WPIC 36.21 Stalking—Gross Misdemeanor—Elements

Use the bracketed material as applicable.

This instruction is drafted for cases in which the jury needs to be instructed using both alternatives for element (4). Care must be taken to limit the alternatives to those that were included in the charging document and are supported by sufficient evidence. For any case in which substantial evidence supports only one of the alternatives in element (4), revise the instruction to remove references to alternative elements, following the format set forth in WPIC 4.21 (Elements of the Crime—Form).

For a discussion of the phrase “any of these acts” in element (6), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form). In element (6), choose from among the bracketed phrases depending on whether the case is in superior, municipal, or district court. See WPIC 4.20 (Introduction).

With this instruction, use WPIC 10.01 (Intent—Intentionally—Definition) and WPIC 36.23 (Stalking—Harass—Definition). Also use, as applicable, WPIC 36.22 (Stalking—Follows—Definition) and WPIC 36.24 (Stalking—Repeatedly—Definition). See also WPIC 36.25 (Stalking—Intent to Intimidate or Harass—Inference) and WPIC 36.27 (Stalking—Without Lawful Authority—Definition).

RCW 9A.46.110(1).

Intent. The statute defines stalking in terms of a person who “intentionally and repeatedly harasses or repeatedly follows another person.” RCW 9A.46.110(1)(a). The WPI Committee considered whether the statutory term “intentionally” was intended to modify both “harasses” and “follows.” In view of the structure of the sentence, and the use of the term “deliberately” in the statutory definition of “follows,” see WPIC 36.22 (Stalking—Follows—Definition), the WPI Committee concluded that “intentionally” was intended to modify only “harasses.”

The statute is not overbroad because it regulates behavior and not pure speech. State v. Nguyen, 10 Wn.App.2d 797, 450 P.3d 630 (2019); see also State v. Haines, 151 Wn.App. 428, 213 P.3d 602 (2009) (statute not unconstitutionally vague and did not require six separate acts).

“Repeatedly followed.” RCW 9A.46.110(6)(e) states “[r]epeatedly” means “on two or more separate occasions.” In State v. Kintz, 169 Wn.2d 537, 553, 238 P.3d 470 (2010), the court held the element only required sufficient evidence the defendant maintained visual or physical proximity to a specific person over a period of time on two or more separate occasions. State v Kintz, 169 Wn.2d at 553. In making its decision, the court expressly rejected arguments suggesting “repeatedly followed” required four or six separate acts based on layering other statutes. Accord State v. Whittaker, 192 Wn.App. 395, 367 P.3d 1092 (2016) (two or more events may be close together, so long as separable); See also State v. Johnson, 185 Wn.App. 655, 342 P.3d 338 (2015).

“Without lawful authority.” RCW 9A.46.110 and RCW 9A.46.020 both require that the action be undertaken without lawful authority. The phrase has been upheld against a vagueness challenge in both contexts. State v. Lee, 135 Wn.2d 369, 957 P.2d 741 (1998) (stalking); State v. Smith, 111 Wn.2d 1, 759 P.2d 372 (1988) (harassment). The Lee court also upheld the stalking statute against overbreadth and right to travel challenges. See also State v. Bradford, 175 Wn.App. 912, 308 P.3d 736 (2013). In State v. Ainslie, 103 Wn.App. 1, 11 P.3d 318 (2000), the court concluded that the term “followed” was not vague as applied to a defendant who repeatedly sat in his vehicle parked near the home of a fourteen-year-old girl, returned after being chased away by the girl's father, and at least once approached the girl's yard.