WPIC 70.02 Theft—First Degree—Value of Property—Elements

Use this instruction for first degree theft cases involving property or services valued at over $5,000. For first degree theft cases involving property taken from the person of another, use WPIC 70.02.01 (Theft—First Degree—Taken from the Person of Another—Elements) instead of this instruction. For cases involving theft of a firearm under RCW 9A.56.300, use WPIC 70.13 (Theft of a Firearm—Elements) instead of this instruction. Use the bracketed language in element (2) if the State has alleged multiple transactions based on a common scheme or plan.

The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (1). Care must be taken to limit the alternatives to those that were included in the charging document and are supported by sufficient evidence. For directions on when and how to draft instructions with alternative elements, see WPIC 4.20 (Introduction) and the Note on Use and Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form). For the related jury interrogatory see WPIC 190.09 (Special Verdict Form—Elements with Alternatives). For any case in which substantial evidence supports only one of the alternatives in element (1), revise the instruction to remove references to the unsupported alternative elements following the format set forth in WPIC 4.21 (Elements of the Crime—Form).

With this instruction, use WPIC 10.01 (Intent—Intentionally—Definition) and WPIC 79.20 (Value—Definition). As applicable, also use WPIC 2.21 (Property—Definition), WPIC 79.02 (Wrongfully Obtains—Exerts Unauthorized Control—Definition), WPIC 79.03 (By Color or Aid of Deception—Definition), WPIC 79.04 (Deception—Definition), WPIC 79.05 (Appropriate Lost or Misdelivered Property or Services—Definition), and WPIC 79.06 (Services—Definition).

Use WPIC 19.08 (Theft—Defense) with this instruction if the statutory defense is an issue supported by the evidence.

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

RCW 9A.56.030(1)(a).

Statutory exception for firearms. For the alternative means addressed in this instruction, the statute sets forth an exception for firearms but not for motor vehicles. The exception for motor vehicles applies only to the alternative for property taken from the person of another. Compare subsections (1)(a) and (1)(b) of RCW 9A.56.030.

The statutory language excepting firearms is not included in the instruction above. The WPI Committee believes that this exclusion is not an essential element of the crime of first degree theft. Theft of a firearm is a separate offense that is ranked at a higher seriousness level than is first degree theft. See RCW 9.94A.515 (theft of a firearm is ranked at level VI; first degree theft is ranked at level II). Because the firearm exception thus acts as a ceiling for liability for first degree theft, the WPI Committee believes that the firearm exception is not an essential element, analogizing to other statutory ceilings on criminal liability such as the statutory phrase “does not exceed [specified] dollars in value.” See State v. Tinker, 155 Wn.2d 219, 118 P.3d 885 (2005); State v. Leyda, 157 Wn.2d 335, 138 P.3d 610 (2006) (State is not required to prove that item stolen has a value below $250 in a prosecution for theft in the third degree, RCW 9A.56.050). Only if there would be some danger of confusion, for example, if the defendant was charged with both theft in the first degree and theft of a firearm for separate items of property, would the instruction need to include the exclusionary language. Accord State v. Ward, 148 Wn.2d 803, 64 P.3d 640 (2003); State v. Chino, 117 Wn.App. 531, 72 P.3d 256 (2003) (in prosecution for felony violation of a domestic violence order based on an assault, there is no need to include the statutory language “that is not an assault in the first or second degree” unless the defendant is also charged with such offense).

If the trial judge is persuaded that the firearm exception is an essential element, or if in a given case the trial court believes it would be clearer for the jury to include the statutory exclusion, element (2) of the instruction could be modified to read: “That the property [or services] exceeded $5,000 in value and was not a firearm.” The definition of firearm would be used from WPIC 2.10 (Firearm—Definition as Element).

Statutory defense. RCW 9A.56.020 sets forth a defense to a charge of theft if the property or service was appropriated openly and avowedly under a good faith claim of title. For a more detailed discussion of this defense, see the Comment to WPIC 19.08 (Theft—Defense).

