                                                                      FILED
                                                                 SEPTEMBER 29, 2016
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 33279-9-111
                    Respondent,              )
                                             )
      v.                                     )
                                             )
BENJAMIN SANTOS CASTRO,                      )         UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      FEARING, C.J. -    Law enforcement officers arrested Benjamin Castro while he

occupied a stolen car. Officers found methamphetamine and sundry burglary tools inside

the car. A jury convicted Castro of possessing a stolen vehicle, making or having

burglary tools, two counts of second degree possession of stolen property, and possession

of a controlled substance. On appeal, Castro contends the jury heard insufficient

evidence to convict him of possessing burglary tools, the prosecutor committed

misconduct in her closing statement, and the trial court gave an erroneous jury instruction

on reasonable doubt. We agree that Castro's conviction for possessing burglary tools

must be dismissed for lack of evidence. We reject his other contentions and affirm the

remaining convictions.
No. 33279-9-111
State v. Castro


                                         FACTS

       Benjamin Castro and Kayla Clark met during a methamphetamine and alcohol

party, on the evening of December 12, 2013. Both Clark and Castro imbibed

methamphetamine at the gathering. That same night the two decided to travel from

Tacoma to Montana to visit Clark's family.

       At the end of the December 12 party, Benjamin Castro and Kayla Clark, with

passenger Tiny Mack, journeyed in a stolen Mitsubishi Outlander, from Tacoma.

According to Clark, she knew, but did not inform Castro, that the Outlander was stolen.

Upon commencement of the lengthy trek, Clark placed two bags ofmethamphetamine on

the front passenger seat.

       Benjamin Castro and Kayla Clark left Tiny Mack in North Bend. The two, with

Castro driving, traveled across Snoqualmie Pass and on to Cle Elum during the early

morning of December 13. Castro and Clark stopped for the night in Cle Elum because

the duo found no gas station in the Cascades foothills town open in the early morning

hours. Castro pulled the Outlander into a Best Western Hotel parking lot.

       Around 3: 15 a.m., Cle Elum Police Officer Nicholas Burson responded to a

request from the Cle Elum Best Western Hotel to direct the driver of a car parked in its

parking lot to move the car. Officer Burson pulled his patrol car behind the white

Outlander and typed the car's license plate into his computer. The computer replied with


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No. 33279-9-III
State v. Castro


a notice that the car was stolen. Officer Burson pulled his patrol car away from the

Outlander and waited for assistance.

       Kittitas County Sheriff Deputy Mike McKean, Washington State Troopers Paul

Bloom and Don Farrell, and Ellensburg Police Officer Drew Haulk arrived at the Cle

Elum Best Western. Deputy McKean blocked the egress of the stolen white Outlander

with his patrol car, activated the patrol car's emergency lights, and ordered the occupants

of the Outlander to exit the vehicle. Benjamin Castro placed the Outlander's keys on the

roof of the car and exited the car through the driver's door. Officers restrained Castro

and placed him in the back seat of a patrol car. Kayla Clark also exited the car from the

passenger's side, and officers handcuffed her.

       Officer Nicholas Burson approached the Mitsubishi Outlander to determine if

other persons occupied the car. The car doors remained open. Burson espied, on the

front passenger's seat, two small bags of a white crystal substance that he identified as

methamphetamine.

       Officers placed Benjamin Castro and Kayla Clark under arrest. When arresting

Castro, Officer Burson asked Castro ifhe possessed any sharp objects in his pockets

before frisking him. Castro stated he possessed a needle. Burson removed a capped used

hypodermic needle in a Sharps container from Castro's front right pants pocket. Burson

also found, in Benjamin Castro's pants pocket, a spring-loaded window punch. The


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No. 33279-9-111
State v. Castro


punch, when placed against a car window and released, shatters the window. Burson also

removed, from Castro's pockets, credit cards and a debit card belonging to Jessie Prince.

