WPIC 70.02.01 Theft—First Degree—Taken from the Person of Another—Elements

Use this instruction for first degree theft cases that are charged as involving property taken from the person of another. For first degree theft cases charged as involving property or services valued at over $5,000, use WPIC 70.02 (Theft—First Degree—Value of Property—Elements) instead of this instruction. For cases involving first degree theft of metal property, use WPIC 70.02.02 (Theft—First Degree—Metal Property—Elements).

The instruction has been drafted for the typical case involving an alleged taking from the person of another. For the rare case in which the taking from the person of another involves deception or some other aspect of the definition of “theft” in RCW 9A.56.020, the instruction will need to be modified.

For cases involving theft of a firearm under RCW 9A.56.300, see WPIC 70.13 (Theft of a Firearm—Elements). For cases involving theft of a motor vehicle under RCW 9A.56.065, use WPIC 70.26 (Theft of Motor Vehicle—Elements). For a discussion of the exceptions in RCW 9A.56.030 for firearms and motor vehicles, see the Comment below.

With this instruction, use WPIC 10.01 (Intent—Intentionally—Definition) and WPIC 2.21 (Property—Definition). Use WPIC 19.08 (Theft—Defense) with this instruction if the statutory defense is an issue supported by the evidence.

For a discussion of the phrase “this act” in element (3), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.56.030(1)(b).

The statutory language excepting firearms and motor vehicles is not included in the instruction above. The penalties for theft of a firearm and theft of a motor vehicle are higher than for first degree theft. See RCW 9.94A.515 (theft of firearm is ranked at seriousness level VI, while theft of a motor vehicle and first degree theft are ranked at level II); RCW 9.94A.525(20) (theft of a motor vehicle triggers tripling of certain offender scores, while first degree theft does not). Because the exceptions for firearms and motor vehicles thus operate as ceilings on criminal liability, the WPI Committee believes that these statutory exceptions are not essential elements of the offense. For a related discussion, see the Comment to WPIC 70.02 (Theft—First Degree—Value of Property—Elements).

If a trial judge is persuaded that the exceptions are essential elements, or if in a given case the trial judge believes that the instruction would be clearer for the jury if it included the statutory exception, then a new element could be added to read: “That the property was [neither] [not] [a firearm] [nor] [a motor vehicle].” The definitions of “firearm” and “vehicle” would be used from WPIC 2.10 (Firearm—Definition as Element) and WPIC 2.25 (Vehicle—Nontraffic Cases—Definition).

Washington case law has not directly addressed the meaning of “from the person of another” with regard to the theft statutes. In the context of robbery, however, the Court of Appeals has held that property taken “from the person of another” means that the property has to be “on the person's body or directly attached to someone's physical body or clothing.” State v. Nam, 136 Wn.App. 698, 705, 150 P.3d 617 (2007) (holding that “from the person of another” does not include property was taken from the seat next to a person; including such property would render superfluous the robbery statute's language about property taken from the “presence” of another).

For a discussion of other issues relating to this instruction, see the Comment to WPIC 70.02 (Theft—First Degree—Value of Property—Elements).

Other offenses. First degree theft is not a lesser included offense of first degree robbery, because robbery may be committed without committing first degree theft. State v. Roche, 75 Wn.App. 500, 878 P.2d 497 (1994).