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WPIC 35.26 Assault—Fourth Degree—Gross Misdemeanor—Elements

11 WAPRAC WPIC 35.26Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 35.26 (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 35.26 Assault—Fourth Degree—Gross Misdemeanor—Elements
To convict the defendant of the [gross misdemeanor] crime of assault in the fourth 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), and
(2) That this act occurred in the [State of Washington] [City of ] [County of ].
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.
NOTE ON USE
Use this instruction only for the crime of gross misdemeanor assault in the fourth degree charged under RCW 9A.36.041(1)(2).
Depending on the date of the offense, for a charge of felony assault in the fourth degree charged under RCW 9A.36.041(3), use WPIC 35.25.01 (Assault—Fourth Degree—Felony—Crime Committed After July 23, 2017 and Before March 18, 2020—Definition) or WPIC 35.25.02 (Assault—Fourth Degree—Felony—Crime Committed After March 18, 2020—Definition) instead. See Comment to WPIC 35.25.01 (Assault—Fourth Degree—Felony—Crime Committed After July 23, 2017 and Before March 18, 2020—Definition).
Use this instruction with WPIC 35.50 (Assault—Definition). If fourth degree assault is submitted as a lesser included crime to a charge of assault in the first, second, or third degree or to a custodial assault, WPIC 35.25 (Assault—Fourth Degree—Gross Misdemeanor—Definition) may also be used. For any case in which fourth degree assault is a lesser included offense to the charged crime, use WPIC 4.11 (Lesser Included Crime or Lesser Degree).
In element (2) choose from among the bracketed phrases depending on whether the case is in superior, municipal, or district court. See WPIC 4.20 (Introduction). For a discussion of the phrase “this act” in element (2), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).
COMMENT
RCW 9A.36.041. This instruction should only be used for the gross misdemeanor offense of assault in the fourth degree charged under RCW 9A.041(1)(2). An earlier version of this instruction is cited with approval in State v. Dukowitz, 62 Wn.App. 418, 814 P.2d 234 (1991).
Depending on the date of the offense, for a charge of felony assault in the fourth degree under RCW 9A.36.041(3), WPIC 35.26.01 (Assault—Fourth Degree—Felony—Crime Committed After July 23, 2017 and Before March 18, 2020—Elements) or WPIC 35.26.02 (Assault—Fourth Degree—Felony—Crime Committed After March 18, 2020—Elements) should be used. See Comment to WPIC 35.25.01 (Assault—Fourth Degree—Felony—Crime Committed After July 23, 2017 and Before March 18, 2020—Definition).
The words “Gross Misdemeanor” should not be included if the jury is not also being instructed on the felony form of the crime, WPIC 36.50 (Violation of a Court Order (RCW 26.50.110)—Gross Misdemeanor—Definition). Juries are routinely instructed that they should not consider potential punishment during their deliberations. See, e.g., WPIC 1.02 (Conclusion of Trial—Introductory Instruction). Referring to the crime as a “Gross Misdemeanor” to some extent is inconsistent with this mandate.
Lesser Included Offense. Gross misdemeanor fourth degree assault is frequently requested as a lesser included offense. It is not a lesser included offense of attempted first degree rape, because the “substantial step” required to prove the attempt need not be an actual assault. State v. Aumick, 126 Wn.2d 422, 894 P.2d 1325 (1995). Nor is it a lesser included offense of second degree rape; intent is a court-implied element of fourth degree assault, while second degree rape includes no element of intent. State v. Walden, 67 Wn.App. 891, 841 P.2d 81 (1992). See also State v. Thomas, 98 Wn.App. 422, 989 P.2d 612 (1999) (assault in the fourth degree not a lesser offense of indecent liberties); State v. Turner, 143 Wn.2d 715, 23 P.3d 499 (2001) (assault in the fourth degree not a lesser crime of attempted murder in the first degree). In contrast, assault in the fourth degree is a lesser included offense of burglary in the first degree when charged under the assault prong of RCW 9A.52.020. State v. Hummell, 68 Wn.App. 538, 843 P.2d 1125 (1993).
Before a lesser included offense instruction can be given, both the “legal” and “factual” prongs of State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978), must be satisfied. That is, “[f]irst, each of the elements of the lesser offense must be a necessary element of the offense charged. Second, the evidence in the case must support an inference that the lesser crime was committed.” State v. Workman, 90 Wn.2d at 447–48 (citations omitted). See Comment to WPIC 4.11 (Lesser Included Crime or Lesser Degree) for a more extensive discussion of this issue. In State v. Jackson, 70 Wn.2d 498, 424 P.2d 313 (1967), and State v. Emerson, 19 Wn.2d 700, 144 P.2d 262 (1943), the court concluded instructions on simple assault (at that time assault in the third degree) were not justified when the evidence established an assault with a knife. In contrast, when the assault was committed with a vehicle and when defendant testified that he only intended to splash mud on the victim, the court erred in failing to give fourth degree assault instructions. State v. Jimerson, 27 Wn.App. 415, 618 P.2d 1027 (1980).
Though it is included in the pattern instruction, the name of the victim is not an essential element of fourth degree assault for charging purposes. State v. Plano, 67 Wn.App. 674, 838 P.2d 1145 (1992).
Care must be taken in using this instruction when the prosecution is under a county or municipal ordinance to ensure that the elements of the ordinance are identical to those under state law. See City of Spokane v. White, 102 Wn.App. 955, 10 P.3d 1095 (2000) (municipality may define assault as requiring “willful” action although state law requires proof of “intent”).
See the Comment to WPIC 35.50 (Assault—Definition) for additional discussion of issues related to assault.
[Current as of June 2020.]
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