                                                                                           RLE D
                                                                                   COMT OF AP PEA11 S
                                                                                        Dlvisioll II

                                                                                  2013 SEP 17    AM e: 1; 1




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II

STATE OF WASHINGTON,                                                No. 43216 1 II
                                                                              - -


                               Respondent,

       V.



MICHAEL J. MOYLE,                                             UNPUBLISHED OPINION


                               Appellant.

            BRINTNALL, J.
       QUINN-                   —   A jury found Michael Moyle guilty of two counts of second

degree assault, two counts of second degree assault of* child, and hit and run. At trial, Moyle
                                                      a

presented   a   diminished capacity defense. Moyle appeals, arguing that there was insufficient

evidence to support the jury's verdict because the State failed to prove intent. Moyle also argues

that the jury instructions relieved the State of its burden of proof by failing to allege all elements
of the crime charged and the prosecutor committed misconduct by shifting the burden of proof.

Moyle's arguments lack merit and we affirm.

                                               FACTS


        On April 13, 2011, Stewart Baker was driving his mother, Tawny Baker, his five year-
                                                                                       -

old brother, A. ., his three -year old daughter, L. ., the day care at the Independent Bible
              B and                -              B to

Church. On the way, the Bakers stopped at the Albertsons grocery store. As the Bakers left the

Albertsons parking lot,a black Mustang made a three point turn and pulled up behind them. The
                                                    -
No.43216 1 II
         - -



Mustang followed the Bakers out of the parking lot, up the road, and then rammed into the back

of the Bakers' car. The Bakers' car then slammed into a telephone pole on the side of the road.

As a result of the collision, five- old A. .suffered a leg fracture and a head injury. Tawny
                                  year - B

Baker suffered   multiple   contusions and     a   broken   arm.   Three -year old L. . had bruises and
                                                                               -    B

scrapes.

       Moyle    was   driving   the black   Mustang. After the Bakers' car hit the telephone pole,

Moyle pulled his car to the side of the road. Moyle's friend, Tim Smith, pulled up beside Moyle.

Moyle jumped in Smith's truck, then jumped out of the truck, and ran through the woods to a

friend's house. Moyle stayed at his friend's house for three days until he was arrested.
       On January 23, 2012, the State filed an amended complaint charging Moyle with the

following:

       Count I: Second degree assault of a child against A. .
                                                          B
       Count II: Vehicular assault against A. .
                                            B
       Count III: Second degree assault against Tawny Baker
       Count IV: Vehicular assault against Tawny Baker
       Count V: Second degree assault of a child against L. .
                                                          B
       Count VI: Second degree assault against Stewart Baker
       Count VII: Hit and run - injury accident


       Moyle raised a diminished capacity defense based on acute stress disorder resulting from

an incident approximately three days prior to the Albertsons collision. Three or four days prior

to the accident, Moyle was sitting in his car in his driveway when a "black guy"put a knife to

Moyle's throat and said, G] me everything you got."Report of Proceedings (RP)Jan. 26,
                         "[ ive                                               (

2012) at 9. The attacker attempted to stab Moyle in the face and punched Moyle several times.

Moyle fought the attacker off with his own knife. When the attacker ran away, Moyle jumped

out of the car and ran after him. The attacker jumped into another vehicle and that vehicle then

drove away. Moyle testified that he knew the driver was Ryan Alban, an acquaintance Moyle

                                                      2
No. 43216 1 II
          - -



had known for approximately 10 years. Moyle also testified that Alban " as just staring at [him]
                                                                      w

with this menacing, evil grin." (Jan. 26, 2012) at 10. The Bakers had no connection with the
                              RP

events three days before the Albertsons incident.

             Moyle testified that on the day of the collision, he saw Stewart Baker and "just freaked

out, I   snapped    or   something and I turned around -- and all I remember is turning around, passing

a couple of people and running into the back of a car." (Jan. 26, 2012) at 6. Moyle's expert,
                                                      RP
Dr.   Joseph Nevotti, testified       that   Moyle   suffered from three mental disorders:    acute stress



disorder, impaired memory functioning, and amphetamine dependence. Nevotti opined that as a

result of his mental disorders, Moyle's ability to form intent was impaired at the time of the

accident.       Specifically, Nevotti testified that at the 'time of the accident, Moyle was suffering

from     a   flashback that   prevented   him from    being able   to form intent.   The State presented a

rebuttal expert, Dr. Jolene        Simpson, a staff psychologist     at Western State   Hospital. Simpson

disagreed with Nevotti's diagnosis of acute stress disorder and testified that she did not believe

that Moyle was experiencing a flashback at the time of the accident. Simpson also testified,

             So, my opinion was that I didn't find evidence of an impairment that would make
             it so that [Moyle] couldn't participate in intentional, goal directed and purposeful
             action.


