to-convict instruction in Washington

2026Myers relies on State v. Hickman for the principle that if a fact like dates is included in the to-convict instruction, then the State has to prove that fact to the jury. 135 Wn.2d 97, 102 , 954 P.2d 900 (1998).

2026App. 126, 131 , 241 P.3d 443 (2010) (citing Salinas, 119 Wn.2d at 201 ). 36 86238-3-I/37 proved that Blackburn raped C.B. in the time frame specified in the to-convict instruction beyond a reasonable doubt. 29 Hickman, 135 Wn.2d at 103 .

2025As no party objected to the above instructions, they serve as the “‘law of the case’” and “‘are treated as the properly applicable law for purposes of appeal.’” State v. Johnson, 188 Wn.2d 742 , 755, 399 P.3d 507 (2017) (quoting Roberson v. Perez, 156 Wn.2d 33, 41 , 123 P.3d 844 (2005)); State v. France, 180 Wn.2d 809, 816 , 329 P.3d 864 (2014) (“the law of the case doctrine applies to all unchallenged instructions, not just the to-convict instruction.”); State v. Calvin, 176 Wn.

2025As no party objected to the above instructions, they serve as the “‘law of the case’” and “‘are treated as the properly applicable law for purposes of appeal.’” State v. Johnson, 188 Wn.2d 742 , 755, 399 P.3d 507 (2017) (quoting Roberson v. Perez, 156 Wn.2d 33, 41 , 123 P.3d 844 (2005)); State v. France, 180 Wn.2d 809, 816 , 329 P.3d 864 (2014) (“the law of the case doctrine applies to all unchallenged instructions, not just the to-convict instruction.”); State v. Calvin, 176 Wn.

2026Myers relies on State v. Hickman for the principle that if a fact like dates is included in the to-convict instruction, then the State has to prove that fact to the jury. 135 Wn.2d 97, 102 , 954 P.2d 900 (1998).

2025The State cites to State v. Hickman, 135 Wn.2d 97, 102 , 954 P.2d 900 (1998), a case that held that the inclusion of an additional element in the to-convict instruction that the State would not have otherwise obligated to prove becomes the law of the case where the State failed to object.

2025Dominguez requests this court reject its previous decision in State v. Mansour, which held the use of initials to identify the victim of child molestation in the to-convict instruction did not deprive the defendant of due process or his right to a fair and impartial jury. 14 Wn.

2025Thus, utilizing initials on a to-convict instruction does not impermissibly convey to the jury that “matters of fact ha[ve] been established as a matter of law.” Id. at 329-30.

2025“A to-convict instruction must contain all of the essential elements of the crime because it serves as [a] ‘yardstick’ for the jury to measure innocence or guilt.” Id. (quoting State v. Smith, 131 Wn.2d 258, 263 , 930 P.2d 917 (1997)).

2025“A to-convict instruction must contain all of the essential elements of the crime because it serves as [a] ‘yardstick’ for the jury to measure innocence or guilt.” Id. (quoting 27 No. 58746-7-II State v. Smith, 131 Wn.2d 258, 263 , 930 P.2d 917 (1997)).

2021A to- convict instruction for an attempt crime “need not also set out the elements of the substantive crime attempted,” those elements “may be contained in a separate, review when raised for the first time on appeal.” State v. Mills, 154 Wn.2d 1, 6 , 109 P.3d 415 (2005); see RAP 2.5(a)(3). 5 No. 80849-4-I/6 definitional jury instruction.” Id. (citing State v. DeRyke, 149 Wn.2d 906, 911 , 73 P.3d 1000 (2003); State v. Nelson, 191 Wn.2d 61 , 72, 419 P.3d 410 (2018)).

2019A to-convict instruction “carries with it a special weight because the jury treats the instruction as a ‘yardstick’ by which to measure a defendant's guilt or innocence.” State v. Mills, 154 Wn.2d 1, 6 , 109 P.3d 415 (2005).

