State Of Washington, V Katherine F. Winfrey

Opinion

Filed Washington State Court of Appeals Division Two

November 14, 2018 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II STATE OF WASHINGTON, No. 50417-1-II

Respondent,

v.

KATHERINE FRANCES WINFREY, UNPUBLISHED OPINION AKA KATHRINE FRANCIS WINFREY NATASHA MONIQUE CALDWELL SHAYLA DENEE COLLINS,

Appellant.

LEE, J. — Katherine F. Winfrey appeals her conviction for second degree theft, arguing

that the trial court erred by overruling her objection to the scope of her cross-examination by the

State and including the “abiding belief” language in its jury instructions. Because the trial court

did not abuse its discretion in allowing the State’s cross-examination and because our Supreme

Court has explicitly approved the “abiding belief” language, the trial court did not err.

Accordingly, we affirm.

FACTS

The State charged Winfrey with second degree theft for taking approximately $1,400 of

textbooks from a community college bookstore.

At Winfrey’s jury trial, the State presented a surveillance video recording of the theft. The

video showed Winfrey place textbooks into her bags. The footage then shows Winfrey walking

past the cash registers and out of the store without paying for any of the books. The total value of

the books was $1,393.40. No. 50417-1-II

Winfrey testified at trial. During her direct examination, Winfrey testified that she gave

the bags containing the books to her friend after they walked out of the store but before they left

the building.

The State cross-examined Winfrey about the specific books that were taken. Winfrey

objected that the State’s question exceeded the scope of direct examination. The trial court

overruled the objection. The State continued to question Winfrey about the books and the

surveillance video.

Winfrey objected to the State’s proposed reasonable doubt instruction to the jury that

included the “abiding belief” language from 11 Washington Practice: Washington Pattern Jury

Instructions: Criminal 4.01, at 93 (4th ed. 2016) (WPIC). 3 Verbatim Report of Proceedings at

179. The trial court overruled Winfrey’s objection and gave the State’s proposed instruction,

which stated,

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. If, from such consideration, you have an abiding belief in the truth of the charge, you are satisfied beyond a reasonable doubt.

Clerk’s Papers at 19 (emphasis added); WPIC 4.01.

The jury found Winfrey guilty of second degree theft. The trial court imposed a standard

range sentence. Winfrey appeals.

2 No. 50417-1-II

ANALYSIS

A. CROSS-EXAMINATION

Winfrey argues that the trial court erred under ER 611(b) by overruling her objection to

the State’s cross-examination because the State’s cross-examination exceeded the scope of her

direct examination. We disagree.

We review a trial court’s evidentiary rulings for an abuse of discretion. State v. Grier, 168

Wn. App. 635, 644, 278 P.3d 225 (2012). The trial court abuses its discretion when it exercises

its discretion on untenable grounds or for untenable reasons. Grier, 168 Wn. App. at 644. Under

ER 611(b), “[c]ross examination should be limited to the subject matter of the direct examination

and matters affecting the credibility of the witness.” However, ER 611(b) also allows the trial

court the discretion to “permit inquiry into additional matters as if on direct examination.”

Here, Winfrey presents argument as to why the State’s cross-examination exceeded the

scope of direct examination. And Winfrey presents argument as to why the State’s cross-

examination did not fall within the proper scope of challenging credibility. However, the trial

court has discretion under ER 611(b) to allow inquiry into additional matters as if on direct

examination. Thus, the trial court did not abuse its discretion by overruling Winfrey’s objection

to the State’s cross-examination.

B. “ABIDING BELIEF” LANGUAGE

Winfrey argues that the trial court erred by including the “abiding belief” language in its

reasonable doubt instruction to the jury. We affirm the trial court’s decision to include the “abiding

belief” language in the reasonable doubt instruction.

3 No. 50417-1-II

We review alleged errors of law in jury instructions de novo. State v. Fehr, 185 Wn. App.

505, 514, 341 P.3d 363 (2015). State v. Pirtle explicitly held that it is not error for the trial court

to include the “abiding belief” language in the jury instruction defining reasonable doubt—WPIC

4.01. 127 Wn.2d 628, 657-58, 904 P.2d 245 (1995). In addition, our Supreme Court has instructed

trial courts to use WPIC 4.01. State v. Bennett, 161 Wn.2d 303, 317-18, 165 P.3d 1241 (2007).

“Once [the Supreme Court] has decided an issue of state law, that interpretation is binding on all

lower courts until [the Supreme Court overrules] it.” State v. Gore, 101 Wn.2d 481, 487, 681 P.2d

227 (1984). Therefore, it was not error for the trial court to include the “abiding belief” language

in the jury instruction defining reasonable doubt.

Winfrey relies on 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), to support her argument that the “abiding belief” language

in WPIC 4.01 is improper. However, Emery and Berube are prosecutorial misconduct cases in

which the prosecutor made improper arguments regarding the jury’s role in a criminal trial. 174

Wn.2d at 759-60; 171 Wn. App. at 120-22. Winfrey does not argue that the prosecutor in this case

actually relied on the “abiding belief” language in WPIC 4.01 to make improper argument such as

the arguments in Emery and Berube. Moreover, Emery and Berube addressed improper arguments

regarding the “search for the truth” language; they did not address the “abiding belief” language.

174 Wn.2d at 758; 171 Wn. App. at 120. Therefore, Emery and Berube have no relevance for

determining whether the trial court erred in including the “abiding belief” language from WPIC

4.01 in its jury instructions.

4 No. 50417-1-II

We affirm.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

LEE, J. We concur:

BJORGEN, J.

MAXA, C.J.