State Of Washington, Resp. v. Timothy Beeson, App. ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 72304-9-1
Respondent,
DIVISION ONE
v.
TIMOTHY GRANT BEESON, UNPUBLISHED OPINION
Appellant. FILED: November 23, 2015
LAU, J.— Timothy Beeson appeals his conviction of unlawful possession of a
firearm in the first degree, asserting instructional error. Because the trial court defined
reasonable doubt in accordance with the instruction that Beeson agreed to, using
language approved by our Supreme Court, and because Beeson fails to raise a
meritorious issue in his statement of additional grounds, we affirm.
FACTS
At Beeson's trial, the trial court gave the jury instructions proposed by the State.
Beeson offered no alternative instructions. Jury instruction 3 defined reasonable doubt
in accordance with the Washington Pattern Jury Instruction: Criminal 4.01 (WPIC) as
follows:
No. 72304-9-1/2
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.
Clerk's Papers (CP) at 69. Defense counsel expressly declined to raise any objection to
the reasonable doubt instruction and confirmed that the defense "adoptfed] this
instruction" as its own. Report of Proceedings (RP) (March 27, 2014) at 62.
The jury convicted Beeson of unlawful possession of a firearm in the first degree
as charged. The court imposed a drug offender sentencing alternative sentence of
57.75 months. Beeson appeals.
ANALYSIS
Reasonable Doubt Instruction
Beeson contends 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. 174
Wash. 2d 741, 760, 278 P.3d 653 (2012), Beeson also argues that the instruction
resembles improper "fill in the blank" arguments that impermissibly shift the burden of
proof and may constitute prosecutorial misconduct. In a supplemental assignment of
error, Beeson contends that he was denied effective assistance when defense counsel
"endorse[d]" the reasonable doubt instruction, rather than objecting to it. Appellant's
Supplemental Br. at 1.
Beeson concedes that the trial court's instruction mirrors 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. State v. Bennett. 161 Wash. 2d
303, 318, 165 P.3d 1241 (2007): see also State v. Castillo. 150 Wash. App. 466, 469, 208
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P.3d 1201 (2009). In State v. Kalebauah. 183 Wash. 2d 578, 586, 355 P.3d 253 (2015)
our Supreme Court recently reaffirmed that WPIC 4.01 is "the correct legal instruction
on reasonable doubt...." After correctly instructing the jury during preliminary remarks
that reasonable doubt was "a doubt for which a reason exists," the trial judge in
Kalebauah paraphrased the explanation as "a doubt for which a reason can be given."
Kalebauah. 183 Wash. 2d at 585. In concluding that the error in the trial judge's "offhand
explanation of reasonable doubt" was harmless beyond a reasonable doubt, the court
rejected any suggestion that WPIC 4.01 required the jury to articulate a reason for
having a reasonable doubt or was akin to an improper "fill in the blank" argument.
Kalebauah. 183 Wash. 2d at 585, 586 ("We do not agree that the judge's effort to explain
reasonable doubt was a directive to convict unless a reason was given or akin to the "fill
in the blank" approach that we held improper in State v. Emery."): See also State v.
Thompson. 13 Wash. App. 1, 4-5, 533 P.2d 395 (1975) (the phrase "a doubt for which a
reason exists" does not direct the jury "to assign a reason for their doubt"). Beeson's
challenge to WPIC 4.01 must be directed to our Supreme Court.
Because the trial court did not err in giving the reasonable doubt instruction,
Beeson's claim of ineffective assistance of counsel likewise fails.
Statement of Additional Grounds for Review
Beeson contends in a statement of additional grounds for review that the search
warrant failed to establish probable cause to search his vehicle. Probable cause exists
where there are facts and circumstances sufficient to establish a reasonable inference
that the defendant is involved in criminal activity and that evidence of the criminal
activity can be found at the place to be searched. State v. Maddox. 152 Wash. 2d 499,
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505, 98 P.3d 1199 (2004). Specifically, Beeson claims that the warrant was based on
untrue statements because the police had confirmed his identity before they secured
the warrant to search his vehicle. But the trial court specifically found that the officer
who applied for the warrant "did not know that the defendant's identity had been
confirmed at the time of the writing or the submission of the warrant." CP at 92. The
officer's testimony at the suppression hearing supports this finding. The court also
concluded that "confirmation of the defendant's identity does not affect the finding that
the warrant was supported by probable cause." CP at 94.
Beeson also contends that police officers exceeded the scope of the search
warrant by opening a cloth bag that contained the firearm. The search warrant
authorized the officers to seize evidence of stolen property, evidence relating to identity
theft, and evidence of drugs. Beeson provides no legal authority to support his
assertion, nor does he assert that the cloth bag was not a plausible repository for the
items identified in the warrant. See State v. Hill. 123 Wash. 2d 641, 643, 870 P.2d 313
(1994) (under a search warrant for a premises, personal effects of the owner may be
searched provided they are plausible repositories for the objects named in the warrant).
The trial court did not err in concluding that the warrant "allowed the officers to los& ing
the bag containing the gun." CP at 94.
We affirm.
WE CONCUR
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