WPIC 35.31 Drive-by Shooting—Elements
11 WAPRAC WPIC 35.31Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 35.31 (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 35.31 Drive-by Shooting—Elements
To convict the defendant of the crime of drive-by shooting, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant recklessly discharged a firearm;
(2) That the discharge created a substantial risk of death or serious physical injury to another person;
(3) That the discharge was either from a motor vehicle or from the immediate area of a motor vehicle that was used to transport the shooter or the firearm to the scene of the discharge; and
(4) 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.
NOTE ON USE
Use this instruction with WPIC 2.10 (Firearm—Definition as Element). If applicable, use WPIC 35.30.01 (Inference of Reckless Conduct—Drive-By Shooting).
COMMENT
RCW 9A.36.045.
A conviction under this statute requires that the defendant be in the “immediate area” of the motor vehicle used to transport the defendant or the firearm to the crime scene. In State v. Rodgers, 146 Wn.2d 55, 43 P.3d 1 (2002), the court reversed a conviction where the defendant fired the shot two blocks away from the location of the car that was used to transport him to the crime. The court concluded that the “legislature aimed [the drive-by shooting statute] at individuals who discharge firearms from or within close proximity of a vehicle. Undoubtedly, it was concerned that reckless discharge of a firearm from a vehicle or in close proximity to it presents a threat to the safety of the public that is not adequately addressed by other statutes.” State v. Rodgers, 146 Wn.2d at 62.
By the phrasing of this statute, the adverb “recklessly” appears to modify only the discharge of the firearm. Under the statute, a separate element that must also be proven is the substantial risk of death or injury that was actually created by that “wrongful act.” Thus, the risk of death or injury should not be incorporated into the definition of recklessness as it might be with differently phrased crimes. See, Comment to WPIC 10.03 (Recklessness—Definition). For this crime, recklessness should be defined as including a disregard of “the substantial risk that discharge of a firearm may occur.” Of course, the jury would also be instructed that an intentional or knowing discharge would establish this element.
Drive-by shooting, formerly known as reckless endangerment in the first degree, is not a lesser included offense of first degree assault. State v. Ferreira, 69 Wn.App. 465, 470, 850 P.2d 541 (1993).
[Current as of April 2020.]
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