       Law enforcement contacted a tow truck company, and a tow truck removed the

Mitsubishi Outlander from the hotel parking lot to the Cle Elum Police Department

evidence lot. Officer Nicholas Burson sought and obtained a warrant to search the

Outlander. Burson confiscated, from inside the car, a Taser stun gun, bolt cutters, a

wallet belonging to Jessie Price, a purple bag with its padlock cut, two laptop computers,

a Taurus Airsoft handgun with the orange tip removed, and a North Face backpack.

Burson opened the backpack and discovered therein Benjamin Castro's credit cards, bolt

cutters, pliers, handcuffs, various keys, a shim, colored stones, all-terrain vehicles (ATV)

keys, receipts showing use of Jessie Prince's credit cards, binoculars, screwdriver, a

leatherman tool, gloves, magnet, wrench, wire snips, a fixed-blade knife, wrenches, a
                  .    .
pocketknife, and two bags of methamphetamine.

                                      PROCEDURE

       The State of Washington charged Benjamin Castro with possession of a stolen

vehicle, possession of stolen property in the second degree, possession of

methamphetamine, and possession of burglary tools. On the first day of trial, the State

amended its information to add a second count of possession of stolen property in the

second degree.


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No. 33279-9-111
State v. Castro


       During trial, Officer Nicholas Burson listed all of the objects he found inside the

Outlander, including the objects found in the North Face backpack. During direct

examination, Officer Burson testified:

               Q. Do you have any training in able [sic] to recognize the types of
       tools that are used in burglaries?
               A. Yes.
               Q. Okay. Where did you get that training?
               A. In the Academy.
               Q. Okay. And are they consistent with the tools that are in this?
               A. Yes, they are. These would often be used to cut a padlock or
       some sort of wire of a larger gauge. This is for popping doors or getting in
       windows or anything like that.
               Q. And gloves?
               A. And these we use. Gloves, yeah, to conceal fingerprints.

Report of Proceedings (RP) (Mar. 10, 2015) at 88.

       During trial testimony, Officer Nicholas Burson testified that one uses a window

punch, such as found in Benjamin Castro's pocket, by placing the punch "to a window

and pull[ing] and releas[ing] and it shatters the window." RP (Mar. 10, 2015) at 60.

Officer Burson added that the punch breaks any window including house windows.

Burson also declared that the confiscated bolt cutters "cut locks or a chainlink fence or

anything metal." RP (Mar. 10, 2015) at 68. Officer Burson averred that "the edges [of

found keys] ... worn off them so they can be slipped inside more ignitions than they're

supposed to, and you can kind of jiggle them and sometimes get cars to start with using a

shaved key." RP (Mar. 10, 2015) at 85.


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No. 33279-9-III
State v. Castro


       On the second day of trial, the court and counsel discussed jury instructions.

During the conference, Benjamin Castro did not object to the use of 11 Washington

Practice: Washington Pattern Jury Instruction: Criminal 4.01, at 85 (3d ed. 2008)

(WPIC) as a jury instruction for the definition of reasonable doubt. The trial court

instructed the jury on 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, after such consideration, you
       have an abiding belief in the truth of the charge, you're satisfied beyond a
       reasonable doubt.

RP (Mar. 11, 2015) at 93-94. Castro proposed an instruction with the identical language.

       During rebuttal in closing arguments, the State's attorney argued:

            Evidence Instruction No. 3 says: A reasonable doubt is one for
      which a reason exists. Do you think you have a reason to doubt in this
      case? He's got this car and he's got all this stolen property on him. Do you
      have any reason to doubt that he knew that it was stolen? Absolutely not.

RP (Mar. 11, 2015) at 142-43.

      The jury found Benjamin Castro guilty on all five charges. The trial court

sentenced Castro to fifty months in prison.

                                    LAW AND ANALYSIS

      Benjamin Castro asserts four errors on appeal. First, insufficient evidence

supports his conviction for making or having burglary tools. Second, the prosecutor


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No. 33279-9-111
State v. Castro


committed misconduct during rebuttal argument. Third, the reasonable doubt instruction

is unconstitutional. Fourth, his counsel was ineffective for proposing an erroneous jury

instruction. The first argument attacks only the conviction for making or possessing

burglary tools. The remaining arguments challenge all convictions. We agree with

Benjamin Castro's first assignment of error and reverse his conviction for possession of

burglary tools. We reject his other arguments and affirm the remaining four convictions.