RP (Jan.26, 2012)at 48.

             During closing argument, Moyle essentially conceded all elements of the crimes charged

except the " ental elements of the crimes."RP (Jan. 26, 2012)at 109. Moyle argued,
           m

                     But in fact the explanation for [the collision] is that [Moyle] simply was
             not in his right mind. He was suffering from diminished capacity, he was unable
             to form the intent necessary to commit the crimes.




                                                         9
No. 43216 1 II
          - -



RP ( Jan.    26, 2012) at 109. During rebuttal, the prosecutor argued that Moyle's diminished

capacity argument        was    not   reasonable   considering    all the evidence   presented   at trial.   Moyle

objected but the trial court overruled the objection.

         The   jury   found     Moyle guilty     of all   charges. The trial court vacated counts II and IV

vehicular      assault   charges) on double jeopardy grounds. Moyle was sentenced to a standard

range sentence of 120 months confinement. Moyle appeals his convictions for second degree

assault and second degree assault of a child.

                                                     ANALYSIS


SUFFICIENCY OF THE EVIDENCE


         Moyle makes two arguments challenging the sufficiency of the evidence supporting the

jury's verdict. First, Moyle argues that there was insufficient evidence to prove that three year-
                                                                                             -
old L. . suffered substantial bodily harm.
     B                                                     Second, Moyle argues that there was insufficient

evidence to prove intent because of             Moyle's alleged     diminished   capacity.   The State was not


required to prove that L. . suffered substantial bodily harm. And whether Moyle suffered from
                        B

diminished      capacity   is   a   question   of fact to be resolved    by the jury. Accordingly, Moyle's

arguments fail.

         Evidence is sufficient if,when viewed in a light most favorable to the jury's verdict, it

permits any rational trier of fact to find the essential elements of the crime beyond a reasonable

doubt. State v. Salinas, 119 Wn. d 192, 201, 829 P. d 1068 (1992).A claim of insufficiency
                               2                  2               "

admits the truth of the State's evidence and all inferences that reasonably can be drawn

therefrom."Salinas, 119 Wn. d at 201. Circumstantial and direct evidence are equally reliable.
                          2

State   v.   Delmarter, 94 Wn. d 634, 638, 618 P. d 99 (1980). Our role is not to reweigh the
                             2                  2


evidence and substitute our judgment for that of the jury. State v. Green, 94 Wn. d 216, 221,
                                                                                2

                                                             11
No. 43216 1 II
          - -



616 P. d 628 (1980). Instead, because the jurors observed the witnesses testify firsthand, we
     2

defer to the jury's resolution of conflicting testimony, evaluation of witness credibility, and

decision regarding the persuasiveness and the appropriate weight to be given the evidence. See

State v. Walton, 64 Wn. App. 410, 415 16, 824 P. d 533, review denied, 119 Wn. d 1011
                                      -        2                             2

1992).

       Moyle argues that there was insufficient evidence to prove that L. . suffered substantial
                                                                        B

bodily harm because she suffered minor scrapes and bruises. But the State was not required to

prove that L. . suffered substantial bodily harm. To convict Moyle of second degree assault of a
            B

child, the State is required to prove that Moyle committed second degree assault against a child

under the age of 13.      RCW 9A. 6.A person commits second degree assault if the
                              a).
                              130(
                                 1)(
                                 3

person either recklessly inflicts substantial bodily harm or assaults another with a deadly

weapon. RCW 9A. 6.
            a), was sufficient evidence to prove that Moyle
            021(
               1)( there
               3  c).
                    Here, (

used his vehicle as a deadly weapon because he used his vehicle to ram the Bakers' vehicle off

the road and into a telephone pole. See RCW 9A. 4. deadly weapon is any "weapon,
                                            110(
                                               6 A
                                               0 ) (

device, instrument, article, or substance, including a `vehicle' as defined in this section, which,

under the circumstances in which it is used, attempted to be used, or threatened to be used, is

readily capable   of   causing death   or   substantial bodily harm. ").   The State presented sufficient

evidence to prove that Moyle committed second degree assault of a child against L. .
                                                                                 B

