WPIC 77.31 Trafficking in Stolen Property—First Degree—Both Alternative Means—Elements

The instruction sets forth the elements for trafficking in stolen property in the first degree. This instruction should be used if both of the alternative means in RCW 9A.82.050(1) are charged. If only the second alternative means is at issue, then use WPIC 77.32 (Trafficking in Stolen Property—First Degree—Knowingly Trafficking in Stolen Property—Elements) instead of this instruction. If only the first alternative means is at issue, then an appropriate instruction may be drafted by comparing WPIC 77.31 and WPIC 77.32.

With the instruction, use WPIC 10.02 (Knowledge—Knowingly—Definition) and WPIC 2.21 (Property—Definition). Also use, as applicable, WPIC 79.08 (Stolen—Definition), WPIC 79.09 (Receive—Definition), and WPIC 77.35 (Trafficking in Stolen Property—Traffic—Definition).

The instruction is drafted for cases in which the jury needs to be instructed using both of the alternatives for element (1). 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 the related jury interrogatory, see WPIC 190.09 (Special Verdict Form—Elements with Alternatives).

For any case in which substantial evidence supports only one of the alternatives in element (1), revise the instruction to remove references to alternative elements following the format set forth in WPIC 4.21 (Elements of the Crime—Form).

Use bracketed material as applicable.

RCW 9A.82.050.

Based on the charges and the evidence, the court may consider substituting “between (date) and (date)” for “on or about (date)” if the alleged violation involve a continuing course of conduct rather than an act or acts on a singular date.

In State v. Owens, 180 Wn.2d 90, 323 P.3d 1030 (2014) (citing State v. Lindsey, 177 Wn.App. 233, 241–42, 311 P.3d 61 (2013), the court held there are only two alternative means (rather than eight) of committing the crime of trafficking in stolen property. The first group of seven terms relate to different aspects of a single category of criminal conduct—facilitating or participating in the theft of property so that it can be sold. Trafficking in stolen property involves a second, separate category—transferring possession of property known to be stolen.

One who “knowingly sells stolen property” may be charged with trafficking, regardless of whether that person is the one who stole the property. State v. Michielli, 132 Wn.2d 229, 937 P.2d 587 (1997).

In State v. Killingsworth, 166 Wn.App. 283, 269 P.3d 1064 (2012), the court approved a to-convict instruction that simply followed the statutory language “knowingly trafficked in stolen property.” The court recommended, however, adding the phrase “knowing the property was stolen,” to clarify the knowledge requirement. State v. Killingsworth, 166 Wn.App. at 290. The instruction incorporates this recommendation.