WPIC 39.02 Kidnapping—First 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 (2). 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 interrogatory, see WPIC 190.09 (Special Verdict Form—Elements with Alternatives). For any case involving only one of the alternatives in element (2), revise the instruction to follow the format set forth in WPIC 4.21 (Elements of the Crime—Form).

Along with this instruction, use WPIC 39.30 (Abduct—Definition) and WPIC 10.01 (Intent—Intentionally—Definition). Also use, as applicable, WPIC 2.03 (Bodily Injury—Physical Injury—Definition) and WPIC 2.12 (Governmental Function—Definition).

If the phrase relating to facilitating the commission of a felony is used, fill in the name of the applicable felony and provide the jury with an instruction defining that felony.

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).

RCW 9A.40.020.

One of the statutory means by which a kidnapping in the first degree can be established is proof that the kidnapping occurred with the “intent to inflict extreme mental distress.” RCW 9A.40.020(1)(d). Inflicting “extreme emotional distress” requires more mental distress than a reasonable person would feel when restrained by deadly force. In some cases, the threat of deadly force may be so extreme as to show the defendant's intent to inflict this higher level of distress, but not every case involving a deadly weapon will meet the standard. State v. Harrington, 181 Wn.App. 805, 818–19, 333 P.3d 410 (2014). (In evaluating this element, the focus is on the mental state of the defendant and the inquiry is “whether the defendant intended to inflict more distress than reasonably attributed to an abduction by lethal force.”)

When kidnapping and another crime are charged separately, the evidence of kidnapping is not inherently insufficient simply because it was incidental to the other crime. State v. Berg, 181 Wn.2d 857, 337 P.3d 310 (2014).

Accomplice liability to first degree kidnapping is discussed in State v. Dove, 52 Wn.App. 81, 757 P.2d 990 (1988). The court in Dove found that a kidnapping continues as long as the kidnapped person is unlawfully detained. Therefore, a person who renders any assistance to the kidnapper before the victim is released may be an accomplice to the kidnapping.

Lesser included offense. Unlawful imprisonment is a lesser included offense of kidnapping. State v. Russell, 104 Wn.App. 422, 449 n.61, 16 P.3d 664 (2001); State v. Davis, 177 Wn.App. 454, 461, 311 P.3d 1278 (2013).