* State Of Washington, Respondent V. Ryan Patrick Moore, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
rsi 	,_0
STATE OF WASHINGTON,
Respondent,
v.
RYAN PATRICK MOORE,
Appellant.
C/Jo
No. 69766-8-1 	^ 	5^
DIVISION ONE 	~ 	3!>3!
PUBLISHED IN PART 	3 	5>°
OPINION 	= 	g«
FILED: February 18, 2014 *° 	2^
Appelwick, J. — The "to convict" instruction informed the jury that, if it found
each element proved beyond a reasonable doubt, it had the duty to convict. 	This
instruction does not violate a defendant's constitutional right to jury trial. 	It neither
misstates the law nor invades the province of the jury. We affirm.
DISCUSSION
At Ryan Moore's trial,1 the to convict instruction informed the jury that:
If you find from the evidence that each of these elements has been proved
beyond a reasonable doubt, then it will be your duty to return a verdict of
guilty.
On the other hand, if, after weighing all of the evidence, you have a
reasonable doubt as to any one of these elements, then it will be your duty
to return a verdict of not guilty.
(Emphasis added.) 	Moore argues that the instruction violated his constitutional right to
a jury trial.
We thought that this 	issue was 	resolved.2 	Each 	division 	of this court has
addressed similar challenges to the same instruction Moore contests here. 	And, in
1 Moore was convicted of bail jumping. 	The facts are not significant to this issue
and are set out in the unpublished section of this opinion.
2 In fact, this case is only one of many recent appeals making this challenge to
the same jury instruction.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69766-8/2
each case, the court upheld the instruction. See State v. Meqqyesy, 90 Wn. App. 693,
706, 958 P.2d 319 (1998)3 (Division One); State v. Brown. 130 Wn. App. 767, 771, 124
P.3d 663 (2005) (Division Two); State v. Wilson, 176 Wn. App. 147, 151, 307 P.3d 823
(2013) (Division Three), review denied 	Wn.2d 	, 316 P.3d 495 (2014).
In Meqqyesy. the appellants argued that a proper instruction informing the jury
that it may convict if the State proved all elements of the crime. 	90 Wn. App. at 697.
We rejected their argument, holding that the trial court is not required to instruct the jury
that it may acquit.4 	jd. at 700. 	Though much of our analysis focused on the impropriety
of such an instruction, we explicitly approved the "duty to convict" language and found
that it did not misstate the law or invade the province of the jury. id. at 700-01. We held
that neither the federal nor the state constitution prohibits instructing the jury on its duty
to convict. 	jUat698.
Brown and Wilson subsequently agreed with Meqqvesv, despite the appellants'
attempts to distinguish their challenges. 	Brown argued that he raised a different issue,
because he directly challenged the "duty" language, rather than ask the court to instruct
the jury that it "may" convict. 	130 Wn. App. at 770-71. 	The Brown court did not find this
distinction meaningful: 	"The Meqqvesv court, although addressing a slightly different
argument, held that instructing the jury it had a 'duty' to convict if it found the elements
3 abrogated on other grounds by State v. Recuenco, 154 Wn.2d 156, 110 P.3d
188 (2005). reversed by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165
L. Ed. 2d 466 (2006)
4 This 	instruction 	is also 	referred 	to as 	a jury nullification 	instruction. 	See
Meqgyesv, 90 Wn. App. at 699-700. 	Jury nullification "occurs when the defendant's
guilt is clear beyond a reasonable doubt, but the jury, based on its own sense of justice
or fairness, decides to acquit." 	Andrew D. Leipold, Rethinking Jury Nullification, 82 Va.
L Rev. 253(1996).
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69766-8/3
were proven beyond a reasonable doubt did not misstate the law." 	jd. at 771. Wilson
argued that, under Washington law, juries never have a duty to convict and that the
instruction violated the Washington 	Constitution. 	176 Wn. App. at 150. 	The court
declined to reconsider the issue, noting that the appellant "raises the same challenge as
in Brown and uses the same constitutional arguments set forth in Meqqvesv." 	]g\ at
151. On January 7, our Supreme Court denied review in Wilson.
Moore does not contest Meqqvesv's holding that an 	instruction on the jury's
power to acquit would be improper. 	Instead, he argues—much like Brown and Wilson—
that he raises a distinct issue, because he directly challenges the "duty to convict"
language. 	Moore maintains that the law never requires the jury to find a defendant
guilty. 	Accordingly, he contends that the instruction misstated the law and misled the
jury about its power to acquit against the evidence.
