                                                                           FILED
                                                                        MARCH 15, 2016
                                                                   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. 33253-5-111
                     Respondent,               )
                                               )
       v.                                      )
                                               )
RUSSELL A. ROSIN,                              )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       SIDDOWAY, C.J. -Russell A. Rosin appeals from his 2015 Spokane County

conviction of possession of methamphetamine. He contends the jury instruction on

reasonable doubt, which defines reasonable doubt as "one for which a reason exists," is

unconstitutional because it shifts the burden of proof and requires the jury to articulate a

reason. Because the reasonable doubt instruction is identical to Washington Pattern Jury

Instruction (WPIC) 4.01, the approved pattern instruction on reasonable doubt, we affirm.

                                          FACTS

       Mr. Rosin was a passenger in a stolen vehicle that was stopped by police in

December 2014 for speeding. The officer arrested Mr. Rosin on outstanding warrants

and discovered methamphetamine in his backpack when he was searched incident to the

arrest. At his trial on a charge of possession of a controlled substance, he did not object

to the trial court's proposed instruction on reasonable doubt:
No. 33253-5-111
State v. Ros in



               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 at 8. The jury found him guilty as charged.

     CONSTITUTIONALITY OF THE REASONABLE DOUBT INSTRUCTION

       Mr. Rosin's reasonable doubt jury instruction was taken verbatim from WPIC

4.01. See 11 WASHING TON PRACTICE: WASHING TON PATTERN JURY INSTRUCTIONS:

CRIMINAL 4.01, at 85 (3d ed. 2008). He argues that the language in WPIC 4.01 that

defines a reasonable doubt as "one for which a reason exists" tells jurors that they must

be able to articulate a reason for having a reasonable doubt. Id. (emphasis added). Thus,

jurors must have more than just a reasonable doubt; they must be able to articulate that

doubt. He also contends this instruction is substantially similar to the fill-in-the-blank

prosecutorial arguments that Washington courts have invalidated because those

arguments shift the burden of proof to the defendant.




                                              2
No. 33253-5-111
State v. Rosin



       We first note that Mr. Rosin did not object to the propriety ofWPIC 4.01 at trial.

A defendant generally waives the right to appeal an error unless he or she raised an

objection at trial. State v. Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 (2015). One

exception to this rule is made for manifest errors affecting a constitutional right. RAP

2.5(a)(3); Kalebaugh, 183 Wn.2d at 583. An error is manifest if the appellant can show

actual prejudice. State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009). Mr. Rosin

claims an error of constitutional magnitude, but he shows neither error nor prejudice.

       The relevant language of WPIC 4.01 has been approved as constitutionally sound

for decades. As noted in State v. Thompson, 13 Wn. App. 1, 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 doubts, but merely
       points out that their doubts must be based on reason, and not something
       vague or imaginary. A phrase in this context has been declared satisfactory
       in this jurisdiction for over 70 years.

Thompson, id. at 5 (citing State v. Harras, 25 Wash. 416, 65 P. 774 (1901)). The

Washington Supreme Court has consistently endorsed the language ofWPIC 4.01. See,

e.g., State v. Bennett, 161 Wn.2d 303, 318, 165 P.3d 1241 (2007) (the Supreme Court

exercises its "inherent supervisory power" to require trial courts to use only WPIC 4.01

in instructing juries on the burden of proof); State v. Emery, 174 Wn.2d 741, 759-60, 278

P.3d 653 (2012) (the prosecutor in closing argument properly described reasonable doubt

as a doubt for which a reason exists).

                                             3
    No. 33253-5-III
    State v. Rosin

I
           Most recently, the Washington Supreme Court in Kalebaugh, 183 Wn.2d at 584,

    reaffirmed that WPIC 4.01 was the correct legal instruction on reasonable doubt. The

    trial judge in Kale baugh gave a proper instruction from WPI C 4.01 in his preliminary

    remarks to prospective jurors, but then attempted to further explain that reasonable doubt

    was "' a doubt for which a reason can be given.'" Id. at 5 85. Kalebaugh, id. at 586,

    disfavored the judge's "offhand explanation," in part because that language suggested

    that a reason must be given to doubt the defendant's guilt. The error was held harmless,

    however, because the trial judge properly instructed the jury at the end of the case with

    the language of WPIC 4.01. Id.

           Mr. Rosin's assertion that WPIC 4.01 is similar to the "fill-in-the-blank"

    prosecutorial argument held improper in Emery, 174 Wn.2d at 759-60, is without merit.

    The prosecutor in Emery told the jury in closing argument that "' in order for you to find

    the defendant not guilty, ... you'd have to say, quote, I doubt the defendant is guilty, and

    my reason is blank. A doubt for which a reason exists. If you think you have a doubt,

    you must fill in that blank."' Id. at 750-51. This statement was inappropriate because it

    subtly shifted the burden of proving the case to the defendant to disprove. Id. at 760.

    The prosecutor's improper and potentially confusing statement did not support relief,

    however. Emery concluded that even if the appellants could show that the statement was

    incurable, they could not show a substantial likelihood that it affected the jury's verdict.


                                                  4



                                                                                                   I
·   No. 33253-5-111
    State v. Rosin



    Id. at 764 n.14. The jury was properly instructed on reasonable doubt with a WPIC 4.01

    instruction, and the Court assumed-as it must-that the jury followed the instruction.

    Id.

                                        CONCLUSION

           We are bound by the approval of the WPIC 4.01 reasonable doubt language in

    Kalebaugh and its predecessors. See State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227

    (1984). Accordingly, we hold that Mr. Rosin cannot show manifest error justifying

    review under RAP 2.5(a)(3) of the unpreserved objection to the WPIC 4.01 beyond

    probable cause instruction.

          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.




    WE CONCUR:




    Fearin~              .                          Pennell, J.




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