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WPIC 133.02.09 Unlawful Possession of a Firearm—Second Degree—Dismissal of Charges Based on Inc...

11A WAPRAC WPIC 133.02.09Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 133.02.09 (5th Ed)

Washington Practice Series TM

Washington Pattern Jury Instructions--Criminal

January 2024 Update

Washington State Supreme Court Committee on Jury Instructions

Part XIII. Miscellaneous Crimes

WPIC CHAPTER 133. Weapon Offenses

WPIC 133.02.09 Unlawful Possession of a Firearm—Second Degree—Dismissal of Charges Based on Incompetency

To convict the defendant of the crime of unlawfully possessing a firearm in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about (date), the defendant [knowingly owned a firearm] [or] [knowingly had a firearm in [his] [her] possession or under [his] [her] control];

(2) That as of that date, nonfelony criminal charges against the defendant had been dismissed based on the defendant's incompetency to stand trial and the court dismissing the charges had made a finding that the defendant had a history of one or more violent acts[, unless [his] [her] rights have been restored]; and

(3) That the defendant's [ownership] [or] [possession or control] of the firearm 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 bracketed material as applicable. With this instruction, use WPIC 2.10 (Firearm—Definition as Element), WPIC 10.02 (Knowledge—Knowingly—Definition), and WPIC 133.52 (Possession—Weapon—Definition).

COMMENT

RCW 9.41.040(2)(a)(v).

This instruction is new for this edition. Effective July 28, 2019, the Legislature added a new means of committing unlawful possession of a firearm in the second degree. Laws of 2019, Chapter 248, § 2 (effective July 28, 2019). The statute prohibits a person from owning, possessing, or controlling a firearm “[a]fter dismissal of criminal charges based on incompetency to stand trial under RCW 10.77.088 when the court has made a finding indicating that the defendant has a history of one or more violent acts, unless his or her right to possess a firearm has been restored as provided in RCW 9.41.047.” RCW 10.77.088 addresses incompetency to stand trial for nonfelony charges.

A court dismissing a charge due to incompetency must make a finding as to whether the defendant has a history of one or more violent acts. If the court so finds, the defendant is barred from the possession of firearms until a court restores his or her right to possess a firearm under RCW 9.41.047. RCW 10.77.088(4).

The WPI Committee is of the view that the restoration of a defendant's rights is an affirmative defense. If facts are presented that raise this defense, separate instructions should be drafted. See WPIC 14.00 (Defenses—Introduction).

[Current as of April 2020.]

End of Document