WPIC 4.20 Introduction

Elements of the crime—general principles. Several principles should be kept in mind when instructing a jury as to the elements of a crime. First, to convict a defendant, the prosecution must prove beyond a reasonable doubt every fact necessary to constitute the crime charged. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Thus, every pertinent element contained in a statute must be included when setting forth the statutory definition of a crime for the jury. State v. Emmanuel, 42 Wn.2d 799, 259 P.2d 845 (1953); State v. Hinz, 22 Wn.App. 906, 594 P.2d 1350 (1979), affirmed in State v. Shipp, 93 Wn.2d 510, 610 P.2d 1322 (1980). Second, pursuant to Washington Constitution, article I, section 22, a defendant may only be convicted when the verdict of the jury is unanimous. State v. Stephens, 93 Wn.2d 186, 607 P.2d 304 (1980).

Elements having single or alternative components. In general, criminal statutes may be divided into three categories: (1) statutes in which the elements are single (i.e., there are no elements that may constitute separate and distinct offenses or that may be satisfied by alternative means); (2) statutes that set forth multiple offenses, each constituting a separate and distinct crime; and (3) statutes that set forth a single offense that may be committed by alternative means or in more than one way. See State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976); WPIC 4.21 (Elements of the Crime—Form), WPIC 4.22 (Elements of the Crime—Alternative Elements—Separate Offenses—Form), and WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternate Means for Committing a Single Offense—Form) reflect these categories.

To determine whether a statute sets forth multiple offenses or a single offense that may be committed by alternative means, the court must ascertain the Legislature's intent. When legislative intent is not clear from the statute, intent is ascertained by considering the following factors: (1) the title of the act; (2) whether there is a readily perceivable connection between the various acts set forth; (3) whether the acts are consistent with and not repugnant to each other; and (4) whether the acts inhere in the same transaction. State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997); State v. Arndt, 87 Wn.2d at 379.

Whenever the definition instruction contains bracketed phrases that relate to various means, methods, or modes of committing the crime, a decision must be made in every case how to treat these alternative methods of committing the crime. Because many statutes list several ways of committing the crime, this problem recurs throughout Volumes 11 and 11A. The WPI Committee's intent is to provide pattern instructions that may be used depending on the legal decision made in a particular case. For a collection of cases addressing the application of these principles to particular offenses, see Ferguson, 13 Washington Practice, Criminal Practice and Procedure, § 4603 (3d ed.).

If only one of the bracketed phrases from the definition instruction is used for the elements instruction, the elements instruction should follow the form of WPIC 4.21 (Elements of the Crime—Form).

If more than one of the bracketed phrases from the definition instruction is used for the elements instruction, and these phrases are truly separate and distinct alternative offenses as defined in State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976), the elements instruction should follow the form of WPIC 4.22 (Elements of the Crime—Alternative Elements—Separate Offenses—Form).

If more than one of the bracketed phrases from the definition instruction is used for the elements instruction, and these phrases are merely alternative means for committing a single offense, as defined in State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976), the elements instruction should follow the form of WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form).

WPIC 35.10 (Assault—Second Degree—Definition) is an example of an instruction based upon a statute that sets out several ways of committing the crime. That instruction may be used with only one of the bracketed phrases. If more than one of these bracketed phrases is used, they should be joined by the word “or.”

WPIC 35.11 (Assault—Second Degree—With Intent to Commit Felony—Elements), WPIC 35.13 (Assault—Second Degree—Substantial Bodily Harm—Elements), and WPIC 35.14 (Assault—Second Degree—Poison—Elements), are examples of elements instructions that use only one of the bracketed phrases from the definition instruction according to WPIC 4.21 (Elements of the Crime—Form).

WPIC 35.08 (Assault—First Degree (Alternative Means)—Deadly Weapon or Great Bodily Harm—Elements) is an example of an elements instruction set up so that one bracketed phrase may be used, or two or more bracketed phrases may be used by joining them with the word “or.”

