WPIC 36.21.02 Stalking—Felony—Previous Harassment Conviction—Elements

Use this instruction if the defendant is charged with stalking as a felony based on a previous harassment conviction. If the defendant is charged with a felony based on one of the other statutory enhancing factors, then use one of the to-convict instructions from among WPIC 36.21.03 through WPIC 36.21.07 instead of this instruction. If multiple enhancing factors are charged, then see the Comment.

Use the bracketed word “felony” only if the jury is also being instructed on the gross misdemeanor form of stalking. See discussion in the Comment below. Use additional bracketed material as applicable.

With this instruction, use WPIC 36.23 (Stalking—Harass—Definition), WPIC 10.01 (Intent—Intentionally—Definition), and WPIC 10.02 (Knowledge—Knowingly—Definition). Also use, as applicable, WPIC 36.22 (Stalking—Follows—Definition) and WPIC 36.24 (Stalking—Repeatedly—Definition). See also WPIC 36.27 (Stalking—Without Lawful Authority—Definition) and WPIC 36.25 (Stalking—Intent to Intimidate or Harass—Inference).

The instruction is drafted for cases in which the jury needs to be instructed using both of the alternatives for element (4). 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 (4), revise the instruction to remove references to alternative elements, following the format set forth in WPIC 4.21 (Elements of the Crime—Form).

For a discussion of the phrase “any of the defendant's acts” in element (7), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.46.110(1), (5).

Title of crime. For ease of reference, the WPI Committee has referred to this crime as “felony stalking.” The word felony should not be included if the jury is not also being instructed on the gross misdemeanor form of the crime, WPIC 36.21. Juries are routinely instructed that they should not consider potential punishment during their deliberations. See, e.g., WPIC 1.02 (Conclusion of Trial—Introductory Instruction). Referring to the crime as a “felony” to some extent is inconsistent with this mandate. Other suggestions include referring to the crime as “aggravated” or “serious.”

Multiple enhancing factors. Special drafting issues exist for a case in which felony stalking is charged with multiple enhancing factors. If the defendant is charged with felony stalking based on more than one of the enhancing factors, then modify element (6) above by incorporating the multiple enhancing factors as alternative elements. This will require some careful drafting, given that element (4) already has alternative components. The instruction's final two paragraphs would need to be revised to more specifically discuss the unanimity requirements as to each of the two sets of alternative elements. For a general discussion of alternative means issues, see WPIC 4.20 (Introduction) and the Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form).

Further discussion. Additional issues underlying this instruction are discussed in the Comment to WPIC 36.21 (Stalking—Gross Misdemeanor—Elements).