WPIC 19.02 Kidnapping—Second Degree—Defense
11 WAPRAC WPIC 19.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 19.02 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part IV. Defenses
WPIC CHAPTER 19. Special Statutory Defenses
WPIC 19.02 Kidnapping—Second Degree—Defense
It is a defense to a charge of kidnapping in the second degree that:
(1) the abduction did not include the use of or intent to use or the threat to use deadly force;
(2) the defendant was a relative of the person abducted; and
(3) the defendant's sole intent was to assume custody of that person.
For the purposes of this defense, a relative is an ancestor, descendant, or brother or sister, including a relative of the same degree through marriage, registered domestic partnership, or adoption, a husband or wife, or a registered domestic partner.
The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find that the defendant has established this defense, it will be your duty to return a verdict of not guilty [as to this charge].
NOTE ON USE
Use this instruction with WPIC 39.11 (Kidnapping—Second Degree—Elements), if the statutory defense is in issue.
If a case involves a registered domestic partnership, and if it becomes necessary to define the term for jurors, an instruction can be drafted using language from RCW Chapter 26.60.
COMMENT
RCW 9A.40.030(2); RCW 9A.40.010(5).
RCW 9A.40.030(2) provides that in any prosecution for kidnapping in the second degree, it is a defense if the elements listed for the defense are established by the defendant by a preponderance of the evidence. The statute is cited in State v. Acosta, 101 Wn.2d 612, 683 P.2d 1069 (1984), and State v. McCullum, 98 Wn.2d 484, 656 P.2d 1064 (1983), as an example of the Legislature “clearly” providing “that a defendant must prove certain defenses by a preponderance of the evidence.” State v. Acosta, 101 Wn.2d at 615–16.
For a general discussion of whether the burden of proving a defense can be shifted to the defendant, see WPIC 14.00 (Defenses—Introduction).
A defendant is entitled to this instruction if any evidence presented at trial supports the defense, regardless of the party that presented it. A defendant is not, however, entitled to this instruction solely based upon an absence of evidence. State v. Fisher, 185 Wn.2d 836, 851–52, 374 P.2d 1185 (2016) (jury should be instructed on the defense even if the evidence in support is weak, inconsistent, or of doubtful credibility).
Caution. Under no circumstances should this instruction be given unless requested, or expressly agreed to, by the defense. A defendant's constitutional right to control his or her defense prohibits the giving of instructions concerning defenses over the defendant's objections. State v. Lynch, 178 Wn.2d 487, 309 P.3d 482 (2013).
[Current as of February 2019.]
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