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WPIC 49C.10 Sex Offense—Definition

11 WAPRAC WPIC 49C.10Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 49C.10 (5th Ed)

Washington Practice Series TM

Washington Pattern Jury Instructions--Criminal

January 2024 Update

Washington State Supreme Court Committee on Jury Instructions

Part VII. Sex Crimes

WPIC CHAPTER 49C. Failure to Register as a Sex or Kidnapping Offender for Crimes on or After July 22, 2011

WPIC 49C.10 Sex Offense—Definition

(Fill in name of sex offense from RCW 9A.44.128) is a [federal] [tribal] [out-of-state] sex offense.

(Name of crime) is a [Class [A] [B] [C] felony] [gross misdemeanor].

NOTE ON USE

Use this instruction to advise the jury that a specific crime is a sex offense under RCW 9A.44.128.

COMMENT

RCW 9A.44.128(10).

The definition of “sex offense” for purposes of requiring registration as a sex offender is significantly broader than the definition in the Sentencing Reform Act. The Legislature has amended this definition with some frequency, including new crimes within the scope of the registration statutes.

The following table sets forth sex offenses under RCW 9.94A.030(47) as of December 1, 2018:

Child Molestation 1, 2, or 3	RCW 9A.44.083, .086, .089
Commercial Sexual Abuse of a Minor (formerly Patronizing a Juvenile Prostitute)	RCW 9.68A.100
Communication with a Minor for Immoral Purposes	RCW 9.68A.090
Criminal Trespass against Children	RCW 9A.44.196
Custodial Sexual Misconduct 1	RCW 9A.44.160
Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct 1 or 2	RCW 9.68A.050
Failure to Register as a Sex Offender (second felony conviction)	RCW 9A.44.130, .132
Incest 1 or 2	RCW. 9A.64.020(1), (2)
Indecent Liberties	RCW 9A.44.100
Kidnapping 1 or 2 (if victim is a minor and offender is not the minor's parent)	RCW 9A.40.020, .030
Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct 1 or 2	RCW 9.68A.070
Promoting Commercial Sexual Abuse of a Minor	RCW 9.68A.101
Promoting Travel for Commercial Sexual Abuse of a Minor	RCW 9.68A.102
Promoting Prostitution 1 or 2 (with a prior conviction for Promoting 1 or 2)	RCW 9A.88.070, .080
Rape 1, 2 or 3	RCW 9A.44.040, .050, .060
Rape of a Child 1, 2, or 3	RCW 9A.44.073, .076, .079
Sending or Bringing into State Depictions of a Minor Engaged in Sexually Explicit Conduct 1 or 2	RCW 9.68A.060
Sexual Exploitation of a Minor	RCW 9.68A.040
Sexual Misconduct with a Minor 1 or 2	RCW 9A.44.093, .096
Trafficking in the First Degree (with Sexual Motivation, Sexually Explicit Act, or Commercial Sex Act)	RCW 9A.40.100(1)(a)(i)(A)(III), (IV) RCW 9A.40.100(1)(a)(i)(B) RCW 9A.40.100(1)(b)(ii)
Unlawful Imprisonment (if victim is a minor and offender is not the minor's parent)	RCW 9A.40.040
Viewing Depictions of a Minor Engaged in Sexually Explicit Conduct 1 or 2	RCW 9.68A.075
Voyeurism 1	RCW 9A.44.115

In addition, “sex offense” under RCW 9A.44.128(10) includes the following offenses, as of December 1, 2018:

Any felony with a finding of sexual motivation under RCW 9.94A.835 or RCW 13.40.135 (RCW 9A.44.128(10));
Any gross misdemeanor that is, under RCW 9A.28, a criminal attempt, criminal solicitation, or criminal conspiracy to commit an offense that is classified as a sex or kidnapping offense under RCW 9.94A.030 or RCW 9A.44.128 (RCW 9A.44.128(10)(g));
Any out-of-state conviction for an offense for which the person would be required to register as a sex offender while residing in the state of conviction; or, if not required to register in the state of conviction, an offense that under the laws of this state would be classified as a sex offense under this subsection (RCW 9A.44.128(10)(h));
Any federal conviction classified as a sex offense under the Sex Offender Notification and Registration Act, 42 U.S.C. § 16911 (RCW 9A.44.128(10)(i));
Any military conviction for a sex offense. This includes sex offenses under the uniform code of military justice, as specified by the United States secretary of defense (RCW 9A.44.128(10)(j));
Any conviction in a foreign country for a sex offense if it was obtained with sufficient safeguards for fundamental fairness and due process for the accused under guidelines or regulations established pursuant to 42 U.S.C.§ 16912 (RCW 9A.44.128(10)(k));
Any tribal conviction for an offense for which the person would be required to register as a sex offender while residing in the reservation of conviction; or if not required to register in the reservation of conviction, an offense that under the laws of this state would be classified as a sex offense under this subsection (RCW 9A.44.128(10)(l)).

“Old Chief” stipulation. In practice, the parties often stipulate to one or more elements of this instruction. The broad rule is that the prosecuting authority need not accept a defendant's offer to stipulate; however, an exception has been created for what is often referred to as an “Old Chief” stipulation. State v. Johnson, 90 Wn.App. 54, 62, 950 P.2d 981 (1998). For a discussion of “Old Chief” stipulations, see the Comment to WPIC 4.78 (Stipulation of Prior Offense (“Old Chief Stipulation”)).

Comparability of out-of-state or foreign convictions. Most out-of-state convictions require registration in the state where the conviction occurred. In those cases, no comparability analysis is required. In other cases, the court compares the out-of-state statute with comparable laws of the State of Washington to determine whether the out-of-state conviction qualifies as a sex offense. See State v. Morley, 134 Wn.2d 588, 605–06, 952 P.2d 167 (1998).

This is a two step process, addressing both the legal definitions of the crimes and the facts underlying the convictions. First, the trial court must examine the elements of the out-of-state crime and compare them to the elements of the comparable Washington crime. If the crimes have similar elements, the analysis is complete. But, if the elements are not identical, or the foreign statute is broader than the Washington definition of the particular crime, then, as a second step, the trial court may examine the facts of the out-of-state crime as evidenced by the indictment or information.

State v. Howe, 151 Wn.App. 338, 343–44, 212 P.3d 565 (2009) (internal citations and quotations omitted); State v. Werneth, 147 Wn.App. 549, 197 P.3d 1195 (2008). To determine factual comparability, the court determines whether the conduct underlying the out-of-state offense would have violated the comparable Washington statute. State v. Thiefault, 160 Wn.2d 409, 415, 158 P.3d 580 (2007). In making a factual comparison, the court may rely on facts in the out-of-state record that are admitted, stipulated to, or proved beyond a reasonable doubt. State v. Thiefault, 160 Wn.2d at 415. The court may look at the defendant's conduct, as evidenced by the indictment or information, to determine whether the conduct would have violated the comparable Washington statute. State v. Morley, 134 Wn.2d at 606 (citing State v. Duke, 77 Wn.App. 532, 535, 892 P.2d 120 (1995)). As stated in State v. McCorkle, 88 Wn.App. 485, 495, 945 P.2d 736 (1997), affirmed on other grounds, 137 Wn.2d 490, 973 P.2d 461 (1999) (“[T]he key inquiry is under what Washington statute could the defendant have been convicted if he or she had committed the same acts in Washington.”).

[Current as of January 2019.]

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