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State Of Washington, Resp. v. Gebremeskel T. Gebretensae, App. ( 2015 )


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2015 NOV -9 AH 9:Ul:
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 72408-8-1
GEBREMESKEL TIKUE GEBRETENSAE,                          UNPUBLISHED OPINION
Appellant.                          FILED: November 9, 2015
Dwyer, J. — Gebremeskel Gebretensae appeals his conviction for felony
harassment, arguing that the court's reasonable doubt instruction is
unconstitutional "because it requires the jury to articulate a reason to establish a
reasonable doubt." We affirm.
When a defendant proposes an instruction identical to an instruction he
later challenges on appeal, the invited error doctrine bars review. State v. Studd,
    137 Wn.2d 533
    , 546-47,
    973 P.2d 1049
     (1999). This rule applies even if the
defendant's requested instruction was a Washington Pattern Jury Instruction
previously approved by the courts. Studd,
    137 Wn.2d at 546-48
    ; State v.
Henderson.
    114 Wn.2d 867
    , 870,
    792 P.2d 514
     (1990). Here, Gebretensae
proposed the very instruction he challenges on appeal. Review is therefore
barred by the invited error doctrine.
No. 72408-8-1/2
In any case, Gebretensae's argument is meritless. The challenged
instruction, which is taken from 11 Washington Practice: Washington Pattern
Jury Instructions: Criminal 4.01, at 85 (3d ed. 2008) (WPIC), states in pertinent
part:
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.
(Emphasis added.) Nothing in this language requires jurors to articulate a
reason. Read in context, the phrase "'a doubt for which a reason exists'"
does not direct the jury to 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 in this context has
been declared satisfactory in this jurisdiction for over 70 years.
State v. Thompson,
    13 Wn. App. 1
    , 5,
    533 P.2d 395
     (1975).1 Our State Supreme
Court recently reached a similar conclusion in State v. Kalebauoh, 183Wn.2d
578,
    355 P.3d 253
     (2015). The Kalebaugh court held that a trial court misstated
the law when it orally instructed the jury that a reasonable doubt "is a doubt for
which a reason can be given," and that it should have read them "the correct jury
instruction that a 'reasonable doubt' is a doubt for which a reason exists."
Kalebaugh, 183 Wn.2d at 584 (emphasis added). The court's opinion makes
clear that while the trial court's oral remarks verged on an articulation
requirement, the language in WPIC 4.01 does not. See Kalebauqh, 183 Wn.2d at
584-86. Kalebaugh controls Gebretensae's arguments on appeal.
1See also State v. Emery.
    174 Wn.2d 741
    , 759-60,
    278 P.3d 653
     (2012) (prosecutor's
argument properly described "reasonable doubt as a 'doubt for which a reason exists'"); State v.
Bennett.
    161 Wn.2d 303
    , 307,
    165 P.3d 1241
     (2007); State v. Tanzvmore.
    54 Wn.2d 290
    , 291
n.2,
    340 P.2d 178
     (1959).
No. 72408-8-1/3
Affirmed.
We concur: