 Wn. App. 257, 263, 298

P.3d 126 (2013). In Gauthier, the court held that it was error to admit evidence of a

defendant's refusal to consent to a DNA test, concluding that our Supreme Court

                                                 9

No. 32059-6-III
State v. Robison


indicated in State v. Jones, 168 Wn.2d 713, 725, 230 P.3d 576 (2010) that "using refusal

to consent to a search as evidence of guilt is unconstitutionaL" Gauthier, 174 Wn. App.

at 266.

          The examination about which Mr. Robison complains does not support his

characterization, however. He relies on the following examination by the State of a

detective assigned to investigate the robbery:

                 Q. What happened in terms of furthering your investigation after the
          charges were filed by the county prosecutor's office?
                 A. At the time of the filing, and I spoke with Prosecutor Steinmetz, I
          explained to him that I would want him to obtain a sample of DNA from
          Mr. Robison. At that point, I wrote what is called a search warrant,
          requesting the court to grant me permission to obtain and--to contact Mr.
          Robison to obtain a DNA sample, and that was done.
                 Q. Without the search warrant, could you have obtained DNA from
          Mr. Robison? Let me state that question a better way. Without the search
          warrant, could you have forced Mr. Robison to give you DNA?
                 A. I could not.
                 Q. Was the search warrant granted?
                 A. Yes, it was.

                 Q. Were you able to get a lawful search warrant in this case to
          collect DNA from Mr. Robison? 

                  [DEFENSE COUNSEL]: Objection. Asked and answered. 

                 THE COURT: I will permit that. 

                 A. I did.
                 Q. What does it mean to execute a search warrant?
                 A. It means that I, as a detective, and the judicial person authorized
          to sign the search warrant authorized me so much time to collect the
          evidence. In this case, I was able to contact Mr. Robison's attorney. I
          made arrangements and advised them that I had a search warrant for a
          buccal swab, and we made arrangements to meet and obtain the buccal
          swab.
                 Q. Was Mr. Robison cooperative in that endeavor?

                                                10 

No. 32059-6-III
State v. Robison


                A. Absolutely, he was.

RP at 349-51.

        The evidence does not suggest that Mr. Robison would have refused to provide a

DNA sample; to the contrary, the detective characterized Mr. Robison as cooperative.

The State did not impermissibly imply that Mr. Robison refused to consent to a DNA

test.

                                Burden ofproofinstruction

        Finally, Mr. Robison complains that over the objections of his lawyer and the

State, the court provided the jury with the pattern burden of proof instruction for criminal

trials, including its bracketed, optional final sentence. The entire instruction read:

                The defendant has entered a plea of not guilty. That plea puts in issue
        every element of the crime charged. The State, is the plaintiff and has the burden
        of proving each element of the crime beyond a reasonable doubt. The defendant
        has no burden of proving that a reasonable doubt exists.
                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.

Clerk's Papers (CP) at 39; see also 11 WASHINGTON PRACTICE: WASHINGTON

PATTERN JURY INSTRUCTIONS: CRIMINAL § 4.01, at 85 (3d ed. 2008) (WPIC).

Relying on cases holding that the State may not argue that a jury's job is to search

                                              11 

No. 32059-6-111
State v. Robison


for the truth, Mr. Robison argues that the final sentence of the instruction

"inexorably connects the concepts of truth and being satisfied beyond a reasonable

doubt." Br. of Appellant at 22.

       We review "a challenged jury instruction de novo, evaluating it in the context of

the instructions as a whole." State v. Pirtle, 127 Wn.2d 628,656,904 P.2d 245 (1995).

       Language speaking of an "abiding belief' or an "abiding conviction" in "the truth

of the charge" has withstood challenge in Washington for more than a half century. In

State v. Mabry, 51 Wn. App. 24, 25, 751 P.2d 882 (1988), this court upheld the almost

identical concluding statement in WPIC 4.01, as revised in 1982, the only difference

being the former instruction's use of the expression "after such consideration" rather than

"from such consideration." The court observed that the instruction "was approved

essentially in State v. Tanzymore, 54 Wn.2d 290, 340 P.2d 178 (1959),[7] and was also

approved as modified in State v. Walker, 19 Wn. App. 881,578 P.2d 83 [1978]." ld. It

pointed out that "[ w]hen reviewing 'reasonable doubt' instructions, courts have refused to

isolate a particular phrase and have instead construed them as a whole." ld.



       7The instruction given in Tanzymore included the statement, "If, after a careful
consideration and comparison of all the evidence, you can say you have an abiding
conviction of the truth of the charge, you are satisfied beyond a reasonable doubt."
Tanzymore, 54 Wn.2d at 291 n.2. In rejecting the defendant's argument that his own
proposed instruction should have been given, the court said that the standard instruction
given by the court, "has been accepted as a correct statement of the law for so many
years, we find the assignment without merit." ld. at 291.

                                             12
No. 32059-6-III
State v. Robison


       In Pirtle, our Supreme Court addressed a challenge to a trial court's modification

of the concluding sentence to sharpen the focus on a juror's doubt by stating, "If, after

such consideration[,] you do not have an abiding belief in the truth of the charge, [then]

you are not satisfied beyond a reasonable doubt." 127 Wn.2d at 656 (emphasis added)

(first alteration in original). The revised instruction was still upheld:

               Without the last sentence, the jury instruction here follows WPIC
       4.01, which previously has passed constitutional muster. The addition of
       the last sentence does not diminish the definition of reasonable doubt given
       in the first two sentences, but neither does it add anything of substance to
       WPIC 4.01. WPIC 4.01 adequately defines reasonable doubt. Addition of
       the last sentence was unnecessary but was not an error.

Pirtle, 127 Wash. 2d at 658.

       Mr. Robison contends that more recent decisions in State v. Emery, 174 Wn.2d

741,278 P.2d 653 (2012) and State v. Berube, 171 Wn. App. 103,286 P.3d 402 (2012)

require us to reconsider this longstanding precedent. In Emery, our Supreme Court held

that it was prosecutorial misconduct for the State to suggest in argument that the jury's

job is to solve the case, because "[t]he jury's job is not to determine the truth of what

happened; a jury therefore does not speak the truth or declare the truth." Emery, 174

Wn.2d at 760 (internal quotation marks omitted) (quoting State v. Anderson, 153 Wn.

App. 417, 429, 220 P.3d 1273 (2009)). Similar improper argument was made in Berube,

in which this court stated that "[a]rguing that the jury should search for truth and not for

reasonable doubt misstates the jury's duty and sweeps aside the State's burden. The


                                              13 

No. 32059-6-111
State v. Robison


question for any jury is whether the burden of proof has been carried by the party who

bears it." Berube, 171 Wn. App. at 120.

          The last sentence of WPIC 4.01 is not tantamount to telling the jury that it must

"solve the case" or "find the truth." Pirtle remains controlling authority that without the

last sentence, the pattern instruction adequately defines reasonable doubt and that

inclusion of the optional sentence "does not diminish the definition." Pirtle, 127 Wn.2d

at 658.

          Affirmed.

          A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                      ;j-;cliow.
                                                Siddoway, C.J.  ~J
                                                                               C
                                                                                 5
WE CONCUR:




Lawrence-Berrey, 1.




                                               14 