       Moyle also argues that he was unable to form the requisite intent to commit assault

because he suffered from diminished capacity. But the State presented evidence that Moyle did

not suffer from a mental disorder that impaired his ability to form the requisite intent at the time

of the offense; the State's expert testified that Moyle was able to engage in purposeful and goal -

orientated behavior at the time of the collision.          Although Moyle presented evidence to the

                                                      5
No. 43216 1 II
          - -



contrary, the jury clearly found the testimony of the State's expert credible.                      We do not


reevaluate the jury's credibility determinations nor do we reweigh evidence. Green, 94 Wn. d at
                                                                                         2

221.       Instead, we review the evidence in the light most favorable to the jury's verdict to

determine whether any rational trier of fact could find the essential elements of the crime beyond

a reasonable doubt. State v. McCreven, 170 Wn. App. 444, 476, 284 P. d 793 (2012),
                                                                   3             review

denied, 176 Wn. d 1015 (2013).
              2              Accordingly, there was sufficient evidence to support the jury's

verdict finding that Moyle was able to form the requisite intent to commit second degree assault.

JURY INSTRUCTIONS


           Moyle challenges the jury instructions on two separate grounds. First, Moyle argues that

the trial court erred by failing to give a unanimity instruction on the alternative means of

committing second degree assault, and he argues that the `to convict" instructions for second

degree assault of a child relieved the State of its burden to prove all elements of the offense

beyond a reasonable doubt. Moyle has not preserved his challenge to the trial court's failure to

give   a   unanimity instruction     on   alternative   means.     The "to convict" instruction contains all


essential elements of the crime of second               degree   assault of   a   child.   Accordingly, Moyle's

challenges to the jury instructions fail.

           As an initial matter, Moyle failed to object to the jury instructions he now seeks to

challenge. CrR 6.5. Generally, an appellant cannot challenge jury instructions for the first time
                1

on appeal unless the erroneous instruction is a "manifest error affecting a constitutional right."

RAP 2. (
    a);v. Embry, 171 Wn. App. 714, 756, 287 P. d 648 (2012),
     5 State                                 3             review denied, 177

Wn. d 1005 ( 2013).
  2                          Here, Moyle belatedly challenges the trial court's failure to provide a

unanimity      instruction   on   the alternative   means     of   committing second degree        assault.   But


constitutional due process does not require express jury unanimity as to the alternative means of
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No. 43216 1 II
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a single crime. See State v. Ortega -
                                    Martinez, 124 Wn. d 702, 707 08, 881 P. d 231 (1994).
                                                    2            -        2

Accordingly, Moyle's challenge to the trial court's failure to provide a unanimity instruction on

alternative means is not a manifest constitutional error and may not be raised for the first time on

appeal.

          Moyle also argues the "to convict" instructions for second degree assault of a child

omitted    an       essential element of the crime. "[ T] e
                                                        h       constitutional right to due process is

implicated when jury instructions omit essential elements, and constitutional rights can be raised

for the first time on appeal." State v. Hanson, 59 Wn. App. 651, 663, 800 P. d 1124 (1990).
                                                                           2

Therefore, we consider Moyle's challenge to the "to convict" instructions for second degree

assault of      a   child.   Here, the "to convict" instructions for second degree assault of a child

properly state the law, and the jury instructions read as a whole properly inform the jury of the
essential elements of second degree assault of a child.

          We review challenges to jury instructions de novo. State v. Williams, 133 Wn. App. 714,

720 21,136 P. d 792 (2006)citing State v. Hunt, 128 Wn. App. 535, 538, 116 P. d 450 (2005),
    -       3              (                                                3
review    denied, 160 Wn. d
                        2           1001 ( 2007)), d, 162 Wn. d
                                                aff'        2        177, 170 P. d 30 ( 2007). Jury
                                                                               3               "

instructions that omit essential elements of the crime violate due process because they relieve the

State of its burden          to prove every essential element   beyond   a   reasonable doubt." State v.


