Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION ONE

STATE OF WASHINGTON,                        )       No. 66069-1-I
                                            )
                      Respondent,           )
                                            )
              v.                            )
                                            ) 
NESTER OVIDIO-MEJIA,                        )       UNPUBLISHED OPINION
                                            )
                      Appellant.            )       FILED: March 12, 2012
                                            )

       Ellington, J.  --  More than 10 years ago, we held in State v. Meggyesy that a 

court does not err by instructing a jury that it has a duty to convict if it finds all of the 
elements of the crime proven beyond a reasonable doubt.1 The jury in Nestor Ovidio-

Mejia's trial was so instructed.  Although he did not object, Ovidio-Mejia now 

challenges the instruction as erroneous under the state and federal constitutions.  

Because he offers no basis to distinguish controlling precedent and does not 

persuade us of its error, we adhere to our decision in Meggyesy.  We further find 

sufficient evidence supports Ovidio-Mejia's conviction, and affirm.

                                      BACKGROUND

       After learning that their friend Ronald Preston had been shot at the direction of 

Mario Spearman, Ovidio-Mejia, Dominick Reed, Antoine Davis, and Jontae Chatman 

       1 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). 

No. 66069-1-I/2

met at Chatman's residence.  Reed, Davis, and Chatman decided to get revenge.  

Davis put his AK-47 assault rifle in Reed's car.  Davis also had a handgun, as did 

Ovidio-Mejia.  Reed, Davis, Chatman and Ovidio-Mejia then went looking for 

Spearman.

       The four men drove to Pacific Highway South, where they expected to find 
Spearman "pimping on girls."2 At the intersection of 188th Avenue South and Pacific 

Highway, Ovidio-Mejia pointed out Spearman's car. When the light turned red, Reed 

stopped a few cars behind Spearman as Davis, Chatman, and Ovidio-Mejia jumped 

out.  Chatman took the AK-47.  Ovidio-Mejia indicated he had Chatman's back.  Reed 

stayed in the car and soon heard automatic gunfire.

       Over 30 shots were fired by multiple guns and by more than one person.  

Spearman's car was riddled with bullet holes.  He had been hit numerous times and 

died six days later.  Spearman's front seat passenger was also wounded.  A woman 

and her two year old son were in the back seat.  Aside from a grazing wound from a 

single bullet, the woman and child were unharmed.  

       Reed stopped his car in a nearby driveway and waited for the others.  Chatman 

returned with the AK-47, and both Ovidio-Mejia and Davis had guns in their hands.  

Reed drove off.  As Ovidio-Mejia was "messing with" his gun, it went off and struck 
Reed in the thigh.3

       Since Reed could no longer drive, Ovidio-Mejia took over and Reed joined 

       2 Report of Proceedings (RP) (July 13, 2010) at 62.

       3 Id. at 83.

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No. 66069-1-I/3

Davis and Chatman in the back seat.  Davis and Chatman later jumped out, and 

Ovidio-Mejia dropped Reed off at the hospital and drove away in Reed's car.

       The police soon found Reed's car moving down the street near Ovidio-Mejia's 

home.  When he pulled over, officers arrested him.  Though he initially denied owning 

such a weapon, Ovidio-Mejia later admitted he had been armed with a .380 on the day 

of the shooting.

       Ovidio-Mejia, Davis, Chatman and Reed were arrested and charged with first 

degree premeditated murder and three counts of attempted first degree murder.  The 

State also alleged each offense was committed with a firearm.  Reed later pleaded 

guilty to second degree murder and three counts of second degree assault, each 

while armed with a firearm.  Reed then testified against the remaining defendants at a 

joint trial.

       The jury convicted Ovidio-Mejia of first degree murder and of three counts of 

the lesser degree attempted murder in the second degree.  The jury found he 

committed each offense while armed with a firearm.  The court imposed consecutive 

standard range sentences, plus four firearm enhancements, totaling 757 months.

                                       DISCUSSION

       Ovidio-Mejia argues that the to convict instructions were erroneous because 

the court informed the jury that it had a "duty to return a verdict of guilty" if it found all 
elements of the crime beyond a reasonable doubt.4 He argues the jury had no such 

legal duty and thus, the pattern instruction given misstates the law.

