WPIC 4.23 Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single ...

Use when alternative elements represent alternative means for committing a single offense rather than elements of separate and distinct alternative offenses. See the related discussion in 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. See WPIC 4.20 (Introduction) and the Comment to WPIC 4.21(Elements of the Crime—Form).

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).

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).

Unanimity. Jurors need not be unanimous as to alternative means, as long as sufficient evidence supports each of the means relied on by one or more jurors. See, e.g., State v. Fortune, 128 Wn.2d 464, 909 P.2d 930 (1996); State v. Klimes, 117 Wn.App. 758, 73 P.3d 416 (2003), disapproved of on other grounds by State v. Allen, 127 Wn.App. 125, 110 P.3d 849 (2005). The opinion in State v. Sandholm, 184 Wn.2d 726, 364 P.3d 87 (2015), contains a thorough discussion of the analytical approach to be used in determining whether a statute contains alternative means, such that sufficient evidence is required for each means, or whether the conduct described in the various portions of a statute are so closely related as to not trigger the sufficient evidence requirement.

Use of caution. Judges should use care when instructing jurors about alternative means. In light of the foregoing discussion, judges must make sure that the instruction lists only those alternative elements that are supported by sufficient evidence—it is easy to mistakenly use a pattern instruction that covers more situations than those involved in the particular case. Moreover, the judge should include only those alternative means that are set forth in the charging document, and should review the statute defining the charged crime to make sure that it sets forth alternative elements of a single crime rather than setting forth separate crimes. For further discussion, see WPIC 4.20 (Introduction).

Jurisdictional element. For a discussion of the phrase “any of these acts” in the jurisdictional element, see the Comment to WPIC 4.21 (Elements of the Crime—Form).