                                      Burglary Tools

       Benjamin Castro contends that the State did not present sufficient evidence to

support his conviction for making or having burglary tools because it only presented

evidence that the tools were used for vehicle prowls. Evidence is sufficient if a rational

trier of fact could find each element of the crime beyond a reasonable doubt. State v.

Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). Both direct and indirect evidence

may support the jury's verdict. State v. Brooks, 45 Wn. App. 824, 826, 727 P.2d 988

(1986).

      The controlling statute, RCW 9A.52.060(1 ), declares:

              Every person who shall make or mend or cause to be made or
      mended, or have in his or her possession, any engine, machine, tool, false
      key, pick lock, bit, nippers, or implement adapted, designed, or commonly
      used for the commission of burglary under circumstances evincing an
      intent to use or employ, or allow the same to be used or employed in the
      commission of a burglary, or knowing that the same is intended to be so
      used, shall be guilty of making or having burglar tools.


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No. 33279-9-111
State v. Castro


(Emphasis added.) A former statute contained a provision that imposed a presumption

that possession of burglary tools "was had with the intent to use or employ ... in the

commission of a crime." Former RCW 9.19.050 (1909), repealed by LAWS OF 1975, 1st

Ex. Sess., ch. 260, § 9A.92.010. Gone is this presumption.

       Under RCW 9A.52.060, one of the elements of the crime of having burglary tools

is the accused's possession of tools under circumstances evincing an intent to use them in

a "burglary." State v. Miller, 90 Wn. App. 720, 730, 954 P.2d 925 (1998). An accused is

guilty under Washington statutes for "burglary" if he "enters or remains unlawfully" in a

"building" or "dwelling other than a vehicle." RCW 9A.52.020, ;025, and .030.

Benjamin Castro contends that the State presented insufficient evidence to show he

intended to commit a burglary, since the State presented no evidence of his seeking to

unlawfully enter a building or dwelling. We agree.

      A controlling decision is State v. Miller, 90 Wn. App. 720 (1998). James Miller

entered an open self-service wash, used bolt cutters and other tools to remove the locks

from coin boxes, and took money. The State charged Miller with burglary, having

burglary tools, and theft. A jury convicted him on all three charges. On appeal, this

court reversed Miller's burglary and possession of burglary tools convictions. The court

found no circumstances that constituted burglary.




                                            8
No. 33279-9-III
State v. Castro


       In this appeal, the State, at trial, presented strong evidence that Castro

possessed tools that could be used to enter a dwelling. The State also offered

evidence of vehicle prowls and car thefts. Nevertheless, the State offered no

evidence that Benjamin Castro committed or attempted to commit any burglaries.

                                  Prosecutorial Misconduct

       Benjamin Castro next argues that the prosecutor committed misconduct in her

closing argument by requiring the jury to articulate a reason to doubt his guilt. The State

responds that the prosecutor simply addressed the defense's contention that Castro may

not have known the property was stolen. We agree with the State.

       This court reviews a prosecutor's comments during closing argument in the

context of the total argument, the issues in the case, the evidence addressed in the

argument, and the jury instructions. State v. Boehning, 127 Wn. App. 511, 519, 111 P .3d

899 (2005). A defendant claiming prosecutorial misconduct must show that the

prosecutor's conduct was both improper and prejudicial in the context of the entire record

and circumstances at trial. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012).

Nevertheless, a prosecutor's statements are improper if they misstate the applicable law,

shift the burden to the defense, mischaracterize the role of the jury, or invite the jury to

determine guilt on improper grounds. State v. Emery, 174 Wn.2d at 759-60; State v.

Boehning, 127 Wn. App. at 522. Even if the defendant shows the comments were


                                              9
No. 33279-9-III
State v. Castro


improper, the error does not require reversal unless the appellate court determ_ines there is

a substantial likelihood the misconduct affected the jury's verdict. State v. Gentry, 125

Wn.2d 570, 640, 888 P .2d 1105 (1995).

