WPIC 60.02.02 Residential Burglary—Elements
11A WAPRAC WPIC 60.02.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 60.02.02 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part IX. Crimes Against Property
WPIC CHAPTER 60. Burglary and Criminal Trespass
WPIC 60.02.02 Residential Burglary—Elements
To convict the defendant of the crime of residential burglary, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant entered or remained unlawfully in a dwelling;
(2) That the entering or remaining was with intent to commit a crime against a person or property therein; and
(3) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if after weighing all of the evidence you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
NOTE ON USE
With this instruction, use WPIC 2.08 (Dwelling—Definition), WPIC 10.01 (Intent—Intentionally—Definition), and WPIC 65.02 (Enters or Remains Unlawfully—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 Comment to WPIC 60.02 (Burglary—First Degree—Elements).
For a discussion of the phrase “this act” in element (3), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).
COMMENT
RCW 9A.52.025.
Residential burglary requires unlawful entry into a dwelling other than a vehicle, while second degree burglary requires unlawful entry into a building other than a dwelling or a vehicle. A defendant was properly convicted of residential burglary for unlawful entry into an attached garage. State v. Murbach, 68 Wn.App. 509, 843 P.2d 551 (1993). Entry into a utility access area underneath a house also supports a conviction for residential burglary. State v. Moran, 181 Wn.App. 316, 324 P.3d 808.
Similarly, residential burglary charges are proper for an unlawful entry into a vacant home. State v. J.P., 130 Wn.App. 887, 125 P.3d 215 (2005); State v. McDonald, 123 Wn.App. 85, 96 P.3d 468 (2004). It should be noted, however, that in J.P., the court held that the State was required to disprove a defense of abandonment and in McDonald, it held that a lesser included offense of burglary in the second degree should have been submitted to the jury. See State v. Jensen, 149 Wn.App. 393, 203 P.3d 393 (2009) and State v. Olson, 182 Wn.App. 362, 329 P.3d 121 (2014). Olson has an extended discussion on the case law relating to the defense of abandonment and its application to charges of burglary and trespass. See WPIC19.06 and WPIC19.07WPIC 19.06 (Criminal Trespass—First Degree—Defense) and WPIC 19.07 (Criminal Trespass—Second Degree—Defense).
The question of “whether a building constitutes a ‘dwelling’ under RCW 9A.52.025(1) cannot always be determined as a matter of law.” State v. McPherson, 186 Wn.App. 114, 118, 344 P.3d 1283 (2015). Whether a particular structure is a “dwelling” is sometimes a fact question for the jury.
See the discussion of the requirements of “unlawful remaining” generally in the Comment to WPIC 65.02 (Enters or Remains Unlawfully—Definition).
[Current as of May 2018.]
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