Unanimity as to alternative elements—statute defining a single offense committed by alternative means. When a statute sets forth a single offense that may be committed by alternative means, there must be jury unanimity as to guilt for the single crime charged. However, unanimity is not required as to each of the alternative means by which the crime was committed, provided there is substantial evidence presented to support each alternative means. State v. Linehan, 147 Wn.2d 638, 56 P.3d 542 (2002), cert. denied 538 U.S. 945 (2003); State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988); In re Jeffries, 110 Wn.2d 326, 752 P.2d 1338 (1988). Evidence is constitutionally sufficient to support each alternative means if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could find each means of committing the crime proved beyond a reasonable doubt. State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988); In re Jeffries, 110 Wn.2d 326, 752 P.2d 1338 (1988); State v. Whitney, 108 Wn.2d 506, 739 P.2d 1150 (1987); State v. Franco, 96 Wn.2d 816, 639 P.2d 1320 (1982); State v. Green, 94 Wn.2d 216, 616 P.2d 628 (1980).

In determining whether a statute creates alternative means, analysis focuses on whether each alleged alternative describes:

State v. Sandholm, 184 Wn.2d 726, 734, 364 P.3d 87, 90 (2015), quoting State v. Peterson, 168 Wn.2d 763, 770, 230 P.3d 588 (2010).

Practitioners should consider whether to use a special verdict form to specify which alternative means they relied on in reaching their verdict. A format for these special verdict forms is included at WPIC 190.09 (Special Verdict Form—Elements with Alternatives); see also WPIC 164.00 (Concluding Instruction—Special Verdict—Elements with Alternatives). Using a special verdict form may eliminate potential problems that may arise if one of the alternatives is later found not to have been supported by substantial evidence. See State v. Maupin, 63 Wn.App. 887, 822 P.2d 355 (1992) (felony murder conviction reversed because there was insufficient evidence of one of the two alternative felonies underlying the felony murder charge and the jury was not given a special verdict form to indicate which of the underlying felonies formed the basis for conviction); see also State v. Savaria, 82 Wn.App. 832, 919 P.2d 1263 (1996) (intimidating witness conviction overturned because insufficient evidence of one alternative means charged, no unanimity requirement, and no special finding as to which alternative was found), disapproved of on other grounds in State v. C.G., 150 Wn.2d 604, 80 P.3d 594 (2003). Using a jury interrogatory has the benefit of curing the sufficiency-of-the-evidence problem without altering the unanimity requirements.

Unanimity as to alternative elements—statute setting forth separate and distinct offenses. When a statute sets forth several separate and distinct offenses, the jury must be unanimous as to which conduct constitutes the crime. State v. Franco, 96 Wn.2d 816, 639 P.2d 1320 (1982); State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976). To ensure jury unanimity under this type of statute, either the State must elect the particular conduct upon which it will rely for conviction, or the trial court must instruct the jury that they unanimously agree that the same underlying conduct has been proved beyond a reasonable doubt. See State v. Crane, 116 Wn.2d 315, 804 P.2d 10 (1991); State v. Camarillo, 115 Wn.2d 60, 794 P.2d 850 (1990); State v. Kitchen, 110 Wn.2d 403, 756 P.2d 105 (1988), and the cases cited therein.

Unanimity requirement—cases involving multiple acts (Petrich cases). The preceding paragraphs have discussed cases in which elements of the crime include alternative components, whether the elements involve alternative means for committing a single offense or they constitute separate offenses. To be distinguished are cases in which the elements are single, but the defendant is alleged to have committed multiple acts of the crime (for example, when the State charges that a rape was committed during a particular month and the victim testifies that the defendant raped her on two days in that month). For these multiple act cases, whether or not the jurors need to be unanimous as to individual acts requires analysis of the principles set forth in State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), and State v. Handran, 113 Wn.2d 11, 775 P.2d 453 (1989). These principles are discussed in the Comment to WPIC 4.25 (Jury Unanimity—Several Distinct Criminal Acts—Petrich Instruction).

Date element. The date of the crime will determine how a crime is properly defined and the available punishment for the offense. See generally Const. art. I, § 23 (prohibition upon ex post fact laws); RCW 10.01.040 (same). The date of the crime also establishes that the crime occurred within the statute of limitations. The exact date of the crime need not be proven if within the statutory limit. State v. Odell, 188 Wn. 310, 314, 62 P.2d 711 (1936); RCW 10.37.050(5).

