WPIC 35.35.01 Assault of a Child—First Degree (Alternate Means)—Deadly Weapon or Great Bodily H...
11 WAPRAC WPIC 35.35.01Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 35.35.01 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
December 2021 Update
Part VI. Crimes Against Personal Security
WPIC CHAPTER 35. Assault and Reckless Endangerment
WPIC 35.35.01 Assault of a Child—First Degree (Alternate Means)—Deadly Weapon or Great Bodily Harm—Assault in the First Degree—Elements
To convict the defendant of the crime of assault of a child in the first degree, each of the following elements must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant assaulted (name of person);
(2) That the defendant acted with intent to inflict great bodily harm;
(3) That the assault
[(a)] [was committed [with a firearm] [or] [with a deadly weapon] [or] [by a force or means likely to produce great bodily harm or death];] [or]
[(b)] [resulted in the infliction of great bodily harm;]
(4) That the defendant was eighteen years of age or older and (name of person) was under the age of thirteen; and
(5) That this act occurred in the State of Washington.
If you find from the evidence that elements (1), (2), (4), and (5) and either alternative element (3)(a) or (3)(b) 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 (3)(a) or (3)(b) has been proved beyond a reasonable doubt, as long as each juror finds that either (3)(a) or (3)(b) 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), (3), (4), or (5), then it will be your duty to return a verdict of not guilty.
NOTE ON USE
The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (3). 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 interrogatory, 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 (3), revise the instruction to remove references to alternative elements, following the format set forth in WPIC 4.21 (Elements of the Crime—Form).
The instruction sets forth the most commonly used alternatives for assault of a child in the first degree. Practitioners should consult the statute for other alternatives.
Along with this instruction, use WPIC 2.04 (Great Bodily Harm—Definition), WPIC 35.50 (Assault—Definition), and WPIC 10.01 (Intent—Intentionally—Definition). Also use, as applicable, WPIC 2.06 (Deadly Weapon—Definition as Element—Firearm or Explosive) and WPIC 2.06.01 (Deadly Weapon—Definition as Element—Weapons Other than Firearms and Explosives).
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).
There is a mandatory minimum term of five years total confinement for individuals convicted of assault in the first degree or assault of a child in the first degree when “the offender used force or means likely to result in death or intended to kill the victim.” RCW 9.94A.540(1)(b). This mandatory minimum results in the defendant being ineligible for, among other things, earned early release credit (“good time”). The Department of Corrections does not have the authority to impose the “flat time” requirement of RCW 9.94A.540(1)(b) based merely on a determination that the defendant had been convicted of assault in the first degree while armed with a firearm or deadly weapon. See In re Tran, 154 Wn.2d 323, 111 P.3d 1168 (2005).
Therefore, if the State intends to seek imposition of the mandatory minimum term, it is necessary to use a special verdict form. For a discussion of related issues, see the Comment to WPIC 92.03 (Special Verdict Form—Driving or Being in Physical Control While Under the Influence—Sentencing).
[Current as of April 2020.]
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