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WPIC 19.16 Escape—First and Second Degree—Uncontrollable Circumstances—Defense

11 WAPRAC WPIC 19.16Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 19.16 (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 19.16 Escape—First and Second Degree—Uncontrollable Circumstances—Defense
It is a defense to a charge of escape in the [first] [second] degree that:
(1) uncontrollable circumstances prevented the defendant from [remaining in custody] [or] [remaining in the detention facility] [or] [returning to custody] [or] [returning to the detention facility];
(2) the defendant did not contribute to the creation of such circumstances in reckless disregard of the requirement to [remain] [or] [return]; and
(3) the defendant returned to [custody] [or] [the detention center] as soon as such circumstances ceased to exist.
For the purposes of this defense, an uncontrollable circumstance is an act of nature such as a flood, earthquake, or fire, or a medical condition that requires immediate hospitalization or treatment, or an act of man such as an automobile accident or threats of death, forcible sexual attack, or substantial bodily injury in the immediate future for which there is no time for a complaint to the authorities and no time or opportunity to resort to the courts.
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].
Use this instruction with WPIC 120.26 (Escape From Custody—First Degree—Elements) or WPIC 120.31 (Escape—Second Degree—Elements) if the statutory defense is in issue.
Use the bracketed material as appropriate.
Do not use this instruction with WPIC 120.36 (Escape—Third Degree—Elements). Use WPIC 18.01 (Duress—Defense) if the defense of duress is in issue, and WPIC 18.02 (Necessity—Defense) if the defense of necessity is in issue.
RCW 9A.76.010(4); RCW 9A.76.110(2); RCW 9A.76.120(2).
Escape in the first and second degree statutes were each amended in 2001 to add a statutory defense of “uncontrollable circumstances.” 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 (Necessity—Defense). This statutory defense may also replace the general statutory defense of duress contained in RCW 9A.16.060.
The defense of uncontrollable circumstances has been characterized by the Legislature as an “affirmative” one. RCW 9A.76.110(2); RCW 9A.76.120(2). 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 to escape, but the Court of Appeals has held, in a bail jumping case, that the defense bore the burden of establishing the defense of uncontrollable circumstances by a preponderance of the evidence. State v. Fredrick, 123 Wn.App. 347, 353–54, 97 P.3d 47 (2004). In addition, the defendant has always borne the burden of establishing the common law defense of necessity by a preponderance of the evidence. See, e.g., State v. Gallegos, 73 Wn.App. 644, 651, 871 P.2d 621 (1994); State v. Bailey, 77 Wn.App. 732, 893 P.2d 681 (1995).
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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