                                                                          FILED
                                                                        AUG. 15, 2013
                                                                 In the Office of the Clerk of Court
                                                               W A State Court of Appeals, Division III

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        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                           DIVISION THREE
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                                                                                                          J
STATE OF WASHINGTON,

                     Respondent,
                                              )
                                              )
                                              )
                                                        No. 30680-1-111
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                                              )                                                           I
              v.                              )
                                              )
JOSE LUIS GONZALEZ,                           )         UNPUBLISHED OPINION
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                                                                                                          I
                     Appellant.               )

       BROWN, J. - Jose Luis Gonzalez appeals his first degree child rape and first

degree child molestation convictions involving his nine-year-old niece. He contends the

standard "to convict" jury instruction was erroneous in specifying a duty to convict. We

accept the State's error concessions concerning Mr. Gonzalez's other assignments of

error regarding certain community custody restrictions and the trial court's determination

that Mr. Gonzalez has the current or future ability to pay legal financial obligations

(LFOs). In his statement of additional grounds for review (SAG). Mr. Gonzalez, pro se,

requests a new trial based on DNA (deoxyribonucleic acid) evidence and the lack of

medical evidence establishing rape. We affirm and remand for the trial court to remedy

the conceded errors.
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No. 30680-1-111
State v. Gonzalez


                                          FACTS

       The State charged Mr. Gonzalez with first degree child rape and first degree child

molestation after his nine-year-old niece, N.G., reported to her mother that her uncle

had anal intercourse with her while she was at her grandmother's house.

       During trial, the court instructed the jury by standard form, without objection, that

to convict Mr. Gonzalez of first degree child rape and first degree child molestation, it

must review each element and, "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." Clerk's Papers (CP) at 147,150. The jury found Mr. Gonzalez

guilty as charged.

      The court sentenced Mr. Gonzalez to 155 months, imposed certain contested

sentencing conditions, and found Mr. Gonzalez had the ability to pay his LFOs. Mr.

Gonzalez appealed. We next address the State's error concessions before beginning

our analysis of the remaining issues.

      The State concedes sentencing condition errors in the court prohibiting Mr.

Gonzalez upon release from purchasing, possessing, or viewing "any pornographic

material in any form as defined by the treatment provider or the supervising Community

Corrections Officer." CP at 160. Additionally, the State concedes error in prohibiting

Mr. Gonzalez from possessing "children's clothing, toys, games, etc. without the prior

approval of the sexual deviancy therapist and or supervising Community Corrections

Officer" and from purchasing, possessing, or using "law enforcement identification,



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State v. Gonzalez


insignia badges, uniforms or other items identified with lawenforcement." CP at 161.

The court further added the condition that Mr. Gonzalez "[p]ay restitution for counseling

obtained by the victim." Id. The court imposed LFOs totaling $1,400. The State

concedes trial court error in deciding Mr. Gonzalez had "the ability or likely future ability

to pay the financial obligations imposed herein." Id.

       The proper recourse for the imposition of community custody conditions not

related to the crime is to remand to the trial court "to strike the community custody

conditions at issue." State v. Bunch, 168 Wn. App. 631, 632,279 P.3d 432 (2012).

Thus, the challenged conditions relating to pornography, restitution, children's clothing

and toys, and law enforcement paraphernalia should be stricken.

       Regarding the challenged finding regarding Mr. Gonzalez's ability to pay, the

State concedes the court had no basis for determining that he has the ability to pay his

LFOs. The proper remedy is to affirm the imposition of LFOs, reverse the finding of

present or future ability to pay, and "remand to the trial court to strike [the] finding ...

from the judgment and sentence." State v. Bertrand, 165 Wn. App. 393,405,267 P.3d

511 (2011), review denied, 175 Wn.2d 1014 (2012). Any further challenge to the legal

financial obligations can be left for when the State seeks to collect the obligation. Id.




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No. 30680-1-111
State v. Gonzalez


                                         ANALYSIS

                                   A. Pattern Instruction

       The issue is whether the trial court erred by instructing the jury it had a "duty" to

find Mr. Gonzalez guilty if it found all elements of the crimes. He contends these

erroneous instructions denied him his constitutional right to a jury trial.

