WPIC 164.00 Concluding Instruction—Special Verdict—Elements with Alternatives

When the jury is deliberating on a charged crime having elements with alternative language, insert this paragraph immediately ahead of the last paragraph in the concluding instruction WPIC 151.00 (Basic Concluding Instruction) or WPIC 155.00 (Concluding Instruction—Lesser Degree/Lesser Included/Attempt), whichever applies.

If an offense is charged using alternative elements, but the alternative elements trigger different penalties, then do not use this instruction. Instead use the concluding instruction for penalty enhancements, WPIC 160.00 (Concluding Instruction—Special Verdict—Penalty Enhancements). See discussion in the Comment below.

Use WPIC 190.09 (Special Verdict Form—Elements with Alternatives) with this instruction.

Alternative elements. Special verdict forms are useful for cases involving alternative elements. By querying the jurors as to their separate findings as to each alternative element, the verdict form serves to reduce potential appellate issues relating to sufficiency of the evidence and to clarify potential double jeopardy issues if the case needs to be retried. Special verdicts as to alternative elements are not technically required, in that a jury's verdict is complete without the additional findings, but they are often quite helpful for the purposes described above. See generally the discussion of alternative element instructions in the WPIC 4.20 (Introduction).

“Not unanimous” option. The unique aspect of the concluding instruction for alternative element cases, as compared to the other concluding instructions in this Part XIV (Concluding Instructions), relates to the jurors having the options of answering each question not only “yes” or “no,” but also “not unanimous.” Giving jurors the “not unanimous” option for special verdicts on alternative means recognizes the fact that the jury's verdict is already complete before a special verdict on alternative means is completed. The “not unanimous” option also serves to clarify that a jury's answering “yes” or “no” represents a unanimous decision.

The “not unanimous” option is not used for other types of special verdicts, because in those other cases the jury's verdict is not necessarily complete without answering the special verdict questions.

The instruction's requirement of unanimity for “yes” and “no” answers is consistent with the holding in State v. Guzman Nuñez, 174 Wn.2d 707, 285 P.3d 21 (2012). For further discussion, see the Comment to WPIC 160.00 (Concluding Instruction—Special Verdict—Penalty Enhancement).

Alternative means involving different penalties. When alternative means for a particular offense give rise to different seriousness levels (see, e.g., vehicular homicide under RCW 46.61.520), the defendant must be sentenced using the lowest seriousness level unless the jury has answered a special verdict form expressing unanimity for an alternative that has a higher seriousness level. See State v. Tang, 77 Wn.App. 644, 650–51, 893 P.2d 646 (1995).

Cross-references. For a discussion of jury instructions on alternative language in the elements of a charged crime, see WPIC 4.20 (Introduction), WPIC 4.22 (Elements of the Crime—Elements with Alternatives—Separate Offenses—Form), and WPIC 4.23 (Elements of the Crime—Elements with Alternatives—Alternative Means for Committing a Single Offense—Form).