WPIC 70.16 Theft—First Degree—Public Assistance Fraud—Elements

If the case involves an attempt to obtain public assistance, a separate to-convict instruction may have to be drafted for the attempt because of the problem of proving the amount that defendant was attempting to obtain.

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 “any of these acts” in the jurisdictional element, see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

Use WPIC 10.05 (Willfully—Definition) with this instruction.

RCW 74.08.331.

Amount taken—Degree of theft. Since 2003, the statute has designated all violations of RCW 74.08.331 as first degree theft. Previously, the statute designated the offense more generally as grand larceny, which the courts had interpreted as incorporating the three degrees of theft, thus adding to the elements the value of the property at issue. See State v. Campbell, 125 Wn.2d 797, 888 P.2d 1185 (1995); State v. Bryce, 41 Wn.App. 802, 707 P.2d 694 (1985).

The 2003 amendment appears to abrogate the holdings in these cases, treating all violations as first degree theft without regard to the actual dollar amount involved. The WPI Committee has revised the instruction for this edition to reflect the plain language of the statute that this offense constitutes first degree theft.

Definitions. A number of specific terms (such as public assistance, applicant, recipient, resource, and income) are defined in RCW 74.04.005. When necessary in a particular case, jury instructions should be adapted from this statute.

Alternative means. RCW 74.08.331, the welfare fraud statute, sets out alternative means of committing a single crime that are not repugnant to one another. When there is substantial evidence to support each of the alternative means, unanimity of the jury as to the mode of committing the crime is not required. The instruction may join the several modes by the word “or.” State v. Arndt, 87 Wn.2d 374, 553 P.2d 1328 (1976).

Constitutionality. The constitutionality of the underlying statute was upheld in State v. Holmes, 98 Wn.2d 590, 657 P.2d 770 (1983).

Duty to disclose. Failure to disclose a matter in obtaining public assistance constitutes a crime only if the matter is specifically required to be disclosed by statute. The duty to disclose cannot be imposed by administrative regulation. State v. Ermert, 94 Wn.2d 839, 621 P.2d 121 (1980). Also see State v. Wallace, 97 Wn.2d 846, 651 P.2d 201 (1982); State v. Matthews, 28 Wn.App. 198, 624 P.2d 720 (1981).

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 claim of title. For a more detailed discussion of this defense, see the Comment to WPIC 19.08 (Theft—Defense).

Intent. An intent to deprive is not an element of the crime of welfare fraud. State v. Campbell, 125 Wn.2d 797, 803, 888 P.2d 1185 (1995). The requisite mental state for acting willfully is acting knowingly. State v. Delcambre, 116 Wn.2d 444, 805 P.2d 233 (1991).

The State was not collaterally estopped (on public policy grounds) from prosecuting a recipient for welfare fraud after an administrative determination that she had not acted with “willful or knowing intent.” State v. Williams, 132 Wn.2d 248, 937 P.2d 1052 (1997) (case remanded for opportunity to instruct jury on duress defense).