### FILED MAY 24, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

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

### v. KURTIS SCOTTPHILLIPS, Appellant. ) ) ) ) ) ) ) ) ) ) ) No. 33672-7-111

UNPUBLISHED OPINION

FEARING, C.J. -Kurtis Scott Phillips appeals from his 2015 Grant County convictions for second degree possession ofstolenproperty, possession of methamphetamine, and third degree theft. He contends thejury instruction onreasonable doubt, based onWashington Pattern Jury Instruction (WPIC) 4.01, is unconstitutional because it shifts the burden ofproofand requires thejuryto articulate a reason for doubt. See 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.01, at 85 (3d ed. 2008). We disagree and affirm Phillip's convictions. FACTS In July 2014, Kurtis Phillips used a stolen credit cardto buy items at a smoke shop, a department store, and a gas station. Ephratapolice officers arrested him andNo. 33672-7-111 

### State v. Phillips

found methamphetamine inhis backpack. PROCEDURE The State ofWashington charged Kurtis Phillips with second degree possession of stolenproperty, possession ofmethamphetamine, third degree theft, tampering with physical evidence, and making a false ormisleading statementto a public servant. At trial, the court instructed thejury onreasonable doubt: 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 ofevidence. It is such a doubt as would exist in the mind ofa reasonable person after fully, fairly, and carefully considering all ofthe evidence or lack ofevidence. If, from such a consideration, you have an abidingbeliefin the truth ofa charge, you are satisfiedbeyond a reasonable doubt as to that charge. Clerk's Papers (CP) at 16. Phillips did not objectto this instruction. Thejury found him guilty ofsecond degree possession ofstolen property, possession ofmethamphetamine, and third degree theft, but acquitted him ofthe remaining charges. LAWAND ANALYSIS Kurtis Phillips assigns errorto the reasonable doubtjury instruction. We review a challenge to the language ofajury instruction de novo, in the context ofthe instructions
as a whole. 

### State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007); 

### In re Pers. Restraintof Hegney, 138 Wn. App. 511, 521, 158 P.3d 1193 (2007). Jury instructions are
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### State v. Phillips
upheld on appeal ifthey allow the parties to argue theirtheories ofthe case, do not mislead thejury, andproperly inform thejury ofthe applicable law. 

### State v. Bennett, 161 Wn.2d at 307. The trial court took its reasonable doubtjuryinstruction nearly verbatim from WPIC 4.01. Kurtis Phillips argues thatthe language in WPIC 4.01, that defines a reasonable doubt as "one for which 

### a reason exists," tellsjurors that they must be able to articulate a reason for having a reasonable doubt. WPIC 4.01 (emphasis added). Thus, he contends, the instruction erroneously informsjurors that they musthave more thanjust
a reasonable doubt

- they must be able to articulate that doubt. He asserts thatthe instruction mirrors the fill-in-the-blank prosecutorial arguments that Washington courts have invalidated because those arguments shift the burden ofproofto the defendant. Finally, he also challengesthe language describing reasonable doubt as the abiding belief "in the truth ofthe charge," as a misstatement ofthe burden ofproof. We note that Kurtis Phillips did not object to the propriety ofWPIC 4.01 at trial. A defendant generally waives the right to appeal an errorunless 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); 

### State v. Kalebaugh, 183 Wn.2d at 583. An error is manifest ifthe appellant can show actual prejudice. 

### State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009).
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### State v. Phillips
Phillips claims an error ofconstitutional magnitude, buthe shows neither error nor prejudice. Washington courts have approved the relevant language ofWPIC 4.01 as constitutionally sound for decades. As noted in

### State v. Thompson, 13 Wn. App. 1, 533 P.2d 395 (1975), the phrase "adoubt for which a reason exists" does not direct thejuryto 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 inthis context has been declared satisfactory in thisjurisdiction for over 70 years. 

### Thompson, 13 Wn. App. at 5 (citing 

### State v. Harras, 25 Wash. 416, 65 P. 774 (1901)). Likewise, Washington's traditional "abiding beliefin the truth" language has been upheld in several cases. 

### See WPIC 4.01, Task force cmt. at 85-86 (citing 

### State v. Pirtle, 127 Wn.2d 628, 657-58, 904 P.2d 245 (1995) and other cases). The Washington Supreme Court has consistently endorsed the language ofWPIC 4.01. 

### See, e.g., State v. Bennett, 161 Wn.2d at 318 (the Supreme Court exercises its "inherent supervisorypower" to require trial courts to use only WPIC 4.01 in instructingjuries onthe burden ofproof); 

### State v. Emery, 174 Wn.2d 741, 759-60, 278 P.3d 653 (2012) (the prosecutor in closing argumentproperly described reasonable doubt as a doubt for which a reason exists). Mostrecently, the Washington Supreme Court in 

### State v. Kalebaugh, 183 Wn.2d at 584, reaffirmed that WPIC 4.01 is the correct legal instruction onreasonable doubt. The trialjudge in 

### Kalebaugh gave a proper instruction from WPIC 4.01 in his 4

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preliminary remarks to prospectivejurors, but then attempted to further explain that reasonable doubtwas "'a doubt for which areason 

### can be given.'" Kalebaugh, 183 Wn.2d at 585 (emphasis by Supreme Court). 

### Kalebaugh, 183 Wn.2d at 586, disfavored thejudge's "offhand explanation," in partbecause that language suggested that a reason must be given to doubt the defendant's guilt. The error was held harmless, however, because the trialjudgeproperly instructed thejury at the end ofthe case with the language ofWPIC 4.01. Kurtis Phillips's assertion that WPIC 4.01 is similar to the "fill-in-the-blank" prosecutorial argument held improper in 

### State v. Emery, 174 Wn.2d at 759-60, also fails. The prosecutor in 

### Emerytold thejury in closing argument that "'in order for you to find the defendant not guilty
... you'dhave to say, quote, I doubt the defendant is guilty, and my reason is blank. A doubt for which a reason exists. Ifyou think you have a doubt, you must fill in that blank.'" 

### Emery, 174 Wn.2d at 750-51. This statement was inappropriate because it subtly shifted the burden ofproving the case to the defendantto disprove. The prosecutor's improper and potentially confusing statement did not support relief, however. 

### Emery concluded that even ifthe appellants could show that the statement was incurable, they could not show a substantial likelihood that it affected the jury's verdict. Thejury was properly instructed on reasonable doubt with a WPIC 4.01 instruction, and the Court assumed that thejury followed the instruction.


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CONCLUSION We are boundby the approval ofthe WPIC 4.01 reasonable doubt language in 

### Kalebaugh and its predecessors. Accordingly, we hold that Kurtis Phillips cannot show manifest errorjustifying review under RAP 2.5(a)(3) ofthe unpreserved objectionto the WPIC 4.01 beyond reasonable doubt instruction. Affirmed. A majority ofthe panel has determined this opinion will notbe printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

K4rsmo, J. '(/

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