Wash. Court of Appeals published opinion — D2 51946-1-II Published Opinion.pdf

Citation: Wash. Court of Appeals published opinion — D2 51946-1-II Published Opinion.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/D2%2051946-1-II%20Published%20Opinion.pdf ↗

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because the legal efficacy of the bank account applications was a question of law for the trial

court. Therefore, Smith was not entitled to a jury instruction regarding that issue.

1. No Constitutional Requirement

Under the Sixth and Fourteenth Amendments to the United States Constitution, a

criminal defendant is entitled to a jury determination of every element of the charged offense.

Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). As a

result, the trial court must instruct the jury on all elements of the offense. State v. Scott, 110

Wn.2d 682, 689, 757 P.2d 492 (1988). Smith argues that failing to give an instruction

incorporating the legal efficacy requirement violates this constitutional requirement.

However, legal efficacy is not an element of forgery. Ring, 191 Wn. App. at 793. The

existence of a “written instrument” is the essential element. Id. Legal efficacy is merely a

definition of that element. See id. at 793-94. The constitution does not require that the trial court

further define an element of an offense. Scott, 110 Wn.2d at 689; see also State v. O’Donnell,

142 Wn. App. 314, 325, 174 P.3d 1205 (2007). “[F]ailure to give a definitional instruction is not

failure to instruct on an essential element.” State v. Brown, 132 Wn.2d 529, 612, 940 P.2d 546

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No. 51946-1-II

(1997). Therefore, there is no constitutional requirement that the jury rather than the trial court

decide the legal efficacy issue.2

But that conclusion does not resolve the issue here. If legal efficacy must be decided by

the jury rather than the court, the trial court still may be required to instruct on legal efficacy

under nonconstitutional principles.