WPIC 71.31 Retail Theft with Special Circumstances—First Degree—Elements

Use this instruction for retail theft with special circumstances cases that are charged as involving property or services valued at over $5000.

The instruction has been drafted for the typical case involving an alleged taking from the mercantile establishment. For the rare case in which the taking from the mercantile establishment involves deception or some other aspect of the definition of “theft” in RCW 9A.56.020, the instruction will need to be modified.

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 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 (4), revise the instruction to remove references to the unsupported alternative elements following the format set forth in WPIC 4.21 (Elements of the Crime—Form).

With this instruction, use WPIC 10.01 (Intent—Intentionally—Definition), WPIC 79.02 (Wrongfully Obtains—Exerts Unauthorized Control—Definition), and WPIC 79.20 (Value—Definition). If needed, WPIC 2.21 (Property—Definition) may also be used.

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 (5), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.56.360(1) and (2); RCW 9A.56.030(1)(a). This instruction has been revised for this edition to reflect a 2017 change to the statute regarding the meaning of a “device designed to overcome security systems.” RCW 9A.56.360(1)(b). For the change to the instruction, the WPI Committee replaced the word “evincing,” which is used in RCW 9A.56.360(1)(b), with the word “showing,” for purposes of juror comprehension. No substantive change from the statute is intended.

The crime of retail theft with special circumstances in the first degree includes the elements of theft in the first degree. For a discussion regarding whether the jury must be instructed that the property taken was not a firearm, see the Comment to WPIC 71.02 (Theft—First Degree—Elements).

Device designed to overcome security systems. In State v. Larson, 184 Wn.2d 843, 365 P.3d 740 (2015), the Supreme Court resolved a split in the Court of Appeals concerning the meaning of the statutory phrase a “device designed to overcome security systems.” RCW 9A.56.360(1)(b). The court held that the statute requires that the device be “created—whether by the manufacturer or the defendant—with the specific purpose of disabling or evading security systems.” State v. Larson, 184 Wn.2d at 845–46. An unmodified pair of wire cutters, even though used for the purpose of evading a security system, is not such a device. The Legislature then amended the statute in 2017 to add items, articles, implements, or devices “used, under circumstances evincing an intent to use or employ” the item to overcome security systems, as well as items designed for such a purpose.