                                                            FILED
                                                        OCTOBER 30, 2018
                                                    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. 35000-2-III
                                             )
                     Respondent,             )
                                             )
       v.                                    )         UNPUBLISHED OPINION
                                             )
DELBERT HAROLD BENSON,                       )
                                             )
                     Appellant.              )

       PENNELL, J. — Delbert Benson appeals his perjury conviction. We affirm.

                                         FACTS

       Delbert Benson agreed to work as a confidential informant and facilitate a

controlled drug buy on October 30, 2012. Prior to the controlled buy, Mr. Benson

met with two police officers. The officers searched Mr. Benson’s person and pickup

truck and provided him $200 in buy funds. Mr. Benson was also outfitted with an

audio transmitting and recording device. The device enabled the officers to listen to

Mr. Benson’s conversations in real time and also to record the conversations for future

use.

       After being wired and prepped for the controlled buy, officers followed Mr.

Benson to the residence of John Gant. Mr. Benson went inside the residence and met

with Mr. Gant for approximately 40 minutes. During the meeting, officers could hear
No. 35000-2-III
State v. Benson

Mr. Benson negotiating a purchase for $150. The conversation included drug

terminology such as a “ball,” an “eight ball” and a “teen.” Clerk’s Papers (CP) at 36, 38.

After finishing his meeting with Mr. Gant, the police followed Mr. Benson back to the

police station.

       Once at the station, officers performed additional searches of Mr. Benson and his

pickup. They recovered $50 in buy funds and a plastic container containing

methamphetamine. During a recorded debriefing, Mr. Benson said that he had gone to

Mr. Gant’s house and given him $150. Mr. Benson was asked if Mr. Gant had

methamphetamine. 1 He responded, “yes.” CP at 59. Mr. Benson explained Mr. Gant

weighed the methamphetamine and took the $150 in exchange for the drug.

       As a result of Mr. Benson’s controlled buy, the State charged Mr. Gant with

controlled substance violations. Mr. Benson was called to testify at trial. During his

testimony, Mr. Benson denied Mr. Gant had ever supplied him with methamphetamine.

Mr. Benson claimed that the methamphetamine turned over to police belonged to him

and had come from a tool box located in the bed of his pickup. Mr. Benson also testified

that he had kept the $150 that he was supposed to have given to Mr. Gant. According to



       1
        The officers referred to methamphetamine as “it” during the recorded debriefing.
CP at 59. The context of the interview makes clear that the “it” being referenced is the
methamphetamine turned over by Mr. Benson to the officers.

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No. 35000-2-III
State v. Benson

Mr. Benson, he instead placed the $150 in his wallet. Mr. Gant was acquitted of the

controlled substance charge.

        Two years after Mr. Gant’s acquittal, the State charged Mr. Benson with first

degree perjury. The information alleged Mr. Benson gave materially false testimony

when he stated he did not purchase any drugs from John Gant on October 30, 2012.

The exact statements that formed the basis of the charge were identified in a bill of

particulars. 2




        2
         The statements identified in the bill of particulars were as follows:
               Q.: Are you going to tell the jury who you got the Meth from?
               A.: It was mine.
               Q.: It was yours?
               A.: The only reason I took the money from [the police] was to get the
               money.
               Q.: Ok. So where did you have it?
               A.: In my tool box in my pickup.
                ....
               Q.: Did Mr. Gant give you any Methamphetamine while you were in the
               apartment?
               A.: No. I, I –
               Q.: Did he give you any Methamphetamine at any time?
               A.: No.
               ....
               Q.: You made a comment about Mr. Gant “not being the guy.” What do you
               mean by that?
               A.: When we were at the house, Mr. Gant never gave me anything. That’s
               all I meant by that. Mr. Gant never gave me any drugs at all, ever.
        CP at 7-8.

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No. 35000-2-III
State v. Benson

       Mr. Benson’s case proceeded to trial. The State presented testimony from the

two officers who had handled Mr. Benson’s cooperation. The officers described their

surveillance activities and interactions with Mr. Benson. According to the officers’

testimony, they would have searched any tool box located in Mr. Benson’s truck as well

as Mr. Benson’s wallet. Yet during the pre-buy search, the officers did not discover any

methamphetamine. Nor did the officers ever see Mr. Benson retrieve anything from the

bed of his pickup during the course of their surveillance. During the post-buy search,

Mr. Benson was not discovered to have $150 on his person. In addition to the officers’

testimony, the State introduced the entire wire recording of Mr. Benson’s undercover

activity, along with Mr. Benson’s post-buy recorded statement to police. The entire

statement was played for the jury, as were portions of the undercover recording.

