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WPIC 35.18 Assault—Second Degree—Torture—Elements

11 WAPRAC WPIC 35.18Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 35.18 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
December 2021 Update
Washington State Supreme Court Committee on Jury Instructions
Part VI. Crimes Against Personal Security
WPIC CHAPTER 35. Assault and Reckless Endangerment
WPIC 35.18 Assault—Second Degree—Torture—Elements
To convict the defendant of the crime of assault in the second degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant knowingly inflicted bodily harm upon (name of person);
(2) That the bodily harm, by design, caused such pain or agony as to be the equivalent of that produced by torture; 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.
Use WPIC 10.02 (Knowledge—Knowingly—Definition) and WPIC 2.03 (Bodily Injury—Physical Injury—Bodily Harm—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.36.021(1)(f).
See the Comment to WPIC 35.11 (Assault—Second Degree—With Intent to Commit Felony—Elements) for a general discussion of second degree assault.
Although the terms “torture” and “by design” are not defined in RCW 9A.36.021(1)(f), the court in State v. Brown, 60 Wn.App. 60, 802 P.2d 803 (1990) (disapproved of on other grounds by State v. Grewe, 117 Wn.2d 211, 813 P.2d 1238 (1991) and disapproved of on other grounds by State v. Chadderton, 119 Wn.2d 390, 832 P.2d 481 (1992)), held that the statute is not unconstitutionally vague. The court found that the term “torture” is a term of common understanding, such that citizens have notice of what conduct is proscribed, and that the phrase “by design” is a commonly understood term meaning “intentionally.” The Court of Appeals, in Brown, also found that an instruction defining torture as “the infliction of severe or intense pain as punishment or coercion, or for sheer cruelty” did not leave the jury to speculate as to the meaning of the term torture. In State v. Madarash, 116 Wn.App. 500, 514, 66 P.3d 682 (2003), involving homicide by abuse, the court discussed with approval the definition of the word “torture” contained in Webster's Third International Dictionary (1969) as “to cause intense suffering, inflict anguish on; subject to severe pain.”
[Current as of March 2020.]
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