USA v. Robby Robinson

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FILED OPINION (M. MARGARET MCKEOWN, CARLOS T. BEA and N. RANDY SMITH) VACATED; REMANDED. Judge: CTB Authoring, FILED AND ENTERED JUDGMENT. [10558097]--[COURT UPDATE: Replaced PDF of Opinion (summary typo corrected). 08/25/2017 by RY]

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Welcome to the newly enhanced site for the Washington Pattern Jury Instructions. This site has been upgraded to assure
you a positive Thomson Reuters Westlaw experience. This website is maintained by Thomson Reuters under contract with
the Washington Supreme Court Committee on Jury Instructions to provide free public access to the full text of the
Washington Pattern Jury Instructions. You may access the online Washington Pattern Jury Instructions through the
following links:
Washington Civil Jury Instructions
Washington Criminal Jury Instructions
Click here for information on recent updates.
This site from Thomson Reuters provides free access to the Washington Pattern Jury Instructions-Civil (Volumes 6 and
6A of the Washington Practice SeriesTM), © 2013 Thomson/West, and the Washington Pattern Jury Instructions-Criminal
(Volumes 11 and 11A of the Washington Practice SeriesTM), © 2011 Thomson Reuters/West. This material is intended for
use in the practice of law and legal research. Any other use of the materials, including commercial re-use is prohibited.

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Table of Contents

Washington Criminal Jury Instructions

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WPIC0.10Introduction to Washington's Pattern Jury Instructions for Criminal Cases Washington Practice Series
Washington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 0.10 (4th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
October 2016 Update
Washington State Supreme Court Committee on Jury Instructions
Part I. General Instructions
WPIC CHAPTER 0. Introduction to WPIC

WPIC 0.10 Introduction to Washington's Pattern Jury Instructions for Criminal Cases
This introduction provides background information about Washington's criminal pattern jury instructions and how they are
best used.
Overview of material. Washington's pattern jury instructions for criminal cases are found in Volumes 11 and 11A of the
Washington Practice series of books, through Westlaw (www.westlaw.com), and via a free-access public website

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(http://government.westlaw.com/linkedslice/default.asp?SP=WCCJI-1000). Accompanying each instruction is a Note on
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a Comment, which summarizes the underlying law.
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The chapters in Parts I through III deal with issues of general applicability, including the stages of a criminal trial, common
definitions, the burden of proof, lesser included offenses, elements of the crime, frequently used oral instructions,
evidentiary issues, and principles of liability. Parts IV through XIII set forth pattern instructions that apply more specifically
to particular criminal charges and defenses. Parts XIV and XV contain the concluding pattern instructions and verdict
forms. And finally, Part XVI covers the pattern instructions for the jury's findings as to aggravating circumstances for the
imposition of exceptional sentences under the Sentencing Reform Act.
Several appendices provide additional information for practitioners. For example:
Appendix D illustrates how the pattern instructions can be compiled for a few typical cases and fact
situations. For example, the Appendix begins by showing how the pattern instructions might be
assembled for a case involving a single defendant charged with second degree burglary. Additional
compilations of instructions, supplemented with commentary, are found in Fine, 11B Washington
Practice, Criminal Jury Instruction Handbook (15–16).
Several of the chapters begin with an introduction that covers some of the more general points of law underlying the
chapter's instructions. Users of a particular instruction are encouraged to carefully review the instruction's entire chapter,
including any introductory material.
Nature of pattern instructions. The pattern instructions are not authoritative primary sources of the law; rather, they
restate otherwise existing law for jurors. The pattern instructions do not receive advance approval from any court, although
they are often treated as “persuasive.” See, e.g., State v. Mills, 116 Wn.App. 106, 64 P.3d 1253 (2003), reversed on other
grounds, 154 Wn.2d 1, 109 P.3d 415 (2005). Judicial review of the instructions instead occurs after the fact, when
individual instructions are reviewed in appellate opinions. The pattern instructions are not binding on trial courts; they are
intended to guide trial courts in drafting appropriate instructions for individual cases.
Use of pattern jury instructions—In general. The committee writes pattern jury instructions to assist the trial judge and
the attorneys in preparing clear, accurate, and balanced jury instructions for individual criminal cases. Pattern instructions
are examples that apply to a general category of cases, rather than an exact blueprint for use in every individual case.
They provide a neutral starting point for the preparation of instructions that are individually tailored for a particular case.
Trial judges and attorneys must consider whether modifications are needed to fit the individual case.

