WPIC 100.02 Attempt—Elements

Fill in the name of the crime in elements (1) and (2). If attempt to commit the crime is being submitted to the jury along with the crime charged, the jury will be receiving instructions defining and setting out the elements of the crime charged. If the basic charge is an attempt to commit a crime, a separate elements instruction must be given delineating the elements of that crime. WPIC 100.01 (Attempt—Definition) may be used with this instruction. See the Comment below.

Use WPIC 10.01 (Intent—Intentionally—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.

It may be necessary to substitute “overt act” for “substantial step” in element (1) when the defendant is charged with the attempt to commit a drug-related offense under RCW Chapter 69.50. See the Comment below.

RCW 9A.28.020.

Elements of attempt. An attempted crime involves two elements: the intent to commit a specific crime and the taking of a substantial step toward its commission. State v. DeRyke, 149 Wn.2d 906, 73 P.3d 1000 (2003); State v. Fedorov, 181 Wn.App. 187, 324 P.3d 784 (2014).

Failure to instruct the jury as to both of these elements is constitutional error. See State v. Aumick, 126 Wn.2d 422, 894 P.2d 1325 (1995); 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); State v. Stewart, 35 Wn.App. 552, 555, 667 P.2d 1139 (1983).

Impossibility. RCW 9A.28.020(2) specifically provides that it is no defense that the crime charged to have been attempted was factually or legally impossible of commission. Neither legal nor factual impossibility is a defense to attempt. State v. Walsh, 123 Wn.2d 741, 870 P.2d 974 (1994) (holding crime of “spotlighting” was completed, not merely attempted, by effort to kill or injure big game, in place where such animals may reasonably be expected); State v. Luther, 125 Wn.App. 176, 105 P.3d 56 (2005); see also State v. Johnson 173 Wn.2d 895, 270 P.3d 591 (2012); State v. Patel, 170 Wn.2d 476, 242 P.3d 856 (2010); State v. Townsend, 147 Wn.2d 666, 57 P.3d 255 (2002) (addressing factual impossibility).

No pattern instruction on impossibility is proposed. If appropriate, an instruction can be drafted using the language of the statute.

Intent. When a crime is defined in terms of acts causing a particular result, a defendant charged with attempt must have specifically intended to accomplish that criminal result. Thus, a crime defined by a particular result must include the intent to accomplish that criminal result as an element in order for that crime to serve as a basis for the crime of attempt. State v. Dunbar, 117 Wn.2d 587, 817 P.2d 1360 (1991) (trial court properly dismissed charge of attempted first degree murder by creation of a grave risk of death because first degree murder by creation of a grave risk of death does not require a specific intent to kill). See also, State v. Johnson, 173 Wn.2d 895, 270 P.3d 591 (2012).

In an attempted burglary case, the jury must be instructed on the statutory definition of intent. State v. Allen, 101 Wn.2d 355, 678 P.2d 798 (1984) (finding reversible error).

The lack of a mens rea element in the crime of rape of a child is not inconsistent with the attempt statute's element of “intent to commit a specific crime” and it therefore may serve as a base crime for criminal attempt. The intent required for attempted rape of a child is the intent to engage in sexual intercourse with a child. State v. Johnson, 173 Wn.2d 895, 270 P.3d 591 (2012) (other elements of rape of a child remain strict liability).

Intent to attempt a crime may be inferred from the facts and circumstances. State v. Bencivenga, 137 Wn.2d 703, 974 P.2d 832 (1999).

Substantial step. A substantial step for purposes of the attempt statute is not the same as a substantial step for purposes of the conspiracy statute. State v. Dent, 123 Wn.2d 467, 474–77, 869 P.2d 392 (1994). See the Comments to WPIC 110.03 (Criminal Conspiracy—Substantial Step—Definition) and WPIC 100.05 (Attempt—Substantial Step—Definition).

Cross-reference. See generally Fine, 13A Washington Practice, Criminal Law and Sentencing § 7:5 (3d ed.).