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WPIC 133.52 Possession—Weapon—Definition

11A WAPRAC WPIC 133.52Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11A Wash. Prac., Pattern Jury Instr. Crim. WPIC 133.52 (5th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
January 2024 Update
Washington State Supreme Court Committee on Jury Instructions
Part XIII. Miscellaneous Crimes
WPIC CHAPTER 133. Weapon Offenses
WPIC 133.52 Possession—Weapon—Definition
Possession means having a [pistol] [firearm] [dangerous weapon] in one's custody or control. [It may be either actual or constructive. Actual possession occurs when the item is in the actual physical custody of the person charged with possession. Constructive possession occurs when there is no actual physical possession but there is dominion and control over the item.]
[Proximity alone without proof of dominion and control is insufficient to establish constructive possession. Dominion and control need not be exclusive to support a finding of constructive possession.]
[In deciding whether the defendant had dominion and control over an item, you are to consider all the relevant circumstances in the case. Factors that you may consider, among others, include [whether the defendant had the [immediate] ability to take actual possession of the item,] [whether the defendant had the capacity to exclude others from possession of the item,] [and] [whether the defendant had dominion and control over the premises where the item was located]. No single one of these factors necessarily controls your decision.]
Use whenever possession is an element of a weapon offense.
Use bracketed material as applicable. For many cases involving actual possession, the instruction may need to include only the first sentence. For cases involving constructive possession, the instruction should include the full first paragraph along with the other bracketed options that relate to the issues involved in the particular case.
WPIC 133.52 parallels the instruction used for drug offenses, WPIC 50.03 (Possession—Definition). For a discussion of possession, see the Comment to WPIC 133.02 (Unlawful Possession of a Firearm—First Degree—Elements).
The question of whether the defendant was in possession of a weapon may be submitted to the jury if the trial court has a reasonable basis to believe the evidence will show actual or constructive possession. State v. Rieger, 96 Wn.2d 546, 637 P.2d 236 (1981) (no possession when a firearm was found in a box next to a garage container that the defendant had passed when leaving the scene of the crime); State v. Jeffrey, 77 Wn.App. 222, 889 P.2d 956 (1995) (constructive possession when defendant knew a firearm was under the couch in his home); State v. Reid, 40 Wn.App. 319, 698 P.2d 588 (1985) (possession proved when defendant admitted having a firearm in front seat of automobile but said he moved it to the back so it would not be seen by the police). There is no requirement that the firearm be immediately accessible at the time of possession. State v. Howell, 119 Wn.App. 644, 649–50, 79 P.3d 451 (2003) (distinguishing firearm possession offenses from firearm enhancements).
Practitioners should use caution in drafting this instruction when a case involves both possession as an element of the offense and a weapon enhancement. The instructions need to clearly indicate which apply to possession as an element and which apply to the sentence enhancement. The drafting of this instruction may also depend on whether knowledge is an element of the underlying crime.
[Current as of December 2019.]
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