WPIC60.18Criminal Trespass—Second Degree—Elements
Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 60.18 (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 60.18 Criminal Trespass—Second Degree—Elements
To convict the defendant of the crime of criminal trespass in the second 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 or upon the premises of another [under circumstances not constituting criminal trespass in the first degree];
(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 65.01 (Premises—Definition), WPIC 10.02 (Knowledge—Knowingly—Definition), and WPIC 65.02 (Enters or Remains Unlawfully—Definition). Also use WPIC 19.07 (Criminal Trespass—Second Degree—Defense) if the statutory defense is an issue supported by the evidence.
Use the bracketed phrase in element (1) only if both first and second degree criminal trespass are being submitted to the jury.
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).
The opinion in State v. Brittain, 38 Wn.App. 740, 689 P.2d 1095 (1984), holds that the trial court did not err in refusing to instruct the jury that second degree criminal trespass is a lesser included offense of second degree burglary. The court stated that second degree criminal trespass is applicable only in those situations in which the defendant enters or remains unlawfully on private property not constituting a building.
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 19.07 (Criminal Trespass—Second Degree—Defense).
[Current as of December 2015.]
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