WPIC 39.27 Custodial Interference—Second Degree—Parent—Elements

Use bracketed material as applicable. For directions on the various ways to use the bracketed phrases relating to how the crime is committed, 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). If element (2) is drafted using only one of the alternative provisions, then modify the instruction's final two paragraphs to use the corresponding paragraphs from WPIC 4.21 (Elements of the Crime—Form) (the corresponding language is set forth in the Comment to WPIC 39.02 (Kidnapping—First Degree—Elements)). If element (2) is drafted using more than one, but fewer than all, of the alternative provisions, then modify the instruction accordingly.

Along with this instruction, use as applicable, WPIC 10.01 (Intent—Intentionally—Definition) and WPIC 10.05 (Willfully—Definition). Use WPIC 19.12 (Custodial Interference—Defense) with this instruction if the statutory defense set forth in RCW 9A.40.080 is asserted.

In element (2), use the bracketed “court-ordered parenting plan” for crimes that are committed before July 24, 2015, and that do not involve a child visitation provision in a domestic violence protection order. Use the bracketed “court order making residential provisions for the child” if the crime occurred on or after July 24, 2015. See the Comment to WPIC 39.23 (Custodial Interference—First Degree—Parent—Elements) for further discussion.

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 to WPIC 39.25 (Custodial Interference—Second Degree—Relative—Elements).

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).

It may be necessary to draft a separate instruction to accompany this instruction setting forth the applicable parenting plan provisions that may be in issue in the case.

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(2). The instruction has been revised for this edition. Element (2) has been revised as a result of the amendment to the statute in 2015 replacing the term “parenting plan” with “court order making residential provisions for the child.” See the Comment to WPIC 39.23 (Custodial Interference—First Degree—Parent—Elements) for further discussion. Element (3) has been added 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(4).

Prior convictions. For a discussion of instructional issues relating to prior convictions that serve to elevate an offense to a greater crime, see the Comment to WPIC 39.25 (Custodial Interference—Second Degree—Relative—Elements).

Pattern of willful violations. Subsection (c) of RCW 9A.40.070(2) sets forth an alternative means of committing the crime “if the court finds that the parent has engaged in a pattern of willful violations of the court-ordered residential provisions.” (Emphasis added.) In the WPI Committee's view, the italicized language may be unconstitutional because it deprives the defendant of the right to a jury trial on this element. See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). However, if a statute that may be unconstitutional is capable of being construed so that it is constitutional, the statute should be so construed unless such construction is plainly contrary to the intent of the Legislature. See Communications Workers of America v. Beck, 487 U.S. 735, 108 S.Ct. 2641, 101 L.Ed.2d 634 (1988); Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. and Const. Trades Council, 485 U.S. 568, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988); State v. Reyes, 104 Wn.2d 35, 700 P.2d 1155 (1985) (it is the duty of the court to construe a statute so as to uphold its constitutionality unless the unconstitutional aspect of the statute is not susceptible to being cured); Ralph v. State Dep't of Natural Resources, 182 Wn.2d 242, 248, 343 P.3d 342 (2014) (quoting Grant v. Spellman, 99 Wn.2d 815, 664 P.2d 1227 (1983)) (presumption in favor of validity of acts of Legislature requires all doubts to be resolved in support of legislation unless the act is clearly unconstitutional). To avoid the potential constitutional problems that subsection (c) presents, the WPI Committee has not included the words “if the court finds” in the instruction.