WPIC 35.35 Assault of a Child—First Degree—Alternative Means—Elements
11 WAPRAC WPIC 35.35Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 35.35 (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 35.35 Assault of a Child—First Degree—Alternative Means—Elements
To convict the defendant of the crime of assault of a child in the first degree, each of the following three elements must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant:
[(a)] [committed the crime of assault in the first degree against (name of person);] [or]
[(b)] [intentionally assaulted (name of person) and recklessly inflicted great bodily harm;] [or]
[(c)] [intentionally assaulted (name of person) and caused substantial bodily harm, and the defendant had previously engaged in a pattern or practice of [assaulting (name of person) which had resulted in bodily harm that was greater than transient physical pain or minor temporary marks] [or] [causing (name of person) physical pain or agony that was equivalent to that produced by torture];]
(2) That the defendant was eighteen years of age or older and (name of person) was under the age of thirteen; and
(3) That this act occurred in the State of Washington.
If you find from the evidence that elements (2) and (3), and any of alternative elements [(1)(a),] [(1)(b),] or [(1)(c)] 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),] [(1)(b),] or [(1)(c)] has been proved beyond a reasonable doubt, as long as each juror finds that at least one alternative has been proved beyond a reasonable doubt.
On the other hand, if after weighing all the evidence you have a reasonable doubt as to any one of elements (1), (2), or (3), then it will be your duty to return a verdict of not guilty.
NOTE ON USE
Use bracketed material as applicable. 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 jury 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).
Use whichever of the following definitions is applicable: WPIC 10.01 (Intent—Intentionally—Definition); WPIC 10.03 (Recklessness—Definition); WPIC 2.03 (Bodily Injury—Physical Injury—Bodily Harm—Definition); WPIC 2.03.01 (Substantial Bodily Harm—Definition); WPIC 2.04 (Great Bodily Harm—Definition); and WPIC 35.50 (Assault—Definition).
If the bracketed phrase labeled as (1)(a) above is given, then use, as applicable, WPIC 35.01 (Assault—First Degree—Great Bodily Harm or Deadly Weapon—Definition), WPIC 35.03 (Assault—First Degree—Great Bodily Harm—Definition), or WPIC 35.05 (Assault—First Degree—Poison—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.36.120(1)(b)(i).
A special verdict form is needed for cases involving the 5-year mandatory minimum penalty under the “force or means” prong of assault in the first degree. See the Comment to WPIC 35.35.01 (Assault of a Child—First Degree—Assault in the First Degree—Elements).
For a discussion of the term “torture,” see the Comment to WPIC 35.35.03 (Assault of a Child—First Degree—Causing Substantial Bodily Harm—Elements).
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 (Recklessness—Definition). In State v. Harris, 164 Wn.App. 377, 263 P.3d 1276 (2011), the court held that the jury in an assault of a child in the first degree case alleging recklessly inflicted harm should have been instructed that it had to find disregard of a substantial risk that “great bodily harm” would occur rather than simply “a wrongful act.” Therefore, in a prosecution under RCW 9A.36.120(1)(b)(i), the definition of recklessness from WPIC 10.03 should be drafted by filling in the bracket with the phrase “great bodily harm.”
In State v. Cardenas-Flores, 189 Wn.2d 243, 401 P.3d 19 (2017), the Washington Supreme Court held that it was not error to fail to include “with unlawful force” in the definition of second degree assault of a child where the State charged a parent with having committed second degree assault by intentionally assaulting the child and “recklessly” inflicting substantial bodily harm. The Court went on to note that including such language “may have confused jurors,” given that the defendant denied even touching the child. State v. Cardenas-Flores, 189 Wn.2d at 267.
[Current as of April 2020.]
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