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11 WAPRAC WPIC 37.50Washington Practice Series TMWashington Pattern Jury Instructions--Criminal

11 Wash. Prac., Pattern Jury Instr. Crim. WPIC 37.50 (5th Ed)

Washington Practice Series TM

Washington Pattern Jury Instructions--Criminal

December 2021 Update

Washington State Supreme Court Committee on Jury Instructions

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Part VI. Crimes Against Personal Security

WPIC CHAPTER 37. Robbery

WPIC 37.50 Robbery—Definition

A person commits the crime of robbery [in the second degree] when he or she unlawfully and with intent to commit theft thereof takes personal property from the person [or in the presence] of another and the taking was against that person's will by the use or threatened use of immediate force, violence, or fear of injury to that person [or to that person's property] [or to the person or property of anyone]. [A threat to use immediate force or violence may be either expressed or implied.] The force or fear must be used to obtain or retain possession of the property or to prevent or overcome resistance to the taking, in either of which case the degree of force is immaterial. [The taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom it was taken, such knowledge was prevented by the use of force or fear.] [The taking constitutes robbery, even if death precedes the taking, if the person intended to take the property prior to the death.]


Use bracketed material as applicable. For directions on using bracketed phrases, see WPIC 4.20 (Introduction). The bracketed phrase “in the second degree” should be used if the charge is second degree robbery. It will then not be necessary to use WPIC 37.03 (Robbery—Second Degree—Definition). See the Note on Use to that instruction.

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For a discussion of expressed and implied threats, see the Comment.

With this instruction use WPIC 10.01 (Intent—Intentionally—Definition) and WPIC 79.01 (Theft—Definition).


RCW 9A.56.190. This instruction was revised in 2018. In State v. Nelson, 191 Wn.2d 61, 419 P.3d 410 (2018), the Supreme Court concluded that the crime of robbery does not include the implied element that the victim owned, possessed, or had a representative interest in the property, thereby overruling State v. Richie, 191 Wn.App. 916, 365 P.3d 770 (2015), and State v. Latham, 35 Wn.App. 862, 670 P.2d 689 (1983).

Intent. The words “with intent to commit theft” are not in the statutory definition of robbery. However, robbery includes the elements of the crime of larceny, which includes an intent to deprive the owner or other persons of the thing taken. State v. Byers, 136 Wash. 620, 241 P. 9 (1925). Intent to steal, animus furandi, is a necessary element of robbery. See State v. Kjorsvik, 117 Wn.2d 93, 812 P.2d 86 (1991); State v. Hicks, 102 Wn.2d 182, 184, 683 P.2d 186 (1984); and the cases cited in State v. Jones, 34 Wn.App. 848, 664 P.2d 12 (1983).

In State v. McKinney, 19 Wn.App. 23, 573 P.2d 820 (1978), an instruction in the language of RCW 9A.56.190, the robbery statute, was held sufficient. The court found that the elements instruction required the jury to find that the defendant “unlawfully and intentionally” took personal property, even though the instructions did not specifically use the words “with intent to steal.”

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Use of force after property is taken. Under some circumstances, a robbery can be committed even if the use of force occurs after the property has already been taken. This is because the statutory definition of robbery includes not only force used in taking property, but also force used in retaining property. RCW 9A.56.190. Accordingly, courts have held that a person can commit robbery by taking property and then using force while fleeing the scene. See State v. Handburgh, 119 Wn.2d 284, 830 P.2d 641 (1992) (robbery committed when the defendant stole an unattended bicycle, the owner saw the defendant riding away and demanded the bike back, the defendant took the bike further down the street, then threw rocks at the bike's owner); State v. Manchester, 57 Wn.App. 765, 790 P.2d 217 (1990) (robbery committed when the defendant shoplifted property and used force during the ensuing pursuit); State v. McIntyre, 112 Wn.App. 478, 482, 49 P.3d 151 (2002) (holding that an Oregon statute is comparable to second degree robbery because both encompass force used to retain property).

Use of force before property is taken. A robbery can also be committed when the force is fully completed before the taking begins. For example, a robbery occurs if the defendant kills a person and then takes the person's property, as long as the two acts were “part of the same transaction.” See State v. Craig, 82 Wn.2d 777, 783, 514 P.2d 151 (1973) (“mere lack of an intent to rob at the moment of the killing is not a defense”); State v. Coe, 34 Wn.2d 336, 341–42, 208 P.2d 863 (1949) (robbery and homicide were “so interwoven with each other as to be inseparable”).

The prior version of this instruction said that if death precedes the taking, the taking constitutes robbery “whenever the taking and a homicide are part of the same transaction.” This language was criticized by the Court of Appeals as “potentially confusing.” State v. Song Wang, 5 Wn.App.2d 12, 26, 424 P.3d 1251 (2018). The court held that taking property after a person's death is not robbery, if the death preceded the formation of the intent to rob. State v. Song Wang, 5 Wn.App.2d at 24–25. The instruction has been modified to include this limitation.

Value of property taken. The value of the property or the amount of money taken in a robbery is not an element of the crime. State v. Brown, 75 Wn.2d 611, 452 P.2d 958 (1969).

Taking from the presence of a person. In State v. Blewitt, 37 Wn.App. 397, 680 P.2d 457 (1984), in which the victim had been tied with rope in another room before his property was taken, the court approved of an instruction similar to the second full bracketed sentence in WPIC 37.50. The approved instruction stated: “A taking from the presence of another can occur in the presence of a person, even though that person was not immediately present, where that person, by force or fear, had been removed from or prevented from approaching the place from which the taking occurred.” Accord State v. Stearns, 61 Wn.App. 224, 230, 810 P.2d 41 (1991).

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Defense. WPIC 19.08 (Theft—Defense), covering the statutory defense to theft set out in RCW 9A.56.020(2), is applicable to robbery if a specific item of property is involved. State v. Larsen, 23 Wn.App. 218, 596 P.2d 1089 (1979).

Threat. In a robbery case it is error to define threat in the language of what is now RCW 9A.04.110(28)(a), which refers to a threat to do injury in the future. State v. Gallaher, 24 Wn.App. 819, 604 P.2d 185 (1979).

A threat of immediate force may be explicit or implied. See State v. Shcherenkov, 146 Wn.App. 619, 191 P.3d 99 (2008) (upholding the trial court's jury instruction; finding sufficient the evidence of an implied threat under the facts of four separate bank robberies). See also State v. Farnsworth, 185 Wn.2d 768, 374 P.3d 1152 (2016) (in bank robbery, telling bank teller in a written note to “put the money in the bag” was an implied threat of force sufficient to support a robbery conviction, reversing the Court of Appeals decision to the contrary; State v. Farnsworth, 184 Wn.App 305, 348 P.3d 759 (2014)).

Theft. The court in State v. Ng, 110 Wn.2d 32, 750 P.2d 632 (1988), held that the trial court was not required to define the word “theft” when giving robbery instructions.

[Current as of January 2019.]

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End of Document

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