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WPIC 60.05 Inference of Intent—Entering or Remaining Unlawfully

11A WAPRAC WPIC 60.05Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 60.05 (5th Ed)

Washington Practice Series TM

Washington Pattern Jury Instructions--Criminal

January 2024 Update

Washington State Supreme Court Committee on Jury Instructions

Part IX. Crimes Against Property

WPIC CHAPTER 60. Burglary and Criminal Trespass

WPIC 60.05 Inference of Intent—Entering or Remaining Unlawfully

A person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein. This inference is not binding upon you and it is for you to determine what weight, if any, such inference is to be given.

NOTE ON USE

Use caution in giving this instruction. See Comment below.

COMMENT

RCW 9A.52.040.

The statute provides:

In any prosecution for burglary, any person who enters or remains unlawfully in a building may be inferred to have acted with intent to commit a crime against a person or property therein, unless such entering or remaining shall be explained by evidence satisfactory to the trier of fact to have been made without such criminal intent.

Instructing a jury regarding this permissible inference in burglary cases has been approved. State v. Brunson, 128 Wn.2d 98, 905 P.2d 346 (1995).

However, it should be borne in mind that inferences are generally not favored in the criminal law. See State v. Cantu, 156 Wn.2d 819, 826, 132 P.3d 725 (2006) and the Comment to WPIC 6.25 (Presumed to Intend Natural Consequences of Actions). Accordingly, there are three important limitations concerning the use of this inference:

1. When the intent to commit a crime “more likely than not” flows from proof of the illegal entry, the instruction is appropriately given provided the inference would not be the “sole” proof of the intent element. See discussion in State v. Brunson, 128 Wn.2d 98, 107–112, 905 P.2d 346 (1995). The Brunson court distinguished other cases, applying other inferences, in which the inference would be the “sole and sufficient” proof of an essential element. In such cases, the inferred fact must flow beyond a reasonable doubt from the proved fact. The Court of Appeals has also found, on the facts of a particular burglary case before it that the evidence failed to meet even the lower standard. State v. Sandoval, 123 Wn.App. 1, 94 P.3d 323 (2004). See also State v. Cordero, 170 Wn.App. 351, 367–68, 284 P.3d 773 (2012) (“This statutory inference cannot relieve the State of its burden to prove each element of the crime without violating due process, so the State must show that the permitted inference more likely than not flows from the proven fact if the inference is offered as the sole and sufficient proof of intent to commit a crime at the premises.”)
2. To avoid an unconstitutional shifting of the burden of persuasion, the instruction should never use the statutory language “unless such entry or remaining shall be explained by evidence satisfactory [to the jury].” See State v. Deal, 128 Wn.2d 693, 911 P.2d 996 (1996).
3. This instruction should not be given in an attempted burglary case. State v. Jackson, 112 Wn.2d 867, 774 P.2d 1211 (1989). See also State v. Bencivenga, 137 Wn.2d 703, 974 P.2d 832 (1999); State v. Brooks, 107 Wn.App. 925, 29 P.3d 45 (2001).

[Current as of May 2018.]

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