WPIC 300.23 Aggravating Circumstance—Abuse of Trust [RCW 9.94A.535(3)(n)]

For the aggravating circumstance of an abuse of trust, use the above instruction to supplement the primary statement of this aggravating circumstance, which appears in WPIC 300.02 (Aggravating Circumstance Procedure—Factors Alleged—Unitary Trial) or WPIC 300.06 (Aggravating Circumstance Procedure—Factors Alleged—Bifurcated Trial or Stand-Alone Sentencing Proceeding).

RCW 9.94A.535(3)(n).

Derivation of statutory language. This particular aggravating circumstance was added to the Sentencing Reform Act (SRA) in 2005. Prior to 2005, the SRA's aggravating circumstance for abuse of trust had expressly applied to economic cases, and the common law had then extended the circumstance to apply to non-economic offenses as well. See, e.g., State v. Fisher, 108 Wn.2d 419, 739 P.2d 683 (1987). The 2005 act codified this broader application. See generally Laws of 2005, Chapter 68, § 1 (effective April 15, 2005) (legislative statement that the act's language was designed to codify existing common law aggravating circumstances).

The current statutory aggravating circumstance differs in one regard from the pre-existing common law. The statutory aggravating circumstance applies only if the defendant uses the position of trust to facilitate the offense; the pre-existing common law was not limited in this manner. Compare RCW 9.94A.535(3)(n) with State v. Chadderton, 119 Wn.2d 390, 398, 832 P.2d 481 (1992).

Trust relationship. A defendant abuses a position of trust to facilitate the offense when the defendant uses his or her relationship to the victim, or to the person who entrusted the victim to the defendant's care, to obtain access to the victim or the location of the crime. Compare State v. Bissell, 53 Wn.App. 499, 767 P.2d 1388 (1989) (ex-employee's use of keys that were entrusted to him in the course of employment supported an exceptional sentence for abuse of trust), with State v. Jackmon, 55 Wn.App. 562, 568–69, 778 P.2d 1079 (1989) (exceptional sentence for abuse of trust not supported where record did not establish that the ex-employee was permitted an unusual degree of access to the company because of his status). Prior to 2005, there was no requirement that a defendant be personally present during the commission of the crime, if the defendant used a position of trust to facilitate its commission by others. State v. Handley, 115 Wn.2d 275, 285, 796 P.2d 1266 (1990). The same is probably true under current law. See Comment to WPIC 300.08 (Aggravating Circumstance—Accomplice Liability).

The trust relationship necessary for this aggravating circumstance can be between the defendant and the victim or between the defendant and someone, such as a parent, who entrusts the victim's care to the defendant. See, e.g., State v. Garibay, 67 Wn.App. 773, 779, 841 P.2d 49 (1992), abrogated on other grounds, State v. Moen, 129 Wash.2d 535, 919 P.2d 69 (1996). The trust relationship does not have to be a direct personal relationship between the defendant and the victim. It is sufficient that the victim trusted an organization which assigned some of its functions to the defendant. See, e.g., State v. Harding, 62 Wn.App. 245, 248–49, 813 P.2d 1259 (1991) (employee of an apartment building committed an abuse of trust when he used his master key to enter a tenant's apartment for the purpose of rape).

Courts examine a number of factors, including the length of the relationship, the intensity of the relationship, and the victim's inclination to bestow trust, when considering whether the defendant is in a position of trust. See generally Fine, 13B Washington Practice, Criminal Law and Sentencing § 47:16 (3d ed.). When the victim is a child, a sufficient relationship of trust was established by the defendant's status as a neighbor, babysitter, parent, or other close relative. State v. Grewe, 117 Wn.2d 211, 218–21, 813 P.2d 1238 (1991) (neighbor); State v. Russell, 69 Wn.App. 237, 252, 848 P.2d 743 (1993) (victim's father); State v. Bedker, 74 Wn.App. 87, 95–96, 871 P.2d 673 (1994) (victim's half-brother); State v. Stevens, 58 Wn.App. 478, 501, 794 P.2d 38 (1990) (baby sitter); State v. Harp, 43 Wn.App. 340, 343, 717 P.2d 282 (1986) (victim's uncle). In contrast, a casual relationship alone does not suffice; the State must prove more than that. State v. Serrano, 95 Wn.App. 700, 713–14, 977 P.2d 47 (1999) (acquaintance and co-worker); State v. Stuhr, 58 Wn.App. 660, 663, 794 P.2d 1297 (1990) (house guest).

Definition of fiduciary. The SRA does not define “fiduciary.” The Legislature has defined the term in various civil contexts, but these definitions tend to be specific to those contexts and do not necessarily carry over well to a criminal jury instruction.

Practitioners may need to turn to the case law for guidance in defining “fiduciary” for a particular case. In general, case law indicates that the term encompasses not only those relationships that the law has historically treated as fiduciary in nature, but also other relationships in which one person justifiably expects his or her welfare to be cared for by another. For a discussion of this and other concepts involved in fiduciary relationships, see, e.g., Goodyear Tire & Rubber Co. v. Whiteman Tire, Inc., 86 Wn.App. 732, 741, 935 P.2d 628 (1997) (extended discussion); Van Noy v. State Farm Mut. Auto. Ins. Co., 142 Wn.2d 784, 797–98, 16 P.3d 574 (2001) (a fiduciary is “a person having a duty, created by his undertaking, to act primarily for the benefit of another in matters connected with his undertaking”); Cummings v. Guardianship Services of Seattle, 128 Wn.App. 742, 755 n.33, 110 P.3d 796 (2005) (“A fiduciary is a person with a duty to act primarily for the benefit of another.”); Richards v. Seattle Metropolitan Credit Union, 117 Wn.App. 30, 33–34, 68 P.3d 1109 (2003) (“A fiduciary is a person who, on account of his relationship with another person, is both authorized to act for the beneficiary and owes a duty of loyalty to the beneficiary.”).

Presumption of unitary trial. The statutory presumption is that this aggravating circumstance will be presented to the jury during the trial of the alleged crime. RCW 9.94A.537(4).

Cross-reference. For further discussion of this aggravating circumstance, see Fine, 13B Washington Practice, Criminal Law and Sentencing, section 47:16 (3d ed.).