IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

TOMMY JOEL P QUIROZ,

Appellant.

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No. 37911-6-III

UNPUBLISHED OPINION

STAAB, J. — A jury found Tommy Quiroz guilty of attempted second degree child 

rape and communicating with a minor for immoral purposes. On appeal, Quiroz argues 

that the trial court erred by changing the incident date in the to-convict jury instruction 

during his attorney’s closing argument. He contends that the alleged date of the incident 

became the law of the case once the court accepted the instructions. He also argues that 

changing the date allowed the State to introduce a new theory of culpability during 

closing arguments. We disagree and affirm Quiroz’s convictions. 

FILED

JANUARY 25, 2022 

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 37911-6-III

State v. Quiroz

2

BACKGROUND

In December 2018, the Washington State Patrol conducted what is commonly 

referred to as a “Net Nanny” operation in Kittitas County. The operation seeks to 

identify and arrest those individuals who respond to offers to engage in sex with children 

and take one or more substantial steps to do so. Quiroz was one of the individuals 

apprehended in the December 2018 Net Nanny operation in Ellensburg. He was charged 

by information with attempted rape of a child in the second degree, and with 

communicating with a minor for immoral purposes; both crimes occurring on or about 

December 17, 2018.

Quiroz’s three-day trial commenced on September 1, 2020. Throughout the trial, 

the jury was informed that each crime had occurred on or about December 7, 2018. In its 

opening statement, the State told the jury that Mr. Quiroz was charged with crimes that 

occurred in December 2018. In the course of testimony, every witness, including Quiroz, 

referenced or acknowledged December 2018 as the timeframe of the events for which 

they were there testifying. The jury also heard Quiroz’s post-arrest interview with law 

enforcement. At the beginning of the recording, the officer conducting the interview 

stated that the interview was occurring on December 17, 2018, beginning at 1833 hours. 

Following the taped interview, Quiroz provided an apology letter acknowledging what he 

had done. That letter was signed and dated by Quiroz as “12/17/2018.” Report of 

Proceedings (RP) at 402. 
No. 37911-6-III

State v. Quiroz

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Despite the evidence produced at trial, the State’s to-convict jury instruction for 

the attempted rape charge that was read to the jury indicated that the incident date was 

December 17, 2020. Clerk’s Papers (CP) at 98; RP at 474. Defense counsel did not 

object to any of the State’s proposed instructions, other than noting the “defendant not 

compelled to testify” instruction should be withdrawn. RP at 463. The trial court read 

the instructions verbatim to the jury. RP at 467-78. During closing arguments, defense 

counsel focused on the to-convict jury instruction: 

[DEFENSE COUNSEL]: The state has the burden. The judge is 

instructing you on—the law. This is what it requires in order for you to 

convict him.

Well, right off the bat, on Instruction No. 8, to convict the defendant of 

a crime of attempted—rape of a child in the second degree, that on or about 

December 17, 2020 —

[PROSECUTOR]: Judge, I’d object. It’s obviously a typo in the 

instruction.

[DEFENSE COUNSEL]: Judge, these are the instructions. I get to 

argue from them. It is the law of the case.

THE COURT: Are you moving to have that amended, counsel?

[PROSECUTOR]: Yes, sir. I — I think it’s (inaudible) 

THE COURT: Which number?

[PROSECUTOR]: Eight.

THE COURT: Yeah. That should read — 2018.

[PROSECUTOR]: Thank you, Judge.
No. 37911-6-III

State v. Quiroz

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RP at 491. Following the State’s rebuttal argument, defense counsel objected to 

amending Instruction No. 8. RP at 497. The trial court responded, “Sure. And you 

didn’t bring it up earlier, which is your right, and—I didn’t notice until your argument. 

So, —I should have caught it earlier as well.” Id. Neither party objected to Instruction 

No. 8 as proposed by the State before it was read to the jury. CP at 97. Before sending 

the instructions back with the jury, the court amended the instruction by changing the 

date in the first element to “December 17, 2018.” CP at 26; RP at 491-92.

