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

STATE OF WASHINGTON,                             No. 72019-8-
                                                                                  3E
                     Respondent,

      v.



STETSON G. TEDDER,                               UNPUBLISHED OPINION               o

                                                                                    IN5

                     Appellant.                  FILED: November 9, 2015



      Verellen, J. — Stetson Tedder appeals his convictions for assault of a child in

the second degree and unlawful imprisonment, arguing that the trial court's reasonable

doubt instruction was constitutionally deficient. We affirm.

       On January 12, 2013, four-year-old M.T. spent the night at the home of her

paternal grandmother, Corinne Smith. The following morning, when Smith was giving

M.T. a bath, Smith noticed red welts all over M.T.'s body that "looked like chicken pox."1

M.T. told Smith that Tedder, her stepfather, "had shot her with the gun."2 Smith took

M.T. to the home of Smith's sister, Regina Hinton, and told M.T. to show Hinton the

"chicken pox."3 M.T. told Hinton "they weren't chicken pox" and that Tedder "got mad

and shot her with the BB gun" because she woke him up.4



       1 Report of Proceedings (RP) (Mar. 25, 2014) at 96.
       2 \± at 97.

       3 \± at 99.
       4 jd at 99, 115-16.
No. 72019-8-1/2


       Smith took M.T. to the hospital where M.T. told a forensic nurse examiner that

"she got shot by her daddy with a BB gun."5 M.T. also disclosed that Tedder had tied her

wrists and her ankles with zip ties. The nurse observed abrasions on M.T.'s wrists and

ankles consistent with being tied with zip ties. M.T subsequently told two separate Child

Protective Services social workers and a child interview specialist that Tedder would

shoot her with a BB gun or tie her up with zip ties when she got in trouble. A search of

Tedder's home revealed plastic zip ties and an Airsoft rifle that shot plastic BBs.

       The State charged Tedder with one count of assault of a child in the second

degree and one count of unlawful imprisonment. The State alleged that each charge

involved two aggravating factors: domestic violence and deliberate cruelty.

      At trial, the court instructed the jury on reasonable doubt using the standard

Washington Pattern Jury Instruction (WPIC) 4.01:

              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 each crime beyond a
       reasonable doubt. The defendant has no burden of proving that a
       reasonable doubt exists as to these elements.

            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.[6]




       5RP(Mar. 26, 2014) at 41.
      611 Washington Practice: Washington Pattern Jury Instructions: Criminal
4.01, at 85 (3d ed. 2008) (emphasis added).
No. 72019-8-1/3


      A jury found Tedder guilty of assault of a child in the second degree and unlawful

imprisonment. The jury also found by special verdict that both crimes involved domestic

violence. Tedder appeals.

       Tedder claims that 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, Tedder

also argues that the instruction resembles the improper "fill in the blank" arguments that

may constitute prosecutorial misconduct.7

       Tedder concedes that the trial court's instruction was identical to 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.8 Our Supreme Court

recently reaffirmed that WPIC 4.01 is "the correct legal instruction on reasonable doubt"

and rejected any suggestion that WPIC 4.01 requires a jury to articulate a reason for

having a reasonable doubt or is akin to an improper "fill in the blank" argument.9 Our
Supreme Court decisions control.10

       Affirmed.




WE CONCUR:




   Vf^/w^(.\h                                       ^^fefe^
       7 174 Wn.2d 741, 760, 278 P.3d 653 (2012).
       8 State v. Bennett, 161 Wn.2d 303, 318, 165 P.3d 1241 (2007).
       9 State v. Kalebauqh, 183 Wn.2d 578, 586, 355 P.3d 253 (2015).
       10 State v. Gore, 101 Wn.2d 481, 486-87, 681 P.2d 227 (1984).

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