WPIC60.16Criminal Trespass—First Degree—Elements
Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 60.16 (4th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
October 2016 Update
Part IX. Crimes Against Property
WPIC CHAPTER 60. Burglary and Criminal Trespass
WPIC 60.16 Criminal Trespass—First Degree—Elements
To convict the defendant of the crime of criminal trespass in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about(date), the defendant knowingly entered or remained in a building;
(2) That the defendant knew that the entry or remaining was unlawful; and
(3) That this act occurred in the [State of Washington] [City of] [County of ].
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 10.02 (Knowledge—Knowingly—Definition) and WPIC 65.02 (Enters or Remains Unlawfully—Definition).
Do not use WPIC 2.05 (Building—Definition) with this instruction. If criminal trespass is presented to the jury as a lesser included offense of burglary, additional instructions may be needed to explain that there is a separate definition of building for burglary and a separate definition of building for criminal trespass. See Comment below.
Use WPIC 19.06 (Criminal Trespass—First Degree—Defense) with this instruction if the statutory defense is an issue supported by the evidence.
In element (3), choose from among the bracketed phrases depending on whether the case is in superior, municipal, or district court. See the Introduction to WPIC 4.20.
For a discussion of the phrase “this act” in element (3), see the Introduction to WPIC 4.20 and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).
First degree criminal trespass is a lesser included offense of first degree burglary, but second degree criminal trespass is not. State v. Mounsey, 31 Wn.App. 511, 643 P.2d 892 (1982). First degree criminal trespass is also a lesser included offense of second degree burglary. See State v. Soto, 45 Wn.App. 839, 727 P.2d 999 (1986); State v. Olson, 182 Wn.App. 362, 375, 329 P.3d 121 (2014).
The opinion in State v. Brown, 50 Wn.App. 873, 751 P.2d 331 (1988), abrogated on other grounds in In re Heidari, 174 Wn.2d 288, 274 P.3d 366 (2012), discusses what constitutes a “building” for purposes of the statute. In Brown, the court held that a fenced area does not constitute a “building” within the meaning of RCW 9A.52.070. The court noted that the 1979 amendments to RCW 9A.52.070 struck language in the statute regarding “adjacent real property” and “fenced” or “enclosed real property.” Following the 1979 amendments, the court found that the definition of building in RCW 9A.04.110(5) does not apply to the criminal trespass statutes and that the scope of first degree criminal trespass was narrowed “to trespasses in a building in its ordinary sense.”
The statutory defenses to criminal trespass set out in RCW 9A.52.090 (abandoned property, public premises, subjective good faith belief, and service of process) each negate the unlawful presence element of criminal trespass. Therefore when one of these defenses is placed in issue, the burden is upon the prosecution to prove its absence beyond a reasonable doubt. City of Bremerton v. Widell, 146 Wn.2d 561, 51 P.3d 733 (2002) (good faith belief); State v. J.P., 130 Wn.App. 887, 125 P.3d 215 (2005) (abandoned property); State v. Finley, 97 Wn.App. 129, 982 P.2d 681 (1999) (public premises). For further discussion of these defenses and burden of proof issues relating to them, see the Comment to WPIC 19.06 (Criminal Trespass—First Degree—Defense).
[Current as of December 2015.]
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