WPIC 19.14 Criminal Mistreatment—Financial Inability—Defense

If the statutory defense is in issue, use this instruction with the applicable to-convict instruction for the underlying offense: WPIC 38.02 (Criminal Mistreatment—First Degree—Elements), WPIC 38.04 (Criminal Mistreatment—First Degree—Elements), WPIC 38.06 (Criminal Mistreatment—First Degree—Elements), or WPIC 38.08 (Criminal Mistreatment—First Degree—Elements). Also use WPIC 38.22 (Dependent Person—Definition) and WPIC 38.20 (Basic Necessities of Life—Definition).

Use the bracketed material as appropriate. Use the last paragraph of this instruction if it is determined that the defendant has the burden of proving the existence of this defense by a preponderance of the evidence. See the Comment below.

RCW 9A.42.050; RCW 9A.42.010(5).

This statutory defense most likely supplants the common law defense of necessity. State v. Diana, 24 Wn.App. 908, 914, 604 P.2d 1312 (1979), quoting Model Penal Code § 3.02 (Proposed Official Draft 1962) (the defense of necessity is not available if the “law defining the offense provides exceptions or defenses dealing with the specific situation involved”). See the Comment to WPIC 18.02 (Defense—Necessity). For further discussion on the relation between common law and statutory defenses, see the Comment to WPIC 18.02 (Necessity—Defense).

The statute is silent as to the burden of proof on the defense of financial inability. According to State v. Riker, 123 Wn.2d 351, 368, 869 P.2d 43 (1994), “[g]enerally, an affirmative defense which does not negate an element of the crime charged, but only excuses the conduct should be proved [by the defendant] by a preponderance of the evidence.” The only examples given by the court, however, are alibi and self-defense, and neither Riker nor State v. Lively, 130 Wn.2d 1, 921 P.2d 1035 (1996), discusses this statutory defense. According to Lively, the absence of any direction in a statute evidences an intent to relegate the issue to the common law, or judicial precedent. State v. Lively, 130 Wn.2d at 10–11. The WPI Committee is not aware of any Washington case law on the issue of burden of proof for this defense.

For a general discussion of whether the burden of proving a defense can be shifted to the defendant, see WPIC 14.00 (Defenses—Introduction).

A defendant is entitled to this instruction if any evidence presented at trial supports the defense, regardless of the party that presented it. A defendant is not, however, entitled to this instruction solely based upon an absence of evidence. State v. Fisher, 185 Wn.2d 836, 851–52, 374 P.2d 1185 (2016) (jury should be instructed on the defense even if the evidence in support is weak, inconsistent, or of doubtful credibility).

Caution. Under no circumstances should this instruction be given unless requested, or expressly agreed to, by the defense. A defendant's constitutional right to control his or her defense prohibits the giving of instructions concerning defenses over the defendant's objections. State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013).