WPI 365.15 Sexually Violent Predators—Recent Overt Act—Definition

Use this instruction when a “recent overt act” must be proved.

RCW 71.09.020.

In certain circumstances, the court will make a pretrial ruling as to whether the State is required to plead and prove a recent overt act. See In re Detention of Marshall, 156 Wn.2d 150, 125 P.3d 111(2005) (pretrial ruling necessary); In re Detention of Albrecht, 147 Wn.2d 1, 51 P.3d 73 (2002), on remand, In re Detention of Albrecht, 129 Wn.App. 243, 118 P.3d 909 (2005) (recent overt act as a jury determination). For further discussion, see the Comment to WPI 365.10 (Sexually Violent Predators—Elements for Commitment). Use this instruction when a “recent overt act” is required under RCW 71.09.030 or under the due process clause. See In re Detention of Moore, 167 Wn.2d 113, 124–25, 216 P.3d 1015 (2009); In re Detention of Turay, 150 Wn.2d 71, 74 P.3d 1194 (2003); Albrecht, 147 Wn.2d 1 (evidence was sufficient to prove recent overt act when respondent offered a boy money to follow him, then attempted to grab the boy's arm; respondent was a diagnosed pedophile who had a 20-year history of sexually molesting children using the specific grooming technique that he again employed with this boy); Henrickson v. State, 140 Wn.2d 686, 2 P.3d 473 (2000); In re Detention of Broten, 115 Wn.App. 252, 62 P.3d 514 (2003); In re Detention of Davis, 109 Wn.App. 734, 37 P.3d 325 (2002).

The jury is not required to be unanimous as to whether the “recent overt act” was a threat or an actual act. In re Detention of Aston, 161 Wn.App 824, 251 P.3d 917 (2011).