WPIC 120.41 Bail Jumping—Elements

Use bracketed material as applicable. Fill in the crime that the defendant was held for, charged with, or convicted of. Use WPIC 10.02 (Knowledge—Knowingly—Definition) with this instruction.

In element (4) 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 “any of these acts” in element (4), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).

RCW 9A.76.170.

In 2001, the Legislature significantly amended the bail jumping statute by extending it to individuals who fail to report to a correctional facility for service of sentence, after being released with knowledge of such a requirement. The Legislature also altered the mens rea from knowingly failing to appear on a specific date to failing to appear after being released with knowledge of the requirement of a subsequent personal appearance before that court or the requirement to report to a correctional facility for service of sentence. This change eliminates the need to establish that the defendant remembered the date of the hearing at the time he or she failed to appear. See State v. Carver, 122 Wn.App. 300, 93 P.3d 947 (2004).

The statute includes an affirmative defense. See RCW 9A.76.170(2); WPIC 19.17 (Bail Jumping—Uncontrollable Circumstances—Defense).

The admissibility and validity of a prior offense is a question of law to be determined by the trial court. State v. Chambers, 157 Wn.465, 237 P.3d 352 (2010).

The charge underlying an allegation of bail jumping need not be valid to support a bail jumping conviction. State v. Downing, 122 Wn.App. 185, 193, 93 P.3d 900 (2004).

However, the charge underlying the allegation of bail jumping may not need to be expressly identified. In State v. Williams, 162 Wn.2d 177, 170 P.3d 30 (2007), the court held that the “to convict” instruction did not have to name both the specific offense the defendant was charged with and the classification of the offense. Because the instruction in that case named the specific offense, the court did not have to decide whether identifying the classification of the offense would be a sufficient substitution for identifying the specific offense. If a defendant offers to stipulate that the defendant was being charged with, held for, or convicted of a “class A felony,” a “class B felony,” a “class C felony,” or a “gross misdemeanor or misdemeanor,” it may be appropriate to amend element (2) by replacing the name of the felony with a generic phrase.

Stipulations. For a discussion of Old Chief stipulations, see State v. Ortega, 134 Wn.App. 617, 142 P.3d 175 (2006); see also State v. Roswell, 165 Wn.2d 186, 195–98, 196 P.3d 705 (2008). Further discussion is contained in the Comment to WPIC 4.78 (Stipulation of Prior Offense (“Old Chief Stipulation”)).

Generally, enhancing elements that elevate a gross misdemeanor to a felony offense are included in the “to convict” instruction and this is constitutionally permissible. State v. Mills, 154 Wn.2d 1, 11 n.6, 109 P.3d 415 (2005); State v. Chapman, 140 Wn.2d 436, 998 P.2d 282 (2000).

A defendant is not entitled to have a bifurcated trial for the element of prior convictions, State v. Roswell, 165 Wn.2d 186, 196 P.3d 705 (2008). If requested by the defendant, the trial court judge may consider the approach outlined in Roswell's footnote 6, under which the instruction can be drafted referring to a statutory citation instead of the name of the crime. State v. Roswell, 165 Wn.2d at 198 n.6. This approach involves a stipulation, a colloquy with the defendant, and an additional instruction.

The statute on bail jumping implies a nexus between the crime for which the defendant was held, charged, or convicted and the later personal appearance. State v. Malvern, 110 Wn.App. 811, 43 P.3d 533 (2002).