WPIC 4.21 Elements of the Crime—Form

The above framework for the elements instruction, sometimes referred to as the “to convict” instruction, is to be used for the usual criminal case, when none of the elements have alternative components. If, instead, one or more elements are phrased as alternatives, then the elements instruction should be drafted using either WPIC 4.22 (when the alternative elements relate to distinct criminal offenses) or WPIC 4.23 (when the alternative elements are alternative means for committing a single offense).

All elements, including both statutory elements and any judicially-created elements, must be included that are necessary to establish a basis for conviction of the substantive offense.

In the instruction's final element, choose from among the bracketed phrases depending on whether the case is in superior, municipal, or district court. See WPIC 4.20 (Introduction).

In some cases, the final element's phrase “any of these acts” may need to be modified. If this geographical element appears in an instruction with only one other element or with a single act, then “any of these acts” may need to be changed to “this act.” Also, if the judge has determined that some of the elements in the to-convict instruction are not “essential elements,” then “any of these acts” will need to be replaced with more specific language, and a special interrogatory may be advisable. Finally, the phrasing of the jurisdictional element may need further consideration if one of the elements relates solely to mens rea. See WPIC 4.20 (Introduction) and the Comment below.

If the facts on which jurisdiction is based are in dispute, a special verdict form may need to be submitted to the jury. See WPIC 4.20 (Introduction), and WPIC 190.10 (Special Verdict Form—Jurisdiction).

Jurisdictional element. The law does not require that all of the defendant's acts occur within the court's territorial jurisdiction, only that an essential element—an act essential to the crime—occurred there. See State v. Lane, 112 Wn.2d 464, 471, 771 P.2d 1150 (1989). Thus, the commission in Washington of an act constituting an element of the crime suffices to establish jurisdiction. Because the jurisdictional element is the last listed element of a crime, “these acts” refers to the acts constituting the elements.

In unusual cases, the phrasing of the jurisdictional element will bear further consideration. For example, Washington law is not clear as to whether the existence of a mental state in the court's geographical area is sufficient, by itself, to confer superior court jurisdiction. In Lane, the Supreme Court expressly declined to reach this particular issue, holding instead that forming an intent, coupled with an act toward carrying out that intent, within the state was clearly sufficient for superior court jurisdiction. State v. Lane, 112 Wn.2d at 475. Accordingly, for any case in which jurisdiction is being predicated on a mental state that was formed within the court's geographical area, practitioners should carefully consider the phrasing of the geographical element and might be advised to address this issue with a special interrogatory. See WPIC 190.10 (Special Verdict Form—Jurisdiction). As another example, Washington's long arm statute sets forth limited circumstances under which acts committed entirely outside of the state may still subject the actor to jurisdiction here. See RCW 9A.04.030(3) through (7). Again, in any such case practitioners should carefully consider how the instructions address jurisdiction issues.

Duty to convict if no reasonable doubt. The instruction imposes a “duty to return a verdict of guilty” if the elements have been proved beyond a reasonable doubt. This language has been upheld against jury nullification challenges, based on the state constitutional provision stating that judges, not juries, declare the law. See Const. art. IV, § 16; State v. Meggyesy, 90 Wn.App. 693, 697–706, 958 P.3d 319 (1998), abrogated on other grounds as recognized in State v. Recuenco, 154 Wn.2d 156, 110 P.3d 188 (2005); State v. Bonisisio, 92 Wn.App. 783, 793–94, 964 P.2d 1222 (1998). For further discussion of jury nullification issues, see WPIC 1.01 (Advance Oral Instruction—Beginning of Proceedings).

For a general discussion of issues relating to elements instructions, see WPIC 4.20 (Introduction). For a discussion of issues relating to alternative elements, see the Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form).