WPIC 85.11 Malicious Mischief—Third Degree—Gross Misdemeanor—Elements
11A WAPRAC WPIC 85.11Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 85.11 (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 85.11 Malicious Mischief—Third Degree—Gross Misdemeanor—Elements
To convict the defendant of the crime of malicious mischief in the third degree, each of the following two elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant either
(a) knowingly and maliciously caused physical damage to the property of another [in an amount not exceeding $750]; or
(b) wrote, painted, or drew an inscription, figure, or mark of any type on [a public or private building or structure] [or] [real or personal property] owned by another person without the express permission of the owner or operator of the property [, under circumstances not amounting to malicious mischief in the [first or] second degree];
and
(2) That this act occurred in the [State of Washington] [City of ] [County of ].
If you find from the evidence that element (2) and either of the alternative elements (1)(a) or (1)(b) 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) or (1)(b) 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 either element (1) or (2), then it will be your duty to return a verdict of not guilty.
NOTE ON USE
In element (1)(a), use the bracketed phrase only if malicious mischief in the third degree is submitted to the jury as a lesser included offense with malicious mischief in the second degree.
With this instruction, use WPIC 2.13 (Malice—Maliciously—Definition) and WPIC 10.02 (Knowledge—Knowingly—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).
In element (2), 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 “this act”, see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).
The instruction is drafted for cases in which the jury needs to be instructed using 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).
COMMENT
RCW 9A.48.090.
See the Comment to WPIC 85.02 (Malicious Mischief—First Degree—Elements).
Property of another. For discussion of the phrase “property of another,” see the Comment to WPIC 85.02 (Malicious Mischief—First Degree—Elements).
[Current as of May 2019.]
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