WPIC 35.08 Assault—First Degree (Alternate Means)—Deadly Weapon or Great Bodily Harm—Elements
11 WAPRAC WPIC 35.08Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 35.08 (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 35.08 Assault—First Degree (Alternate Means)—Deadly Weapon or Great Bodily Harm—Elements
To convict the defendant of the crime of assault in the first degree, each of the following four elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant assaulted (name of person);
(2) That the defendant acted with intent to inflict great bodily harm;
(3) That the assault
[(a)] [was committed [with a firearm] [or] [with a deadly weapon] [or] [by a force or means likely to produce great bodily harm or death];] [or]
[(b)] [resulted in the infliction of great bodily harm;] and
(4) That this act occurred in the State of Washington.
If you find from the evidence that elements (1), (2), and (4), and either alternative element (3)(a) or (3)(b) have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. To return a verdict of guilty, the jury need not be unanimous as to which of alternatives (3)(a) or (3)(b) has been proved beyond a reasonable doubt, as long as each juror finds that either (3)(a) or (3)(b) has been proved beyond a reasonable doubt.
On the other hand, if after weighing all the evidence you have a reasonable doubt as to any one of elements (1), (2), (3), or (4), then it will be your duty to return a verdict of not guilty.
NOTE ON USE
The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (3). Care must be taken to limit the alternatives to those that were included in the charging document and are supported by sufficient evidence. For directions on when and how to draft instructions with alternative elements, 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 any case in which substantial evidence supports only one of the alternatives in element (3), revise the instruction to remove references to alternative elements, following the format set forth in WPIC 4.21 (Elements of the Crime—Form).
Along with this instruction, use WPIC 2.04 (Great Bodily Harm—Definition), WPIC 35.50 (Assault—Definition), and WPIC 10.01 (Intent—Intentionally—Definition). Also use, as applicable, WPIC 2.06 (Deadly Weapon—Definition as Element—Firearm or Explosive) and WPIC 2.06.01 (Deadly Weapon—Definition as Element—Weapons Other than Firearms and Explosives).
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)(a) and (c).
An instruction may set forth all three of the alternative means listed in element (2) of WPIC 35.02 (Assault—First Degree—Great Bodily Harm or Deadly Weapon—Elements) without requiring the jury to be unanimous as to the manner in which the first degree assault was committed. The jury need only be unanimous as to the guilt of the defendant. However, there must be substantial evidence as to each alternative that is submitted to the jury. State v. Gallo, 20 Wn.App. 717, 582 P.2d 558 (1978).
For further discussion of offenses involving alternative means, see WPIC 4.20 (Introduction) and WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form).
A special verdict form is needed for cases involving the 5-year mandatory minimum penalty under the “force or means” prong. See the Comment to WPIC 35.02 (Assault—First Degree—Great Bodily Harm or Deadly Weapon—Elements).
[Current as of March 2020.]
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