2021A to- convict instruction for an attempt crime “need not also set out the elements of the substantive crime attempted,” those elements “may be contained in a separate, review when raised for the first time on appeal.” State v. Mills, 154 Wn.2d 1, 6 , 109 P.3d 415 (2005); see RAP 2.5(a)(3). 5 No. 80849-4-I/6 definitional jury instruction.” Id. (citing State v. DeRyke, 149 Wn.2d 906, 911 , 73 P.3d 1000 (2003); State v. Nelson, 191 Wn.2d 61 , 72, 419 P.3d 410 (2018)).

2018The identity of the controlled substance thus determines the status of the crime and its subsequent penalty, making it an "essential element."2° Head contends that due to the to-convict instruction's wording, the jury's verdict does not support his sentence for a class C felony.21 He bases this claim 16 State v. Mills, 154 Wn.2d 1, 6 , 109 P.3d 415 (2005). 17 Mills, 154 Wn.2d at 7 (citing State v. DeRvke, 149 Wn.2d 906, 910 , 73 P.3d 1000 (2003)). 18 State v. Sibert, 168 Wn.2d 306, 311 , 230 P.3d 142 (2010)(quoting State v. Smith, 131 Wn.2d 258, 263 , 930 P.2d 917 (1997)). 19 Sibert, 168 Wn.2d

2021When the trial court gives a to-convict instruction, that instruction must “contain all of the elements of the crime because it serves as a ‘yardstick’ by which the jury measures the evidence to determine guilt or innocence.” State v. Smith, 131 Wn.2d 258, 263 , 930 P.2d 917 (1997) (quoting State v. Emmanuel, 42 Wn.2d 799, 819 , 259 P.2d 845 (1953)).

2021When the trial court gives a to-convict instruction, that instruction must “contain all of the elements of the crime because it serves as a ‘yardstick’ by which the jury measures the evidence to determine guilt or innocence.” State v. Smith, 131 Wn.2d 258, 263 , 930 P.2d 917 (1997) (quoting State v. Emmanuel, 42 Wn.2d 799, 819 , 259 P.2d 845 (1953)).

2025“This conflated the intent and knowledge elements required under the to-convict instruction into a single element and relieved the State of its burden of proving that Goble knew [the officer’s] status if it found the assault was intentional.” Id.

2009The majority also held that the instruction “conflated the intent and knowledge elements required under the to-convict instruction into a single element and relieved the State of its burden of proving that Goble knew [the officer’s] status if it found the assault was intentional.” 9 Goble, 131 Wn.

2017"A to-convict instruction must contain all essential elements of a crime because it serves as a yardstick by which the jury measures the evidence to determine the defendant's guilt or innocence." Richie, 191 Wn.

2017The to-convict instruction challenged in Richie followed WPIC 37.02,7 191 Wn.

2020In Brown, the defendant was charged by information of conspiring with 11 specifically named people to commit theft, but the to-convict instruction required the jury only to find the defendant agreed with “one or more persons” to engage in the conduct. 45 Wn.

2007App. 571 , 726 P.2d 60 (1986), Hegney claims that the to-convict instruction allowed him to be convicted of an uncharged crime, in violation of the United States Constitution and the Washington State Constitution.

2019A to-convict instruction must contain all of the elements of the crime "because it serves as a yardstick by which the jury measures the evidence to determine guilt or innocence." Id. (quoting State v. Sibert, 168 Wn.2d 306, 311 , 230 P.3d 142 (2010)).

2018Moreover, even if defense counsel should have known the proposed pattern instruction was ambiguous, any ambiguity was remedied by jury instruction 14, the to- convict instruction, which correctly identified all of the essential elements of attempted first degree robbery: To convict the defendant of the crime of attempted robbery in the first degree as charged in Count 1, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about August 11, 2015, the defendant did an act that was a substantial step toward the commission of robbery in the first deg

2025“A to-convict instruction must contain all of the essential elements of the crime because it serves as [a] ‘yardstick’ for the jury to measure innocence or guilt.” Id. (quoting State v. Smith, 131 Wn.2d 258, 263 , 930 P.2d 917 (1997)).

