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WPIC 37.02 Robbery—First Degree—Elements

11 WAPRAC WPIC 37.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 37.02 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part VI. Crimes Against Personal Security
WPIC CHAPTER 37. Robbery
WPIC 37.02 Robbery—First Degree—Elements
To convict the defendant of the crime of robbery in the first degree, each of the following six elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant unlawfully took personal property from the person [or in the presence] of another;
(2) That the defendant intended to commit theft of the property;
(3) That the taking was against the person's will by the defendant's use or threatened use of immediate force, violence, or fear of injury to that person [or to that person's property] [or to the person or property of another];
(4) That force or fear was used by the defendant [to obtain or retain possession of the property] [or] [to prevent or overcome resistance to the taking] [or] [to prevent knowledge of the taking];
(5) [(a)] [That in the commission of these acts [or in immediate flight therefrom] the defendant [was armed with a deadly weapon]] [or]
[(b)] [That in the commission of these acts [or in the immediate flight therefrom] the defendant displayed what appeared to be a firearm or other deadly weapon;] [or]
[(c)] [That in the commission of these acts [or in the immediate flight therefrom] the defendant inflicted bodily injury;] [or]
[(d)] [That the defendant committed the robbery within and against a financial institution;] and
(6) That any of these acts occurred in the State of Washington.
If you find from the evidence that elements (1), (2), (3), (4), and (6), and any of the alternative elements [(5)(a),] [(5)(b),] [(5)(c),] or [(5)(d)] 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 [(5)(a),] [(5)(b),] [(5)(c),] or [(5)(d)] has been proved beyond a reasonable doubt, as long as each juror finds that at least one alternative 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), (5), or (6), 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 (5). 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 any case in which substantial evidence supports only one of the alternatives in element (5), revise the instruction to remove references to alternative elements, following the format set forth in WPIC 4.21 (Elements of the Crime—Form). Use bracketed material as applicable.
Along with this instruction, use WPIC 37.50 (Robbery—Definition). Also use, as applicable, WPIC 2.06 (Deadly Weapon—Definition as Element—Firearm or Explosive), WPIC 2.06.01 (Deadly Weapon—Definition as Element—Weapons Other than Firearms and Explosives), WPIC 2.03 (Bodily Injury—Definition), and WPIC 37.51 (Robbery—Financial Institution—Definition). If it is necessary to define theft for the jury, see the instructions in WPIC Chapter 70 (Theft).
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.56.200. This instruction was revised in 2018. In State v. Nelson, 191 Wn.2d 61, 419 P.3d 410 (2018), the Supreme Court concluded that the crime of robbery does not include the implied element that the victim owned, possessed, or had a representative interest in the property, thereby overruling State v. Richie, 191 Wn.App. 916, 365 P.3d 770 (2015), and State v. Latham, 35 Wn.App. 862, 670 P.2d 689 (1983).
Alternative means. To convict the defendant of first degree robbery, the State must prove that the defendant was armed with a deadly weapon or displayed what appeared to be a deadly weapon, or inflicted bodily harm, or committed the crime within and against a financial institution. These alternative elements are separate means of committing the offense, but only the alternative(s) pled in the information and supported by substantial evidence should be presented to the jury.
In State v. Nicholas, 55 Wn.App. 261, 776 P.2d 1385 (1989), the trial court erred in giving an instruction that included the alternatives of being armed with a deadly weapon or displaying what appeared to be a firearm or deadly weapon, when the information just alleged that the defendant was armed with a deadly weapon under RCW 9A.56.200(1)(a) but did not allege that the defendant displayed what appeared to be a firearm or other deadly weapon under former RCW 9A.56.200(1)(b).
Display of deadly weapon. In State v. Moon, 48 Wn.App. 647, 739 P.2d 1157 (1987), use of a plastic knife was held to be sufficient to support a conviction for first degree robbery because it “appeared to be a knife.”
However, words alone are insufficient to constitute the “display” of what appears to be a deadly weapon; some physical manifestation of the presence of a weapon is also required. State v. Scherz, 107 Wn.App. 427, 27 P.3d 252 (2001) (threat of hand grenade insufficient where no witness saw physical manifestation of the threat); In re Bratz, 101 Wn.App. 662, 5 P.3d 759 (2000) (verbal threat by defendant that he had nitroglycerin in his coat and would blow up bank was not sufficient evidence for first degree robbery absent some physical manifestation of the threat).
Only a minimal physical manifestation need be present, however, in order to satisfy the display element. State v. Barker, 103 Wn.App. 893, 14 P.3d 863 (2000) (sufficient evidence to constitute the “display” of what appeared to be a deadly weapon where defendant said he would shoot store clerk and pressed a hard object into her back); State v. Kennard, 101 Wn.App. 533, 6 P.3d 38 (2000) (sufficient evidence of display where defendant demanded money, stated he had a gun and patted his hip).
Enhanced sentence for use of firearm or deadly weapon. When a defendant is convicted of first degree robbery or some other crime that includes the use of a deadly weapon as an element, the defendant may also be given an increased sentence pursuant to a deadly weapon special verdict (see the Comment to WPIC 2.07 (Deadly Weapon—Definition for Special Verdict)). The use of the deadly weapon finding for two purposes does not place the defendant in double jeopardy. State v. Harvey, 34 Wn.App. 737, 664 P.2d 1281 (1983); State v. Woods, 34 Wn.App. 750, 665 P.2d 895 (1983); State v. Willoughby, 29 Wn.App. 828, 630 P.2d 1387 (1981).
Accomplice liability. To convict an accomplice under the deadly weapon provision, the State is not required to prove that the accomplice was armed, or that the accomplice knew that the principal was armed. The State is only required to prove that the person was an accomplice, as the term is defined in RCW 9A.08.020 (see WPIC 10.51 (Accomplice—Definition)). State v. Barnes, 153 Wn.2d 378, 103 P.3d 1219 (2005) (“while knowledge may be a factor for the jury to consider in deciding whether there is a connection between the defendant, the crime, and the weapon, it is not a requirement that must be contained in jury instructions relating to a firearm enhancement”); State v. Davis, 101 Wn.2d 654, 682 P.2d 883 (1984).
Lesser included offenses. Robbery in the second degree, by definition, is a lesser degree offense. See RCW 10.61.003. Theft in the third degree is a lesser included offense under all alternatives to robbery in the first degree. See, e.g., State v. Satterlee, 58 Wn.2d 92, 361 P.2d 168 (1961). On the other hand, assault in the third degree based on resisting unlawful apprehension is not a lesser included offense of robbery in the first degree. State v. Herrera, 95 Wn.App. 328, 977 P.2d 12 (1999). For a more detailed discussion of this issue, see Fine, 13A Washington Practice, Criminal Law and Sentencing § 27:6 (3d ed.). Taking a motor vehicle also is not a lesser included offense of robbery. State v. Sharkey, 172 Wn.App. 386, 289 P.3d 763 (2012).
The Comment to WPIC 37.50 (Robbery—Definition) has a discussion of issues common to both first degree and second degree robbery.
[Current as of October 2018.]
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