WPIC 49A.07.02 Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Possession...
11 WAPRAC WPIC 49A.07.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 49A.07.02 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part VII. Sex Crimes
WPIC CHAPTER 49A. Sexual Depictions Of Minors
WPIC 49A.07.02 Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Possession with Intent to Disseminate—First Degree—Elements
To convict the defendant of the crime of dealing in depictions of a minor engaged in sexually explicit conduct in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant possessed any visual or printed matter depicting a minor engaged in sexually explicit conduct of [any of] the following type[s]:
[(a)] [[[sexual intercourse], including [genital-genital] [oral-genital] [anal-genital] [or] [oral-anal],] [between persons of the same or opposite sex] [or] [between humans and animals]] [or]
[(b)] [penetration of the [vagina] [or] [rectum] by any object] [or]
[(c)] [masturbation] [or]
[(d)] [sadomasochistic abuse] [or]
[(e)] [defecation or urination for the purpose of sexual stimulation of the viewer];
(2) That the defendant intended to [develop] [duplicate] [publish] [print] [disseminate] [exchange] [or] [sell] the visual or printed matter;
[(3)] [That the defendant knew the person depicted was a minor;]
[(4)] That the defendant was eighteen years of age or older; and
[(5)] That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
NOTE ON USE
This instruction is to be used only for cases charging dealing in depictions under RCW 9.68A.050(1)(a)(ii). For cases in which dealing in depictions is charged under RCW 9.68A.050(1)(a)(i), use WPIC 49A.05.02 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Dissemination—First Degree—Elements) instead of this instruction.
For a discussion about the bracketed element (3) above, see the Comment to WPIC 49A.03.02 (Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct—First Degree—Elements). The jury should not be given both WPIC 19.04.04 (Possession of or Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Defense) and the bracketed element (3) regarding the defendant's knowledge that the person depicted was a minor. If element (3) is used, do not use WPIC 19.04.04 (Possession of or Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Defense). If element (3) is omitted and the defendant raises the affirmative defense that he or she had no information based on which he or she could reasonably have known the person depicted was a minor, then use WPIC 19.04.04 (Possession of or Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Defense) with this instruction.
Use this instruction with WPIC 47.09 (Minor—Definition) and WPIC 49A.10 (Visual or Printed Matter—Definition). If the court has determined that knowledge of the minority of the person depicted is an element of the offense, then also use WPIC 10.02 (Knowledge—Knowingly—Definition).
For a discussion of the phrase “this act” in the jurisdictional element, see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).
COMMENT
RCW 9.68A.050(1)(a)(ii) and RCW 9.68A.011(4)(a)–(e). This instruction has been revised to include the 2019 statutory amendments to RCW 9.68A.050(1)(a) and (2)(a) requiring that the defendant be over 18 years old. For further discussion of this and constitutional issues regarding the statute, see the Comment to WPIC 49A.05.02 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Dissemination—First Degree—Elements).
For a discussion of how to use the pattern instructions for dealing in depictions of minors engaged in sexually explicit conduct under RCW 9.68A.050, see the Comment to WPIC 49A.05.02 (Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct—Dissemination—First Degree—Elements).
For a discussion of First Amendment issues, knowledge of the age of the child, degrees of the offense, unit of prosecution, and the statutory defense, see the Comment to WPIC 49A.03.02 (Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct—First Degree—Elements).
Multiple depictions per count. For cases involving multiple photographs or images per count, see the Notes on Use and Comments to WPIC 4.25 (Jury Unanimity—Several Distinct Criminal Acts—Petrich Instruction) and WPIC 4.26 (Jury Unanimity—Several Distinct Criminal Acts—Election to Specify a Particular Act). For cases involving multiple counts, care must be taken to instruct the jurors that a particular photograph or image can support only a single count. See the discussion in the Note on Use and Comment to WPIC 4.25 (Jury Unanimity—Several Distinct Criminal Acts—Petrich Instruction).
[Current as of March 2020.]
Westlaw. © 2024 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
| End of Document |