WPIC 35.06 Assault—First Degree—Poison—H.I.V.—Elements
11 WAPRAC WPIC 35.06Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 35.06 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part VI. Crimes Against Personal Security
WPIC CHAPTER 35. Assault and Reckless Endangerment
WPIC 35.06 Assault—First Degree—Poison—H.I.V.—Elements
To convict the defendant of the crime of assault in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant [[administered] [or] [exposed] [or] transmitted] to] [or] [caused to be taken by] (name of person) [a poison] [the human immunodeficiency virus] [or] [other destructive or noxious substance];
(2) That the defendant acted with the intent to inflict great bodily harm; and
(3) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if after weighing all the evidence you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
NOTE ON USE
Use WPIC 2.04 (Great Bodily Harm—Definition) and WPIC 10.01 (Intent—Intentionally—Definition) with this instruction.
Use bracketed material as applicable. For directions on the various ways to use the bracketed phrases, 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).
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).
COMMENT
RCW 9A.36.011(1)(b).
In light of State v. Wilson, 125 Wn.2d 212, 883 P.2d 320 (1994), discussing transferred intent, the instruction does not include the phrase “upon such person.” See the Comment to WPIC 35.04 (Assault—First Degree—Great Bodily Harm—Elements).
In State v. Whitfield, 132 Wn.App. 878, 134 P.3d 1203 (2006), the statute's HIV prong passed constitutional muster under equal protection and the privileges and immunities clause.
“Exposure” occurs with “any sexual activity that involves vaginal, oral, or anal exchange of bodily fluids as occurs during unprotected sex.” State v. Whitfield, 132 Wn.App. at 896. See also State v. Stark, 66 Wn.App. 423, 435, 832 P.2d 109 (1992) (“expose” in this context is not unconstitutionally vague: “Any reasonably intelligent person would understand from reading the statute that the term refers to engaging in conduct that can cause another person to become infected with the virus.”).
Given the nature of this offense, it may be difficult to precisely identify when the defendant transmitted or exposed the human immunodeficiency virus. The opinion in State v. Pitts, 62 Wn.2d 294, 382 P.2d 508 (1963), approves the rule that the State need not fix a precise time for the commission of an alleged crime, when it cannot intelligently do so. In applying this rule the court stated that “each case of necessity must rest on its own bottom.”
[Current as of March 2020.]
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