The date of the crime may be a single day or a period of time. The period of time may extend for years. See, e.g., State v. Parker, 132 Wn.2d 182, 185,937 P.2d 575 (1997) (information alleged that defendant committed a sexual offense sometime between 1987 and 1991); State v. Cozza, 71 Wn.App. 252, 858 P.2d 270 (1993) (information alleged that defendant committed a sexual offense sometime between June 1, 1984, and March 31, 1987).

When a period of time appears in the date element, practitioners must determine whether the identified period includes the effective date of a statutory amendment that alters the punishment for the offense. In such cases, the jury should use a special verdict form to specify whether the crime occurred before or after the statutory change. Absent a jury finding as to when the crime was committed, the defendant will be entitled to be sentenced under the most lenient version of the statute. See State v. Parker, 132 Wn.2d at 191–92; State v. Gurrola, 69 Wn.App. 152, 158–59, 848 P.2d 199 (1993). A format for the special verdict form is included at WPIC 190.21 (Special Verdict Form—Date of Crime).

The period of time in the date element may extend beyond the statute of limitations when a continuing crime is charged. In such cases, the crime is not completed until the continuing criminal impulse has been terminated and the statute of limitations does not begin to run until the crime is completed. See, e.g., State v. Reeder, 181 Wn.App. 897, 924-25, 330 P.3d 786 (2014), affirmed, 184 Wn.2d 805, 365 P.3d 1243 (2015). Whether the criminal impulse continued into the statute of limitations period is a question of fact for the jury. State v. Reeder, 181 Wn.App. at 924–25. A format for the special verdict form is included at WPIC 190.22 (Special Verdict Form—Continuing Criminal Impulse).

Jurisdiction. In general, jurisdiction is not an element of crimes under Washington law. State v. Karpov, 195 Wn.2d 288, 294, 458 P.3d 1182 (2020). Jurisdiction must nonetheless be proved beyond a reasonable doubt. State v. Norman, 145 Wn.2d 578, 589, 40 P.3d 1161, cert. denied, 537 U.S. 817 (2002). The “to convict” instruction must always include an element addressing the court's jurisdiction. Jurisdiction is the power of a court to hear and determine a case. State v. Lane, 112 Wn.2d 464, 468, 771 P.2d 1150 (1989). The phrasing of the jurisdictional element depends on whether the case is in superior, district, or municipal court. See further discussion below for each level of court.

By contrast, venue is not an element of the crime. State v. Dent, 123 Wn.2d 467, 479, 869 P.2d 392 (1994). Rather, venue involves determining the proper forum before which a defendant may be tried. State v. Dent, 123 Wn.2d at 479. The prosecutor need not make any proof as to proper venue unless the defendant challenges this issue in a timely manner. State v. Dent, 123 Wn.2d at 480–81. If venue becomes an issue, the prosecutor must prove proper venue by a preponderance of the evidence, not beyond a reasonable doubt—it is sufficient if venue can be reasonably inferred from the facts and circumstances. See State v. Hickman, 135 Wn.2d 97, 105, 954 P.2d 900 (1998); State v. Dent, 123 Wn.2d at 480–81; CrR 5.1; CrRLJ 5.1.

Jurisdiction questions may involve issues of law for the judge as well as issues of fact for the jury. See State v. L.J.M., 129 Wn.2d 386, 396–97, 918 P.2d 898 (1996). The judge may rule on jurisdiction as a matter of law when there are no issues of fact for the jury to decide. State v. L.J.M., 129 Wn.2d at 396–97. Ultimately, however, even if the judge rules on jurisdiction prior to trial, the prosecution still retains the burden of proving jurisdiction at trial beyond a reasonable doubt, and the jury needs to be instructed accordingly. See State v. Lane, 112 Wn.2d at 467.

Jurisdictional element—superior court. Washington's superior courts have state-wide jurisdiction. State v. Lane, 112 Wn.2d at 468; RCW 2.08.010. For most superior court cases, then, the jurisdictional element is properly phrased in terms of the act or acts occurring “in the State of Washington.” In superior court, this element need not allege that the acts occurred within a particular county-issues as to an in-county location relate only to a superior court's venue, not its jurisdiction. State v. Hickman, 135 Wn.2d at 101–05.