By statute, every juror must swear or affirm to uphold and follow the law:
When 	the 	jury 	has 	been 	selected, 	an 	oath or 	affirmation 	shall 	be
administered to the jurors [that they] will well, and truly try, the matter in
issue 	between 	the 	plaintiff 	and 	defendant, 	and 	a 	true 	verdict give,
according to the law and evidence as given them on the trial.
RCW 4.44.260.5 	Far from misleading the jury, the challenged instruction tracks the
juror's oath. 	The jury's duty to uphold the law has existed in Washington since the state
was a territory. 	See Hartioan v. Territory, 1 Wash. Terr. 447, 451 (1874). 	In Hartigan,
the court approved the juror's oath, stating that it is the jury's duty to accept the law "as
given them by the court." JU at 449, 451. 	The court recognized that, if the jury returned
5 "The jury shall be sworn or affirmed well and truly to try the issue between the
Sate and the defendant, according to the evidence and instructions by the court." 	CrR
6.6.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69766-8/4
a verdict contrary to law, there was no remedy, id. at 449. 	However, it concluded that a
juror is "just as much 	bound by the laws of this territory as any other citizen. 	He
acguires no right to disregard that law simply because he has taken an oath as juryman
to aid in its administration." ]&. at 451 (emphasis added).
In Leonard v. Territory, 2 Wash. Terr. 381, 399, 7 P. 872 (1885), the territorial
court also considered a challenge to a to convict instruction that, in part, told the jury it
"may" return a guilty verdict if the prosecution proved its case, but "must" acquit in the
absence of such proof. 	However, this particular language was not the subject of the
appellant's challenge and the court did not analyze or endorse this language. 	See id. at
399-401. 	The language demonstrates that, in prestatehood, the jury may have been
instructed without the duty to convict. 	See id. at 399. 	But, this does not mean that the
jury lacks a duty to uphold the law. 	The same opinion affirmed the decision in Hartigan
that the jurors have a duty to follow the law as given them in the instructions. 	\± at 395.
In light of that duty, the language that the jury "may" convict merely parallels its true
converse: 	that the 	jury may 	not 	convict without every 	element 	proved 	beyond 	a
reasonable doubt. 	This does not erase the jury's duty to follow the law.
The jury has the ability to acquit against the evidence. 	But, it does not have the
right to do so. 	See Meggyesy, 90 Wn. App. at 700. 	The court is not obligated to
instruct the 	jury about that ability, 	id. 	And, the 	court's 	lack of remedy 	against
nullification is not because the jury lacks a duty to uphold the law. 	See Hartigan, 1
Wash. Terr, at 451. 	The court does not inquire into the jury's verdict out of respect for
our judicial system. 	See State v. Balisok, 123 Wn.2d 114, 117-18, 866 P.2d 631 (1994)
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69766-8/5
(noting that the policy behind not inquiring is to promote stable and certain verdicts and
allow the jury to freely discuss the evidence). 	This deference does not relieve the jury
of its duty to obey the law as given to it and apply that law to the facts before it.
Here, the challenged instruction leaves for the jurors the role of evaluating the
facts and applying the law as given to them, 	consistent with their oath. 	Thus, the
instruction permits the jury to draw the ultimate conclusion of guilt or innocence, as the
jury is required to do. See United States v. Gaudin. 515 U.S. 506, 514, 115 S. Ct. 2310,
132 L Ed. 2d 444 (1995).
This issue was settled by Meggyesy, and affirmed in Brown and Wilson. 	We
reaffirm and uphold the to convict instruction given here: "If you find from the evidence
that each of these elements has been proved beyond a reasonable doubt, then it will be
your duty to return a verdict of guilty." (Emphasis added.)
This is a correct statement of the law. 	Jurors have a duty to apply the law given
to them. 	This instruction does not invade the province of the jury nor otherwise violate a
defendant's right to a jury trial. The trial court does not err in giving the instruction when
requested.
