WPIC 19.15 Abandonment—Termination of Services—Defense
11 WAPRAC WPIC 19.15Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 19.15 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part IV. Defenses
WPIC CHAPTER 19. Special Statutory Defenses
WPIC 19.15 Abandonment—Termination of Services—Defense
It is a defense to a charge of abandonment that:
(1) the defendant was employed to provide the basic necessities of life to the [child] [dependent person];
(2) the defendant gave reasonable notice of termination of services to [the child] [the dependent person] [and] [other persons or organizations that requested notice of termination of services furnished to the [child] [dependent person]]; and
(3) the defendant did not terminate services until after the date specified in the notice.
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].]
NOTE ON USE
If this statutory defense is at issue, use this instruction with WPIC 38.11 (Abandonment of a Dependent Person—First Degree—Elements) or WPIC 38.13 (Abandonment of a Dependent Person—Second Degree—Elements), as applicable. 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.
COMMENT
RCW 9A.42.090; RCW 9A.42.010(5).
The termination of services defense statute characterizes the defense as an “affirmative” one. RCW 9A.42.090. 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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