Williams, 133 Wn. App. at 721. We read the challenged jury instructions in the context of other

jury instructions and the jury instructions as a whole. State v. Pirtle, 127 Wn. d 628, 656 57,
                                                                               2            -
     2              cert. denied, 518 U. . 1026 ( 1996). The essential elements of second
904 P. d 245 ( 1995),                  S


degree assault of a child are (1) defendant is 18 years of age or older, 2) child is under
                                 the                                     ( the

the age of 13, and (3) defendant commits the crime of second degree assault against the child.
                     the

RCW 9A. 6.
    a).
    130(
       1)(
       3

                                                      7
No. 43216 1 II
          - -


       The court's instructions to the jury read,

              To convict [Moyle] of the crime of ASSAULT OF A CHILD IN THE
       SECOND DEGREE as charged in Count I [ and V],          each of the following
       elements must be proved beyond a reasonable doubt:
              1) That on or about the 13th day of April, 2011, Moyle] committed the
                                                               [
       crime of ASSAULT IN THE SECOND DEGREE against A. . and L. .];
                                                      B [      B
                 2) That [Moyle] was eighteen years of age or older and A. . and L. .
                                                                         B [      B
       were] under the age of thirteen; and
             3)That this act occurred in the State of Washington.
             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 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.

Clerk's Papers (CP)at 140 41. On its face, the "to convict"instruction contains all the essential
                          -

elements of second degree assault of a child. But Moyle argues that the "to convict"instruction

is improper because it does not include all the essential elements of second degree assault.

       The court also provided the jury with an instruction which defined second degree assault:

             A person commits the crime of ASSAULT IN THE SECOND DEGREE
       when he or she intentionally assaults another and thereby recklessly inflicts
       substantial bodily harm or assaults another with a deadly weapon.

CP at 138. Likewise, the jury was instructed on the definition of deadly weapon. Because the

jury was provided with a complete definition of second degree assault as it applied in this case,

the jury instructions read as a whole properly stated the law and informed the jury of all essential
elements of the crime.       See Pirtle, 127 Wn. d at 656.
                                               2             Read together, the jury instructions

properly presented the essential elements and definitions required to reach a proper verdict and

Moyle's challenge fails.

PROSECUTORIAL MISCONDUCT


        Moyle also argues that the prosecutor committed misconduct by shifting the burden of

proof during     rebuttal   closing argument.   Here, the prosecutor's arguments were a proper

                                                    E
No. 43216 1 II
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response to Moyle's closing arguments and the evidence Moyle presented regarding his

diminished capacity defense. Therefore, the prosecutor did not commit misconduct and Moyle's

argument fails

       At the beginning of the prosecutor's rebuttal argument the following occurred:

                 PROSECUTOR:] So, solely pertaining to the charges of assault 2nd
       degree and assault of the child in the 2nd degree, I want you to consider basically
       whether it would be reasonable for you to believe the Defense's theory because
       the standard is reasonable doubt. First, let's look at --
               DEFENSE]: Objection,that misstates the law.
               PROSECUTOR]: It' my burden to prove to you each element of those
                                      s
        charges beyond   a reasonable      doubt.  So I' going to look first at the
                                                        m
       reasonableness of [ Moyle's]    story about what happened to him on April 10th,
        2011. And again, this will be something you can take back -- you are the sole
       judges of the credibility of the witnesses.
                 DEFENSE]:Your honor, again I object, that misstates the law.
                 COURT]:What misstates the law?
                 DEFENSE]:The defense does not have to be reasonable. All the defense
       has to do is raise a reasonable doubt, a doubt for which a reason exists. Doesn't
       have to be more likely than not, doesn't even have to be rational.
               COURT]: I think that's what [ the prosecutor] indicated. [ The
       prosecutor] indicated what the burden to the State is and she's asking the jury to
       look at what [ Moyle's]
                             position is. So I think it' proper.
                                                       s
               PROSECUTOR]: All right. And again, I don't want there to be any
       misunderstanding. It is my burden to prove each element beyond a reasonable
       doubt.


RP ( Jan. 26, 2012) at 120 21.
                           -      After comparing Moyle's testimony with some of the expert's

testimony, the prosecutor continued,

                 Ladies and gentlemen, is it reasonable for you to believe under the
       circumstances that [ oyle] --
                          M
               DEFENSE]: Objection, this is improper argument.
                 COURT]:I don't believe it is,overruled.
                 PROSECUTOR]: Is it reasonable for you to believe that under the
       circumstances [Moyle] was so traumatized and terrified that he developed this
       mental illness within the space of just 3 days?Was somehow in this disembodied
       dreamlike state in which he wasn't fully aware or conscious of what he was
       doing, and yet he was able to execute [the] goal directed sequence of purposeful
       activity. The purpose was to get the face of the person he thought was Ryan
       Alban, and that ended with the ramming. And he was able during that time to