The remainder of this opinion has no precedential value. 	Therefore, it will be
filed for public record in accordance with the rules governing unpublished opinions.
FACTS
Moore was charged with possession of a stolen vehicle. 	At his arraignment,
Moore pleaded not guilty. 	Moore subsequently failed to appear at a pretrial hearing,
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69766-8/6
because he was at his attorney's office for an unrelated matter. 	As a result, the State
charged Moore with bail jumping.
Ultimately, the State dismissed the charge for possession of a stolen vehicle, but
continued to pursue the bail jumping case. 	Before trial, the State moved to exclude
evidence about why Moore's underlying charge was dismissed. 	The prosecutor argued
that the evidence was irrelevant to the bail jumping charge and thus would go to only
jury nullification. 	Moore's counsel agreed that he would not comment on the underlying
charge.
During direct examination, Moore's counsel asked him why he chose to go to
trial, when bail jumping is a simple case for the State to prove. 	Moore answered that he
agreed to go to trial because he did not "think it's right to go to court [or] have a court
date for something that I know I'm not guilty of." 	The prosecutor objected to this
testimony, and the court sustained the objection.
The jury found Moore guilty as charged. 	Moore appeals.
DISCUSSION
I. 	Evidence of Underlying Charge
Moore argues that the 	trial court improperly prevented 	him from 	presenting
evidence about the dismissal of his underlying charge. 	He also maintains that the court
misled Moore about his ability to present his evidence to the jury.
At a pretrial motion hearing, Moore protested that his bail jumping charge should
be dismissed after the underlying charges were dropped. 	The court responded that,
"[b]ecause you have a due process right to a jury trial, you'll have an opportunity to
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69766-8/7
present your defense. . . . Your constitutional rights are all preserved. 	And the concerns
that you have sounds like are concerns you are going to present to a jury next week."
The 	State 	later filed 	a 	motion 	in 	limine 	seeking 	to 	exclude 	evidence 	of 	Moore's
underlying charge, which the court granted on the basis of relevance.
A criminal defendant has the constitutional right to present evidence in his or her
defense. 	U.S. Const, amend VI; Wash. Const, art. I, § 22; State v. Weaville. 162 Wn.
App. 801, 818, 256 P.3d 426 (2011). 	However, only relevant evidence is admissible.
ER 402. 	To be relevant, evidence must have a tendency to prove or disprove the
existence of a fact that is material to the outcome of the case. 	ER 401. 	There is no
right to have irrelevant evidence admitted in one's defense. 	State v. Darden, 	145
Wn.2d 612, 624, 41 P.3d 1189 (2002).
Moore was charged with bail jumping under RCW 9A.76.170(1). 	The elements
of bail jumping are: (1) that the defendant was held for, charged with, or convicted of a
certain crime; (2) that the defendant had knowledge of the requirement to appear at a
subsequent court date; and (3) that the defendant failed to appear. 	State v. Downing,
122 Wn. App. 185, 192, 93 P.3d 900 (2004).
The 	evidence 	that 	Moore 	wished 	to 	present 	does 	not 	affect 	the 	jury's
consideration of the elements of bail jumping. 	Nor did it pertain to a valid defense. 	The
court acknowledged this, stating that the State's decision not to pursue the underlying
charges "doesn't have a bearing on whether or not [Moore] still had an obligation to
appear." 	The existence of Moore's underlying charge is relevant to prove the first
element 	of 	bail jumping, 	but 	the 	fact 	that 	the 	charge 	was 	dropped—and 	the
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69766-8/8
circumstances thereof—has no bearing on the outcome of the case. 	The trial court
properly excluded the evidence of the underlying charge's dismissal.
Furthermore, the court did not misinform Moore during the motion hearing. 	The
court properly told him that he had a right to present a defense and merely said that it
"sounds like" Moore will present evidence of his underlying charge at trial.
II. 	Ineffective Assistance of Counsel
Moore argues that he was denied effective assistance of counsel. 	This is so, he
contends, because his attorney failed to object to the State's motion in limine seeking to
exclude evidence of his underlying charge's dismissal.
To prevail on a claim of ineffective assistance of counsel based on a failure to
object, the defendant must show: (1) the absence of a legitimate strategic or tactical
reason for not objecting; (2) that the trial court would have sustained the objection if
made; and (3) the result of the trial would have differed if the evidence had not been
admitted. 	State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998).
