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WPIC 35.37 Assault of a Child—Second Degree—Alternative Means—Elements

11 WAPRAC WPIC 35.37Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 35.37 (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 35.37 Assault of a Child—Second Degree—Alternative Means—Elements
To convict the defendant of the crime of assault of a child in the second degree, each of the following three elements must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant
[(a)] [assaulted (name of person) with intent to commit (name of felony);] [or]
[(b)] [intentionally assaulted (name of person) and thereby recklessly inflicted substantial bodily harm;] [or]
[(c)] [assaulted (name of person) with a deadly weapon;] [or]
[(d)] [with intent to inflict bodily harm, administered to or caused to be taken by (name of person) [a poison] [or] [a destructive or noxious substance];] [or]
[(e)] [knowingly inflicted bodily harm upon (name of person) that, by design, caused such pain or agony as to be the equivalent of that produced by torture;] [or]
[(f)] [assaulted (name of person) by strangulation;] [or]
[(g)] [assaulted (name of person) by suffocation;] [or]
[(h)] [intentionally assaulted (name of person) and caused bodily harm that was greater than transient physical pain or minor temporary marks 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 the alternative elements [(1)(a),] [(1)(b),] [(1)(c),] [(1)(d), [(1)(e),] [(1)(f),] [(1)(g),] or [(1)(h)] 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),] [(1)(c),] [(1)(d),] [(1)(e),] [(1)(f),] [(1)(g),] or [(1)(h)] 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), 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 are applicable: WPIC 10.01 (Intent—Intentionally—Definition); WPIC 10.02 (Knowledge—Knowingly—Definition); WPIC 10.03 (Recklessness—Definition); WPIC 2.03.01 (Substantial Bodily Harm—Definition); WPIC 2.06 (Deadly Weapon—Definition as Element—Firearm or Explosive) or WPIC 2.06.01 (Deadly Weapon—Definition as Element—Weapons Other than Firearms and Explosives); WPIC 35.50 (Assault—Definition); WPIC 2.03 (Bodily Injury—Physical Injury—Bodily Harm—Definition); WPIC 2.09 (Felony—Designation of); WPIC 35.52 (Human Immunodeficiency Virus—Definition); WPIC 35.53 (Assault—Strangulation—Definition); and WPIC 35.54 (Assault—Suffocation—Definition).
The instruction sets forth the most commonly used alternatives for assault of a child in the second degree. Practitioners should consult the statute for other alternatives.
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).
COMMENT
RCW 9A.36.130(1).
See the Comment to WPIC 35.35.03 (Assault of a Child—First Degree—Causing Substantial Bodily Harm—Elements) for a discussion of the terms “torture” and “pattern or practice.”
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.]
End of Document