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WPIC 71.33 Retail Theft with Special Circumstances—Second Degree—Elements

11A WAPRAC WPIC 71.33Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 71.33 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part IX. Crimes Against Property
WPIC CHAPTER 71. Retail Theft
WPIC 71.33 Retail Theft with Special Circumstances—Second Degree—Elements
To convict the defendant of the crime of retail theft [with special circumstances] in the second degree, each of the following five elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant wrongfully obtained or exerted unauthorized control over property of a mercantile establishment;
(2) That the property exceeded $750 in value [but did not exceed $5,000 in value];
(3) That the defendant intended to deprive the mercantile establishment of the property;
(4) That the defendant
[(a)] [facilitated the theft by leaving the mercantile establishment through a designated emergency exit;] [or]
[(b)] [was, at the time of the theft, in possession of an item, article, implement, or device [used under circumstances showing an intent to use or employ it to overcome security systems] [or] [designed to overcome security systems];] [or]
[(c)] [committed theft at three or more separate and distinct mercantile establishments within a 180-day period]; and
(5) That this act occurred in the State of Washington.
If you find from the evidence that elements (1), (2), (3), and (5) and any of the alternative elements [(4)(a),] [(4)(b),] or [(4)(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 [(4)(a),] [(4)(b),] or [(4)(c)] 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 of the evidence you have a reasonable doubt as to any one of elements (1), (2), (3), (4), or (5), then it will be your duty to return a verdict of not guilty.
NOTE ON USE
Use this instruction for retail theft with special circumstances cases that are charged as involving property or services valued at over $750.
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 bracketed phrases referring to not exceeding $5,000 in value are not needed unless retail theft with special circumstances in the second degree is being submitted as a lesser included crime with retail theft with special circumstances in the first degree.
With this instruction, use WPIC 79.20 (Value—Definition) and WPIC 10.01 (Intent—Intentionally—Definition). As applicable, also use WPIC 79.02 (Wrongfully Obtains—Exerts Unauthorized Control—Definition). If needed, WPIC 2.21 (Property—Definition) may also be used.
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).
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).
For a discussion of the phrase “device designed to overcome security systems” in element (4)(b), see the Comment to WPIC 71.31 (Retail Theft With Special Circumstances—First Degree—Elements).
COMMENT
RCW 9A.56.360(1) and (3); RCW 9A.56.040(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 has 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 second degree includes the elements of theft in the second degree. For a discussion regarding whether the jury must be instructed that the property taken was not a firearm or a motor vehicle, see the Comment to WPIC 70.06 (Theft—Second Degree—Value of Property—Elements).
[Current as of September 2018.]
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