2025“A to-convict instruction must contain all of the essential elements of the crime because it serves as [a] ‘yardstick’ for the jury to measure innocence or guilt.” Id. (quoting 27 No. 58746-7-II State v. Smith, 131 Wn.2d 258, 263 , 930 P.2d 917 (1997)).

2021A to- convict instruction for an attempt crime “need not also set out the elements of the substantive crime attempted,” those elements “may be contained in a separate, review when raised for the first time on appeal.” State v. Mills, 154 Wn.2d 1, 6 , 109 P.3d 415 (2005); see RAP 2.5(a)(3). 5 No. 80849-4-I/6 definitional jury instruction.” Id. (citing State v. DeRyke, 149 Wn.2d 906, 911 , 73 P.3d 1000 (2003); State v. Nelson, 191 Wn.2d 61 , 72, 419 P.3d 410 (2018)).

2021A to- convict instruction for an attempt crime “need not also set out the elements of the substantive crime attempted,” those elements “may be contained in a separate, review when raised for the first time on appeal.” State v. Mills, 154 Wn.2d 1, 6 , 109 P.3d 415 (2005); see RAP 2.5(a)(3). 5 No. 80849-4-I/6 definitional jury instruction.” Id. (citing State v. DeRyke, 149 Wn.2d 906, 911 , 73 P.3d 1000 (2003); State v. Nelson, 191 Wn.2d 61 , 72, 419 P.3d 410 (2018)).

2021A to- convict instruction for an attempt crime “need not also set out the elements of the substantive crime attempted,” those elements “may be contained in a separate, review when raised for the first time on appeal.” State v. Mills, 154 Wn.2d 1, 6 , 109 P.3d 415 (2005); see RAP 2.5(a)(3). 5 No. 80849-4-I/6 definitional jury instruction.” Id. (citing State v. DeRyke, 149 Wn.2d 906, 911 , 73 P.3d 1000 (2003); State v. Nelson, 191 Wn.2d 61 , 72, 419 P.3d 410 (2018)).

2018The identity of the controlled substance thus determines the status of the crime and its subsequent penalty, making it an "essential element."2° Head contends that due to the to-convict instruction's wording, the jury's verdict does not support his sentence for a class C felony.21 He bases this claim 16 State v. Mills, 154 Wn.2d 1, 6 , 109 P.3d 415 (2005). 17 Mills, 154 Wn.2d at 7 (citing State v. DeRvke, 149 Wn.2d 906, 910 , 73 P.3d 1000 (2003)). 18 State v. Sibert, 168 Wn.2d 306, 311 , 230 P.3d 142 (2010)(quoting State v. Smith, 131 Wn.2d 258, 263 , 930 P.2d 917 (1997)). 19 Sibert, 168 Wn.2d

2019Johnson argued, as Mans does here, that the to-convict instruction, when read in conjunction with 8 No. 77322-4-1/9 the recklessness instruction, lowered the State's burden of proof because the phrase "a wrongful act" was used instead of the more charge-specific language "substantial bodily harm." Id.

2018While the to-convict instruction " 'serves as a yardstick by which the jury measures the evidence to determine guilt,' " France , 180 Wash.2d at 815 , 329 P.3d 864 (quoting State v. Johnson , 180 Wash.2d 295 , 306, 325 P.3d 135 (2014) ), we do not read the instruction in isolation. ¶ 21 "Due process requires the trial court to accurately instruct the jury on every element required to convict a defendant of the crimes alleged." State v. Rivas , 168 Wash. App. 882 , 891, 278 P.3d 686 (2012).

2019A to-convict instruction must contain all of the elements of the crime "because it serves as a yardstick by which the jury measures the evidence to determine guilt or innocence." Id. (quoting State v. Sibert, 168 Wn.2d 306, 311 , 230 P.3d 142 (2010)).

