WPIC 39.25 Custodial Interference—Second Degree—Relative—Elements

Use WPIC 10.01 (Intent—Intentionally—Definition) with this instruction. Use WPIC 19.12 (Custodial Interference—Defense) with this instruction if the statutory defense set forth in RCW 9A.40.080 is asserted.

Use bracketed material as applicable. For directions on using bracketed phrases, see WPIC 4.20 (Introduction). In element (3), if the defendant is charged with custodial interference in the second degree as a felony, use the applicable bracketed language stating that defendant has previously been convicted of custodial interference in the second degree. See the discussion in the Comment.

In element (4) choose from among the bracketed phrases depending on whether the case is in superior, municipal, or district court. See WPIC 4.20 (Introduction). For a discussion of the phrase “any of these acts” in element (3), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

Use WPIC 39.32 (Relative—Definition) if a definition of the word “relative” will assist the jury.

If the facts on which jurisdiction is based are in dispute, a special verdict form may need to be submitted to the jury. See WPIC 4.20 (Introduction) and WPIC 190.10 (Special Verdict Form—Jurisdiction).

RCW 9A.40.070(1), (4). The instruction has been revised for this edition to add element (3) for use when there is a prior conviction that elevates this offense to a felony.

Gross misdemeanor versus felony. A first conviction for custodial interference in the second degree is a gross misdemeanor; subsequent convictions are Class C felonies. RCW 9A.40.070.

Prior convictions. The format of this instruction is based on State v. Chambers, 157 Wn.App. 465, 473–74, 237 P.3d 352 (2010). It is a threshold determination to be decided by the trial court whether a prior conviction meets and qualifies within the statutory definition of an admissible predicate offense. State v. Chambers, 157 Wn.App. at 479. When a prior conviction elevates the offense, the prior conviction functions as an element of the offense that must be proved beyond a reasonable doubt. State v. Chambers, 157 Wn.App. 465, 237 P.3d 352 (2010); State v. Oster, 147 Wn.2d 141, 146, 52 P.3d 26 (2002). Also see discussion to Comments to WPIC 36.51.02 (Violation of a Court Order—Felony—Definition) and WPIC 92.26 (Driving or Being in Physical Control While Under the Influence—Felony—Definition). The Sixth Amendment right to a jury guarantees the right to have a jury find every fact essential to punishment beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 298, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The State must prove each essential element of the crime. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).