WPIC 35.25.01 Assault—Fourth Degree—Felony—Crime Committed After July 23, 2017 and Before March...

Use this instruction only for felony assault in the fourth degree charged under RCW 9A.36.041(3) for offenses committed after July 23, 2017, and before March 18, 2020. For felony assault in the fourth degree committed after March 18, 2020, use WPIC 35.25.02 (Assault—Fourth Degree—Felony—Crime Committed After March 18, 2020—Definition). Do not use this instruction for gross misdemeanor assault in the fourth degree charged under RCW 9A.36.041(1)(2). For the gross misdemeanor use WPIC 35.25 (Assault—Fourth Degree—Gross Misdemeanor—Definition) instead.

Use this instruction if it will help the jury understand the charged offense or if it is necessary to define this particular offense for the jury. See the Comment to WPIC 4.24 (Definition of the Crime—Form).

Also use WPIC 35.26.01 (Assault—Fourth Degree—Felony—Crime Committed After July 23, 2017 and Before March 18, 2020—Elements) and WPIC 35.50 (Assault—Definition).

Use WPIC 35.25.03 (Assault—Fourth Degree—Felony—Family or Household Family or Household Member, Domestic Violence—Crime Committed After July 23, 2017 and Before March 18, 2020—Definition) with this instruction. Do not use WPIC 2.27 (Family or Household Member and Intimate Partner—Definitions). See Comment below.

RCW 9A.36.041(3). This is a new instruction for this edition.

The Legislature created a new crime of felony assault in the fourth degree under RCW 9A.36.041(3), effective July 23, 2017. Laws of 2017, Chapter 272, § 1. Until later amended, this felony crime had a different definition of family or household members than other offenses in this chapter. Use WPIC 35.25.03 (Assault—Fourth Degree—Felony—Family or Household Member, Domestic Violence—Definition). Do not use WPIC 2.27 (Family or Household Member and Intimate Partner—Definitions) for felony assault in the fourth degree with an occurrence date after July 23, 2017, and before March 18, 2020.

Thereafter, the Legislature amended RCW 9A.36.041(3) with changes effective March 18, 2020. Laws of 2020, Chapter 29, § 7. The subsequent statutory changes include a different definition of domestic violence. Caution must be used to be certain to use the statutorily correct definition of domestic violence for this offense. See discussion below.

Plead and prove underlying offenses. RCW 9A.36.041(3) provides that the underlying adult convictions must have been pled or proven domestic violence as defined in RCW 9.94A.030.

Definition of domestic violence. RCW 9.94A.030 states that domestic violence has the same meaning as defined in RCW 10.99.020 and RCW 26.50.010. RCW 10.99.020 and RCW 26.50.010 define a domestic violence offense as one committed against both either a “family or household member” or an “intimate partner.” However, for purposes of felony assault in the fourth degree as created by the 2017 legislation, RCW 9A.36.041(3) only, the Legislature specifically provided:

Although not used with this crime, it must be noted that the language as in RCW 9A.36.040(4), defining “family or household members” for purposes of this crime only before the 2020 statutory amendment, is the same language that is used to define “intimate partner” for other purposes. RCW 10.99.020 and RCW 26.50.010. Care must be taken by practitioners in using the correct definition for the crime of assault in the fourth degree charged as a felony under RCW 9A.36.041(3).

WPIC 35.25.03 (Assault—Fourth Degree—Felony—Family or Household Member, Domestic Violence—Crime Committed After July 23, 2017 and Before March 18, 2020—Definition) establishes the definition of domestic violence to be used for a charge of felony assault in the fourth degree occurring between the stated dates. Only for a felony assault in the fourth degree offense occurring after March 18, 2020, WPIC 2.27 (Family or Household Member and Intimate Partner—Definitions) should be used.

The word felony should not be included if the jury is not also being instructed on the gross misdemeanor form of the crime, WPIC 36.50 (Violation of a Court Order (RCW 26.50.110)—Gross Misdemeanor—Definition). Juries are routinely instructed that they should not consider potential punishment during their deliberations. See e.g., WPIC 1.02 (Conclusion of Trial—Introductory Instruction). Referring to the crime as a “felony” to some extent is inconsistent with this mandate. Other suggestions include referring to the crime as “aggravated” or “serious.”