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WPIC 70.11 Theft—Third Degree—Elements

11A WAPRAC WPIC 70.11Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 70.11 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part IX. Crimes Against Property
WPIC CHAPTER 70. Theft
WPIC 70.11 Theft—Third Degree—Elements
To convict the defendant of the crime of theft in the third degree, each of the following three elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant
[(a)] [wrongfully obtained or exerted unauthorized control over property [or services] of another [or the value thereof] [not exceeding $750 in value];] [or]
[(b)] [by color or aid of deception obtained control over property [or services] of another [or the value thereof] [not exceeding $750 in value];] [or]
[(c)] [appropriated lost or misdelivered property [or services] of another [or the value thereof] [not exceeding $750 in value];]
(2) That the defendant intended to deprive the other person of the property [or services]; and
(3) That this act occurred in the [State of Washington] [City of ] [County of ].
If you find from the evidence that elements (2) and (3) and any of the alternative elements [(1)(a)] [(1)(b)] or [(1)(c)] have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. To return a verdict of guilty, the jury need not be unanimous as to which of alternatives [(1)(a)] [(1)(b)] or [(1)(c)] has been proved beyond a reasonable doubt, as long as each juror finds that at least one alternative has been proved beyond a reasonable doubt.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of elements (1), (2), or (3), then it will be your duty to return a verdict of not guilty.
NOTE ON USE
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 alternative elements following the format set forth in WPIC 4.21 (Elements of the Crime—Form).
The bracketed phrases referring to dollar amounts are not needed unless theft in the third degree is being submitted as a lesser included crime with theft in the second degree.
With this instruction use WPIC 10.01 (Intent—Intentionally—Definition). As applicable, also use WPIC 2.21 (Property—Definition), 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), WPIC 79.06 (Services—Definition), and WPIC 79.20 (Value—Definition).
Use WPIC 19.08 (Theft—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 WPIC 4.20 (Introduction). For a discussion of the phrase “this act,” see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).
COMMENT
See the Comment to WPIC 70.02 (Theft—First Degree—Value of Property—Elements) for a review of recent cases that discuss the various elements of theft.
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 claim of title. For a more detailed discussion of this defense, see the Comment to WPIC 19.08 (Theft—Defense).
Value is not an essential element of third degree theft. State v. Tinker, 155 Wn.2d 219, 222, 118 P.3d 885 (2005); State v. Leyda, 157 Wn.2d 335, 341, 138 P.3d 610 (2006). Because the statute's dollar amount is a ceiling rather than a floor, the to-convict instruction for third degree theft need not refer to property value. State v. Leyda, 157 Wn.2d at 341.
In 1998, the Legislature amended RCW 9A.56.050 to add language specifying that the statute's reference to property “includes ten or more merchandise pallets, or ten or more beverage crates, or a combination of ten or more merchandise pallets and beverage crates.” The WPI Committee did not incorporate this language into the instruction, leaving it to practitioners to address questions about interpreting this language when a case involves pallets or crates.
[Current as of September 2018.]
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