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WPIC 36.74 Telephone Harassment—Felony—Previous Conviction—Elements

11 WAPRAC WPIC 36.74Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 36.74 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part VI. Crimes Against Personal Security
WPIC CHAPTER 36. Harassment, Hate Crimes, and Domestic Violence
WPIC 36.74 Telephone Harassment—Felony—Previous Conviction—Elements
To convict the defendant of the crime of [felony] telephone harassment, each of the following five elements must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant made a telephone call to another person;
(2) That at the time the defendant initiated the phone call the defendant intended to harass, intimidate, torment, or embarrass that other person;
(3) That the defendant:
[(a)] [used lewd, indecent, lascivious, or obscene words or language in the telephone call] [or]
[(b)] [suggested the commission of any lewd or lascivious act in the telephone call] [or]
[(c)] [called [anonymously] [or] [repeatedly] [or] [at an extremely inconvenient hour], whether or not a conversation occurred] [or]
[(d)] [threatened to inflict injury on the [person] [or] [property] [of the person called] [of any member of the family or household of the person called]];
(4) That the defendant was previously convicted of the crime[s] of (list any relevant crime[s] from RCW 9A.46.060) against [the person called] [or] [members of the family or household of the person called] [or] [a person who was specifically named in a [no-contact] [no-harassment] order]]; and
(5) That the phone call was made or received in the State of Washington.
If you find from the evidence that elements (1), (2), (4), and (5), and any of the alternative elements [(3)(a)], [(3)(b)] [(3)(c)] [or] [(3)(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 [(3)(a)] [(3)(b)] [(3)(c)] [or] [(3)(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 these 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 telephone harassment as a felony based on a previous conviction. If the defendant is instead charged with the felony level of the crime based on a threat to kill, use WPIC 36.75 rather than this instruction.
Use the bracketed word “felony” only if the jury is also being instructed on the gross misdemeanor form of telephone harassment (see WPIC 36.71 (Telephone Harassment—Gross Misdemeanor—Definition) and WPIC 36.72 (Telephone Harassment—Gross Misdemeanor—Elements)).
Use WPIC 10.01 (Intent—Intentionally—Definition) with this instruction. If element (3)(d) is used, then also use WPIC 2.24 (Threat—Definition).
The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (3). 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 (3), 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 9.61.230(1) and (2).
Intent, “true threats,” “repeatedly,” and jurisdiction. These issues are discussed in the Comments to WPIC 36.72 (Telephone Harassment—Gross Misdemeanor—Elements) and WPIC 2.24 (Threat—Definition).
Title of crime. For ease of reference, the WPI Committee has referred to this crime as “felony telephone harassment.” The word felony should not be included if the jury is not also being instructed on the gross misdemeanor form of the crime, WPIC 36.72 (Telephone Harassment—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.”
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 9.61.230(2)(a). 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, for example, then a no-harassment order might encompass a domestic violence protection order that prohibits harassing conduct, even though the latter order clearly is not an anti-harassment order.
[Current as of April 2020.]
End of Document