WPIC 77.02 Possessing Stolen Property—First Degree—Elements

This instruction is drafted for cases charged under RCW 9A.56.150 (the generic statute for first degree possession of stolen property). For cases charged under RCW 9A.56.068 (specific statute as to possessing a stolen motor vehicle), use WPIC 77.21 (Possessing a Stolen Motor Vehicle—Elements) instead of this instruction. For cases charged under RCW 9A.56.140 (specific statute as to possessing a stolen firearm), use WPIC 77.13 (Possessing a Stolen Firearm—Elements) instead of this instruction.

For a discussion of the exceptions in RCW 9A.56.150 for firearms and motor vehicles, see the Comment below.

With this instruction, use WPIC 10.02 (Knowledge—Knowingly—Definition), WPIC 79.08 (Stolen—Definition), and WPIC 79.20 (Value—Definition). Also use, as applicable, WPIC 2.21 (Property—Definition) and WPIC 79.09 (Receive—Definition).

For a discussion of the phrase “any of these acts” in element (5), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.56.150.

Statutory exceptions for firearms and motor vehicles. The crime of first degree possession of stolen property does not apply when the stolen property is a firearm or a motor vehicle. RCW 9A.56.150(1). Possession of a stolen firearm and possession of a stolen motor vehicle are each addressed in a more specific statute. See RCW 9A.56.140 (possession of a stolen firearm); RCW 9A.56.068 (possession of a stolen motor vehicle.)

These statutory exceptions are not included in the instruction above. Only if there is some danger of confusion, for example if the defendant was charged with both first degree possession of stolen property and possession of a stolen firearm for separate items of property, would the instruction need to include the exclusionary language. 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).

However, 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, the instruction should be modified to read: “That the property [or services] exceeded $5,000 in value and that the property was [neither] [not] [a firearm] [nor] [a motor vehicle].” The definition of firearm would be used from WPIC 2.10 (Firearm—Definition as Element) and the definition of vehicle would be used from WPIC 2.25 (Vehicle—Nontraffic Cases—Definition).

Possession. To convict a person of possession of stolen property, the State is required to prove both 1) actual or constructive possession of the property that has been stolen, and 2) actual or constructive knowledge that the property has been stolen. State v. Plank, 46 Wn.App. 728, 731 P.2d 1170 (1987); State v. Summers, 45 Wn.App. 761, 728 P.2d 613 (1986); State v. Jennings, 35 Wn.App. 216, 666 P.2d 381 (1983). Constructive possession in possession of stolen property cases has the same meaning as it has in controlled substance cases—that the person has dominion and control over the goods. See State v. Plank, 46 Wn.App. at 731–33 (treating the definition from controlled substances cases as applying to stolen property cases); see also State v. Lakotiy, 151 Wn.App. 699, 714, 214 P.3d 181 (2009). For a more detailed discussion of constructive possession in the context of possession of a controlled substance, see the Comment to WPIC 50.03 (Possession—Definition). For a discussion of actual and constructive knowledge as it applies to possession of stolen property, see Fine, 13B Washington Practice, Criminal Law and Sentencing § 31:13 (3d ed.).

The reference to “receive, retain, possess, conceal, or dispose of stolen property” in RCW 9A.56.140(1) is definitional. It does not create alternative means of committing a crime. State v. Tyler, 191 Wn.2d 205, 422 P.3d 436 (2018); State v. Makekau, 194 Wn.App 407, 378 P.3d 577 (2016).

A person may not be convicted of theft and possession of stolen property arising from the same conduct. State v. Dallas, 126 Wn.2d 324, 329–30, 892 P.2d 1082 (1995); State v. Melick, 131 Wn.App. 835, 840–41, 129 P.3d 816 (2006). This general rule does not apply, however, when the Legislature intends to criminalize possession of a particular item separately from other crimes relating to property theft. State v. Denny, 173 Wn.App. 805, 808, 294 P.3d 862 (2013).

RCW 9A.56.140(2) provides that the fact that the person who stole the property has not been identified, apprehended, or convicted is not a defense to a charge of possessing stolen property. No pattern instruction is proposed. An instruction can usually be drafted in the language of the statute.