       At several points during the trial, the prosecutor explained that Mr. Benson had

perjured himself by claiming that the drugs turned over to police were his. 3 Defense

counsel reiterated this clarification and pointed out the various false statements attributed

to Mr. Benson that were not the subject of the perjury charge.


       3
        During opening statements, the prosecutor stated, “And when you have heard
everything and [are] deliberating about this case you are left with two choices: Did [Mr.
Benson] lie on the stand regarding whose drugs this was, or was it really his?” 1 Report
of Proceedings (RP) (Oct. 31, 2016) at 117. During closing argument, the prosecutor
stated Mr. Benson was “contesting the perjury charge saying that the dope was his.” 3 RP
(Nov. 2, 2016) at 379.

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No. 35000-2-III
State v. Benson

       The prosecutor concluded his rebuttal argument with the following statement, to

which the defense objected:

               [PROSECUTOR]: You know, one might, you know, people like
       analogies. It’s always kind of difficult to come up with one that makes
       sense. If this were a trial about whether or not a boat existed, was made,
       and the plaintiff was alleging this is a boat, this would be a case where the
       defense is telling you, well, we’re not sure because we don’t know if it has
       one mast or two masts, maybe even three masts, when all you have to
       decide is, is it a boat, and will it float? And the State submits to you that
       you know, after you have, now that you have heard everything—
               [DEFENSE COUNSEL]: Your Honor, I apologize. I have to object.
       I think counsel is trivializing the term—
               THE COURT: Overrule. Again, ladies and gentleman what the
       lawyers say isn’t evidence. It’s not the law. You will get the evidence from
       what you heard and get the law from my instructions.
               Go ahead. This is argument.
               [PROSECUTOR]: After you have seen, gone through the evidence,
       the transcript, the wires, that you are left with no reasonable doubt but that
       Mr. Benson committed the crime of Perjury back in June 2013. Thank you.

3 Report of Proceedings (Nov. 2, 2016) at 413-14.

       The jury was given a standard pattern instruction that direct and circumstantial

evidence carry equal weight and value (instruction 5). 4 The jury was also given an

instruction specific to the heightened evidentiary requirements for perjury (instruction 7).

See, e.g., State v. Singh, 167 Wn. App. 971, 976, 275 P.3d 1156 (2012) (explaining the

requirement). Instruction 7 provided:


       4
       CP at 171; 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 5.01, at 181 (4th ed. 2016).

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State v. Benson

               To convict the defendant of the crime of Perjury in the First Degree,
       there must be either positive testimony of at least two credible witnesses
       that directly contradicts the defendant’s statement made under oath or there
       must be one such direct witness along with independent direct or
       circumstantial evidence of supporting circumstances that clearly overcomes
       the oath of the defendant and the legal presumption of defendant’s
       innocence.

CP at 173. The to-convict instruction (instruction 11) listed the elements of first

degreeperjury but did not contain any reference to the heightened evidentiary requirement

described in instruction 7. Mr. Benson was found guilty of first degree perjury.

He appeals.

                                        ANALYSIS

Sufficiency of the evidence

       In a sufficiency challenge, our inquiry is “whether, after viewing the evidence in

the light most favorable to the State, any rational trier of fact could have found guilt

beyond a reasonable doubt.” State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068

(1992). All reasonable inferences are drawn in the State’s favor, and the evidence is

interpreted most strongly against the defendant. Id. This court does not reweigh the

evidence and substitute its judgment for that of the trier of fact. State v. Green, 94 Wn.2d

216, 221, 616 P.2d 628 (1980).




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No. 35000-2-III
State v. Benson

       A person is guilty of first degree perjury if, in any official proceeding, he or she

makes a materially false statement, which he or she knows to be false, under an oath

required or authorized by law. RCW 9A.72.020(1). The evidentiary requirements for

a perjury conviction are more stringent than all other crimes, except treason. State v.

Arquette, 178 Wn. App. 273, 282, 314 P.3d 426 (2013). Sufficient evidence for a perjury

conviction requires

       “the direct testimony of at least one credible witness, and that testimony to
       be sufficient must be positive and directly contradictory of the defendant’s
       oath; in addition to such testimony, there must be either another such
       witness or corroborating circumstances established by independent
       evidence, and of such a character as clearly to turn the scale and overcome
       the oath of the defendant and the legal presumption of his innocence.
       Otherwise the defendant must be acquitted.”

State v. Rutledge, 37 Wash. 523, 528, 79 P. 1123 (1905) (quoting People v. Rodley, 131

Cal. 240, 261, 63 P. 351 (1900)). This direct testimony must come “from someone in a

position to know of his or her own experience that the facts sworn to by defendant are

false.” Nessman v. Sumpter, 27 Wn. App. 18, 24, 615 P.2d 522 (1980).

