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State v. Nicholas

Court of Appeals of Washington, Division 3

December 30, 2014

The State of Washington, Respondent ,
Scott Montgomery Nicholas, Appellant

Appeal from Klickitat Superior Court. Docket No: 12-1-00107-5. Judge signing: Honorable Brian Altman. Judgment or order under review. Date filed: 10/15/2012.

David N. Gasch (of Gasch Law Office ), for appellant.

Lori L. Hoctor, Prosecuting Attorney, and Katharine W. Mathews, Deputy, for respondent.

Authored by George B. Fearing. Concurring: Kevin M. Korsmo, Laurel H. Siddoway.


Page 1014

[185 Wn.App. 299] George B. Fearing, J.

[¶ 1] " We thought that this issue was resolved." State v. Moore, 179 Wn.App. 464, 465, 318 P.3d 296, review denied, 180 Wn.2d 1019 (2014).

[¶2] A jury found Scott Nicholas guilty of possession with intent to deliver methamphetamine, possession of marijuana, [185 Wn.App. 300] and use of drug paraphernalia. On appeal, Nicholas assigns error to the trial court's instruction on the " duty to return a verdict of guilty." Clerk's Papers (CP) at 31. As other courts have previously done, we approve the jury instruction. We also devote pages to addressing the numerous attacks by Nicholas on the instruction.

[¶3] Nicholas also argues the trial court lacked statutory authority to impose a variable term of community custody, which the State concedes as error. We affirm Nicholas' convictions but accept the State's concession.


[¶4] Neither party outlines the facts behind Scott Nicholas' convictions. The facts are unimportant. We proceed directly to our legal analysis.

Duty To Convict Jury Instruction

[¶5] For each of the three charges against Scott Nicholas, the trial court instructed the jury that " [i]f you find from the evidence that each of these elements has

Page 1015

been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty." CP at 31, 41, 43. Washington decisions refer to this jury instruction as the duty to convict instruction. The language of this instruction is recommended at 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 4.21 (3d ed. 2014-15). Nicholas raises a familiar argument: the trial court's instruction misled the jury about its power to acquit.

[¶6] Each division of this court has approved, at least once, the propriety of the duty to convict instruction. State v. Moore, 179 Wn.App. 464 (2014) (Division One), State v. Meggyesy, 90 Wn.App. 693, 700, 958 P.2d 319 (1998) (Division One), abrogated on other grounds by State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005); State v. Brown, 130 Wn.App. 767, 124 P.3d 663 (2005) (Division Two); State v. Bonisisio, 92 Wn.App. 783, 794, 964 P.2d 1222 [185 Wn.App. 301] (1998) (Division Two); State v. Wilson, 176 Wn.App. 147, 307 P.3d 823 (2013), review denied, 179 Wn.2d 1012 (2014) (Division Three). Challenges to the instruction surround the concept of jury nullification. Jury nullification occurs in a trial when a jury acquits a defendant, even though the members of the jury believe the defendant to be guilty of the charges. This may occur when members of the jury disagree with the law the defendant has been charged with breaking, or believe that the law should not be applied in that particular case. Nullification is a juror's knowing and deliberate rejection of the evidence or refusal to apply the law because the result dictated by law is contrary to the juror's sense of justice, morality, or fairness. State v. Elmore, 155 Wn.2d 758, 761 n.1, 123 P.3d 72 (2005) (citing Black's Law Dictionary 875 (8th ed. 2004)).

[¶7] Division One of this court thoroughly addressed arguments against use of the duty to convict instruction in State v. Meggyesy, 90 Wn.App. 693 (1998). Like Nicholas, the appellants in Meggyesy pointed to the jury's power to acquit against the evidence. The Meggyesy court noted the ability of the jury to engage in nullification but upheld the instruction as a correct statement of law. Jury nullification " is an inherent feature of the use of general verdicts. But the power to acquit does not require any instruction telling the jury that it may do so." 90 Wn.App. at 700 (footnote omitted). In other words, courts recognize that jury nullification occurs in practice but we will not promote it or educate jurors about nullification.

[¶8] Scott Nicholas seeks to distance himself from appellants in previous decisions by arguing that appellants in Meggyesy and Bonisisio also asked the court to approve a jury instruction that tells the jury it may acquit. Nicholas asks this court only to disapprove an instruction that tells the jury it has a duty to convict when the State proves all elements of the crime beyond a reasonable doubt. Nevertheless, Nicholas' distinction lacks importance. Meggyesy and Bonisisio addressed the respective appellants' objection [185 Wn.App. 302] to the duty to convict instruction as a discrete issue and did not conflate the issue with the appellants' desire for a jury nullification instruction. Nicholas also fails to observe that the courts in State v. Moore, State v. Brown, and State v. Wilson addressed only Nicholas' assignment of error. The appellant in Brown sought to distinguish his appeal on the same ground as Nicholas does here, but to no avail. 130 Wn.App. at 770-71.

[¶9] Scott Nicholas contends the State violated two Washington constitutional provisions by employing the duty to convict jury instruction. Article I, section 21 provides, " The right of trial by jury shall remain inviolate." Article I, section 22 provides, " In criminal prosecutions the accused shall have the right ... to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed." Nicholas maintains that based on these constitutional provisions, the word " duty" in the jury instruction unconstitutionally impinges on a jury's inherent power to acquit. Meggyesy already ...

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