WPIC 36.84 Cyberstalking—Felony—Previous Conviction—Elements

Use bracketed material as applicable.

Use this instruction if the defendant is charged with cyberstalking as a felony based on a previous conviction. If the defendant is instead charged with the felony level of the crime based on a threat to kill, use WPIC 36.85 rather than this instruction.

Use the bracketed word “felony” only if the jury is also being instructed on the gross misdemeanor form of cyberstalking (see the Comments to WPIC 36.81 (Cyberstalking—Gross Misdemeanor—Definition) and WPIC 36.82 (Cyberstalking—Gross Misdemeanor—Elements)).

Use WPIC 10.01 (Intent—Intentionally—Definition) and WPIC 36.86 (Electronic Communication—Definition) with this instruction. If element (3)(d) is used, then also use WPIC 2.24 (Threat—Definition).

The instruction is drafted for cases in which the jury needs to be instructed using two or more of the alternatives for element (3). Care must be taken to limit the alternatives to those that were included in the charging document and are supported by sufficient evidence. For directions on when and how to draft instructions with alternative elements, see WPIC 4.20 (Introduction) and the Note on Use and Comment to WPIC 4.23 (Elements of the Crime—Alternative Elements—Alternative Means for Committing a Single Offense—Form). For any case in which substantial evidence supports only one of the alternatives in element (3), revise the instruction to remove references to alternative elements, following the format set forth in WPIC 4.21 (Elements of the Crime—Form).

RCW 9.61.260(1) and (3).

Intent, “true threats,” and jurisdiction. These issues are discussed in the Comments to WPIC 36.72 (Telephone Harassment—Gross Misdemeanor—Elements) and WPIC 2.24 (Threat—Definition).

Title of crime. For ease of reference, the WPI Committee has referred to this crime as “felony cyberstalking.” The word felony should not be included if the jury is not also being instructed on the gross misdemeanor form of the crime, WPIC 36.81 (Cyberstalking—Gross Misdemeanor—Definition). Juries are routinely instructed that they should not consider potential punishment during their deliberations. See, e.g., WPIC 1.02 (Conclusion of Trial—Introductory Instruction). Referring to the crime as a “felony” to some extent is inconsistent with this mandate. Other suggestions include referring to the crime as “aggravated” or “serious.”

Structure of instruction. Criminal history should be included as an element and not simply be provided to the jury by way of special verdict forms. For a detailed discussion of this issue, see the Comment to WPIC 36.51 (Violation of a Court Order (RCW 26.50.110)—Gross Misdemeanor—Elements). See also State v. Roswell, 165 Wn.2d 186, 192, 196 P.3d 705 (2008) (“Unlike an aggravator, which elevates the maximum punishment that may be imposed for a crime, an element is an essential component of the underlying offense”).

If the defendant is charged with “felony” cyberstalking based on both making threats to kill and on the basis of prior convictions, then use WPIC 36.85 and address the prior qualifying convictions by way of special interrogatory. The WPI Committee believes this will likely be a fairly rare situation and that structuring an instruction with two sets of alternative elements will be unduly confusing. Use of a special interrogatory for prior convictions has been specifically upheld. See State v. Oster, 147 Wn.2d 141, 52 P.3d 26 (2002) (enhancement for violation of a domestic violence order based on prior convictions).

No-harassment orders. The Legislature used the term “no-harassment order,” which lacks a statutory definition, rather than the statutorily defined term “anti-harassment order.” See RCW 9.61.260(3)(a). It is not clear whether the Legislature intended “no-harassment order” to mean something other than “anti-harassment order,” a term that is defined in RCW Chapter 10.14. If so, for example, then a no-harassment order might encompass a domestic violence protection order that prohibits harassing conduct, even though the latter order clearly is not an anti-harassment order.