       4 Clerk's Papers at 136, 163, 164, 165.

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       The State contends Ovidio-Mejia may not challenge the instruction on appeal 

because he not only failed to object to the instruction below, but also proposed 

instructions containing identical language.  An instructional error not objected to 

below may be raised for the first time on appeal only if it is "manifest error affecting a 
constitutional right."5 An error is manifest if it resulted in actual prejudice.6 To 

demonstrate actual prejudice, there must be a "'plausible showing by the [appellant]

that the asserted error had practical and identifiable consequences in the trial of the 
case.'"7

       Assuming without deciding that this issue is preserved, the argument is 

precluded by controlling precedent.  In Meggyesy, we held that instructing the jury it 

had a duty to convict if it found the elements were proved beyond a reasonable doubt 

did not invade the province of the jury, deprive the jury of its power to acquit against 
the evidence, direct a guilty verdict, or coerce the jury to convict.8 After applying the 

six-step analysis set forth in Gunwall,9 we further concluded there was no state 

constitutional basis to invalidate the challenged instruction.10 Since Meggyesy, every 

court to consider the issue has adhered to its reasoning, and the Supreme Court has 
repeatedly denied review.11

       5 RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988).

       6 State v. O'Hara, 167 Wn.2d 91, 98-99, 217 P.3d 756 (2009).

       7 Id. (quoting State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)) 
(alteration in original).

       8 Meggyesy, 90 Wn. App. at 699-701.

       9 State v. Gunwall,106 Wn.2d 54, 59, 720 P.2d 808 (1986).

       10 Meggyesy, 90 Wn. App. at 701-04.

       11 State v. Fleming, 140 Wn. App. 132, 170 P.3d 50 (2007); State v. Brown, 130 

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       Ovidio-Mejia acknowledges the precedent, but argues Meggyesy was wrongly 

decided.  He makes no new arguments, however, and fails to persuade us the 
decision is incorrect and harmful.12 Thus, following Meggyesy, we hold the instruction 

in this case was not in error.

       In his statement of additional grounds for review, Ovidio-Mejia argues his 

convictions are not supported by sufficient evidence.  In a challenge to the sufficiency 

of the evidence, all reasonable inferences from the evidence must be drawn in favor 
of the State and interpreted most strongly against the accused.13 Evidence is 

sufficient if, when viewed in the light most favorable to the prosecution, any rational 
trier of fact could have found the elements of the crime beyond a reasonable doubt.14

       To convict Ovidio-Mejia of murder in the first degree, the jury was instructed it 

must find that he acted with premeditated intent to cause Spearman's death and that 

Spearman died as a result of Ovidio-Mejia's acts.  To convict him of attempted second 

degree murder, the jury had to find that he "did an act that was a substantial step 

toward the commission of Murder in the Second Degree" of the three passengers in 

Spearman's car and that the act was done with intent to commit murder in the second 
degree.15 A person commits murder in the second degree when "with intent to cause 

the death of another person but without premeditation, he causes the death of such 

Wn. App. 767, 124 P.3d 663 (2005); State v. Bonisisio, 92 Wn. App. 783, 964 P.2d 
1222 (1998)/

       12 See In re Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970) ("The 
doctrine [of stare decisis] requires a clear showing that an established rule is incorrect 
and harmful before it is abandoned.").

       13 State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995).

       14 Id. at 596-97.

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person or of a third person."16 A person is guilty as an accomplice if he aids or agrees 

to aid another person in planning or committing the crime.17

       The State produced evidence that Ovidio-Mejia, Chatman, Davis and Reed 

sought revenge against Spearman for shooting their friend.  Chatman, Davis, and 

Ovidio-Mejia armed themselves, and together with Reed, hunted Spearman down.  

When they found him, Chatman, Davis, and Ovidio-Mejia jumped out and approached 

Spearman's car.  Ovidio-Mejia confirmed he had Chatman's back.  A witness saw a 

Hispanic man in a light colored shirt and a black male firing into the car.  Ovidio-Mejia 

was wearing a white t-shirt at the time.  When Chatman, Davis, and Ovidio-Mejia 

returned to Reed's car, each had a gun in hand.  The evidence showed that 

Spearman's car was struck 30 times by bullets fired by more than one person and 

more than one type of gun.  Spearman died as a result of multiple gunshot wounds, 

and two of the other passengers were injured in the attack.

       Ovidio-Mejia points out that most of this evidence came from Reed, who he 
argues is "an established liar."18 But the jury was free to believe or disbelieve Reed's 

testimony.  "Credibility determinations are for the trier of fact and cannot be reviewed 
on appeal."19

       With inferences drawn in the State's favor, the evidence was sufficient to show 

       15 CP 163-65. The State also had to prove that all alleged acts occurred in the 
state of Washington.

       16 Clerk's Papers at 155.

       17 Clerk's Papers at 130.

       18 Statement of Additional Grounds at 1.

       19 State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 950 (1990).

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beyond a reasonable doubt that Ovidio-Mejia committed first degree murder and 

attempted second degree murder as principal or accomplice.

       Affirmed.

WE CONCUR:

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