WPIC 120.36 Escape—Third Degree—Elements

Use WPIC 120.50 (Custody—Definition) with this instruction.

In element (1), use the word “knowingly” if the court concludes that this is a required element. See the Comment below. In such cases use WPIC 10.02 (Knowledge—Knowingly—Definition).

If the defendant is charged with third degree escape as a gross misdemeanor, use the bracketed language regarding a prior conviction for third degree escape. If the defendant is charged with third degree escape as a class C felony, use the bracketed language for two or more prior convictions.

In the last element, 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” in element (2), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.76.130.

Effective July 24, 2015, the Legislature amended the definition of third degree escape to add violating the terms of an electronic monitoring program. Laws of 2015, Chapter 287, § 11 (effective July 24, 2015). The Legislature also reduced the degree of the offense from a gross misdemeanor to a misdemeanor, except when the defendant has one or more prior convictions for third degree escape. The offense is a gross misdemeanor if the defendant has one prior conviction, and a class C felony if the defendant has more than one prior conviction for third degree escape.

Prior convictions. The format of this instruction is based on State v. Chambers, 157 Wn.App. 465, 473–74, 237 P.3d 352 (2010). It is a threshold determination to be decided by the trial court whether a prior conviction meets and qualifies within the statutory definition of an admissible predicate offense. State v. Chambers, 157 Wn.App. at 479. When a prior conviction elevates the offense, the prior conviction functions as an element of the offense which must be proved beyond a reasonable doubt. State v. Oster, 147 Wn.2d 141, 146, 52 P.3d 26 (2002); State v. Chambers, 157 Wn.App. 465, 237 P.3d 352 (2010). Also see discussion to Comments to WPIC 36.51.02 (Violation of a Court Order—Felony—Elements) and WPIC 92.26 (Driving or Being in Physical Control While Under the Influence—Felony—Elements). The Sixth Amendment right to a jury guarantees the right to have a jury find every fact essential to punishment beyond a reasonable doubt. Blakely v. Washington, 542 U.S. 296, 298, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The State must prove each essential element of the crime. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

An exception to the general rule that the prosecuting authority need not accept a defendant's offer to stipulate has been created when the existence of a conviction is an element of a crime, but the nature of the prior conviction is not an element of the crime. See the discussion of “Old Chief” stipulations in the Comment to WPIC 4.78 (Stipulation of Prior Offense (“Old Chief Stipulation”)). An “Old Chief” stipulation arises from a recognition that the nature of the prior offense may elicit an emotional response on the part of the jury. If a defendant offers to stipulate that he or she was previously convicted of a third degree escape, the applicable bracketed language should be used.

Mens rea. The Legislature specifically required proof of knowledge for the offense of third degree escape committed by violating the terms of an electronic monitoring program. The statute is silent about whether other types of escape in the third degree require knowledge. Escape in the first and second degree both require proof of knowledge.

In State v. Descoteaux, 94 Wn.2d 31, 614 P.2d 179 (1980), overruled on other grounds by State v. Danforth, 97 Wn.2d 255, 643 P.2d 882 (1982), the Washington Supreme Court held that the State must prove that the defendant knew that his or her actions would result in leaving physical confinement without permission. The case before the court involved a charge of escape in the first degree, and the court did not expressly state that the knowledge element also applied to escape in the third degree.

In 2001, the Legislature codified the holding of Descoteaux by adding a knowledge element to both escape in the first degree and escape in the second degree. Third degree escape was not similarly amended. This is consistent with existing case law that tolerates strict liability for misdemeanor and gross misdemeanor offenses, while requiring a mens rea for similar felony offenses. See State v. Anderson, 141 Wn.2d 357, 364, 5 P.3d 1247 (2000); State v. Bash, 130 Wn.2d 594, 608–09, 925 P.2d 978 (1996); City of Seattle v. Briggs, 109 Wn.App. 484, 493, 38 P.3d 349 (2001).