WPIC 77.11 Possessing Stolen Property—Third Degree—Elements

Use bracketed material as applicable. The bracketed phrase referring to not exceeding $750 in value is not needed unless possessing stolen property in the third degree is being submitted as a lesser included crime with possessing stolen property in the second degree.

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).

In element (4) 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 “any of these acts” in element (4), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.56.170; RCW 9A.56.140.

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. State v. Plank, 46 Wn.App. at 731–33. 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.).

In 1998, the Legislature amended RCW 9A.56.170 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.

Inclusion of disjunctive means of possessing stolen property (i.e. “received, possessed, concealed or disposed of”) in the elements instruction does not transform them into alternative means of commission of the 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).