State of Washington v. Gary D. Hammell ( 2014 )

FILED
SEPT. 4, 2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 32292-I-III
Respondent, )
)
v. )
)
GARY D. HAMMELL, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. Gary Hammell was convicted of third degree assault by a jury that
was instructed it had a duty to return a verdict of guilty if it found all of the elements of
the crime proven beyond a reasonable doubt. Since the jury was properly instructed, we
affinn the conviction.
FACTS
This case began when an officer requested Mr. Hammell's identification while he
was sitting in the driver's seat of his vehicle talking on a cell phone; his vehicle was
pulled over on to the shoulder. He declined to provide the infonnation, the matter
escalated, and an assault ensued.
Mr. Hammell was charged in the Grays Harbor County Superior Court with one
count of third degree assault. The matter proceeded to jury trial. The court instructed the
No. 32292-1-III
State v. Hammell
jury in accordance with 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 44.11, at 785 (3d ed. 2008) that contains the "duty to convict"
language noted above. Mr. Hammell did not object to the instruction.
The jury convicted Mr. Hammell as charged. The trial court imposed a sentence
of 22 months' incarceration. Mr. Hammell then timely appealed.
ANALYSIS
The sole issue presented by this appeal is one that all three divisions of this court
have now rejected. Consistent with that precedent, we again conclude that there was no
error and this issue cannot be presented initially on appeaL
The essence of Mr. Hammell's argument is that the instruction is erroneous because
the jury has a right to acquit despite the evidence. Various aspects of this argument have
been rejected in the past. Initially, Divisions One and Two considered the argument and
determined that the duty to convict instruction was not erroneous. State v. Brown,
130 Wn. App. 767, 770-71, 124 P.3d 663 (2005); State v. Meggyesy, 90 Wn. App. 693,
698-706, 958 P .2d 319 (1998), abrogated on other grounds by State v. Recuenco,
154 Wn.2d 156, 110 P.3d 188 (2005).
Division Three agreed with the other divisions in State v. Wilson, 176 Wn. App. 147,
151,307 P.3d 823 (2013), review denied 179 Wn.2d 1012 (2014). There the court
concluded that the "duty to convict" language in the pattern instruction did not violate the
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No. 32292-I-III
State v. Hammell
constitution. Id. In accordance with the precedent of all three divisions, we conclude that
the instruction used in this case was not erroneous.
Because there is no constitutional error, this matter cannot be considered for the
first time on appeal. RAP 2.5(a). There also was no error. Accordingly, for both reasons
the conviction is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Korsmo, J.
WE CONCUR:
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