WPIC 4.25 Jury Unanimity—Several Distinct Criminal Acts— Petrich Instruction
11 WAPRAC WPIC 4.25Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 4.25 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
December 2021 Update
Part I. General Instructions
WPIC CHAPTER 4.20. Elements of the Crime—Format
WPIC 4.25 Jury Unanimity—Several Distinct Criminal Acts—Petrich Instruction
The [State] [County] [City] alleges that the defendant committed acts of (identify crime) on multiple occasions. To convict the defendant [on any count] of (identify crime), one particular act of (identify crime) must be proved beyond a reasonable doubt, and you must unanimously agree as to which act has been proved. You need not unanimously agree that the defendant committed all the acts of (identify crime).
NOTE ON USE
Use this instruction, together with the appropriate “to convict” instruction, when the evidence indicates that several distinct criminal acts have been committed, but the defendant is charged with only one count of criminal conduct. For a detailed discussion of when this instruction is applicable, see the Comment below.
If there is evidence of multiple distinct occurrences of the crime, but the prosecution elects to rely upon a specific occurrence to support a conviction, then this Petrich instruction should not be used. Instead, use WPIC 4.26 (Jury Unanimity—Several Distinct Criminal Acts—Election to Specify a Particular Act).
If this pattern instruction applies to more than one count of the charged crime, then the to-convict instructions need to clearly distinguish the acts that the jurors may consider for each count, so that jurors will not use the same act to support two separate counts. See discussion in the Comment.
If the particular crime requires proof of a series of acts, then revise the instruction accordingly.
Petrich instruction. This instruction is based on State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984), and its progeny. In Petrich, the court held that in cases in which the evidence indicates that several distinct criminal acts have been committed, but the defendant is charged with only one count of criminal conduct, the constitutional requirement of jury unanimity is assured by either: (1) requiring the prosecution to elect the act upon which it will rely for conviction; or (2) instructing the jury that all 12 jurors must agree that the same criminal act has been proved beyond a reasonable doubt. When the prosecution chooses not to elect, a jury instruction must be given to assure the jury's understanding of the unanimity requirement. State v. Petrich, 101 Wn.2d at 572. Failure to follow one of these options is “violative of a defendant's state constitutional right to a unanimous jury verdict and United States constitutional right to a jury trial.” State v. Kitchen, 110 Wn.2d 403, 409, 756 P.2d 105 (1988). See also State v. Camarillo, 115 Wn.2d 60, 794 P.2d 850 (1990); State v. Hepton, 113 Wn.App. 673, 684, 54 P.3d 233 (2002).
The current version of the pattern instruction was approved in State v. Moultrie, 143 Wn.App. 387, 392–94, 177 P.3d 776 (2008).
Applying the Petrich instruction. The Petrich rule applies only to multiple act cases—cases in which several distinct acts are alleged, any one of which could constitute the crime charged. Petrich does not apply to “alternative means” cases or cases involving a “continuous act.” State v. Crane, 116 Wn.2d 315, 804 P.2d 10 (1991) (finding that a Petrich instruction was not required because the defendant's conduct constituted a “continuous act”); State v. Handran, 113 Wn.2d 11, 775 P.2d 453 (1989); State v. Kitchen, 110 Wn.2d at 409. When a statute sets forth a single offense that may be committed by alternative means, there must be jury unanimity as to guilt for the single crime charged. However, unanimity is not required as to the means by which the crime was committed, provided there is substantial evidence to support each of the alternative means. State v. Crane, 116 Wn.2d at 325–26; State v. Kitchen, 110 Wn.2d at 410; In re Jeffries, 110 Wn.2d 326, 752 P.2d 1338 (1988); State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976). See also WPIC 4.20 (Introduction). To determine whether criminal conduct constitutes one continuing act, “the facts must be evaluated in a commonsense manner.” State v. Petrich, 101 Wn.2d at 571. If the evidence involves conduct at different times and places, then the evidence tends to show “several distinct acts.” On the other hand, if the criminal conduct occurred in one place during a short period of time between the same aggressor and victim, then the evidence tends to show one continuing act. State v. Handran, 113 Wn.2d at 17.
