WPIC 35.12 Assault—Second Degree (Alternate Means)—Inflict Substantial Bodily Harm or With Dead...
11 WAPRAC WPIC 35.12Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 35.12 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
December 2021 Update
Part VI. Crimes Against Personal Security
WPIC CHAPTER 35. Assault and Reckless Endangerment
WPIC 35.12 Assault—Second Degree (Alternate Means)—Inflict Substantial Bodily Harm or With Deadly Weapon—Elements
To convict the defendant of the crime of assault in the second degree, each of the following two elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant:
[(a)] [intentionally assaulted (name of person) and thereby recklessly inflicted substantial bodily harm;] [or]
[(b)] [assaulted (name of person) with a deadly weapon;] and
(2) That this act occurred in the State of Washington.
If you find from the evidence that element (2) and either alternative element (1)(a) or (1)(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 (1)(a) or (1)(b) has been proved beyond a reasonable doubt, as long as each juror finds that either (1)(a) or (1)(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 either element (1) or (2), 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 (1). 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 the related special verdict form, see WPIC 190.09 (Special Verdict Form—Elements with Alternatives). For any case in which substantial evidence supports only one of the alternatives in element (1), 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 10.01 (Intent—Intentionally—Definition), WPIC 10.03 (Recklessness—Definition), WPIC 2.03.01 (Substantial Bodily Harm—Defined), WPIC 35.50 (Assault—Definition), and WPIC 2.06 (Deadly Weapon—Definition as Element—Firearm or Explosive) or 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).
RCW 9A.36.021(1)(a) and (c).
See the Comment to WPIC 35.11 (Assault—Second Degree—With Intent to Commit Felony—Elements) for a general discussion of second degree assault.
For discussion of offenses involving alternative means, 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 importance of tailoring the definition of recklessness to the terms of the charged crime, see the Comment to WPIC 10.03. The Washington Supreme Court, in State v. Johnson, 180 Wn.2d 295, 325 P.3d 135 (2014), concluded that so long as all elements are included in the “to convict,” a specially-tailored definition of recklessness is not required. Because this area of the law is in flux, careful consideration of use of a tailored definition of recklessness should be given.
[Current as of March 2020.]
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