WPIC 100.01 Attempt—Definition

This instruction may be used whenever an attempt to commit a crime is in issue, whether it is an attempt charge filed under RCW 9A.28.020 or the attempt is submitted as an included offense. See the Comment below. For a discussion of when to use this instruction instead of WPIC 100.02 (Attempt—Elements), see the Comment below.

Give instructions defining the crime charged to have been attempted. Use WPIC 10.01 (Intent—Definition) and WPIC 100.05 (Attempt—Substantial Step—Definition) with this instruction. If attempt to commit the crime is being submitted to the jury along with the crime charged, use WPIC 155.00 (Concluding Instruction—Lesser Degree/Lesser Included/Attempt) and WPIC 180.05 (Verdict Form B—Lesser Degree/Lesser Included/Attempt) with this instruction.

Use this instruction with caution when the defendant is charged with attempt to commit a drug-related offense. See the Comment to WPIC 100.02 (Attempt—Elements).

RCW 9A.28.020.

The WPI Committee has revised the instruction to avoid any potential ambiguity that may be caused by the use of “that crime” instead of “fill in crime” in the second and third repetitions of that term. The concern was that a jury might think a defendant need only act with the intent to commit the attempt, instead of the completed crime.

It is constitutional error not to give an instruction defining attempt and informing the jury that both intent and a substantial step are elements of an attempt to commit a crime. See State v. Wilson, 1 Wn.App.2d 73, 404 P.3d 76 (2017); State v. Jackson, 62 Wn.App. 53, 813 P.2d 156 (1991) (citing the Note on Use to WPIC 100.01 with approval); State v. Stewart, 35 Wn.App. 552, 555, 667 P.2d 1139 (1983).

The requirements of an attempt are addressed in both the instruction above and WPIC 100.02. Usually, only one of these instructions should be used. The instruction above should be used if the to-convict instruction in a particular case is drafted using the word “attempt” along with the elements of the underlying offense. For example, if the to-convict instruction requires the prosecution to prove that the defendant attempted to rob a person on a given date, then the instruction above could be used to define the to-convict instruction's use of the word “attempt.” If, however, the to-convict instruction is based on WPIC 100.02, then the instruction above generally will not be needed.

See the Comment to WPIC 100.02 (Attempt—Elements).