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WPIC 19.14 Criminal Mistreatment—Financial Inability—Defense

11 WAPRAC WPIC 19.14Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 19.14 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part IV. Defenses
WPIC CHAPTER 19. Special Statutory Defenses
WPIC 19.14 Criminal Mistreatment—Financial Inability—Defense
It is a defense to a charge of criminal mistreatment that:
(1) the defendant was employed to provide the basic necessities of life to the [child] [dependent person];
(2) the agreed-upon payment was not made to the defendant;
(3) the defendant lacked the financial ability to provide the [child] [dependent person] with the basic necessities of life; and
(4) the defendant made reasonable effort to obtain adequate assistance for the [child] [dependent person].
For the purposes of this defense “employed” means hired by a dependent person, another person acting on behalf of a dependent person, or by an organization or governmental entity, to provide a dependent person with any of the basic necessities of life. A person may be “employed” regardless of whether the person is paid for the services or, if paid, regardless of who pays for the person's services.
[The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge].]
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).
[Current as of February 2019.]
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