WPIC 70.06.01 Theft—Second Degree—Access Device or Public Record—Elements
11A WAPRAC WPIC 70.06.01Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 70.06.01 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part IX. Crimes Against Property
WPIC CHAPTER 70. Theft
WPIC 70.06.01 Theft—Second Degree—Access Device or Public Record—Elements
To convict the defendant of the crime of theft in the second degree, each of the following four elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant
[(a)] [wrongfully obtained or exerted unauthorized control over property of another;] [or]
[(b)] [by color or aid of deception, obtained control over property of another;] [or]
[(c)] [appropriated lost or misdelivered property of another;]
(2) That the defendant intended to deprive the other person of the property;
(3) That the property was [an access device] [or] [a public record, writing, or instrument kept, filed or deposited according to law with or in the keeping of any public office or public servant]; and
(4) That this act occurred in the State of Washington.
If you find from the evidence that elements (2), (3), and (4), and any of the alternative elements [(1)(a)] [(1)(b)] or [(1)(c)], 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)] or [(1)(c)] has been proved beyond a reasonable doubt, as long as each juror finds that at least one of these alternatives has been proved beyond a reasonable doubt.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of elements (1), (2), (3), or (4), then it will be your duty to return a verdict of not guilty.
NOTE ON USE
Use this instruction for second degree theft cases that are charged as involving access devices or public records. For second degree theft cases involving the theft of property or services valued at over $750, use WPIC 70.06 (Theft—Second Degree—Value of Property—Elements) instead of this instruction. For second degree theft cases involving metal property, use WPIC 70.06.02 (Theft—Second Degree—Metal Property—Elements).
With this instruction, use WPIC 10.01 (Intent—Intentionally—Definition). As applicable, also use WPIC 2.21 (Property—Definition), WPIC 2.22 (Public Servant—Definition), WPIC 79.02 (Wrongfully Obtains—Exerts Unauthorized Control—Definition), WPIC 79.03 (By Color or Aid of Deception—Definition), WPIC 79.04 (Deception—Definition), WPIC 79.05 (Appropriate Lost or Misdelivered Property or Services—Definition), WPIC 79.20 (Value—Definition), and WPIC 79.07 (Access Device—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 the related jury interrogatory see WPIC 190.09 (Special Verdict Form—Elements with Alternatives). 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).
Use WPIC 19.08 (Theft—Defense) with this instruction if the statutory defense is an issue supported by the evidence.
For a discussion of the phrase “this act” in element (4), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).
COMMENT
RCW 9A.56.040.
See the Comment to WPIC 70.02 (Theft—First Degree—Value of Property—Elements) for a review of recent cases that discuss the elements of theft.
This instruction has been revised for this edition. The State does not need to prove a specific intent to steal an access device. Stealing a purse that contains an access device is sufficient to constitute a violation of the statute. State v. Johnson, 188 Wn.2d 742, 399 P.3d 507 (2017).
An activated gift card is an access device. State v. Nelson, 195 Wn.App. 261, 381 P.3d 84 (2016).
[Current as of October 2018.]
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