WPIC 36.51.02 Violation of a Court Order—Felony—Elements

Use this instruction when the defendant is charged with a felony violation of a qualifying order under RCW 26.50.110. Remove the bracketed word “felony” in the first paragraph if an instruction on the gross misdemeanor offense is not being given.

Select the bracketed phrase that describes the type of order or orders that form the basis of the criminal prosecution. Select the bracketed phrase that describes the factor that results in a felony allegation.

Use the bracketed phrase in element (4)(a) only when the defendant is also charged with either assault in the first or second degree.

Use WPIC 10.02 (Knowledge—Knowingly—Definition) with this instruction. If assault is alleged (element (4)(a)), use WPIC 35.20 (Assault—Definition). If reckless endangerment is alleged (element (4)(b)), use WPIC 10.03 (Recklessness—Definition) and WPIC 2.03 (Bodily Injury—Physical Injury—Bodily Harm—Definition). See WPIC 35.33 (Reckless Endangerment—Elements) and its Comment.

The instruction is drafted for cases in which the jury needs to be instructed using two or more 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).

RCW 26.50.110(1), (4), and (5). The statute was amended in 2013. For details, see the Comment to WPIC 36.51 (Violation of a Court Order (26.50.110)—Gross Misdemeanor—Elements).

Title of crime. For ease of reference, the WPI Committee has referred to this crime as “felony violation of a court order.” The word felony should not be included if the jury is not also being instructed on the gross misdemeanor form of the crime, WPIC 36.51 (Violation of a Court Order (26.50.110)—Gross Misdemeanor—Elements). 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.”

Qualifying orders and mental state. These issues are discussed in detail in the Comment to WPIC 36.51 (Violation of a Court Order (26.50.110)—Gross Misdemeanor—Elements).

Distinction between felony and gross misdemeanor offenses. The court in State v. Chapman, 140 Wn.2d 436, 448–49, 998 P.2d 282 (2000), held that because the gross misdemeanor offense requires the State to prove an element that is not required proof for the felony version, the gross misdemeanor offense is not a lesser crime of the felony offense. Because the violations are contained within the same statute, the WPI Committee believes it is a lesser degree crime. See State v. Tamalini, 134 Wn.2d 725, 731–32, 953 P.2d 450 (1998) (“A defendant is entitled to an instruction on an inferior degree offense when (1) the statutes for both the charged offense and the proposed inferior degree offense ‘proscribe but one offense’; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior offense.”) See discussion in Comment to WPIC 4.11 (Lesser Included Crime or Lesser Degree).

Assault. The statute is clear that the alleged assault must be one that does not amount to assault in the first or second degree under RCW 9A.36.011 or 9A.36.021. See RCW 26.50.110(4). In State v. Ward, 148 Wn.2d 803, 64 P.3d 640 (2003), the Washington Supreme Court held that unless the defendant was also charged with assault in the first or second degree, there was no need to include this language in the charging document or the elements instruction. Accord, State v. Chino, 117 Wn.App. 531, 72 P.3d 256 (2003).

Prior convictions. As with the validity of the court order, the court determines whether prior convictions are qualifying convictions to be admitted at trial. The jury determines whether the defendant is the person who was previously convicted. State v. Gray, 134 Wn.App. 547, 138 P.3d 1123 (2006). State v. Miller, 156 Wn.2d 23, 123 P.3d 827 (2005).

A defendant is not entitled to have a bifurcated trial for the element of prior conviction. State v. Roswell, 165 Wn.2d 186, 196 P.3d 705 (2008). If requested by the defendant, the trial court judge may consider the approach outlined in Roswell's footnote 6, under which the instruction can be drafted referring to a statutory citation instead of the name of the crime. This approach involves a stipulation, a colloquy with the defendant, and an additional instruction.

Stipulations. For a general discussion of Old Chief stipulations in the context of this area of the law, see the Comment to WPIC 4.78 (Stipulation of Prior Offense (“Old Chief Stipulation”)). In State v. Taylor, as a matter of first impression, the Washington Supreme Court held that the prosecution is not required to accept an Old Chief stipulation in a charge of felony violation of domestic violence no contact order. State v. Taylor, 193 Wn.2d 691, 444 P.3d 1194 (2019). Applying balancing analysis under ER 403, the court declined to extend Old Chief to felony violation of a no contact order in a case of domestic violence and found the trial court did not abuse its discretion in admitting the no-contact order into evidence. State v. Taylor, 193 Wn.2d at 696. Accord State v. Nguyen, 10 Wn.App.2d 797, 819–21, 450 P.3d 630 (2019).

Violation of multiple orders by one act. On rare occasions, the defendant may be charged with violating multiple orders by the commission of one act of violation. In such a case, jury unanimity is required as to which order was violated. The WPI Committee recommends use of the following modified Petrich instruction:

If a defendant is charged under RCW 9A.46.080 for violating a criminal anti-harassment order, do not use this instruction.