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Sometimes, this process can involve adding new language for points not addressed in the pattern instructions; it can mean
omitting language that does not apply to an individual case; it can involve substituting more specific language for the
necessarily general language of a pattern instruction; it can involve combining or reorganizing instructions that address
related points. The goal, always, is to finish with a set of instructions that clearly and accurately state the law that applies to
the particular case, no more and no less.
Plain language. Jury instructions need to express legal concepts in plain language for lay jurors. When feasible, the
committee translates complicated legal jargon into a series of simple, declarative, easy-to-understand sentences, while
being careful to retain legal accuracy. For this reason, the pattern instructions do not always precisely follow the language
of the governing statute or judicial opinion, as these are not written with the lay juror in mind. See Bell v. State, 147 Wn.2d
166, 177, 52 P.3d 503 (2002) (an instruction that uses statutory language is “appropriate only if the statute is applicable,
reasonably clear, and not misleading”); Barrett v. Lucky Seven Saloon, Inc., 152 Wn.2d 259, 267, 96 P.3d 386 (2004)
(quoting Bell); Turner v. City of Tacoma, 72 Wn.2d 1029, 1034, 435 P.2d 927 (1967) (“That [a court] may have used certain
language in an opinion does not mean that it can be properly incorporated into a jury instruction.”); Swope v. Sundgren, 73
Wn.2d 747, 750, 440 P.2d 494 (1968) (the language used by the Supreme Court “is not ordinarily designed or intended as
a model for jury instructions”).
The committee urges trial judges and attorneys to use plain language when preparing jury instructions. For a good
discussion of plain-language drafting principles, see Professor Peter Tiersma's article, Communicating with Juries: How to
Draft More Understandable Jury Instructions, National Center for State Courts, Williamsburg, VA, 2006 (also available online from the website for the National Center for State Courts at
http://ncsc.contentdm.oclc.org/cdm/singleitem/collection/juries/id/263/rec/1). Many other resources are also available.
Evolution of pattern instructions—earlier versions not necessarily erroneous. The committee regularly updates the
pattern instructions. Changes to an instruction do not necessarily mean that earlier versions of the instruction were
erroneous. Sometimes the committee updates an instruction to incorporate a change in law; more often, updated language
merely reflects an intent to improve the wording of what was already an accurate statement of the law.

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This latter point has been succinctly stated by the Court of Appeals: “Clarification of [a pattern jury] instruction does not
amount to an indictment of earlier versions.” State v. Holzknecht, 157 Wn.App. 754, 238 P.3d 1233, 1239 (2010). The
Holzknecht court expressly disagreed with a contrary analysis from State v. Hayward, 152 Wn.App. 632, 217 P.3d 354
(2009). In Hayward, another division of the Court of Appeals had concluded, in part, that a former pattern instruction was
erroneous because the committee had later revised it to more closely follow statutory language. State v. Hayward, 152
Wn.2d at 644–46 (“The revision to WPIC 10.03 shows that the previous version of WPIC 10.03 did not adequately follow
[the governing statute]”). Hayward thus could be interpreted as holding that a change in instructional language is
presumptive evidence of earlier error. The committee hopes that Hayward will not be interpreted in this manner, and that
courts will consider whether an instructional change is mere clarification, as in Holzknecht.

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To assist in this regard, the committee will strive to explain instructional changes in the accompanying Comments. For
example, when an instruction has undergone extensive revision for purposes of plain language improvements, the
committee intends to indicate that the changes were made to improve juror understanding rather than to substantively
change the statement of the applicable law. The absence of such a statement, however, should not be interpreted as
implying a contrary intent.
Bracketed language. Many of the pattern instructions include bracketed language. The brackets signify that the enclosed
language may or may not be appropriate for a particular case.
Often, bracketed language appears in pairs, with a choice being presented as to which of the bracketed alternatives
applies to the particular case. Sometimes a pattern instruction includes a series of bracketed terms, and one or more of the
terms could be applicable. The judge and attorneys should carefully consider which terms should be included. Inclusion of
terms that do not apply to the facts of a case could confuse the jury or inadvertently insert unintended issues into the case.
In any event, the brackets are not meant to be included in the final jury instructions; they are inserted to alert the judge and
attorneys that a choice in language needs to be made.
Blank lines. Pattern instructions occasionally include blank lines. Most of the blank lines are intended to be filled in by the
judge, so that the final jury instruction would use the judge's inserted language instead of the blank line. These blank lines
are designated with parenthetical information that appears above the blank line, as in: “(describe conduct or activity).”
Practitioners should make sure that the inserted information does not amount to a judicial comment on the evidence.
Other blank lines are intended to be left in the final jury instructions, to be filled in by the jury. These blank lines are usually
designated with parenthetical information that appears below or next to the blank line, as in: “ANSWER:
(Write
“yes” or “no”).” The context should make clear which blank lines are to be filled in by the jury and which by the judge.
Effective dates. A notation appears at the end of each Comment indicating the instruction's “current as of” date. These
dates remind users as to the need to research any changes in law that may have occurred since the date when the

