WPIC 19.05 Reckless Burning—Defense

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).