WPIC 35.19 Assault—Second Degree—With a Deadly Weapon—Elements
11 WAPRAC WPIC 35.19Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 35.19 (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 35.19 Assault—Second Degree—With a Deadly Weapon—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 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 each of these elements have 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 of these elements, then it will be your duty to return a verdict of not guilty.
NOTE ON USE
Along with this instruction, use 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), and WPIC 35.50 (Assault—Definition).
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.36.021(1)(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.
Second degree assault on the basis of assault with a deadly weapon requires a determination that the weapon was in fact a deadly weapon and did not merely appear to be so to the victim. State v. Carlson, 65 Wn.App. 153, 828 P.2d 30 (1992) (insufficient evidence that BB gun was a deadly weapon, and juvenile therefore guilty only of fourth degree assault). See also State v. Shilling, 77 Wn.App. 166, 889 P.2d 948 (1995) (drinking glass was deadly weapon under circumstances in which it was used), as well as the Comment to WPIC 2.06 (Deadly Weapon—Definition as Element—Firearm or Explosive).
“Assault with a deadly weapon” is not concurrent with the unlawful display of a weapon statute, RCW 9.41.270(1). State v. Karp, 69 Wn.App. 369, 848 P.2d 1304 (1993). “General menacing behavior may violate the unlawful display statute; but unless the menacing behavior is directed at some individual, such behavior would not constitute an assault.” State v. Karp, 69 Wn.App. at 375.
Lesser Included Offense. Aiming or discharging a firearm is not a lesser included offense to second degree assault. State v. Karp, 69 Wn.App. 369, 848 P.2d 1304 (1993). Moreover, a defendant may be convicted of second degree assault with a deadly weapon by pointing a gun in a menacing or threatening manner, even though the gun may actually be unloaded. See State v. Hupe, 50 Wn.App. 277, 748 P.2d 263 (1988), disapproved of on other grounds by State v. Smith, 159 Wn.2d 778, 154 P.3d 873 (2007); RCW 9A.04.110(6) (definition of deadly weapon).
For discussion of what constitutes an “assault,” see the Comment to WPIC 35.50 (Assault—Definition).
[Current as of March 2020.]
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