IN RE ADOPTION OF 2014 REVISIONS TO OKLAHOMA JURY INSTRUCTIONS

2014 OK CR 15

• Court: Court of Criminal Appeals of Oklahoma
• Decided: November 19, 2014
• Status: Published

Opinion

OSCN Found Document:IN RE ADOPTION OF 2014 REVISIONS TO OKLAHOMA JURY INSTRUCTIONS

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IN RE ADOPTION OF 2014 REVISIONS TO OKLAHOMA JURY INSTRUCTIONS
2014 OK CR 15
Case Number: CCAD-2014-4
Decided: 11/19/2014
IN RE: ADOPTION OF THE 2014 REVISIONS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS-CRIMINAL (SECOND EDITION)

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Cite as: 2014 OK CR 15, __ __

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ORDER ADOPTING AMENDMENTS TO OKLAHOMA UNIFORM JURY
INSTRUCTIONS-CRIMINAL (SECOND EDITION)

¶1 On September 2, 2014, The Oklahoma Court of Criminal Appeals Committee for Preparation of Uniform Jury Instructions submitted its report and recommendations to the Court for adoption of amendments to Oklahoma Uniform Jury Instructions-Criminal (Second Edition). The Court has reviewed the report by the committee and recommendations for the adoption of the 2014 proposed revisions to the Uniform Jury Instructions. Pursuant to 12 O.S. 2011, § 577.2, the Court accepts that report and finds the revisions should be ordered adopted.

¶2 IT IS THEREFORE ORDERED ADJUDGED AND DECREED that the report of The Oklahoma Court of Criminal Appeals Committee for Preparation of Uniform Jury Instructions shall be accepted, the revisions shall be available for access via the internet from this Court's web site at www.okcca.net on the date of this order and provided to West Publishing Company for publication. The Administrative Office of the Courts is requested to duplicate and provide copies of the revisions to the judges of the District Courts and the District Courts of the State of Oklahoma are directed to implement the utilization of these revisions effective on the date of this order.

¶3 IT IS FURTHER ORDERED ADJUDGED AND DECREED the amendments to existing OUJI-CR 2d instructions, and the adoption of new instructions, as set out in the following designated instructions and attached to this order, are adopted to wit:

4-68A; 4-113A; 4-113B; 4-113C; 4-113-D; 5-2; 5-4; 5-43; 5-98; 5-99; 5-100; 5-114A; 7-4; 7-5; 7-6; 7-7; 9-6A; 10-21A

¶4 The Court also accepts and authorizes the updated committee comments and notes on use to be published, together with the above styled revisions and each amended page in the revisions to be noted at the bottom as follows "(2014 Supp.)".

¶5 IT IS THE FURTHER ORDER OF THIS COURT that the members of The Oklahoma Court of Criminal Appeals Committee for Preparation of Uniform Criminal Jury Instructions be commended for their ongoing efforts to provide up-to-date Uniform Jury Instructions to the bench and the bar of the State of Oklahoma.

¶6 IT IS SO ORDERED.

¶7 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 19th day of November, 2014.

/s/DAVID B. LEWIS, Presiding Judge

/s/CLANCY SMITH, Vice Presiding Judge

/s/GARY L. LUMPKIN, Judge

/s/ARLENE JOHNSON, Judge

ATTEST:
Michael S. Richie
(Clerk)

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OUJI-CR 4-68A

DEATH PENALTY - MENTAL RETARDATION

You must first determine if the Defendant is mentally retarded as it is defined below. This must be done before deciding what sentence to impose. A Defendant who is mentally retarded cannot be sentenced to death. It is the Defendant's burden to prove by a preponderance of the evidence that he/she is mentally retarded. Preponderance of the evidence means more probable than not.

A person is mentally retarded if he/she has significantly subaverage general intellectual functioning along with significant limitations in adaptive functioning.

"Significantly subaverage general intellectual functioning" means an intelligence quotient of seventy (70) or below. An intelligence quotient of seventy (70) or below on an individually administered, scientifically recognized standard intelligence quotient test administered by a licensed psychiatrist or psychologist is evidence of significantly subaverage general intellectual functioning. A score on an intelligence quotient test may differ from a person's actual intelligence quotient because of the possibility of measurement error, and you must take into account the standard error of measurement for the test administered in In determining the intelligence quotient, the standard measurement of error for the test administrated shall be taken into account.