       If a defendant did not object to a prosecutor's alleged misconduct at trial, he or she

is deemed to have waived any error, unless the misconduct was so flagrant and ill-

intentioned that a jury instruction could not have cured the resulting prejudice. State v.

Gentry, 125 Wn.2d at 596. Reviewing courts should then focus less on whether the

prosecutor's misconduct was flagrant or ill-intentioned and more on whether the resulting

prejudice could have been cured. State v. Emery, 174 Wn.2d at 762. Under this

heightened standard, the defendant must show that ( 1) no curative instruction would have

obviated any prejudicial effect on the jury, and (2) the misconduct resulted in prejudice

that "had a substantial likelihood of affecting the jury verdict." State v. Emery, 174

Wn.2d at 760. Benjamin Castro did not object during closing argument. He now bears

the burden on appeal to demonstrate that the State's comments were so prejudicial that no

curative instruction could have remedied their effect and that the comments had a

substantial likelihood of affecting the jury's verdict.

       We recognize that in many instances the term "prosecutorial misconduct" is a

misnomer since the defense does not contend that the State's attorney consciously and

flagrantly violated a code of conduct. In instances of negligence, use of the phrase


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No. 33279-9-III
State v. Castro


"prosecutorial error" fits better. Nevertheless, because Castro did not object to the

prosecutor's closing remarks, he must show flagrant and ill-intentioned behavior. We

hold that Castro does not even establish negligent behavior or prosecutorial error.

       Benjamin Castro likens the prosecutor's argument to fill-in-the-blank statements

like those in State v. Emery, 174 Wn.2d 741 (2012). In Emery, during closing, the

prosecutor commented:

              [I]n order for you to find the defendant not guilty, you have to ask
       yourselves or 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 that
       you have a doubt, you must fill in that blank.

174 Wn.2d at 750-51. The Washington Supreme Court held the State's reference to "fill

in the blank" was improper. State v. Emery, 174 Wn.2d at 759. The court reasoned that

the "argument subtly shifts the burden to the defense" because it requires the jury to

articulate a reason to doubt. State v. Emery, 174 Wn.2d at 760.

       Benjamin Castro's argument fails because, unlike in State v. Emery, the prosecutor

did not ask the jury to articulate a reason for doubt. The State's attorney merely declared

that the jury lacked any reason to doubt. The State agreed in its closing that it bore the

burden of proof. The prosecutor repeatedly read verbatim a jury instruction imposing the

burden of proving all elements on the State. Castro's argument, if accepted, could

require the State not to address any of the purported weaknesses asserted by the defense.



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No. 33279-9-III
State v. Castro


                               Reasonable Doubt Instruction

       Benjamin Castro contends that the reasonable doubt instruction unconstitutionally

shifted the burden of proof from the State to him by requiring the jury to articulate a

reason to doubt. The State responds that the instruction is proper and that the invited

error doctrine applies and precludes review of this assignment of error. We agree that the

invited error rule applies.

       The invited error doctrine precludes a criminal defendant from seeking appellate

review of an error he or she helped create, even when the alleged error involves

constitutional rights. State v. Studd, 137 Wn.2d 533, 546-47, 973 P.2d 1049 (1999); State

v. Henderson, 114 Wn.2d 867, 870-71, 792 P.2d 514 (1990). The doctrine of invited

error prohibits a party from setting up an error at trial and then complaining of it on

appeal. State v. Wakefield, 130 Wn.2d 464,475, 925 P.2d 183 (1996); State v. Pam, 101

Wn.2d 507,511,680 P.2d 762 (1984), overruled on other grounds by State v. Olson, 126

Wn.2d 315,893 P.2d 629 (1995). The rule is a strict one. State v. Studd, 137 Wn.2d at

54 7. In the criminal context, the doctrine of invited error is most commonly invoked

when a defendant seeks to challenge a jury instruction that he or she proposed at trial.