                                                  E
No. 43216 1 II
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         stop, shift, turn, pass other vehicles   at   a   high   rate of   speed. He did not strike
         anything until he rammed the rear end of the [Bakers' car].
                 So, he was able to all [sic] these complicated maneuvers which involved
         being aware of the environment around him. It' not like he went and hit the first
                                                         s
         car that he saw, he had a target vehicle in mind, that was the [Bakers' car], he
                                                                                     and
         was able to navigate through all these obstacles and somehow be in this
         disembodied state where he was not responsible for his actions.
               Ladies and gentlemen, that is not reasonable doubt.

RP (Jan. 26, 2012)at 124 25.
                         -

         We review the trial court's ruling on allegation of prosecutorial misconduct during

closing argument for an abuse of discretion. State v. Stenson, 132 Wn. d 668, 718, 940 P. d
                                                                     2                  2
            cent. denied, 523 U. . 1008 ( 1998).
1239 ( 1997),                  S                                  The prosecutor's conduct must be both

improper and prejudicial.       State v. Emery, 174 Wn. d 741, 756, 278 P. d 653 ( 2012).
                                                      2                  3

Prosecutorial misconduct is prejudicial when there is a substantial likelihood that the argument

affected the jury . erdict. Emery, 174 Wn. d at 760. We review the prosecutor's statements in
                  v                      2
the context of the entire argument. State v. Russell, 125 Wn. d 24, 85 86, 882 P. d 747 (1994),
                                                            2          -        2

cent,   denied, 514   U. . 1129 (1995). The
                       S                      prosecutor "represents the people and presumptively

acts with impartiality in the interest of justice."State v. Thorgerson, 172 Wn. d 438, 443, 258
                                                                              2

P. d 43 (2011).
 3

          The prosecutor has wide latitude to argue reasonable inferences from the evidence.

Thorgerson, 172 Wn. d at 448 (citing State v. Hoffman, 116 Wn. d 51, 94 95, 804 P. d 577
                  2                                          2          -        2
1991)). t is not misconduct for the prosecutor to argue that evidence does not support the
      I]"[
defense theory or to fairly respond to defense counsel's argument." Thorgerson, 172 Wn. d at
                                                                                      2

449 (citing Russell, 125 Wn. d at 87).However, it is improper for the prosecutor to argue that
                           2           "




                                                       10
No. 43216 1 II
          - -



the burden of proof rests with the defendant." Thorgerson, 172 Wn. d at 453 (citing State v.
                                                                 2

Gregory, 158 Wn. d 759, 859 60, 147 P. d 1201 (2006).
               2            -        3

       Moyle relies primarily on State v. Miles, 139 Wn. App. 879, 162 P. d 1169 (2007),
                                                                        3              to

support his argument that the prosecutor's argument      was   improper. In Miles, the prosecutor

argued that the State and the defense had presented mutually exclusive versions of events and

that, essentially, the jury would have to believe Miles in order to find him not guilty. 139 Wn.
                                                                         -

App. at 890. This court held that "to the extent the prosecutor's argument presented the jurors

with a false choice, that they could find Miles not guilt only if they believed his evidence, it was

misconduct."Miles, 139 Wn. App. at 890. But Miles is not analogous to Moyle's case.

       Here, the prosecutor was not presenting the jury with a false choice and the prosecutor

did not tell the jury that it had to believe Moyle to find him not guilty. Rather, the prosecutor's

arguments were directly in response to Moyle's argument about his own diminished capacity

defense. The prosecutor outlined the facts and argued to the jury that it was not reasonable to

believe that a person suffering from mental illness to the extent that it rendered him unable to

form intent was capable of chasing down a specific vehicle, through traffic, and ramming that
vehicle into   a   telephone pole. The prosecutor's argument was a proper evaluation of the

evidence in response to Moyle's own defense and arguments. See Thorgerson, 172 Wn. d at
                                                                                 2

453 54;Russell, 125 Wn. d at 85 86.
    -                 2         -




                                                 11
No.43216 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 pursuant to RCW 2.6.it
                                                                                  040,
                                                                                   0

is so ordered.




                                               QtINN-
                                                    BRINTNALL, J.
We concur:




                      a
   TNT, P.,:          Z

                 mf
MAXA,J.




                                              12