"Significant limitations in adaptive functioning" means significant limitations in two or more of the following adaptive skill areas; communication, self-care, home living, social skills, community use, self-direction, health, safety, functional academics, leisure skills and work skills.

The onset of the defendant's mental retardation must have been noticeable before the age of eighteen (18) years; however, the intelligence quotient test does not have to have been administered before the age of eighteen (18) years.

In reaching your decision, you must determine:

(1) Does the Defendant have an intelligence quotient of seventy (70) or below?

(2) Does the Defendant have significant limitations in adaptive functions in at least two of the following skill areas: communication; self-care; home living; social skills; community use; self-direction; health and safety; functional academics; leisure skills; and work skills?

(3) Is there evidence that the Defendant's onset of the mental retardation was noticeable before the Defendant was eighteen (18) years of age?

If you unanimously find by a preponderance of the evidence that the answer to each of these questions is yes, then you must find that the Defendant is mentally retarded and so indicate on your verdict form. You must then decide whether the Defendant shall be sentenced to life imprisonment or life imprisonment without the possibility of parole and so indicate on your verdict form.

If you unanimously find that the answer to any of these questions is no, then you must find that the Defendant is not mentally retarded and so indicate on your verdict form. If you either unanimously find that the Defendant is not mentally retarded or you are unable to reach a unanimous decision, you must then consider the remainder of the instructions relating to the death penalty and decide whether the defendant shall be sentenced to life imprisonment, life imprisonment without the possibility of parole, or death.

______________________________

Statutory Authority: 21 O.S. 2011, § 701.10b(D)

Notes on Use

This instruction should be used if the defendant has raised mental retardation as a bar to a death sentence in accordance with ¶ D of 21 O.S. Supp 2006 2011, § 701.10b and has requested submission of the issue of mental retardation to the jury during the sentencing phase. The verdict form in OUJI-CR 4-87A should be used with this instruction.

If the jury either determines that the defendant is not mentally retarded or is unable to reach a unanimous decision on mental retardation, the judge should instruct the jury that it may consider evidence of mental retardation as a mitigating factor. See 21 O.S. Supp. 2011, § 701.10b(G); OUJI-CR 4-79, infra.

Committee Comments

The Supreme Court in Hall v. Florida, 134 S.Ct. 1986, 1990 (2014) reversed a death sentence because Florida applied a strict IQ test score cutoff of 70 without taking into account the standard error of measurement on the IQ test. See id. at 1994 ("That strict IQ test score of 70 is the issue in this case.").

OUJI-CR 4-113A

HUMAN TRAFFICKING FOR LABOR - ELEMENTS

No person may be convicted of human trafficking for labor unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, knowingly;

Second, recruiting/enticing/harboring/maintaining/transporting/ providing/obtaining another/other person(s);

Third, through deception/force/fraud/threat/coercion;

Fourth, for the purpose of engaging that/those person(s) in labor.

OR

Second, benefiting (financially/(by receiving anything of value));

Third, from participating in a venture that has engaged in;

Fourth, recruiting/enticing/harboring/maintaining/transporting/ providing/obtaining another/other person(s);

Fifth, through deception/force/fraud/threat/coercion;

Sixth, for the purpose of engaging that/those person(s) in labor.

Statutory Authority: 21 O.S. Supp. 2014, § 748(A)(5).

For definitions of coercion and legal process, see OUJI-CR 4-114D, infra. For an instruction on an affirmative defense of a victim of human trafficking to other crimes, see OUJI-CR 8-61, infra.

Committee Comment

"Human trafficking" is defined at 21 O.S. Supp. 2014, § 748(A)(4) as a form of modern day slavery that includes, but is not limited to, extreme exploitation and denial of freedom or liberty of an individual for purposes of deriving benefit from that individual's commercial sex act or labor. The term "not limited to" in the definition appears to contemplate a form of human trafficking in addition to that done for purposes of commercial sex or labor, but the statute does not provide guidance as to human trafficking for other purposes. Accordingly, the Committee has not attempted to draft an instruction that would cover human trafficking for other purposes.

