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WPIC 10.01.01 Transferred Intent

11 WAPRAC WPIC 10.01.01Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 10.01.01 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part III. Principles of Liability
WPIC CHAPTER 10. General Requirements of Culpability
WPIC 10.01.01 Transferred Intent
If a person acts with intent to [kill] [assault] [(insert other applicable harm)] another, but the act harms a third person, the actor is also deemed to have acted with intent to [kill] [assault] [(insert other applicable harm)] the third person.
NOTE ON USE
Use this instruction, as applicable, when the offense charged includes an intent to cause harm but the person actually harmed was not the intended victim. The instruction should not be used if the statutory elements already expressly state this principle. See discussion in the Comment.
This instruction needs to dovetail with the to-convict instruction's intent language. In some cases, this instruction could be incorporated into the to-convict instruction, and not given separately.
COMMENT
Transferred intent. A defendant's intent to cause a particular harm to a particular victim “transfers” to an unintended victim, so that a defendant may be convicted of assaulting an unintended victim based on the defendant's mens rea established with regard to the intended victim. See, e.g., State v. Wilson, 125 Wn.2d 212, 218, 883 P.2d 320 (1994) (“once the intent to inflict great bodily harm against an intended victim is established … the mens rea is transferred under [the first degree assault statute] to any unintended victim”); State v. Clinton, 25 Wn.App. 400, 606 P.2d 1240 (1980) (recognizing that “the overwhelming weight of authority at common law approved the theory of transferring the intent of the defendant to harm one individual to another, but unintended, victim”).
In a case in which shots had been fired into a building, the Court of Appeals applied the common law and concluded that intent can be transferred under the attempted battery form of first degree assault; the unintended victims do not need to be physically injured and the defendant need not know of their presence. State v. Elmi, 138 Wn.App. 306, 156 P.3d 281 (2007).
On review of Elmi, the Supreme Court reasoned that it was unnecessary to address application of common law principles in that case. State v Elmi, 166 Wn.2d 209, 207 P.3d 439 (2009). The court held that applying the statutory elements of first degree assault, “… once the intent to inflict great bodily harm is established, usually by proving that the defendant intended to inflict great bodily harm on a specific person, the mens rea is transferred under RCW 9A.36.011 to any unintended victim.” State v. Elmi, 166 Wn.2d at 218. The court further reasoned that it sufficed that the unintended victim was assaulted by any means, including being put in apprehension of bodily harm.
The dissent in Elmi cautioned against expansion of the transferred intent doctrine to uninjured, unintended and unknown victims. In a subsequent second degree assault case (involving only the common law intent requirement for an assault and no statutory specific intent), the Court of Appeals declined to “extend Elmi” such that “arguably anyone in the neighborhood who heard the gunshots could be a victim of an assault.” State v. Abuan, 161 Wn.App. 135, 158, 257 P.3d 1 (2011).
The instruction does not use the word “transfers” because the word could suggest to jurors that the intent transfers away from, and therefore no longer applies to, the intended victim. Rather, the instruction makes clear that the intent applies to both the intended and the unintended victim.
Common law principle versus statutory interpretation. Originally, transferring a defendant's intent from the intended victim to an unintended victim was a principle of the common law. See State v. McGonigle, 14 Wash. 594, 45 P. 20 (1896). In Wilson, however, the Supreme Court made clear that this principle does not necessarily require application of the common law; the intent may transfer as a matter of statutory construction. State v. Wilson, 125 Wn.2d at 218–19. When the statutory elements require a particular intent, but the required intent is not matched with a particular victim, then the defendant's intent transfers to an unintended victim, regardless of the application of the common law doctrine. State v. Wilson, 125 Wn.2d at 218–19. (transferred intent under the common law is required only when a criminal statute matches a specific intent with a specific victim). See also State v. Elmi, 166 Wn.2d 209, 207 P.3d 439 (2009).
Relationship to elements instruction. This separate instruction will not be needed when the statutory elements already expressly state that the crime can be committed when the person harmed was not the intended victim. For example, under RCW 9A.32.030(1)(a), a person is guilty of premeditated first degree murder when “with a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person.” (Emphasis added.) Using WPIC 10.01.01 for this offense would merely repeat what is already clearly expressed in the elements instruction.
On the other hand, several offenses are defined in a manner that less directly addresses the issue of an unintended victim. For example, a person commits first degree assault involving a firearm “if he or she, with intent to inflict great bodily harm[,] assaults another with a firearm …” RCW 9A.36.011(1)(a). The application of this language with regard to an unintended victim is more implied than expressed. Using WPIC 10.01.01 for this offense would clarify the statutory element instead of merely restating it.
“Transferred” knowledge. WPIC 10.01.01 might also apply, with proper modifications, when the statutory element at issue involves knowledge rather than intent. In State v. Clinton, 25 Wn.App. 400, 401–03, 606 P.2d 1240 (1980), the statutory element at issue was whether the defendant had “knowingly” assaulted a person with a weapon (under the former statute on second degree assault, RCW 9A.36.020). The trial court instructed the jury that an intent to strike one individual with a pipe is transferred to a second individual who was mistakenly struck by the pipe. The appellate court upheld this instruction, even though it was phrased in terms of intent while the elements instruction was phrased in terms of knowledge, noting that the jury had been instructed that a separate statute provides that proof of intent necessarily includes proof of knowledge, RCW 9A.08.010(2). State v. Clinton, 25 Wn.App. at 403.
[Current as of January 2019.]
End of Document