       Mr. Benson claims the State’s evidence was insufficient to meet the heightened

evidentiary requirements for perjury. We disagree. The State presented testimony from

law enforcement officers that Mr. Benson did not have any methamphetamine on his

person or in his vehicle prior to the meeting with Mr. Gant. This directly contradicted



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No. 35000-2-III
State v. Benson

Mr. Benson’s testimony that the methamphetamine had come from a tool box located on

his truck bed. The officers’ testimony regarding the origins of the methamphetamine was

corroborated by the audio recording of Mr. Benson’s interactions with Mr. Gant, during

which the men discussed drug terminology and a $150 purchase. It was also corroborated

by the statements made by Mr. Benson during his recorded debriefing. The State’s

corroborating evidence was inconsistent with Mr. Benson’s claim of innocence. There

was, therefore, sufficient evidence to justify the jury’s guilty verdict.

To-convict jury instruction

       Mr. Benson claims that the court’s to-convict instruction was flawed in two ways:

(1) the instruction did not inform the jury of the heightened evidentiary requirements

applicable to perjury, and (2) the instruction did not specify which false statement formed

the basis of the State’s charge. We reject both challenges.

       Essential elements

       Jury instructions are reviewed de novo. State v. Johnson, 180 Wn.2d 295, 300,

325 P.3d 135 (2014); State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995). Taken

together, the instructions must inform the jury that the State bears the burden of proving

every essential element beyond a reasonable doubt. Johnson, 180 Wn.2d at 306; Pirtle,

127 Wn.2d at 656. Because the to-convict instruction is the “ ‘yardstick by which the jury



                                               8
No. 35000-2-III
State v. Benson

measures the evidence,’” it must contain all of the essential elements of the charged

crime. Johnson, 180 Wn.2d at 306 (quoting State v. Sibert, 168 Wn.2d 306, 311, 230

P.3d 142 (2010)). Other instructions cannot be used to supplement a defective to-convict

instruction. Id.

       Mr. Benson criticizes the court’s to-convict instruction because it did not recite

the heightened evidentiary requirements applicable to perjury. This argument fails

because a crime’s evidentiary standard is different from its elements. Elements are

“‘[t]he constituent parts of a crime—[usually] consisting of the actus reus, mens rea,

and causation.’” State v. Peterson, 168 Wn.2d 763, 772, 230 P.3d 588 (2010) (alteration

in original) (quoting State v. Fisher, 165 Wn.2d 727, 754, 202 P.3d 937 (2009)). An

evidentiary standard merely governs how the elements of a crime must be proved. It

was unnecessary for the trial court’s to-convict instruction to provide an explanation

of evidentiary standards. Instead, it was sufficient for the standards to be set forth in

a separate instruction, as was done here. Mr. Benson’s challenge therefore fails.

       Specification of the charged offense

       The court’s to-convict instruction alleged “[t]hat on or about the 26th day of June,

2013, the defendant made a false statement.” CP at 177. For the first time on appeal,

Mr. Benson raises the concern that the jury may have convicted him for making a false



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No. 35000-2-III
State v. Benson

statement different from the statements identified in the State’s charging document and

bill of particulars.

       We find no reversible error. Any vagueness in the court’s instruction was

sufficiently addressed by the clarification presented by both counsel for the State

and defense counsel. See State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988)

(no multiple acts problem when the State tells “the jury which act to rely on in its

deliberations”). Further instruction from the court was therefore unnecessary.

Prosecutorial misconduct

       Allegations of prosecutorial misconduct are reviewed for an abuse of discretion.

State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014). A defendant bears the

burden of showing that the prosecutor’s comments are both improper and prejudicial. Id.

Allegedly improper arguments by the prosecutor must be reviewed in the context of the

total argument, the issues in the case, the evidence addressed in the argument, and the

instructions given. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994).

       Mr. Benson claims the prosecutor’s boat analogy misstated the burden of proof and

denigrated the defense. We disagree. Viewed in context, the prosecutor’s analogy simply

pointed out that the jury should focus on the false statement that formed the basis of the

crime charged (the boat), not details regarding other false statements or wrongdoing (the



                                             10
No. 35000-2-III
State v. Benson


various masts of the boat). While the prosecutor's analogy may not have been perfect,

it did not undermine the fairness of Mr. Benson's trial. The trial court appropriately

overruled Mr. Benson's objection to the prosecutor's argument.

                                     CONCLUSION

      The judgment of conviction is affirmed. 5

      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:




Lawrence-Berrey, CJ.




      5 Because we find no error, we need not address Mr. Benson's argument that his
conviction should be reversed on the basis of cumulative error.

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