WPIC 35.11 Assault—Second Degree—With Intent to Commit Felony—Elements

Fill in the name of the applicable felony or felonies.

Along with this instruction, use WPIC 10.01 (Intent—Intentionally—Definition), WPIC 35.50 (Assault—Definition), and WPIC 2.09 (Felony—Designation of), and an instruction defining the particular felony.

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.36.021(1)(e).

An assault in the second degree is a Class B felony unless the jury returns a special verdict finding that the crime was committed with sexual motivation. RCW 9A.36.021(2) (applies only to offenses occurring after 2001). For the definition of sexual motivation, see RCW 9.94A.030(48) and WPIC 2.26 (Sexual Motivation—Definition).

Assault in the second degree is not a lesser included offense of the crime of rape in the first degree. State v. Allen, 116 Wn.App. 454, 66 P.3d 653 (2003).

A defendant may be guilty of second degree assault even if the harm is accidentally inflicted upon someone other than the intended victim. A transferred intent instruction is thus appropriate when supported by the evidence. See State v. Frasquillo, 161 Wn.App. 907, 255 P.3d 813 (2011) (transferred intent instruction failed to inform jury that it applied to the “apprehension of harm” prong of assault definition but such error was harmless as it was beneficial to defendant); State v. Wilson, 113 Wn.App. 122, 52 P.3d 545 (2002); State v. Clinton, 25 Wn.App. 400, 606 P.2d 1240 (1980). In State v. Elmi, 166 Wn.2d 209, 207 P.3d 439 (2009), the court upheld multiple counts of assault in the first degree on a transferred intent theory when the defendant fired a gun into a room containing both intended and unintended victims, even though he asserted that he was not aware of the presence of the unintended victims.