The text of § 748(A)(5)(a) has an "or" between "deception, force, fraud, threat or coercion" and "for purposes of engaging the person in labor." The Committee decided that this "or" should be omitted from the text of the Instruction in order to require that human trafficking for labor must involve deception, force, fraud, threat or coercion. Compare the parallel language of § 748(A)(6)(a), where "or" is not present.

OUJI-CR 4-113B

HUMAN TRAFFICKING FOR COMMERCIAL SEX - ELEMENTS

No person may be convicted of human trafficking for commercial sex unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

Second, recruiting/enticing/harboring/maintaining/transporting/ providing/obtaining another/other person(s);

Fourth, for the purpose of engaging that/those person(s) in an act of commercial sex.

Second, benefiting (financially/(by receiving anything of value));;

Fourth, recruiting/enticing/harboring/maintaining/transporting/ providing/obtaining another/other person(s);

Sixth, for the purpose of engaging that/those person(s) in an act of commercial sex.

Statutory Authority: 21 O.S. Supp. 2014, § 748(A)(6).

For definitions of coercion, commercial sex, and legal process, see OUJI-CR 4-114D, infra. For an instruction on an affirmative defense of a victim of human trafficking to other crimes, see OUJI-CR 8-61, infra.

"Human trafficking" is defined at 21 O.S. Supp. ,2014 § 748(A)(4) as a form of modern day slavery that includes, but is not limited to, extreme exploitation and denial of freedom or liberty of an individual for purposes of deriving benefit from that individual's commercial sex act or labor. The term "not limited to" in the definition appears to contemplate a form of human trafficking in addition to that done for purposes of commercial sex or labor, but the statute does not provide guidance as to human trafficking for other purposes. Accordingly, the Committee has not attempted to draft an instruction that would cover human trafficking for other purposes.

OUJI-CR 4-113C

HUMAN TRAFFICKING OF A MINOR FOR COMMERCIAL SEX - ELEMENTS

No person may be convicted of human trafficking of a minor for commercial sex unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

Second, recruiting/enticing/harboring/maintaining/transporting/ providing/purchasing/obtaining a minor;

Third, for the purpose of engaging the minor in an act of commercial sex.

A minor is a person under the age of eighteen.

Second, benefiting (financially/(by receiving anything of value));

Fourth, recruiting/enticing/harboring/maintaining/transporting/ providing/purchasing/obtaining a minor;

Fifth, for the purpose of engaging the minor in an act of commercial sex.

Statutory Authority: 21 O.S. Supp. 2014, § 748(A) (6)(b), (c), (A)(8).

For definitions of coercion, commercial sex, and legal process, see OUJI-CR 4-114D, infra. . For an instruction on an affirmative defense of a victim of human trafficking to other crimes, see OUJI-CR 8-61, infra.

"Human trafficking" is defined at 21 O.S. Supp. , 2014 § 748(A)(4) as a form of modern day slavery that includes, but is not limited to, extreme exploitation and denial of freedom or liberty of an individual for purposes of deriving benefit from that individual's commercial sex act or labor. The term "not limited to" in the definition appears to contemplate a form of human trafficking in addition to that done for purposes of commercial sex or labor, but the statute does not provide guidance as to human trafficking for other purposes. Accordingly, the Committee has not attempted to draft an instruction that would cover human trafficking for other purposes.

OUJI-CR 4-113D

HUMAN TRAFFICKING - DEFINITIONS

Coercion - Compelling/Forcing/Intimidating a person to act by:

threats of harm or physical restraint against any person.

any act/scheme/plan/pattern intended to cause a person to believe that performing/(failing to perform) an act would result in serious (physical/financial/emotional harm/distress to)/(physical restraint against) any person.

the abuse/(threatened abuse) of the law/(legal process).

knowingly destroying/concealing/removing/confiscating/possessing any actual/purported passport/(labor/immigration document)/(government identification document, including but not limited to a driver license or birth certificate) of another person.

facilitating/controlling a person's access to any addictive/controlled substance other than for legal medical purposes.

blackmail.

demanding/claiming money/goods/(any thing of value) from/(on behalf of) a prostituted person where such demand/claim (arises from)/(is directly related to) the act of prostitution.

determining/dictating/setting the times at which another person will be available to engage in an act of prostitution with a third party.

determining/dictating/setting the places at which another person will be available (for solicitation of)/(to engage in) an act of prostitution with a third party.

determining/dictating/setting the places at which another person will reside for purposes of making such person available to engage in an act of prostitution with a third party.

