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WPIC 100.05 Attempt—Substantial Step—Definition

11A WAPRAC WPIC 100.05Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 100.05 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part XII. Anticipatory Offenses
WPIC CHAPTER 100. Attempt
WPIC 100.05 Attempt—Substantial Step—Definition
A substantial step is conduct that strongly indicates a criminal purpose and that is more than mere preparation.
NOTE ON USE
Use this instruction with WPIC 100.01 (Attempt—Definition) or WPIC 100.02 (Attempt—Elements).
Do not use this instruction in conspiracy cases. Instead, use WPIC 110.03 (Criminal Conspiracy—Substantial Step—Definition). See the Comment to WPIC 110.03 for further discussion.
It may be inappropriate to use this instruction with attempts to commit drug-related offenses charged pursuant to RCW 69.50.407. See the Comment to WPIC 100.02 (Attempt—Elements).
COMMENT
WPIC 100.05 was quoted with approval in State v. Gatalski, 40 Wn.App. 601, 699 P.2d 804 (1985), overruled on other grounds as recognized in State v. Harris, 121 Wn.2d 317, 849 P.2d 1216 (1993). WPIC 100.05 was also quoted with approval in State v. Davis, 174 Wn.App. 623, 300 P.3d 465 (2013), and in State v. Eplett, 167 Wn.App. 660, 274 P.3d 401 (2012).
Whether conduct is a substantial step is a question of fact under the evidence. State v. Workman, 90 Wn.2d 443, 449–52, 584 P.2d 382 (1978); State v. Bencivenga, 137 Wn.2d 703, 974 P.2d 832 (1999).
Definition of substantial step. In order to constitute a “substantial step,” the conduct must strongly corroborate the actor's criminal purpose. State v. Townsend, 147 Wn.2d 666, 57 P.3d 255 (2002); State v. Aumick, 126 Wn.2d 422, 894 P.2d 1325 (1995). In the general context of attempt cases, a substantial step requires more than mere preparation, State v. Townsend, 147 Wn.2d 666, 679, 57 P.3d 255 (2002), and more than a mere request for another to commit a crime, State v. Billups, 62 Wn.App. 122, 813 P.2d 149 (1991). For other contexts, see the cross-references toward the end of this Comment. 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).
Recommended use of instruction. Under Washington's case law, the instruction above need not always be given. Appellate cases hold that the term “substantial step” is not a technical one and is not unconstitutionally vague even if it is not defined. State v. Cozza, 19 Wn.App. 623, 576 P.2d 1336 (1978) (instruction sufficient even though substantial step was not defined); State v. Workman, 90 Wn.2d at 449–50 (instruction sufficient when substantial step was not fully defined; the instruction stated only that the term required more than mere preparation); State v. Hinz, 22 Wn.App. 906, 909, 915, 594 P.2d 1350 (1979) (instruction sufficient when substantial step was not fully defined; the instruction stated only that the term requires more than mere preparation or solicitation), affirmed, 93 Wn.2d 510, 610 P.2d 1322 (1980); State v. Billups, 62 Wn.App. at 127 n.2 (clarifying the holding in Hinz as to solicitation).
Abandonment of attempt. Abandonment of a criminal attempt or purpose is not a defense and instruction on abandonment is not necessary in a definition of substantial step. A showing of abandonment before a substantial step is taken is merely evidence that a substantial step was not in fact taken. State v. Workman, 90 Wn.2d at 450.
Substantial step in other contexts. 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) (holding that “substantial step” has a more restricted meaning for attempt cases than for conspiracy cases). See the Comment to WPIC 110.03 (Criminal Conspiracy—Substantial Step—Definition).
For a discussion of “overt act” and “substantial step” in the context of attempts to commit drug-related offenses charged under RCW 69.50.407, see the Comment to WPIC 100.02 (Attempt—Elements).
[Current as of May 2018.]
End of Document