WPIC 19.07 Criminal Trespass—Second Degree—Defense

Use this instruction with WPIC 60.18 (Criminal Trespass—Second Degree—Elements), if the statutory defense is an issue supported by the evidence.

Use bracketed material as applicable.

RCW 9A.52.090(2), (3), (4).

The offense of criminal trespass in the second degree is applicable only when the defendant allegedly enters or remains unlawfully on private property not constituting a building. State v. Brittain, 38 Wn.App. 740, 689 P.2d 1095 (1984).

Statutory defenses to criminal trespass negate the unlawful presence element and are therefore not affirmative defenses. State v. R.H., 86 Wn.App. 807, 812, 939 P.2d 217 (1997). The burden, therefore, is on the prosecution to prove the absence of the defense when the defendant asserts that his or her entry was permissible. City of Bremerton v. Widell, 146 Wn.2d 561, 570, 51 P.3d 733 (2002); State v. Finley, 97 Wn.App. 129, 138, 982 P.2d 681 (1999). Once a defendant has offered some evidence that his or her entry was permissible under RCW 9A.52.090, the prosecution must prove beyond a reasonable doubt that the defendant lacked license to enter. City of Bremerton v. Widell, 146 Wn.2d at 570.

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).

There is a split of authority concerning the application of this defense to charges of burglary. In State v. J.P., 130 Wn.App. 887, 125 P.3d 215 (2005), Division III of the Court of Appeals held that abandonment is a defense to a charge of burglary since it negates the trespass element of the crime. In State v. Jensen, 149 Wn.App. 393, 203 P.3d 393 (2009), Division II of the Court of Appeals rejected this reasoning, holding that the defense was limited by its own terms to the crimes of trespass in the first and second degrees. In State v. Olson, 182 Wn.App. 362, 329 P.3d 121 (2014), Division I of the Court of Appeals agreed with Division II and rejected the application of the defense to a charge of burglary. Olson has an extended discussion of the case law relating to the defense of abandonment and its application to charges of burglary and trespass.

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).