WPIC 2.03.01 Substantial Bodily Harm—Definition

Use this instruction when another instruction refers to substantial bodily harm. See, e.g., WPIC 35.12 (Assault—Second Degree (Alternative Means)—Inflict Substantial Bodily Harm or With Deadly Weapon—Elements), WPIC 35.13 (Assault—Second Degree—Substantial Bodily Harm—Elements), WPIC 35.17 (Assault—Second Degree—Unborn Quick Child—Elements), and WPIC 91.02 (Vehicular Assault—Elements).

Do not use this instruction to define “bodily harm,” “bodily injury,” “great bodily harm,” or “great personal injury.” These other terms have distinct statutory definitions. See WPIC 2.03 (for bodily harm and bodily injury), WPIC 2.04 (for great bodily harm), and WPIC 2.04.01 (for great personal injury).

RCW 9A.04.110.

The statute defines three levels of bodily harm: bodily injury (or harm); substantial bodily harm; and great bodily harm. RCW 9A.04.110. Substantial bodily harm involves greater injury or harm than the first term, but less injury or harm than the third. Fine, 13A Washington Practice, Criminal Law and Sentencing §§ 4:1, 4:2 (3d ed.).

Caution should be used in applying the definition of “substantial bodily harm” to similar terms such as “serious physical injury” that are otherwise undefined. In two cases, courts held that jurors should not be specifically instructed with a definition for “serious physical injury.” State v. Taitt, 93 Wn.App. 783, 970 P.2d 785 (1999); State v. Welker, 37 Wn.App. 628, 683 P.2d 1110 (1984). Because there is no statutory definition of this precise term, the courts held that jurors should be instructed only on the definition for “physical injury,” leaving jurors to use their common sense in determining whether a physical injury is serious. State v. Taitt, 93 Wn.App. at 791–92; State v. Welker, 37 Wn.App. at 638 n.2. In contrast, in a case that involved sufficiency of the evidence in a competency proceeding and not involving jury instruction, the court found no error in using “substantial bodily harm” to define “serious bodily harm,” finding “no meaningful difference” between the two terms. Born v. Thompson, 117 Wn.App. 57, 73, 69 P.3d 343 (2003), reversed on other grounds, 154 Wn.2d 749, 117 P.3d 1098 (2005).

“Substantial bodily harm” does not include mental illnesses, such as post-traumatic stress syndrome. State v. Van Woerden, 93 Wn.App. 110, 967 P.2d 14 (1998).

The instruction's definition uses the word “disfigurement.” The jury may be further instructed on the meaning of “disfigurement” using the definition from Black's Law Dictionary. State v. Atkinson, 113 Wn.App. 661, 667–68, 54 P.3d 702 (2002).

The statutory word “temporary” constitutes a minimum threshold and does not exclude permanent conditions. State v. Brown, 145 Wn.App. 62, 76–77, 184 P.3d 1284 (2008) (also holding that a permanent scar from a facial injury met the statutory definition of “substantial bodily harm”).