WPIC 40.03 Rape—First Degree—Feloniously Enters a Building—Definition

Use with WPIC 40.02 (Rape—First Degree—Elements), when the issues involve feloniously entering into the building where the victim was situated. Use WPIC 2.05 (Building—Definition) with this instruction. If the case involves entry of a vehicle, this instruction may not be applicable.

In particular cases, the phrase “licensed, invited, or otherwise privileged” may be difficult for jurors to understand. The phrase may be modified to fit the facts of a particular case.

The definition of “feloniously enters” is taken from the burglary statutes in RCW Chapter 9A.52, and in particular the definitions of burglary in the first and second degree.

RCW 9A.04.110(5) defines building to include a vehicle. RCW 9A.04.110(29) defines vehicle. RCW 9A.04.010(2) and RCW 9A.04.090 make the provisions of RCW Chapter 9A.04 applicable to offenses defined by another statute, unless the statutes or the context require otherwise. Wrongful entry into an automobile (or any vehicle other than a motor home, or vessel with a cabin for sleeping or cooking) is not a felony but a gross misdemeanor (second degree vehicle prowling) unless the defendant has two or more prior convictions. RCW 9A.52.100. Therefore defendant's entry into the victim's car to seize her did not support a charge of attempted first degree rape by felonious entry. State v. Maganai, 83 Wn.App. 735, 923 P.2d 718 (1996).

In State v. Bargas, 52 Wn.App. 700, 763 P.2d 470 (1988), a first degree rape prosecution based on a felonious entry, the Court of Appeals held that the trial court did not err in failing to instruct the jury as to the specific crime the defendant intended to commit upon entering the victim's apartment. For a detailed discussion of the Bargas case and this issue, see the Comment to WPIC 40.02 (Rape—First Degree—Elements).

The defendant, invited to spend the night in the victim's guest room, did not commit first degree rape by felonious entry when he broke down her locked bedroom door in the middle of the night. State v. Thomson, 71 Wn.App. 634, 861 P.2d 492 (1993). Proof of feloniously remaining in a building, e.g., by exceeding the scope of an invitation and forming a felonious intent after entry, does not suffice for proving felonious entry. Nor does a locked bedroom door, in a dwelling occupied by one tenant, qualify the room as a separate “unit” or “building” under RCW 9A.04.110(5). State v. Thomson, 71 Wn.App. at 646.