When the prosecutor made her motion in limine, she noted that the evidence was
irrelevant and that it was inappropriate to elicit testimony that would go to only jury
nullification. 	Moore's counsel declined to object, stating, "I have no intention of trying to
cause a mistrial, so I will not be commenting on the underlying charge." 	This was a
tactical decision not to fight for evidence that could potentially result in an error at trial,
especially where the evidence is irrelevant 	Moreover, counsel is not ineffective for
refusing to advocate for a position that is unsupported by the law. 	Indeed, the refusal to
do so is consistent with a lawyer's ethical obligations. 	See RPC 3.1.
8
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69766-8/9
Furthermore, the fact that the evidence was irrelevant indicates that the trial court
would not have sustained the objection had counsel made one. 	The court's recognition
that the evidence had no bearing on the bail jumping charges suggests this as well.
Moore was not deprived his right to effective assistance of counsel.
III. 	Prosecutorial Vindictiveness
Moore contends that the prosecutor improperly charged him with bail jumping
after realizing that there was insufficient evidence for the underlying crime of possession
of a stolen vehicle. 	Moore argues that this constituted prosecutorial vindictiveness.
Prosecutorial vindictiveness is the intentional filing of a more serious crime in
retaliation for a defendant's lawful exercise of a procedural right. 	State v. Lee, 69 Wn.
App. 31, 35, 847 P.2d 25 (1993). 	Admittedly, bail jumping with a class B or C felony is a
more serious crime than possession of a stolen vehicle. 	See RCW 9.94A.515. 	But, the
prosecution did not file the bail jumping charge as a result of Moore's lawful exercise of
a procedural right. 	Rather, the prosecution filed the bail jumping charge after Moore
failed to appear at his hearing. 	This did not constitute prosecutorial vindictiveness.
IV. 	Sentencing
Moore argues that he was unfairly sentenced. 	The general rule in Washington is
that a trial court must impose a sentence within the standard range unless it finds
substantial and compelling reasons to justify a departure. 	State v. Smith, 82 Wn. App.
153, 160-61, 916 P.2d 960 (1996). 	Moore was convicted of bail jumping under RCW
9A.76.170 with a class C felony. 	His offender score is nine. 	The standard sentencing
range under these circumstances is 51-68 months. 	RCW 9.94A.510; RCW 9.94A.515.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69766-8/10
At sentencing, Moore requested an exceptional sentence downward, arguing that
it was unjust to 	impose a five year sentence for missing a court date. 	The court
considered 	Moore's 	request for 	an 	exceptionally low sentence, 	but did 	not find a
sufficient basis to impose it. 	Instead, it imposed a sentence of 51 months, the lowest
sentence in the standard range.
A sentence within the standard range shall not be appealed. 	RCW 9.94A.585(1).
There are exceptions to this rule. 	For example, a defendant whose sentence is within
the standard range may appeal upon showing that the sentencing court failed to follow
some specific procedure required by the Sentencing Reform Act of 1981, ch. 9.94A
RCW. 	State v. Mail, 121 Wn.2d 707, 712, 854 P.2d 1042 (1993). 	Alternatively, a
defendant may make a constitutional 	challenge to a standard range sentence, 	id.
Moore makes neither argument here. 	Moore may not appeal his sentence.
V. 	Absence From Previous Hearing
Moore's final statement of additional grounds addresses his absence from a
hearing on June 22, 2012. 	The essence of Moore's argument seems to be that,
because he was not punished for that absence, he should not have been punished for
the absence that ultimately led to his conviction. The record does not contain evidence
pertaining to the June 22 hearing. 	Because his argument is not supported by evidence
in the record, we cannot review it. 	State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d
345 (2008); see also RAP 10.10(c).
10
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 69766-8/11
The 	to 	convict 	instruction 	at 	Moore's 	trial 	was 	proper. 	Moore 	does 	not
demonstrate 	evidentiary 	error, 	ineffective 	assistance 	of 	counsel, 	or 	prosecutorial
vindictiveness, and he may not appeal his sentence. We affirm.
WE CONCUR:
)>Q4^f^fi~Q 	L+4. 	e 	^
11