                                                                             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GARY D. HAMMELL,                               )         UNPUBLISHED OPINION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




                                              2

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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