WPIC 77.06 Possessing Stolen Property—Second Degree—Elements

This instruction is drafted for cases charged under RCW 9A.56.160 (the generic statute for second 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.56.160 for firearms and motor vehicles, see the Comment below.

The bracketed phrase referring to not exceeding $5,000 in value is not needed unless possessing stolen property in the second degree is being submitted as a lesser included crime with possessing stolen property in the first degree.

The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (4). 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 (4), revise the instruction to remove references to alternative elements following the format set forth in WPIC 4.21 (Elements of the Crime—Form).

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), WPIC 79.07 (Access Device—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.56.160.

Statutory exceptions for firearms and motor vehicles. The crime of second degree possession of stolen property does not apply when the stolen property is a firearm or a motor vehicle. RCW 9A.56.160(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) and 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 second 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 exceptions are essential elements, or if, in a given case, the trial court believes it would be clearer for the instruction to include the statutory exceptions, then a new element should be added to the instruction, to read: “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). Additionally, references to the numbers of elements would need to be revised throughout the instruction.

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). 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.).

First degree possession of stolen property includes second degree possession as a lesser included offense, and the jury should be so instructed when evidence is presented to support an inference that the lesser crime was committed. State v. Riley, 34 Wn.App. 529, 663 P.2d 145 (1983); see also State v. Condon, 182 Wn.2d 307, 316–17, 343 P.3d 357 (2015) (providing general framework for defendant's right to lesser-included offense instruction).

A person who unlawfully possesses several stolen credit cards issued to the same person is guilty of a separate criminal act for each individual card. State v. Douglas, 50 Wn.App. 776, 751 P.2d 311 (1988); State v. Ose, 156 Wn.2d 140, 146, 124 P.3d 635 (2005) (agreeing with the Douglas court that the Legislature unambiguously defined the unit of prosecution in RCW 9A.56.160(1)(c) as one count per access device).

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).