WPIC 35.02 Assault—First Degree—Great Bodily Harm or Deadly Weapon—Elements

Use bracketed material as applicable. For directions on the various ways to use the bracketed phrases relating to how the crime is committed, see WPIC 4.20 (Introduction) and the Note on Use and Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form).

Use WPIC 35.50 (Assault Definition), WPIC 2.04 (Great Bodily Harm—Definition), and WPIC 10.01 (Intent—Intentionally—Definition) with this instruction.

For a discussion of the phrase “this act” in the jurisdictional element, see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.36.011(1)(a).

Alternative means. An instruction may set forth all three of the alternative means listed in element (2) of WPIC 35.02 without requiring the jury to be unanimous as to the manner in which the first degree assault was committed, as long as substantial evidence in support of each alternative was introduced at trial. The jury need only be unanimous as to the guilt of the defendant. State v. Gallo, 20 Wn.App. 717, 582 P.2d 558 (1978) (interpreting prior version of first degree assault statute).

Great bodily harm. Great bodily harm is defined in RCW 9A.04.110(4)(c). This definition is found in WPIC 2.04 (Great Bodily Harm—Definition).

Transferred intent. Once the mens rea of intent to inflict great bodily harm is established, it is transferred to any unintended victim. See WPIC 10.01.01 (Transferred Intent). Under RCW 9A.36.011, “[a]ssault in the first degree requires a specific intent; but it does not, under all circumstances, require that the specific intent match the specific victim.” In State v. Wilson, 125 Wn.2d 212, 218, 883 P.2d 320 (1994), the defendant committed first degree assault against unintended victims when he discharged a firearm into a tavern, intending to assault a tavern employee and patron but striking a different employee and patron instead. See also State v. Elmi, 166 Wn.2d 209, 207 P.3d 439 (2009) (defendant's intent to assault his estranged wife transferred to three child victims in the same room even though they were not injured and defendant claimed he was unaware of their presence). See also the Comment to WPIC 35.04 (Assault—First Degree—Great Bodily Harm—Elements).

Mandatory minimum. The Legislature provides for the imposition of a mandatory minimum term of total confinement of five years for individuals who are convicted of the crime of assault in the first degree when “the offender used force or means likely to result in death or intended to kill the victim.” RCW 9.94A.540(1)(b). If the State intends to seek imposition of the mandatory minimum term, it will be necessary to submit jury interrogatories concerning the relevant statutory factors. See State v. Dyson, 189 Wn.App. 215, 360 P.3d 25 (2015) (citing Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)). For a discussion of related issues, see the Comment to WPIC 92.03 (Special Verdict Form—Driving or Being in Physical Control While Under the Influence—Sentencing).