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WPIC 19.05 Reckless Burning—Defense

11 WAPRAC WPIC 19.05Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 19.05 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part IV. Defenses
WPIC CHAPTER 19. Special Statutory Defenses
WPIC 19.05 Reckless Burning—Defense
It is a defense to a charge of reckless burning in the [first] [second] degree that:
(1) no person other than the defendant had a possessory or pecuniary interest in the damaged or endangered property, [or if other persons had such an interest, all of them consented to defendant's conduct,] and
(2) the defendant's sole intent was to destroy or damage the property for a lawful purpose.
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].
Use this instruction with WPIC 83.02 (Reckless Burning—First Degree—Elements), or WPIC 83.06 (Reckless Burning—Second Degree—Elements), if the statutory defense is in issue. Use bracketed material as applicable. Lawful purpose may have to be defined depending upon the facts of the particular case.
RCW 9A.48.060.
The issue whether a mortgage constitutes “a possessory or pecuniary interest” in the damaged property for purposes of this defense has not been addressed by the courts. But see State v. Wooten, 178 Wn.2d 890, 312 P.3d 41 (2013) (defendant in a malicious mischief prosecution was not an exclusive owner of property he was purchasing under an executory real estate contract).
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 615–616.
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.]
End of Document