WPIC 133.41 Unlawful Display of a Weapon—Elements
11A WAPRAC WPIC 133.41Washington Practice Series TMWashington Pattern Jury Instructions--Criminal
11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 133.41 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
December 2021 Update
Part XIII. Miscellaneous Crimes
WPIC CHAPTER 133. Weapon Offenses
WPIC 133.41 Unlawful Display of a Weapon—Elements
To convict the defendant of the crime of unlawfully displaying a weapon, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about (date), the defendant [carried] [exhibited] [displayed] [or] [drew] a [firearm] [dagger] [sword] [knife] [cutting or stabbing instrument] [club] [or] [any [other] weapon apparently capable of producing bodily harm];
(2) That the defendant [carried] [exhibited] [displayed] [or] [drew] the weapon in a manner, under circumstances, and at a time and place that [manifested an intent to intimidate another] [or] [warranted alarm for the safety of other persons]; and
(3) That this act occurred in the [State of Washington] [City of] [County of ].
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
NOTE ON USE
Use bracketed material as applicable.
Use WPIC 10.01 (Intent—Intentionally—Definition) as applicable with this instruction.
In element (3), 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 (3), see WPIC 4.20 (Introduction) and the Note on Use to WPIC 4.21 (Elements of the Crime—Form).
Unlawful display of a weapon can be a lesser included offense of second degree assault. In re Crace, 157 Wn.App. 81, 236 P.3d 914 (2010), reversed on other grounds, 174 Wn.2d 835, 280 P.3d 1102 (2012), habeas relief granted on other grounds, affirmed Crace v. Herzog, 798 F.3d 840 (9th Cir. 2015); State v. Baggett, 103 Wn.App. 564, 13 P.3d 659 (2000). See also State v. Fernandez-Medina, 141 Wn.2d 448, 6 P.3d 1150 (2000); State v. Ward, 125 Wn.App. 243, 104 P.3d 670 (2004), abrogated on other grounds by State v. Grier, 171 Wn.2d 17, 246 P.3d 1260 (2011). Similarly, unlawful display of a weapon may be a lesser included offense of attempted first degree robbery under some circumstances. State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978); see also State v. Dowell, 26 Wn.App. 629, 613 P.2d 197 (1980) (first degree robbery).
The statute sets forth a number of exceptions. The statute does not apply to:
- (a) Any act committed by a person while in his place of abode or fixed place of business;
- (b) Any person who by virtue of his office or public employment is vested by law with a duty to preserve public safety, maintain public order, or to make arrests for offenses, while in the performance of such duty;
- (c) Any person acting for the purpose of protecting himself against the use of presently threatened unlawful force by another, or for the purpose of protecting another against the use of such unlawful force by a third person;
- (d) Any person making or assisting in making a lawful arrest for the commission of a felony; or
- (e) Any person engaged in military activities sponsored by the federal or state governments.
It has not been determined whether these exceptions constitute separate elements of this offense that the State must prove the absence of beyond a reasonable doubt or whether these are affirmative defenses that the defendant has the burden of proving. In State v. Owens, 180 Wn.App. 846, 324 P.3d 757 (2014), the defendant argued that the jury should have been instructed on the exception based on “in his or her place of abode.” The court affirmed the conviction, finding that the evidence was undisputed that the defendant was outside his home when he displayed the weapon. If it is determined that the State has the burden of proof, additional elements will need to be included in this instruction setting forth these exceptions. If it is determined that the defendant has the burden of proving these exceptions separate instructions should be drafted for each applicable exception. For a detailed discussion of burden of proof issues relating to defenses see WPIC 14.00 (Defenses—Introduction).
Although RCW 9.41.270 allows the display of a weapon in one's home, it does not permit display accompanied by the manifestation of assaultive intent. State v. Hupe, 50 Wn.App. 277, 748 P.2d 263 (1988) (defendant not denied due process of law by being charged with second degree assault rather than display of a weapon), disapproved of on other grounds, State v. Smith, 159 Wn.2d 778, 154 P.3d 873 (2007).
For discussions relating to the weapons listed in RCW 9.41.270, see the Comments to WPIC 2.07 (Deadly Weapon—Definition for Sentence Enhancement—Special Verdict—General) and the related instructions WPIC 2.07.01 (Deadly Weapon—Definition for Sentence Enhancement—Special Verdict—Knife) and WPIC 2.07.02 (Deadly Weapon—Definition for Sentence Enhancement—Special Verdict—Firearm).
The statute only requires that the circumstances warrant alarm for the safety of others. The circumstances do not need to actively cause such alarm. State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978).
The statute was upheld against various constitutional challenges, including the right to bear arms, vagueness, and overbreadth. State v. Spencer, 75 Wn.App. 118, 876 P.2d 939 (1994).
[Current as of December 2019.]
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