WPIC 50.60.01 Enhanced Sentence—Controlled Substance Violations Under RCW 69.50.435—Statutory D...
11 WAPRAC WPIC 50.60.01Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 50.60.01 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
December 2021 Update
Part VIII. Drugs and Controlled Substances
WPIC CHAPTER 50.60. Enhanced Sentence—Controlled Substance Violations
WPIC 50.60.01 Enhanced Sentence—Controlled Substance Violations Under RCW 69.50.435—Statutory Defense—Concluding Instruction
You will also be given a special verdict form [for the crime of] [for the crime(s) charged in count(s) ]. If you find the defendant not guilty [of this crime] [of these crimes] [of ], do not use the special verdict form. If you find the defendant guilty [of this crime] [of these crimes] [of ], you will then use the special verdict form and fill in the blanks with the answer “yes” or “no” according to the decision you reach.
The special verdict form for [this offense] [these offenses] has two questions.
The first question will ask you to consider the place where the crime occurred. For this question, the State has the burden of proof beyond a reasonable doubt. In order to answer this question “yes,” you must unanimously be satisfied beyond a reasonable doubt that “yes” is the correct answer. If you unanimously agree that the answer to this question is “no,” you must fill in the appropriate blank with the answer “no.” If after full and fair consideration of the evidence you are not in agreement as to this answer, then do not fill in the blank for that question.
The second question will ask you to consider a defense raised by the defendant. For this question the defendant has the burden of proof by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that the defense is more probably true than not true. All twelve of you must agree in order to answer this question.
NOTE ON USE
Use this instruction if (1) it is alleged that the defendant should be subject to enhanced sentencing because the controlled substance offense was committed in an area specified in RCW 69.50.435, and (2) the statutory defense is at issue. If the statutory defense is not at issue, use WPIC 160.00 (Concluding Instruction—Special Verdict—Penalty Enhancements) instead of this instruction.
The language in this instruction is to be inserted immediately ahead of the last paragraph in the concluding instruction WPIC 151.00 (Basic Concluding Instruction) or WPIC 155.00 (Concluding Instruction—Lesser Degree/Lesser Included/Attempt), whichever is being used.
The special verdict form that accompanies this instruction is WPIC 50.61.01 (Enhanced Sentence—Controlled Substance Violations under RCW 69.50.435—Statutory Defense—Special Verdict).
Choose from among the bracketed options in order to provide the clearest directions to the jury, taking into account such considerations as the number of charges and the existence of lesser included offenses.
Under no circumstances should this instruction be given unless requested, or expressly agreed to by the defense. A defendant's constitutional right to control his or her defense prohibits the giving of instructions concerning defenses over the defendant's objections. State v. Lvnch, 178 Wn.2d 487, 309 P.3d 482 (2013).
The statute states that this affirmative defense shall be proved by the defendant by a preponderance of the evidence. It is now settled that the Legislature may place the burden of proving a statutory defense on the defendant if the defense does not negate an element of the crime. See WPIC 14.00 (Defenses—Introduction).
In State v. Lua, 62 Wn.App. 34, 813 P.2d 588 (1991), overruled on other grounds by State v. Coria, 120 Wn.2d 156, 839 P.2d 890 (1992), the court rejected the argument that RCW 69.50.435(4) is unconstitutional for not requiring the prosecution to prove each and every element of the crime. In reaching its holding, the court noted that a defendant may be required to establish an affirmative defense. The court also noted that the elements required to prove the underlying controlled substance offense and the elements required to establish an enhanced sentence are distinct from the elements required to establish the statutory defense.
[Current as of November 2019.]
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