State v. Studd, 137 Wn.2d at 546; State v. Henderson, 114 Wn.2d at 870 (1990); State v.

Boyer, 91 Wn.2d 342, 345, 588 P .2d 1151 (1979).

       Benjamin Castro requested the jury instruction he now challenges. Therefore, we


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No. 33279-9-111
State v. Castro


do not address the merits of his contention.

                            Ineffective Assistance of Counsel

       In his supplemental briefing, Benjamin Castro alleges that his counsel was

ineffective for proposing the reasonable doubt jury instruction that allows the State to

argue the invited error doctrine applies. We disagree that counsel was ineffective since

the trial court was bound to give the proposed instruction.

       A claim of ineffective assistance of counsel requires a showing that ( 1) counsel's

performance was deficient, and (2) the deficient performance prejudiced the defendant.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);

State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011); State v. Hamilton, 179 Wn.

App. 870, 879, 320 P.3d 142 (2014). If one prong of the test fails, we need not address

the remaining prong. State v. Hendrickson, 129 Wn.2d 61, 78,917 P.2d 563 (1996).

       We address only the deficiency of performance prong. Under the deficiency

prong, this court gives great deference to trial counsel's performance and begins the

analysis with a strong presumption that counsel was effective. State v. West, 185 Wn.

App. 625, 638, 344 P.3d 1233 (2015). Trial strategy and tactics cannot form the basis of

a finding of deficient performance. State v. Johnston, 143 Wn. App. 1, 16, 177 P.3d 1127

(2007). Deficient performance is performance that fell below an objective standard of

reasonableness based on consideration of all the circumstances. State v. McFarland, 127


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No. 33279-9-III
State v. Castro


Wn.2d 322, 334-35, 899 P.2d 1251 (1995). The defendant bears the burden to prove

ineffective assistance of counsel. State v. McFarland, 127 Wn.2d at 335.

       Invited error does not bar review of a claim of ineffective assistance based on an

erroneous jury instruction. State v. Bennett, 87 Wn. App. 73, 76, 940 P.2d 299 (1997),

aff'd sub nom. State v. Studd, 137 Wn.2d 533,973 P.2d 1049 (1999). Therefore, we ask

whether the trial court's jury instruction on reasonable doubt constituted error.

       In general, reviewing courts leave the specific language of jury instructions to the

discretion of the trial court. State v. Smith, 174 Wn. App. 359, 366, 298 P.3d 785 (2013).

One exception to this rule of deference is the reasonable doubt instruction. State v.

Bennett, 161 Wn.2d 303, 165 P.3d 1241 (2007). The state Supreme Court has mandated

use of WPIC 4.01. In State v. Bennett, the high court declared:

               Even if many variations of the definition of reasonable doubt meet
       minimal due process requirements, the presumption of innocence is simply
       too fundamental, too central to the core of the foundation of our justice
       system not to require adherence to a clear, simple, accepted, and uniform
       instruction. We therefore exercise our inherent supervisory power to
       instruct Washington trial courts not to use the Castle instruction. We have
       approved WPIC 4.01 and conclude that sound judicial practice requires that
       this instruction be given until a better instruction is approved. Trial courts
       are instructed to use the WPIC 4.01 instruction to inform the jury of the
       government's burden to prove every element of the charged crime beyond a
       reasonable doubt.

161 Wn.2d at 317-18.

      Trial defense counsel proposed and the trial court gave the jury the standard WPIC


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No. 33279-9-III
State v. Castro


4.01. The trial court did not commit error by delivering the approved instruction. Instead

the trial court would have erred by giving another instruction. Because there was no

error, trial counsel did not perform deficiently by failing to propose another instruction.

                                      CONCLUSION

       We reverse Benjamin Castro's conviction for making or having burglary tools.

We affirm his convictions for possession of a stolen vehicle, two counts of possession of

stolen property in the second degree, and possession of methamphetamine. We remand

for resentencing.

       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.


                                           Fearing, C.J.

WE CONCUR:




Siddoway, J.                              Lawrence-Berrey, J.
                                                                               j




                                             15