2018The identity of the controlled substance thus determines the status of the crime and its subsequent penalty, making it an "essential element."2° Head contends that due to the to-convict instruction's wording, the jury's verdict does not support his sentence for a class C felony.21 He bases this claim 16 State v. Mills, 154 Wn.2d 1, 6 , 109 P.3d 415 (2005). 17 Mills, 154 Wn.2d at 7 (citing State v. DeRvke, 149 Wn.2d 906, 910 , 73 P.3d 1000 (2003)). 18 State v. Sibert, 168 Wn.2d 306, 311 , 230 P.3d 142 (2010)(quoting State v. Smith, 131 Wn.2d 258, 263 , 930 P.2d 917 (1997)). 19 Sibert, 168 Wn.2d

2021The Williams court 3 No. 53034-1-II held that the classification of the underlying crime is not an essential element of bail jumping and therefore does not have to be included in the to-convict instruction. 162 Wn.2d at 188 .

2021The Supreme Court in State v. Williams held that the penalty classification of the underlying offense is a not an essential element of bail jumping and does not have to be included in the to-convict instruction. 162 Wn.2d 177, 186-188 , 170 P.3d 30 (2007).

2018"A to-convict instruction must include all essential elements of the crime-charged." Clark-El, 196 Wn.

2018As noted in Clark-El: "[t]tle Sibert plurality based its holding, in part, on the fact that 'as charged' language appeared in the to-convict instruction." Clark-El, 196 Wn.

2021The Supreme Court in State v. Williams held that the penalty classification of the underlying offense is a not an essential element of bail jumping and does not have to be included in the to-convict instruction. 162 Wn.2d 177, 186-188 , 170 P.3d 30 (2007).

2018See Williams , 162 Wash.2d at 188 , 170 P.3d 30 (viewing jury instructions as a whole to confirm sufficiency of to-convict instruction, while rejecting classification of underlying crime as an essential element of bail jumping). ¶ 22 Viewed in the context of the instructions as a whole, we agree with the State that the to-convict instruction is ambiguous at worst. 6 Jury instruction 3, which *442 immediately preceded the to-convict instruction, set forth clarifying definitional language, using the disjunctive "or." CP at 26.

2018We find persuasive the reasoning of the Court of Appeals in State v. Makekau , 194 Wash. App. 407 , 414, 378 P.3d 577 (2016), which addressed a similar to-convict instruction that set forth the statutory definition of possession of a stolen vehicle in listing the essential elements. 5 The court in Makekau concluded that the to-convict instruction could not reasonably be read as altering the nature of the crime charged, which is a single means offense.

2018We find persuasive the reasoning of the Court of Appeals in State v. Makekau , 194 Wash. App. 407 , 414, 378 P.3d 577 (2016), which addressed a similar to-convict instruction that set forth the statutory definition of possession of a stolen vehicle in listing the essential elements. 5 The court in Makekau concluded that the to-convict instruction could not reasonably be read as altering the nature of the crime charged, which is a single means offense.

2016Melnick and Sutton, JJ., concur. 1 The to-convict instruction here omitted the fifth term in RCW 9A.56.140(1), ‘retained].” 2 In Musacchio v. United States, the United States Supreme Court adopted a contrary rule, holding that “when a jury instruction sets forth all the elements of the charged crime but incorrectly adds one more element, a sufficiency challenge should be assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction.’’_ U.S _, 136 S. Ct. 709, 715 , 193 L.

2016Melnick and Sutton, JJ., concur. 1 The to-convict instruction here omitted the fifth term in RCW 9A.56.140(1), ‘retained].” 2 In Musacchio v. United States, the United States Supreme Court adopted a contrary rule, holding that “when a jury instruction sets forth all the elements of the charged crime but incorrectly adds one more element, a sufficiency challenge should be assessed against the elements of the charged crime, not against the erroneously heightened command in the jury instruction.’’_ U.S _, 136 S. Ct. 709, 715 , 193 L.