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WPIC 35.37.02 Assault of a Child—Second Degree—Causing Bodily Harm—Elements

11 WAPRAC WPIC 35.37.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 35.37.02 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
April 2021 Update
Washington State Supreme Court Committee on Jury Instructions
Part VI. Crimes Against Personal Security
WPIC CHAPTER 35. Assault and Reckless Endangerment
WPIC 35.37.02 Assault of a Child—Second Degree—Causing Bodily Harm—Elements
To convict the defendant of the crime of assault of a child in the second 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 bodily harm that is greater than transient physical pain or minor temporary marks;
(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.
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 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 (3), 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 2.03 (Bodily Injury—Physical Injury—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).
COMMENT
RCW 9A.36.130(1)(b).
See the Comment to WPIC 35.35 (Assault of a Child—First Degree—Alternative Means—Elements) for a discussion of the terms “torture” and “pattern or practice.” See the Comment to WPIC 35.35.03 (Assault of a Child—First Degree—Causing Substantial Bodily Harm—Elements) for a discussion of Petrich instructions requiring jury unanimity when an element of the offense involves a pattern or practice of certain acts.
[Current as of April 2020.]
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