PUBLISHED IN PART
Superior Court County: Snohomish. Superior Court Cause No: 12-1-00952-4. Date filed in Superior Court: December 13, 2012. Superior Court Judge Signing: Hon. George N. Bowden.
Maureen M. Cyr (of Washington Appellate Project ), for appellant.
Mark K. Roe, Prosecuting Attorney, and Seth A. Fine, Deputy, for respondent.
AUTHOR: Appelwick, J. WE CONCUR: Becker, J.
[179 Wn.App. 465] ¶ 1 -- 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 a jury trial. It neither misstates the law nor invades the province of the jury. We affirm.
¶ 2 At Ryan Moore's trial, 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.
¶ 3 We thought that this issue was resolved. Each division of this court has addressed similar challenges to the same instruction Moore contests here. And, in each case, the court upheld the instruction. See State v. Meggyesy, 90 Wn.App. 693, 706, [179 Wn.App. 466] 958 P.2d 319 (1998) (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, 179 Wn.2d 1012, 316 P.3d 495 (2014).
¶ 4 In Meggyesy, the appellants argued that a proper instruction would have informed 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. Id. 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 ...