The jurisdictional element may need to be modified for cases involving acts that allegedly occurred, at least in part, outside the state. Superior courts may exercise jurisdiction whenever an essential element of the offense occurred within the state. RCW 9A.04.030 (Washington's criminal long-arm statute, which confers jurisdiction over certain criminal acts that were committed partially outside the state's boundaries). If one or more of the elements in the to-convict instruction are determined not to be “essential elements,” then the instruction may need to be modified to specify which of the acts must be shown to have been committed within the state, and use of a special interrogatory may be advisable.

In-state location is usually the only jurisdictional issue that goes to the jury. State v. L.J.M., 129 Wn.2d at 392; State v. Daniels, 104 Wn.App. 271, 274, 16 P.3d 650 (2001). In some cases, however, the State may be required to prove other jurisdictional issues as well, such as issues relating to the immunity from prosecution or exclusive jurisdiction lying with a tribal or federal court. See Ferguson, 12 Washington Practice, Criminal Practice and Procedure, § 1602 (3d ed.) (listing grounds for challenging jurisdiction); State v, L.J.M., 129 Wn.2d at 392–97 (regarding jurisdiction of federal or tribal court for crimes committed on a tribal reservation); State v. Lane, 112 Wn.2d at 468–76 (regarding jurisdiction of federal court for crimes committed on a military reservation). The State acquires the burden of proving issues such as these when “the totality of the evidence before the trial court causes it to reasonably question the State's prima facie showing that jurisdiction exists simply because the site of the alleged crime is within the state of Washington.” State v. L.J.M., 129 Wn.2d at 394; State v. Daniels, 104 Wn.App. at 275. A defendant may trigger this enhanced jurisdictional duty by “point[ing] to evidence that has been produced and presented to the court, which, if true, would be sufficient to defeat state jurisdiction.” State v. L.J.M., 129 Wn.2d at 395; State v. Daniels, 104 Wn.App. at 275. If the defendant makes the necessary showing, then the jury will need to be instructed on all jurisdictional issues, either by addressing them all in the to-convict instruction, or by separately addressing the additional jurisdictional issue(s) in a special jury interrogatory. For assistance in drafting a special interrogatory on jurisdictional issues, see WPIC 190.10 (Special Verdict Form—Jurisdiction).

Jurisdictional element—district court. A district court's criminal jurisdiction extends only to misdemeanors and gross misdemeanors committed within the county. RCW 3.66.060; State v. Uhthoff, 45 Wn.App. 261, 264, 724 P.2d 1103 (1986) (“the boundaries of the county ordinarily define a district court's territorial jurisdiction in criminal matters”). Because of this geographical limitation, the jurisdictional element in district court cases should generally be phrased in terms of the act or acts occurring “in the County of [ ].” This phrasing should be used whether the case involves an alleged violation of a state statute or a county ordinance. If, on the other hand, the district court case involves an alleged violation of a municipal ordinance, which the district court is hearing pursuant to an interlocal government agreement, the element should refer to acts occurring within the city, rather than the county.

Jurisdictional element—municipal court. The criminal jurisdiction of a municipal court is restricted to acts occurring within the city limits. See RCW 3.46.030 and RCW 3.50.020 (criminal jurisdiction is created for violations of city ordinances); Farwell v. City of Seattle, 43 Wash. 141, 144–45, 86 P. 217 (1906) (“It is a general principle that a municipal corporation cannot usually exercise its powers beyond its own limits, and if in any case it has authority to do so, it must be derived from some statute which expressly or impliedly permits it.”). Because of this geographical limitation, the jurisdictional element in municipal court cases should be phrased in terms of the act or acts occurring “in the City of [ ].”

Jurisdictional element—“any of these acts.” See the Note on Use and Comment to WPIC 4.21 (Elements of the Crime—Form), for a discussion of the phrase “any of these acts” or “this act” in jurisdictional elements.

Name of victim. Though the name of the victim may be included in a pattern instruction, the name of the victim is not an essential element of fourth degree assault for charging purposes. State v. Plano, 67 Wn.App. 674, 838 P.2d 1145 (1992), citing State v. McCorkell, 63 Wn.App. 798, 822 P.2d 795 (1992) (venue not essential element). If a to-convict instruction names multiple victims, then jurors will need to be unanimous as to individual victims. See State v. Stephenson, 89 Wn.App. 217, 948 P.2d 1321 (1997).