WPIC 74.02 Taking Motor Vehicle Without Permission—Second Degree—Alternatives—Elements

Use this instruction to present the two alternative methods of committing the crime, taking or voluntarily riding. If only intentional taking is involved, use WPIC 74.03 (Taking Motor Vehicle Without Permission—Second Degree—Taking—Elements). If only voluntarily riding is involved, use WPIC 74.04 (Taking Motor Vehicle Without Permission—Second Degree—Riding—Elements).

The instruction is drafted for cases in which the jury needs to be instructed using both of the alternatives for element (1). Care must be taken to limit the alternatives to those that were included in the charging document and that 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).

Use WPIC 10.01 (Intent—Intentionally—Definition), WPIC 10.02 (Knowledge—Knowingly—Definition), and WPIC 2.25 (Vehicle—Definition) with this instruction.

For a discussion of the phrase “any of these acts” in element (3), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

If the facts on which jurisdiction is based are in dispute, a special verdict form may need to be submitted to the jury. See WPIC 4.20 (Introduction).

RCW 9A.56.075.

A riding lawnmower is not a motor vehicle under RCW 9A.56.065 (Theft of a Motor Vehicle). State v. Barnes, 189 Wn.2d 492, 403 P.3d 72 (2017). “A snowmobile is a ‘motor vehicle’ for purposes of RCW 9A.56.065.” State v. Wolvelaere, 195 Wn.2d 597, 611, 461 P.3d 1173 (2020).

Taking a motor vehicle without permission, RCW 9A.56.075, is not a lesser included offense of theft of a motor vehicle. State v. Ritchey, 1 Wn.App.2d 387, 405 P.3d 1018 (2017).

History of statutes—Applicability of case law under former statute. The statutes on taking a motor vehicle without permission were amended in 2002, 2003, and 2007. Prior to 2002, there was only a single statute, RCW 9A.56.070, which set forth the offense without separation into degrees. In 2002, the offense was split into two degrees, with the new second degree offense containing essentially the same elements as the former offense. In 2003, the Legislature moved the second degree offense into a new statute, RCW 9A.56.075. As a result of those amendments, the current RCW 9A.56.075 specifies essentially the same elements as were set forth in former RCW 9A.56.070, and case law interpreting former RCW 9A.56.070 should apply directly to the current RCW 9A.56.075.

Case law under former statute. The gist of this statutory offense is the intentional taking of another person's automobile without permission. See State v. Hudson, 56 Wn.App. 490, 784 P.2d 533 (1990), and the cases discussed therein. Intent to permanently deprive is not an element. State v. Jamerson, 74 Wn.2d 146, 443 P.2d 654 (1968). The person taking a motor vehicle must know at the time of the taking that he or she does not have permission; likewise, the person riding in such a vehicle must have knowledge that it was unlawfully taken. State v. Robinson, 78 Wn.2d 479, 482, 475 P.2d 560 (1970).

The riding activity and the actual taking are alternative methods of committing the crime, and the actual taker may be charged with violating the statute under either alternative. State v. Pettitt, 93 Wn.2d 288, 609 P.2d 1364 (1980).

A defendant may be guilty of the offense by taking (i.e., pushing) a vehicle, even though the vehicle is temporarily inoperable. State v. McGary, 37 Wn.App. 856, 683 P.2d 1125 (1984). The vehicle need not be driven any minimum distance in order to be “driven away.” State v. Womble, 93 Wn.App. 599, 969 P.2d 1097 (1999).

WPIC 19.08 (Theft—Defense) covering the statutory defense to theft set out in RCW 9A.56.020(2) is applicable to a charge of taking a motor vehicle without permission. State v. Williams, 22 Wn.App. 197, 588 P.2d 1201 (1978).

Former RCW 9A.56.070 does not apply where a defendant had permission to use the vehicle but exceeded the scope of the permission. State v. Clark, 96 Wn.2d 686, 638 P.2d 572 (1982).

A motor boat is not a vehicle for purposes of former RCW 9A.56.070. State v. Martin, 55 Wn.App. 275, 776 P.2d 1383 (1989).

The Court of Appeals approved an instruction based on WPIC 74.02, finding that the knowledge element of the “taking” alternative is implicit in the intent element. The court approved the placement of “intentionally” before “without permission,” in contrast to the statute's wording, as clarifying this point. State v. Toms, 75 Wn.App. 55, 876 P.2d 922 (1994).

The trial court's finding that the defendant recognized the vehicle as stolen by someone else and was trying to return it to its owner precluded a conviction for taking a motor vehicle without permission because it “preclude[d] the guilty intent to deprive required by the TMV statute.” State v. Hudson, 85 Wn.App. 401, 932 P.2d 714 (1997).