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committee last considered the instruction.
State and local rules. State and local rules address instruction-related issues, such as the number of copies of proposed
instructions the attorney must submit, particular formatting requirements, and the like. State rules are cited throughout the
chapters and appendices. Local rules, however, are beyond the scope of the Comments and appendices for these
volumes. Attorneys should carefully consider local rules when preparing their proposed instructions.
Feedback requested. The committee is always interested in receiving feedback as to these instructions. Suggestions for
improvements may be sent to the committee at [e-mail].
[Effective as of December 2015.]

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Table of Contents

Washington Criminal Jury Instructions

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WPIC35.12Assault—Second Degree (Alternate Means)—Inflict Substantial Bodily Harm Or With Deadly...
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 35.12 (4th Ed)
Washington Practice Series TM
Washington Pattern Jury Instructions--Criminal
October 2016 Update
Washington State Supreme Court Committee on Jury Instructions
Part VI. Crimes Against Personal Security
WPIC CHAPTER 35. Assault and Reckless Endangerment

WPIC 35.12 Assault—Second Degree (Alternate Means)—Inflict Substantial Bodily Harm Or With
Deadly Weapon—Elements
To convict the defendant of the crime of assault in the second degree, each of the following two elements of the
crime must be proved beyond a reasonable doubt:
(1) That on or about(date), the defendant:
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[(a) intentionally assaulted(name of person)and thereby recklessly
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(2) That this act occurred in the State of Washington.

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If you find from the evidence that element (2) and either alternative element (1)(a) or (1)(b) have been proved
beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. To return a verdict of guilty, the
jury need not be unanimous as to which of alternatives (1)(a) or (1)(b) has been proved beyond a reasonable
doubt, as long as each juror finds that either (1)(a) or (1)(b) has been proved beyond a reasonable doubt.
On the other hand, if, after weighing all the evidence, you have a reasonable doubt as to either element (1) or (2),
then it will be your duty to return a verdict of not guilty.
NOTE ON USE
The instruction is drafted for cases in which the jury needs to be instructed using two or more 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 the
Introduction to WPIC 4.20 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 special verdict form, 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).
Along with this instruction, use WPIC 10.01 (Intent—Intentionally—Definition), WPIC 10.03 (Recklessness—Definition),
WPIC 2.03.01 (Substantial Bodily Harm—Defined), WPIC 35.50 (Assault—Definition), and WPIC 2.06 (Deadly Weapon—
Definition) or WPIC 2.06.01 (Deadly Weapon—Firearm—Definition).
For a discussion of the phrase “this act” in the jurisdictional element, see the Introduction to WPIC 4.20 and the Note on
Use to WPIC 4.21 (Elements of the Crime—Form).
COMMENT

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RCW 9A.36.021(1)(a) and (c).
See the Comment to WPIC 35.11 (Assault—Second Degree—With Intent to Commit Felony—Elements) for a general
discussion of second degree assault.
For discussion of offenses involving alternative means, see the Introduction to WPIC 4.20 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 a discussion of the importance of tailoring the definition of recklessness to the terms of the charged crime, see the
Comment to WPIC 10.03. The Supreme Court, in State v. Johnson, 180 Wn.2d 295, 325 P.3d 135 (2014), concluded that
so long as all elements are included in the “to convict,” a specially-tailored definition of recklessness is not required.
Because this area of the law is in flux, careful consideration of use of a tailored definition of recklessness should be given.
[Current as of December 2015.]

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