In State v. Hanson, 59 Wn.App. 651, 800 P.2d 1124 (1990), the court set forth a three prong analysis for determining whether Petrich is applicable. The Hanson court stated:
To apply Petrich, three questions must be asked. First, what must be proven under the applicable statute? With most criminal statutes, this will be a single event, such as a burglary, robbery or assault. With some, though, it will be a continuing course of conduct, such as operating a prostitution enterprise. RCW 9A.88.060(1); State v. Elliott, 114 Wn.2d 6, 14, 785 P.2d 440 (1990). When the requirements of a particular statute are disputed, the rules of statutory construction will govern.Second, what does the evidence disclose? As with all proposed jury instructions, this involves looking at the evidence in the light most favorable to the proponent of the instruction. Seattle v. Cadigan, 55 Wn.App. 30, 37, 776 P.2d 727 (1989); Lundberg v. All-Pure Chemical Co., 55 Wn.App. 181, 187, 777 P.2d 15 (1989).Third, does the evidence disclose more than one violation of the statute? This requires a comparison of what the statute requires with what the evidence proves. If the evidence proves only one violation, than no Petrich instruction is required, for a general verdict will necessarily reflect unanimous agreement that the one violation occurred. On the other hand, if the evidence discloses two or more violations, then a Petrich instruction will be required, for without it some jurors might convict on the basis of one violation while others convict on the basis of a different violation. In the latter situation, the result is a lack of jury unanimity with respect to the facts necessary to support conviction, and a consequent abridgment of the right to jury trial.
State v. Hanson, 59 Wn.App. at 656–57.
Duty to elect specific acts. The court in State v. Newman, 63 Wn.App. 841, 822 P.2d 308 (1992), discussed double jeopardy and sufficiency of the evidence issues that arose from the State's failure to elect specific acts that formed the basis of each count of statutory rape. If the prosecution fails to elect which incident it is relying upon for conviction or the trial court fails to instruct that all jurors must agree that the same underlying criminal act has been proved beyond a reasonable doubt, the error will be deemed harmless only if no rational trier of fact could have a reasonable doubt as to any one of the incidents alleged. State v. Kitchen, 110 Wn.2d at 409; State v. Hepton, 113 Wn.App. at 684.
Continuous course of conduct. In a one count cocaine delivery case, providing a “small sample” at one site followed by delivering a “significantly larger amount” at a different location was held to be part of a “continuing course of conduct” that did not require a unanimity instruction. State v. Fiallo-Lopez, 78 Wn.App. 717, 899 P.2d 1294 (1995). Central to the court's analysis was what it termed the “commonsense consideration” that the two acts, though separated in time and place, were intended to bring about a single “ultimate purpose.” State v. Fiallo-Lopez, 78 Wn.App. at 726.
To the same effect is State v. Love, 80 Wn.App. 357, 908 P.2d 395 (1996), in which the defendant faced a single count of possession with intent to deliver. He was arrested with five rocks of cocaine on his person and forty more were found in his residence. The court held that a Petrich instruction was not required as the evidence established “a continuing course of conduct involving an ongoing enterprise with a single objective.” State v. Love, 80 Wn.App. at 363.
In a second degree assault prosecution, repeated assaults on a child, during a three week period, constituted a continuing course of conduct, not requiring juror unanimity on a single criminal act. State v. Craven, 69 Wn.App. 581, 849 P.2d 681 (1993).
For other continuous course of conduct cases, see also State v. Marko, 107 Wn.App. 215, 27 P.3d 228 (2001) (intimidation of witnesses during a 90-minute period); State v. Garman, 100 Wn.App. 307, 984 P.2d 453 (1999) (scheme to steal money from city); State v. Stockmyer, 83 Wn.App. 77, 920 P.2d 1201 (1996) (evidence presented of several assaultive acts occurring in small time frame); State v. Doogan, 82 Wn.App. 185, 917 P.2d 155 (1996) (profiting from prostitution); State v. Dyson, 74 Wn.App. 237, 872 P.2d 1115 (1994) (telephone harassment). But see State v. Brooks, 77 Wn.App. 516, 892 P.2d 1099 (1995) (State failed to specify which of two alleged burglaries it was relying on to convict; error not to give unanimity instruction).
Multiple counts. If the instruction is being modified for multiple counts, then the instruction needs to clearly require unanimity for one particular act for each count charged. See State v. Watkins, 136 Wn.App. 240, 148 P.3d 1112 (2006).
In State v. Holland, 77 Wn.App. 420, 891 P.2d 49 (1995), the defendant was charged with several counts, and the jury was instructed simply that it must agree that defendant had sexual contact with a minor female between certain dates, with subsequent counts “on an occasion other than the one found to support [prior counts].” The court held that it was error to give the instruction without telling the jury that it must unanimously agree as to which act or acts had been proved beyond a reasonable doubt. See also State v. Hayes, 81 Wn.App. 425, 914 P.2d 788 (1996) (sexual abuse, also multiple counts in same charging period).
In some instances, the prohibition against double jeopardy may be violated by convicting the defendant of multiple counts on the basis of a single act. When this is true, the jury should be clearly told that each count requires proof of a different act. State v. Ellis, 71 Wn.App. 400, 859 P.2d 632 (1993); State v. Borsheim, 140 Wn.App. 357, 165 P.3d 417 (2007). For example, in a multi-count case, each count can be drafted based on the following format: “That on or about (beginning date) through (ending date), the defendant had sexual contact with (victim's name), separate and distinct from those acts alleged in Counts II and III.”
[Current as of May 2019.]
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