       Mr. Gonzalez did not object below to the jury instructions. A failure to object to

jury instructions at trial usually constitutes waiver of any error, precluding review for the

first time on appeal. RAP 2.5(a)(3). This court, however, will reach an error not raised

below where the error is manifest and affects a constitutional right.

       In State v. Meggyesy, 90 Wn. App. 693,958 P.2d 319 (1998), abrogated on

other grounds by State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005), Division

One of this court chose to reach the same instructional error raised here for the first

time on appeal. But, the court did so because Mr. Meggyesy's appeal was consolidated

with another appeal and in the other appeal the defendant challenged the jury

instruction below. Meggyesy, 90 Wn. App. at 697. Because the cases were

consolidated, the court declined to "reach the 'manifest error' issue" and, instead,

exercised its "discretion and consider[ed] Meggyesy's claim of error." Id. at 697-98.

Thus, we must first determine whether Mr. Gonzalez raises a manifest error that affects

a constitutional right.

       To establish that the error was manifest, a defendant must make a plausible

showing that the error had   apractical and identifiable consequence in the trial of his or

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State v. Gonzalez


her case. State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992). Mr. Gonzalez

cannot meet this standard.

       Mr. Gonzalez assigns error to the court's direction to the jury that "[i]f 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." CP at 147, 150. The

standard language of this instruction is from 11 WASHINGTON PRACTICE: WASHINGTON

PATTERN JURY INSTRUCTION: CRIMINAL 26.04 (3d ed. (2008)). Mr. Gonzalez argues,

under Washington law, juries never have a duty to return a verdict of guilty and that the

instruction violates article I, sections 21 and 22 of the Washington Constitution and the

right to a jury trial under the federal constitution. The rationale that underlies Mr.

Gonzalez's challenge, however, has been rejected in two cases: Meggyesy and State v.

Bonisisio, 92 Wn. App. 783, 794, 964 P.2d 1222 (1998).

       In Meggyesy, the court instructed the jury regarding the elements of first degree

assault, stating, "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."

90 Wn. App. at 697. (Emphasis in original.) Mr. Meggyesy objected on the same

premise as Mr. Gonzalez - that the instruction violated his right to trial by jury because

the instruction required the jury to convict if they found the State proved all of the

elements of the charged crime. Rejecting this argument, the court held, "neither the

federal nor the state constitution precludes such an instruction." Id. at 696.




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State v. Gonzalez


       Similarly, in Bonisisio, Division Two of this court reviewed the same jury

instruction, objected to by Mr. Bonisisio below. The court held, "We agree with the

reasoning in Meggyesy that such an instruction is equivalent to notifying the jury of its

power to acquit against the evidence." 92 Wn. App. at 794. Thus, the court held, "the

trial court did not err in instructing the jury as it did." Id.

       We agree with the reasoning in both Meggyesyand Bonisisio. Both reject Mr.

Gonzalez's argument. Thus, Mr. Gonzalez fails to establish any error, let alone a

manifest error, affecting a constitutional right. Accordingly, he waived this issue and it

may not be raised for the first time on appeal.

                       B. Statement of Additional Grounds for Review

       Mr. Gonzalez, pro se, requests a new trial first, based on alleged DNA evidence

that he claims exonerates him and, second, the lack of medical records showing N.G.

was raped.

       Mr. Gonzalez's first contention is based on evidence outside our record. The

proper avenue for bringing claims based on evidence outside the record is through a

personal restraint petition, not an appeal. State v. McFarland, 127 Wn.2d 322, 335, 899

P.2d 1251 (1995).

       "In a criminal prosecution the State bears the burden of proving all of the

elements of the crime charged." State v. Teal, 152 Wn.2d 333, 337, 96 P.3d 974

(2004). Circumstantial and direct evidence have equal weight. State v. Varga, 151




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State v. Gonzalez


Wn.2d 179,201,86 P.3d 139 (2004). Sufficient evidence supports Mr. Gonzalez's

convictions of rape without physical evidence from a medical provider.

      Affirmed. Remanded for sentence corrections consistent with this opinion.

      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.




                                                 Brown, J.

WE CONCUR:




 orsmo, C.J.                                     Siddoway, J.




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