WPIC 38.08 Criminal Mistreatment—Fourth Degree—Elements

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 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 bracketed material as applicable.

With this instruction, use as applicable WPIC 2.03 (Bodily Injury—Physical Injury—Bodily Harm—Definition), WPIC 10.04 (Criminal Negligence—Definition), WPIC 38.20 (Basic Necessities of Life—Definition), WPIC 38.21 (Child—Definition), WPIC 38.22 (Dependent Person—Definition), and WPIC 38.23 (Employed—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). In this element, choose from among the bracketed phrases depending on whether the case is in superior, municipal, or district court. See WPIC 4.20 (Introduction).

RCW 9A.42.037. This instruction was modified for this edition to more closely track the statutory language.

The statute applies both to a parent and a person who assumes the responsibility to provide the basic necessities of life to a dependent person. The Legislature defined the term “a person who has assumed the responsibility to provide a dependent person the basic necessities of life” to exclude Good Samaritans, as defined in RCW 9A.42.010, and governmental agencies that regularly provide assistance or services to dependent persons. These exclusions apply only to the third and fourth degrees of criminal mistreatment. RCW 9A.42.035(2); 9A.42.037(2). If factual issues exist as to these exclusions, practitioners should use the statutory language to draft appropriate instructional language. The statutory definition of Good Samaritan was drafted particularly for this context; the pre-existing case law definition, and the pattern instruction that is based on the case law definition (WPIC 300.32 (Aggravating Circumstance—Good Samaritan [RCW 9.94A.535(3)(w)])) may not be applicable.

Unlike the definition of “great bodily harm,” which is defined differently in two separate statutes (see discussion in the Comment to WPIC 38.02 (Criminal Mistreatment—First Degree—Elements)), there is only a single statutory definition of “bodily harm,” which appears in two separate statutes, RCW 9A.04.110 and RCW 9A.42.010. Accordingly, practitioners should use WPIC 2.03 (Bodily Injury—Physical Injury—Bodily Harm—Definition) to define “bodily injury,” even for cases involving criminal mistreatment.