WPIC 36.07.03 Harassment—Felony—Previous Conviction—Elements
11 WAPRAC WPIC 36.07.03Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 36.07.03 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part VI. Crimes Against Personal Security
WPIC CHAPTER 36. Harassment, Hate Crimes, and Domestic Violence
WPIC 36.07.03 Harassment—Felony—Previous Conviction—Elements
To convict the defendant of the crime of [felony] harassment, each of the following five elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant knowingly threatened:
[(a)] [to cause bodily injury immediately or in the future to (name of person)] [or]
[(b)] [to cause physical damage to the property of (name of person)] [or]
[(c)] [to subject (name) to physical confinement or restraint] [or]
[(d)] [maliciously to do any act which was intended to substantially harm (name of person) with respect to [his] [her] physical health or safety];
(2) That the words or conduct of the defendant placed (name of person) in reasonable fear that the threat would be carried out;
(3) That the defendant acted without lawful authority;
(4) That the defendant was previously convicted of the crime[s] of (list any relevant crime[s] from RCW 9A.46.060) against [(name of person)] [or] [members of (name of person's) family or household] [or] [(name), who was specifically named in a [no-contact] [no-harassment] order]; and
(5) That the threat was made or received in the State of Washington.
If you find from the evidence that elements (2), (3), (4), and (5), and any of the alternative elements [(1)(a),] [(1)(b),] [(1)(c),] [or] [(1)(d)], have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. To return a verdict of guilty, the jury need not be unanimous as to which of alternatives [(1)(a),] [(1)(b),] [(1)(c),] or [(1)(d)] has been proved beyond a reasonable doubt, as long as each juror finds that at least one alternative has been proved beyond a reasonable doubt.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of the five elements, then it will be your duty to return a verdict of not guilty.
NOTE ON USE
Use this instruction if the defendant is charged with felony harassment based on a previous conviction. If instead the felony charge is based on a threat to kill, then use WPIC 36.07.02 (Harassment—Felony—Threat to Kill—Elements) instead of this instruction.
Use the bracketed word “felony” only if the defendant is also being instructed on the gross misdemeanor form of harassment, see WPIC 36.07 (Harassment—Gross Misdemeanor—Elements). See discussion in the Comment to WPIC 36.07.02 (Harassment—Felony—Threat to Kill—Elements).
In the typical case, the same name will be filled in for (1) and (2), but it is not inconsistent with the statute for the name of the person in (1) and (2) to be different.
With this instruction, use WPIC 2.24 (Threat—Definition) and WPIC 10.02 (Knowledge—Knowingly—Definition). Also use, as applicable, WPIC 2.03 (Bodily Injury—Physical Injury—Bodily Harm—Definition) and WPIC 2.13 (Malice—Maliciously—Definition). If an instruction defining the phrase “without lawful authority” would be helpful to jurors, then see the Note on Use and Comment for WPIC 36.27 (Stalking—Without Lawful Authority—Definition).
The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (1). Care must be taken to limit the alternatives to those that were included in the charging document and are supported by sufficient evidence. For directions on when and how to draft instructions with alternative elements, see WPIC 4.20 (Introduction) and the Note on Use and Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form). For any case in which substantial evidence supports only one of the alternatives in element (1), revise the instruction to remove references to alternative elements, following the format set forth in WPIC 4.21 (Elements of the Crime—Form).
COMMENT
RCW 9A.46.020(1), (2).
In State v. France, 180 Wn.2d 809, 820, 329 P.3d 864 (2014), the court approved the use of subsection (1)(d) of this instruction.
No-harassment orders. The Legislature used the term “no-harassment order,” which lacks a statutory definition, rather than the statutorily defined term “anti-harassment order.” See RCW 9A.46.020(2)(b). It is not clear whether the Legislature intended “no-harassment order” to mean something other than “anti-harassment order,” a term that is defined in RCW Chapter 10.14. If so, then a no-harassment order might encompass, for example, a domestic violence protection order that prohibits harassing conduct, even though the latter order clearly is not an anti-harassment order.
Prior convictions. For a discussion of the issues involved in proving prior convictions to the jury, see the Comment to WPIC 36.51.02 (Violation of a Court Order—Felony—Elements).
Further discussion. For a discussion of the title of the crime, see the Comment to WPIC 36.07.02 (Harassment—Felony—Threat to Kill—Elements). Additional issues underlying this instruction are discussed in the Comment to WPIC 36.07 (Harassment—Gross Misdemeanor—Elements).
See the discussion in the Comment to WPIC 36.07.01 (Harassment—Felony—Definition).
[Current as of April 2020.]
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