WPIC 60.02 Burglary—First Degree—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).

With this instruction, use WPIC 2.05 (Building—Definition), WPIC 10.01 (Intent—Intentionally—Definition), WPIC 10.51 (Accomplice—Definition), and WPIC 65.02 (Enters or Remains Unlawfully—Definition). As applicable, also use WPIC 2.06 (Deadly Weapon—Definition as Element—Firearm or Explosive) and WPIC 35.50 (Assault—Definition).

Under some circumstances, it may be necessary to specify and define the crime alleged to have been intended by the defendant, if the defendant so requests. See the Comment below.

For a discussion of the phrase “any of these acts” in element (4), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.52.020.

RCW 9A.52.050 (the “burglary anti-merger statute”) provides that other crimes committed in the commission of a burglary may be prosecuted separately.

“Crime against a person or property.” The definition of the offense requires an intent to commit a crime. In State v. Bergeron, 105 Wn.2d 1, 711 P.2d 1000 (1985), the court held that because the statutory definition of burglary referred simply to an intent to commit a crime, the State was not required to prove an intent to commit a specific crime and it was sufficient to instruct the jury in the language of the statutory definition.

The court in Bergeron acknowledged the possibility that in some cases, the specific crime intended may be material to the defendant's theory of the case as, for example, when the defendant claims to have entered or remained on the premises for some lawful purpose. In this situation, the court said, the defendant's remedy is to move for a bill of particulars and to then propose supplementary instructions that will permit the defendant to argue his or her theory of the case.

There is no statutory definition of what constitutes a “crime against a person or property” for purposes of the burglary statutes. Washington courts have construed the requirement with a “common sense” view of the underlying purpose of the statutes “to prohibit and punish conduct creating a risk of or actual harm to persons and property within a building.” State v. Wentz, 149 Wn.2d 342, 356, 68 P.3d 282 (2003) (Madsen, J., concurring). See State v. Snedden, 149 Wn.2d 914, 919, 73 P.3d 995 (2003) (indecent exposure is a crime against a person for purposes of a second degree burglary); State v. Stinton, 121 Wn.App. 569, 576, 89 P.3d 717 (2004) (violation of a protective order can be the predicate crime for a residential burglary). State v. Kindell, 181 Wn.App. 844, 326 P.3d 876 (2014) (unlawful possession of a firearm is not a crime against property and cannot be the predicate offense for a burglary).

Concerning the “armed with a deadly weapon” element, unless a dangerous weapon falls within the narrow category for deadly weapons per se (i.e., firearms or explosives), its status as a deadly weapon rests on the manner in which it is used, attempted to be used, or threatened to be used. In re Martinez, 171 Wn.2d 354, 256 P.3d 277 (2011).

In order to submit the “armed with a deadly weapon” alternative to the jury, there must be evidence that the weapon was “readily available and accessible for use.” State v. Chiariello, 66 Wn.App. 241, 243, 831 P.2d 1119 (1992).

For further discussion of what constitutes a deadly weapon for purposes of the first degree burglary statute, see the Comments to WPIC 2.06 (Deadly Weapon—Definition as Element—Firearm or Explosive) and WPIC 2.06.01 (Deadly Weapon—Definition as Element—Weapon Other than Firearm or Explosive).

“In immediate flight.” Defendant, while burglarizing a residence, sees a person outside, standing in the driveway. The defendant leaves the residence and confronts and kills the person in the driveway. This scenario does not satisfy the “in immediate flight from the building” element of burglary in the first degree. State v. Lambert, 199 Wn.App 51, 77–78, 395 P.3d 1080, review denied 189 Wn.2d 1017 (2017), cert. denied 138 S.Ct. 1571, 200 L.Ed.2d 761 (2018).

Accomplice. The statute refers to “the actor or another participant in the crime.” However, the word “participant” is not defined. The WPI Committee has substituted the word “accomplice” for the words “another participant” in this instruction based on the court's discussion in State v. Toomey, 38 Wn.App. 831, 690 P.2d 1175 (1984), a prosecution for first degree murder. In Toomey, the court stated that “[i]n the context used [in the first degree murder statute], and by dictionary definition, [participant] obviously means another person involved in the crime—i.e., another principal or an accomplice.” State v. Toomey, 38 Wn.App. at 840. An accomplice, having agreed to participate in a criminal act, runs the risk of having the primary actor exceed the scope of the preplanned criminal activity. State v. Carothers, 84 Wn.2d 256, 525 P.2d 731 (1974), disapproved of on other grounds, State v. Harris, 102 Wn.2d 148, 685 P.2d 584 (1984). In State v. Davis, 101 Wn.2d 654, 682 P.2d 883 (1984), a prosecution for first degree robbery, the court held that the State is not required to prove that the defendant had knowledge that an accomplice was armed.

Unanimity. A unanimity instruction is generally not needed when alternative means of committing a crime are submitted to a jury so long as each is supported by substantial evidence. See State v. Kitchen, 110 Wn.2d 403, 410, 756 P.2d 105 (1988). This analysis applies to the “entered or remained unlawfully” alternatives as well as the “armed or assaulted” alternatives of first degree burglary. However when there are two alleged assaults constituting “distinct criminal acts,” a Petrich instruction (WPIC 4.25) is required. State v. Williams, 136 Wn.App. 486, 498, 150 P.3d 111 (2007).

Lesser included crimes. In some cases a determination will need to be made whether an instruction on the lesser included offense of second degree burglary should be given with this instruction. The Washington Supreme Court has set forth a 2-prong test for determining whether an instruction for a lesser included offense must be given:

State v. Workman, 90 Wn.2d 443, 447–48, 584 P.2d 382 (1978).