WPIC 85.02 Malicious Mischief—First Degree—Elements
11A WAPRAC WPIC 85.02Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 85.02 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Part X. Arson and Related Crimes
WPIC CHAPTER 85. Malicious Mischief
WPIC 85.02 Malicious Mischief—First Degree—Elements
To convict the defendant of the crime of malicious mischief in the first degree, each of the following three elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant
[(a)] [caused physical damage to the property of another in an amount exceeding $5,000] [or]
[(b)] [caused an interruption or impairment of service rendered to the public, by physically damaging or tampering with [an emergency vehicle] [property of the state or a political subdivision thereof] [a public utility or mode of public transportation, power, or communication]] [or]
[(c)] [caused an impairment of the safety, efficiency, or operation of an aircraft by physically damaging or tampering with the aircraft or aircraft equipment, fuel, lubricant, or parts] [or]
[(d)] [caused an interruption or impairment of service rendered to the public by, without lawful authority, physically damaging, destroying, or removing an official ballot deposit box or ballot drop box or, without lawful authority, damaging, destroying, removing, or tampering with the contents thereof];
(2) That the defendant acted knowingly and maliciously; and
(3) That this act occurred in the State of Washington.
If you find from the evidence that elements (2) and (3), and any of the alternative elements [(1)(a),] [(1)(b),] [(1)(c),] or [(1)(d)], have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. To return a verdict of guilty, the jury need not be unanimous as to which of alternatives [(1)(a),] [(1)(b),] [(1)(c),] or [(1)(d)] has been proved beyond a reasonable doubt, as long as each juror finds that at least one alternative has been proved beyond a reasonable doubt.
On the other hand, if, after weighing all of the evidence you have a reasonable doubt as to any one of elements (1), (2), or (3), then it will be your duty to return a verdict of not guilty.
NOTE ON USE
With this instruction, use WPIC 10.02 (Knowledge—Knowingly—Definition) and WPIC 2.13 (Malice—Maliciously—Definition). Also use, as applicable, WPIC 88.02 (Damages—Arson, Reckless Burning and Malicious Mischief—Definition) and WPIC 88.03 (Physical Damage—Malicious Mischief—Definition).
Use bracketed material as applicable. The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (1). 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 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).
For a discussion of the phrase “this act” in element (3), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).
COMMENT
RCW 9A.48.070, as amended in 2017, added “physically damaging, destroying or removing an official ballot deposit box or ballot drop box” or “damaging, destroying, removing or tampering with the contents” of an official ballot box, without lawful authority, to the definition of first degree malicious mischief if such act causes interruption or impairment of service rendered to the public. See Laws of 2017, Chapter 283, § 1 (effective July 23, 2017).
First degree malicious mischief under RCW 9A.48.070(1)(b) with respect to public property requires an intent to interrupt public service and not merely an intent to cause physical damage that results in such an interruption. State v. Jury, 19 Wn.App. 256, 576 P.2d 1302 (1978).
The opinion in State v. Ratliff, 46 Wn.App. 325, 730 P.2d 716 (1986), discusses instructing on the inference of malice in malicious mischief prosecutions. For further discussion, see the Comment to WPIC 2.13 (Malice—Maliciously—Definition).
Malicious mischief is not a lesser included offense of attempted burglary. State v. Jackson, 112 Wn.2d 867, 774 P.2d 1211 (1989).
“Property of another” under RCW 9A.48.070(1) is defined as “property in which the actor possesses anything less than exclusive ownership.” RCW 9A.48.010(1)(c); State v. Coria, 146 Wn.2d 631, 48 P.3d 980 (2002) (in a case pre-dating the statutory definition, holding that “property of another” includes property co-owned by the defendant and the victim under community property principles). “Property of another” also includes the property rights of a lessee of the property that was damaged. State v. VanValkenburgh, 70 Wn.App. 812, 856 P.2d 407 (1993).
[Current as of May 2019.]
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