Home Table of Contents

WPIC 35.25.02 Assault—Fourth Degree—Felony—Crime Committed After March 18, 2020—Definition

11 WAPRAC WPIC 35.25.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 35.25.02 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part VI. Crimes Against Personal Security
WPIC CHAPTER 35. Assault and Reckless Endangerment
WPIC 35.25.02 Assault—Fourth Degree—Felony—Crime Committed After March 18, 2020—Definition
A person commits the crime of [felony] assault in the fourth degree when he or she commits an assault and
(1) Has two or more prior adult convictions within ten years for [a repetitive domestic violence offense [(insert defined offense from RCW 9.94A.030) ]] [or] [harassment [as defined by RCW 9A.46.060]] [or] [assault in the third degree] [or] [assault in the second degree] [or] [assault in the first degree] [or] [[a [municipal] [tribal] [federal]] [or] [an out-of-state] offense comparable to (insert name of crime)];
(2) The prior conviction [was [pled and] proven] after July 23, 2017; and
(3) The prior conviction was committed between family or household members.
NOTE ON USE
Use this instruction only for felony assault in the fourth degree charged under RCW 9A.36.041(3) for offenses committed after March 18, 2020. Do not use this instruction for gross misdemeanor assault in the fourth degree charged under RCW 9A.36.041(1)(2), nor for felony assault in the fourt degree committed before March 18, 2020. For the gross misdemeanor use WPIC 35.25 (Assault—Fourth Degree—Gross Misdemeanor—Definition) instead. For felony assault in the fourth degree committed before March 18, 2020 use WPIC 35.25.01 (Assault—Fourth Degree—Felony—Crime Committed After July 23, 2017 and Before March 18, 2020—Definition).
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 35.26.02 (Assault—Fourth Degree—Felony—Crime Committed After March 18, 2020—Elements) and WPIC 35.50 (Assault—Definition).
Use WPIC 2.27 (Family or Household Member and Intimate Partner—Definitions) with this instruction. Do not use 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) with this charge occurring after March 18, 2020. See Comment below.
COMMENT
RCW 9A.36.041(3). This is a new instruction for this edition taking into account legislative changes in 2020. See Laws of 2020, Chapter 29, § 7.
The Legislature first created the crime of felony assault in the fourth degree under RCW 9A.36.041(3) in 2017. Laws of 2017, Chapter 272, § 1. This felony crime had a different definition of family or household members than other offenses in this chapter, and was quickly amended in 2020. This instruction reflects the 2020 amended definition of domestic violence aligned with the definition used in other crimes alleging domestic violence. Care must be taken to use the correct statutory definition of domestic violence for this offense based on the offense date. See additional Comment at WPIC 35.25.01 (Assault—Fourth Degree—Felony—Crime Committed After July 23, 2017 and Before March 18, 2020—Definition).
For felony assault in the fourth degree occurring after March 18, 2020, use WPIC 2.27 (Family or Household Member and Intimate Partner—Definitions).
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. 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, before amendment in 2020, for purposes of felony assault in the fourth degree created by RCW 9A.36.041(3) only, the Legislature provided:
For purposes of subsection (3) of this section, family or household members means spouses, domestic partners, former spouses, former domestic partners, persons who have a child in common regardless of whether they have been married or have lived together at any time, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, and persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship.
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, is the same language that is used to define “intimate partner” for other purposes. RCW 10.99.020 and RCW 26.50.010. Therefore, care must be taken by practitioners to use the correct definition for the crime of assault in the fourth degree charged as a felony under RCW 9A.36.041(3). See discussion above.
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.”
[Current as of June 2020.]
End of Document