                                                                           FILED
                                                                      JULY 19, 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. 33108-3-111
                       Respondent,           )
                                             )
      V.                                     )
                                             )
ANITA VIRGINIA WHISLER,                      )        UNPUBLISHED OPINION
                                             )
                       Appellant.            )

      FEARING, C.J. -Anita Whisler challenges the constitutionality of 11 Washington

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

(WPIC). We reject her challenge and affirm her conviction of assault of a law

enforcement officer.

                                        FACTS
                                                                                                       I
                                                                                                       1
      The facts bear no relevance to the appeal. On May 16, 2014, Anita Whisler rode

as a passenger in a car driven by Joseph Loan. A law enforcement officer stopped Loan
                                                                                                       I
on suspicion of intoxication. The officer arrested Loan and placed him in the back of a                [
                                                                                                       t
                                                                                                       If
No. 33108-3-111
State v. Whisler


patrol vehicle. Whisler exited the vehicle and complained of a bloody nose. Whisler

blew a blood clot from her nose into her hand. She attempted to wipe the blood on the

officer, but he stopped her. Whisler refused to provide her name and birth date to the

officer.

                                      PROCEDURE

       The State of Washington charged Anita Whisler with assault in the third degree on

a police officer and obstructing a law enforcement officer. At the close of a jury trial, the

trial court delivered the following reasonable doubt instruction to the jury:

               The defendant's plea of not guilty puts in issue, to be decided by the
       jury, each element of the crime charged. The State is the plaintiff and has
       the burden of proving each of these elements beyond a reasonable doubt.
       The defendant has no burden of proving that a reasonable doubt exists.
               The 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. If, from such a consideration, you have an abiding
       belief in the truth of the charge, you are satisfied beyond a reasonable
       doubt.

Clerk's Papers at 40; Report of Proceedings at 258. Whisler did not object to the jury

instruction. The jury found Whisler guilty of assault in the third degree and acquitted her

of obstructing a law enforcement officer.




                                             2



                                                                                                f
Ii
!
i
i

I    No. 33108-3-111
     State v. ff'hisler

I
,,
                                       LAW AND ANALYSIS
I
            The trial court based its reasonable doubt jury instruction on WPIC 4.01. Anita

I
I
     Whisler argues that the language in WPIC 4.01, that defines a "reasonable doubt" as "one
I    for which a reason exists," directs jurors to articulate a reason for forming a reasonable
I
i    doubt. Thus, Whisler contends the instruction erroneously requires jurors to find more
I    than a reasonable doubt. Whisler also challenges the language describing reasonable


I
I
     doubt as the abiding belief "in the truth of the charge" as a misstatement of the burden of

     proof in that the instruction improperly focused the jury on a search for "the truth." The

     State notes that we would overrule the Supreme Court if we rejected the standard

I    instruction found in WPIC 4.01. We agree with the State and find no error.

            Anita Whisler failed to object to the jury instruction before the trial court.
I    Generally, a party who fails to object to jury instructions in the trial court waives a claim

     of error on appeal. State v. Smith, 174 Wn. App. 359, 364, 298 P.3d 785 (2013); RAP
I'
     2.5(a). However, "[m]anifest errors affecting a constitutional right may be raised for the

     first time on appeal." Smith, 174 Wn. App. at 365. The Supreme Court reiterated the

     manifest constitutional error analysis saying:

                    [W]e ask two questions: (1) Has the party claiming error shown the
            error is truly of a constitutional magnitude, and if so, (2) has the party
            demonstrated that the error is manifest?




                                                   3
No. 33108-3-III
State v. Whisler


State v. Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 (2015). We address separately

Whisler's two challenges to the jury instruction. We find no error. Therefore, the trial

court committed no manifest constitutional error.

       Jury instruction language 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), we upheld an almost

identical concluding statement in WPIC 4.01, as revised in 1982. The instruction at issue

used the expression "after such consideration" rather than the language now used of

''from such consideration." The Mabry court observed that Washington courts approved

modified versions of the instruction in State v. Tanzymore, 54 Wn.2d 290, 340 P.2d 178

(1959) and State v. Walker, 19 Wn. App. 881, 578 P.2d 83 (1978). We emphasized that,

when reviewing "reasonable doubt" instructions, courts refuse to isolate a particular

phrase and instead construe the instruction as a whole. State v. Mabry, 51 Wn. App. at

25.

       In State v. Pirtle, 127 Wn.2d 628, 904 P.2d 245 (1996), our Supreme Court

addressed a challenge to a trial court's modification of the concluding sentence of WPIC

4.01 to sharpen the focus on a juror's doubt. The modification read: "'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.'" State v. Pirtle, 127 Wn.2d at 656


                                             4
No. 33108-3-III
State v. FVhisler


(emphasis added) (first alteration in original). The high court upheld the revised

instruction:


               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 Wn.2d at 658.

       Anita Whisler contends that the more recent decisions of State v. Emery, 174

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

(2012) require us to reconsider longstanding precedent. In State v. Emery, our Supreme

Court held that the prosecutor committed misconduct when, in argument, he asked the

jury to solve the case. The jury's role, according to the state Supreme Court, is to

determine if the State proved guilt beyond a reasonable doubt, not to determine the truth

of what happened. In State v. Berube, this court affirmed that the jury does not search for

truth but determines whether the burden of proof has been carried by the party who bears

it.

       The last sentence of WPIC 4.01 does not instruct the jury to "solve the case" or

"find the truth." State v. Pirtle remains controlling authority that, without the last




                                              5
No. 33108-3-III
State v. Whisler


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.

       In State v. Federov, 181 Wn. App. 187,324 P.3d 784, review denied, 181 Wn.2d

1009, 335 P.3d 941 (2014), this court rejected Anita Whisler's argument. We held that

when "read in context, the 'belief in the truth' phrase accurately informs the jury its 'job

is to determine whether the State has proved the charged offenses beyond a reasonable

doubt.'" Federov, 181 Wn. App. at 200 ( quoting State v. Emery, 174 Wn.2d at 760

(2012)).

       Courts have also upheld WPIC 4.01 's "reasonable doubt" language. In State v.

Bennett, the Supreme Court wrote:

               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 ofthe
       government's burden to prove every element of the charged crime beyond a
       reasonable doubt.

161 Wn.2d 303, 317-18, 165 P.3d 1241 (2007).

       Washington courts have approved the relevant language of WPIC 4.01 as

constitutionally sound for decades. As noted in State v. Thompson, 13 Wn. App.


                                              6
No. 33108-3-111
State v. VVhisler


1, 4, 533 P.2d 395 (1975), the phrase '"a doubt for which a reason exists" does not

direct the jury to assign a reason for any doubt, but merely mentions that doubt

must be based on reason and not something vague or imaginary. In State v.

Emery, 174 Wn.2d at 759-60 (2012), the court approved the State's argument that

identified reasonable doubt as a doubt for which a reason exists. Most recently,

the Washington Supreme Court in State v. Kalebaugh, 183 Wn.2d 578 (2015)

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

       In short, Anita Whisler does not make a novel challenge to WPIC 4.01.

The challenged language has been upheld by many courts as recently as two years

ago. Therefore, the instruction was proper.

                                 CONCLUSION

       We affirm the conviction of Anita Whisler.

       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.


                                         Fearmg, C.J.

WE CONCUR:


                                                  ~d.d,o?U               {1
                                         Siddoway, J.              at; Cl
                                              7
