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WPIC 35.35.03 Assault of a Child—First Degree—Causing Substantial Bodily Harm—Elements

11 WAPRAC WPIC 35.35.03Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 35.35.03 (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 35.35.03 Assault of a Child—First Degree—Causing Substantial Bodily Harm—Elements
To convict the defendant of the crime of assault of a child in the first degree, each of the following four elements must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant intentionally assaulted (name of person) and caused substantial bodily harm;
(2) That the defendant was eighteen years of age or older and (name of person) was under the age of thirteen;
(3) That the defendant had previously engaged in a pattern or practice of
[(a)] [assaulting (name of person) which had resulted in bodily harm that was greater than transient physical pain or minor temporary marks;] [or]
[(b)] [causing (name of person) physical pain or agony that was equivalent to that produced by torture;] and
(4) That any of these acts occurred in the State of Washington.
If you find from the evidence that elements (1), (2), and (4), 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 at least one of the alternatives 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), or (4), then it will be your duty to return a verdict of not guilty.
Use bracketed material as applicable. The instruction is drafted for cases in which the jury needs to be instructed using both of the alternatives for element (2). 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 (2), revise the instruction to remove references to alternative elements, following the format set forth in WPIC 4.21 (Elements of the Crime—Form).
Use this instruction with 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); and WPIC 35.50 (Assault—Definition).
For a discussion of the phrase “any of these acts” in the jurisdictional element, see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).
RCW 9A.36.120(1)(b)(ii).
A prosecution under RCW 9A.36.120(1)(b)(ii):
requires proof of a principal intentional assault which causes substantial bodily harm, and a previous pattern or practice of causing pain. The crime thus is defined not by a single act, but by a course of conduct. The definition of the crime permits the State to charge an entire episode of assaultive conduct as one count. The jurors must all find a principal act resulting in substantial bodily harm preceded by a pattern or practice of other assaultive acts. But it is not necessary for all jurors to agree on what act was the principal assault.
State v. Kiser, 87 Wn.App. 126, 130, 940 P.2d 308 (1997). Thus, unless there are unusual circumstances, a Petrich instruction requiring jury unanimity is not normally required. See State v. Kiser, 87 Wn.App. at 130 (noting in dicta that multiple, distinct patterns or episodes could require that jurors be unanimous as to the particular pattern or episode); accord State v. Nason, 96 Wn.App. 686, 981 P.2d 866 (1999) (not error to give Petrich instruction). See State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984) (when evidence could support a finding that several separate criminal acts have been committed, the prosecutor must elect a specific act or the jury must be instructed as to requirement of unanimity as to which particular act was proved).
The court in State v. Brown, 60 Wn.App. 60, 802 P.2d 803 (1990) (disapproved of on other grounds by State v. Grewe, 117 Wn.2d 211, 813 P.2d 1238 (1991) and State v. Chadderton, 119 Wn.2d 390, 832 P.2d 481 (1992)) held that the term “torture” as used in RCW 9A.36.021(1)(f) (the second degree assault statute) is not unconstitutionally vague, although the statute does not define the term. The court found it is a term of common understanding, such that citizens have notice of what conduct is proscribed. See also State v. Madarash, 116 Wn.App. 500, 513–15, 66 P.3d 682 (2003) (the court quoted a dictionary's definition of torture as “to cause intense suffering; inflict anguish on; subject to severe pain”). The court in State v. Russell, 69 Wn.App. 237, 247–48, 848 P.2d 743 (1993), also looked to the dictionary to determine the common meanings of “pattern” (defined as a “regular, mainly unvarying way of acting or doing”) and “practice” (defined as “a frequent or usual action; habit; usage”).
[Current as of April 2020.]
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