ANALYSIS

A. JURY INSTRUCTIONS

On appeal, Quiroz argues that when the trial court accepts the jury instructions 

without objection by either party, the instructions become the law of the case. The State 

must then prove the elements as set forth in the instructions. He contends that the trial 

court in this case erred by changing the date of the to-convict instruction at the start of 

defense counsel’s closing arguments. He also suggests that changing the alleged date of 

the incident during closing arguments allowed the State to introduce a new theory of the 

culpability that undermined defense counsel’s “bulletproof” argument. 

Under the law of the case doctrine, unchallenged jury instructions become the law 

of the case. State v. Hickman, 135 Wn.2d 97, 101-02, 954 P.2d 900 (1998). “In criminal 

cases, the State assumes the burden of proving otherwise unnecessary elements of the 
No. 37911-6-III

State v. Quiroz

5

offense when such added elements are included without objection in the ‘to-convict’

instruction.” Id. (citing State v. Lee, 128 Wn.2d 151, 159, 904 P.2d 1143 (1995)).

Parallel to the law of the case doctrine is the discretion trial courts are afforded to 

correct nonprejudicial mistakes in the to-convict jury instruction. See State v. Garcia, 

177 Wn. App. 769, 313 P.3d 422 (2013). In Garcia, the to-convict jury instruction read 

“first degree robbery” instead of “serious offense,” as the parties had earlier agreed. Id. 

at 772-73. The trial court corrected the instruction after closing arguments and denied 

defense counsel’s motion for a mistrial. Id. at 774-75. Division Two affirmed, noting 

that “the jury’s temporary exposure to the improper instruction was not such a serious 

trial irregularity that it could not be cured by an instruction to disregard.” Id. at 772.

In this case, Quiroz argues that the cutoff point for objecting to an incorrect 

instruction is before closing arguments. He does not cite any case law to support this 

temporal deadline. In State v. Hobbs, 71 Wn. App. 419, 424, 859 P.2d 73 (1993), the 

charging information and the to-convict instruction included an unnecessary element of 

venue. Defense counsel recognized the issue during trial and structured her questions 

accordingly. In closing, defense counsel pointed out that the State had failed to prove the 

crimes were committed in King County. After the jury began deliberating, the court 

allowed the State to amend the information and the to-convict jury instruction. Division 

One held that amending the to-convict jury instruction after closing arguments and during 

deliberations prevented counsel from rethinking her cross-examination strategy. Id. at 
No. 37911-6-III

State v. Quiroz

6

425. Nonetheless, Division One correctly rejected the defendant’s invitation to find that 

the erroneous instruction constituted the law of the case once the jury began deliberating. 

Instead, the court reversed the conviction without prejudice and remanded for a new trial. 

Id.

In this case, the trial court did not abuse its discretion. The erroneous date in the 

to-convict instruction was a scrivener’s error, not a misunderstanding of the law. The 

corrected instruction conformed to the information and the evidence produced at trial. 

The instruction was corrected before the jury began deliberating. The amendment did not 

add new law or a new theory to the case. 

B. STATEMENT OF ADDITIONAL GROUNDS

In his statement of additional grounds, Quiroz alleges that the court erred in 

allowing the State to replace the testimony of retired Detective Sergeant Carlos 

Rodrigues with that of Detective Sergeant Dan McDonald. This replacement took place 

immediately prior to the start of the trial. Quiroz further alleges that the State committed 

a Brady1 violation in denying Quiroz the opportunity to cross-examine Detective 

Sergeant Rodrigues. To support his arguments, Quiroz submits information in his 

declaration outside the record on appeal. Because this is a direct appeal, we will not 

consider evidence outside the record. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 

 

1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). 
No. 37911-6-III

State v. Quiroz

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1251 (1995). Quiroz can raise these issues in a personal restraint petition, where he can 

supplement the record to support his claims. Id. See also RAP 16.4.

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.

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Staab, J.

WE CONCUR:

_________________________________

Fearing, J.

_________________________________

Lawrence-Berrey, J.