WPIC 70.06 Theft—Second Degree—Value of Property—Elements

Use this instruction for second degree theft cases that are charged as involving property or services valued at over $750. For second degree theft cases involving access device or public records, use WPIC 70.06.01 (Theft—Second Degree—Access Device or Public Record—Elements) instead of this instruction. For second degree theft cases involving metal property, use WPIC 70.06.02 (Theft—Second Degree—Metal Property—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.

Do not use this instruction for theft of a firearm. Instead use WPIC 70.12 (Theft of a Firearm—Definition). Do not use this instruction for theft of a motor vehicle. Instead use WPIC 70.26 (Theft of Motor Vehicle—Elements). For a discussion of the exceptions in RCW 9A.56.040 for motor vehicles and firearms, see the Comment below.

The bracketed phrase referring to the maximum dollar amount is not needed unless theft in the second degree is being submitted as a lesser included crime with theft in the first degree.

With this instruction, use WPIC 79.20 (Value—Definition) and WPIC 10.01 (Intent—Intentionally—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).

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).

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.56.040(1)(a).

For this alternative the statute includes exceptions for both firearms and motor vehicles. The exception for motor vehicles was added to the statute in 2007 with an effective date of July 22, 2007.

These statutory exceptions are not included in the instruction above. The penalties for theft of a firearm and theft of a motor vehicle are higher than for second degree theft. See RCW 9.94A.515 (theft of a firearm is ranked at seriousness level VI, theft of a motor vehicle is at level II, second degree theft is at level I). Because the firearm and motor vehicle exceptions thus serve as ceilings to criminal liability, the WPI Committee believes that the exceptions are not essential elements of the offense. For a related discussion, see the Comment to WPIC 70.02 (Theft—First Degree—Value of Property—Elements).

If a trial judge is persuaded that the exceptions are essential elements or if in a given case the trial judge believes that the instruction would be clearer for the jury if the instruction included the statutory exception, then element (2) of the instruction could be modified as follows: “That the property [or services] exceeded $750 in value [but did not exceed $5,000 in value] and was [neither] [not] [a firearm] [nor] [a motor vehicle].” The definitions of “firearm” and “vehicle” would be used from WPIC 2.10 (Firearm—Definition as Element) and WPIC 2.25 (Vehicle—Nontraffic Cases—Definition).

For a broader discussion of issues relating to this instruction, see the Comment to WPIC 70.02 (Theft—First Degree—Value of Property—Elements).