WPIC 35.26.02 Assault—Fourth Degree—Felony—Crime Committed After March 18, 2020—Elements
11 WAPRAC WPIC 35.26.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 35.26.02 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part VI. Crimes Against Personal Security
WPIC CHAPTER 35. Assault and Reckless Endangerment
WPIC 35.26.02 Assault—Fourth Degree—Felony—Crime Committed After March 18, 2020—Elements
To convict the defendant of the felony crime of assault in the fourth degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant assaulted (name of person);
(2) That within ten years prior to the assault, the defendant was found guilty two or more times of [any of] the following[:] [repetitive domestic violence offense [(insert defined offense from RCW 9.94A.030)]] [harassment [as defined by RCW 9A.46.060]] [assault in the first degree] [assault in the second degree] [or] [assault in the third degree] [or] [[a [municipal] [tribal] [federal]] [or] [an out-of-state] offense comparable to (insert name of crime)];
(3) That at least two of the [proven] prior offenses occurred after July 23, 2017;
(4) That at least two of the [proven] prior offenses were committed between family or household members; and
(5) That the 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
Use this instruction only for felony assault in the fourth degree charged under RCW 9A.36.041(3) committed after March 18, 2020. Do not use this instruction for the gross misdemeanor offense of assault in the fourth degree charged under RCW 9A.36.041(1)–(2) or for felony assault in the fourth degree committed before March 18, 2020.
Use with WPIC 2.27 (Family or Household Member and Intimate Partner—Definitions). Do not use with 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). See Comment below.
Use this instruction with WPIC 35.50 (Assault—Definition). If a gross misdemeanor fourth degree assault is submitted as a lesser included crime, care must be taken to incorporate the correct definitions of family or household members for each offense. See Comment to WPIC 35.25.01 (Assault—Fourth Degree—Felony—Crime Committed After July 23, 2017 and Before March 18, 2020—Definition).
Use bracketed language as appropriate. Use only bracketed material supported by substantial evidence produced at trial. See WPIC 4.20 (Introduction). For a discussion of the phrase “this act” in element (2), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).
COMMENT
RCW 9A.36.041(3) as amended in 2020. Laws of 2020, Chapter 29, § 7. This is a new instruction for this edition. This instruction should only be used only for a charge of felony assault in the fourth degree under RCW 9A.36.041(3) committed after March 18, 2020. See Comment to WPIC 35.25.02 (Assault—Fourth Degree—Felony-Crime Committed After March 18, 2020—Definition).
For a gross misdemeanor offense of assault in the fourth degree charged under RCW 9A.041(1)–(2), use WPIC 35.26 (Assault—Fourth Degree—Gross Misdemeanor—Elements). For felony assault in the fourth degree committed after July 23, 2017 and before March 18, 2020, use WPIC 35.26.01 (Assault—Fourth Degree—Felony—Crime Committed After July 23, 2017 and Before March 18, 2020—Elements).
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.”
Though it is included in the 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).
See the Comment to WPIC 35.50 (Assault—Definition) for additional discussion of issues related to assault.
[Current as of June 2020.]
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