Types of theft. In the past the cases recognized four different kinds of theft—theft by taking, theft by embezzlement, theft by deception, and theft by appropriating lost or misdelivered property. See State v. Southard, 49 Wn.App. 59, 741 P.2d 78 (1987); State v. Vargas, 37 Wn.App. 780, 683 P.2d 234 (1984). The different kinds of theft, however, do not constitute alternative means. See State v. Linehan, 147 Wn.2d 638, 56 P.3d 542 (2002). Under the prior common law, theft by taking differed from the other three types of theft by requiring an intent of permanent deprivation and requiring a trespass. These separate requirements for theft by taking, however, no longer apply under the current statute. See State v. Komok, 113 Wn.2d 810, 783 P.2d 1061 (1989) (theft by taking no longer requires an intent of permanent deprivation); State v. Trepanier, 71 Wn.App. 372, 380, 858 P.2d 511 (1993) (same holding as Komok); State v. Smith, 115 Wn.2d 434, 798 P.2d 1146 (1990) (theft by taking no longer requires a trespass); State v. Crittenden, 146 Wn.App. 361, 189 P.3d 849 (2008) (same holding as Komok).

Property of another—Superior possessory interest. The statutory definition of theft refers to “property or services of another.” See RCW 9A.56.020(1)(a). To constitute the property of another:

State v. Longshore, 97 Wn.App. 144, 149, 982 P.2d 1191 (1999) (internal citations omitted), affirmed, 141 Wn.2d 414, 5 P.3d 1256 (2000); see also State v. Mora, 110 Wn.App. 850, 857, 43 P.3d 38 (2002); see also State v. Rose, 160 Wn.App. 29, 246 P.3d 1277 (2011), reversed on other grounds, 175 Wn.2d 10, 282 P.3d 1087 (2012).

In State v. Pike, 118 Wn.2d 585, 826 P.2d 152 (1992), the defendant was convicted of second degree theft for taking his own vehicle from a mechanic without paying for repairs. The Supreme Court reversed the conviction holding that the mechanic did not have a possessory interest in the vehicle that was superior to the defendant's and that the failure of the defendant to pay on a contractual obligation was insufficient to support the conviction. See also State v. Lau, 174 Wn.App. 857, 300 P.3d 838 (2013) (defendant who evaded gambling tax by failing to report gambling receipts could not be prosecuted for theft because the city did not have a property interest in the receipts).

Meaning of “deprive.” Except in cases involving intellectual property, the word “deprive” is given its common meaning. State v. Miller, 92 Wn.App. 693, 964 P.2d 1196 (1998). See also State v. Cuthbert, 154 Wn.App. 318, 225 P.3d 407 (2010).

Knowledge of value. Attempted theft in the first degree does not include as an element the knowledge of the value of the property targeted for theft. State v. Delmarter, 94 Wn.2d 634, 618 P.2d 99 (1980).

Aggregation of multiple acts—Common scheme or plan. Under RCW 9A.56.010(21) and the common law, multiple acts of theft may be aggregated into one count if they are part of a common scheme or plan or a criminal episode. State v. Farnworth, 192 Wn.2d 468, 430 P.3d 1127 (2018). See the Comment to WPIC 79.20 (Value—Definition).

When the case involves aggregated thefts, the to-convict instruction must include the common scheme or plan as an element. State v. Garman, 100 Wn.App. 307, 314–15, 984 P.2d 453 (1999); State v. Farnworth, 199 Wn App 185, 398 P.3d 1172 (2017), reversed on other grounds, State v. Farnworth, 192 Wn.2d 468, 430 P.3d 1127 (2018).

The phrase “common scheme or plan” need not be defined in the jury instructions. State v. Reid, 74 Wn.App. 281, 292, 872 P.2d 1135 (1994).

Miscellaneous first-degree thefts. A separate statute, RCW 9.91.170(6), provides that wrongfully obtaining or exerting unauthorized control over a dog guide or service animal constitutes first degree theft. Other theft statutes will also require the drafting of an elements instruction. Specific definitions apply to those offenses.