Reference: 21 O.S. Supp. 2014, § 748(A)(1).

Commercial sex - Any form of commercial sexual activity such as sexually explicit performances, prostitution, participation in the production of pornography, performance in a strip club, or exotic dancing or display.

Reference: 21 O.S. Supp. 2014, § 748(A)(2).

Minor - A person under the age of eighteen (18) years.

Reference: 21 O.S. Supp. 2014, § 748(A)(8).

Legal process - The (criminal/civil law)/(regulatory system) of (the federal government)/(any state/territory/district/commonwealth/(trust territory)/(any foreign government)/(subdivision of a foreign government) and includes (legal civil/criminal actions)/(regulatory petitions/applications).

Reference: 21 O.S. Supp. 2014, § 748(A)(7).

Victim - A person against whom human trafficking has been committed.

Reference: 21 O.S. Supp. 2014, § 748(A)(9).

OUJI-CR 5-2

ARSON IN THE FIRST DEGREE - ELEMENTS

No person may be convicted of arson in the first degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, a willful and malicious;

[Second, (setting fire to)/burning/(destroying in whole or in part by use of any (explosive device)/accelerant/(ignition device)/(heat-producing device/substance)/(while manufacturing/(attempting to manufacture) [specify controlled dangerous substance listed in 63 O.S. 2001, § 2-322]]);

Third, (a building/structure)/(the contents of a building/structure);

Fourth, which was inhabited/occupied by one or more persons;

Fifth, caused/aided/counseled/procured by the defendant].

[First, (destroying in whole or part)/(causing to be burned/destroyed)/(aiding/counseling/procuring the burning/destruction of);

Second, (a building/structure)/(the contents of a building/structure);

Third, which was inhabited/occupied by one or more persons;

Fourth, (while manufacturing/(attempting/endeavoring to manufacture) [specify controlled dangerous substance listed in 63 O.S. Supp. 2014, § 2-401].

[Second, (causing another person to be burned)/(aiding/counseling/ procuring the burning of another person);

Third, by (setting fire to the person)/(burning the person by the use of any (explosive device)/accelerant/ (ignition device)/(heat-producing device/substance))/(while manufacturing/(attempting to manufacture) [specify controlled dangerous substance listed in 63 O.S. 2001, § 2-322] ] .

[First, (causing another person to be burned)/(aiding/counseling/ procuring the burning of another person) ;

Second, (while manufacturing/(attempting to manufacture) [specify controlled dangerous substance listed in 63 O.S. Supp. 2014, § 2-401].

Statutory Authority: 21 O.S. 2011 Supp. 2014, § 1401.

The Committee interprets the statute strictly to require "willfully and maliciously" to apply to all the elements in the statute, including "while manufacturing or attempting to manufacture a controlled dangerous substance in violation of subsection G of Section 2-401 of Title 63 of the Oklahoma Statutes." See State v. Davis, 2011 OK CR 22, ¶ 5, 260 P.3d 194, 195 ("This Court is committed to the rule of strict construction in the application of criminal statutes."); Durant v. State, 2008 OK CR 17, ¶ 8, 188 P.3d 192, 194 ("The purpose of strict construction is not to reward those who commit acts which should be punishable. Rather, it is to ensure that when liberty is at stake, all citizens have fair and clear warning of what conduct is prohibited, and, equally important, the severity of punishment for any infraction.").

OUJI-CR 5-4

ARSON IN THE SECOND DEGREE - ELEMENTS

No person may be convicted of arson in the second degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

Second, (setting fire to)/burning/(destroying in whole or in part by use of any explosive device/substance)/(destroying in whole or in part while manufacturing/(attempting to manufacture) [specify controlled dangerous substance listed in 63 O.S. 2001, § 2-322 Supp. 2014, § 2-401]);

Third, (a building/structure)/(the contents of a building/structure);

Fourth, which was uninhabited/unoccupied;

Fifth, caused/aided/counseled/procured by the defendant.

Statutory Authority: 21 O.S. 2011, § 1402.

See Committee Comments to OUJI-CR 5-2, supra. The Committee interprets the statute strictly to require "willfully and maliciously" to apply to all the elements in the statute, including "while manufacturing or attempting to manufacture a controlled dangerous substance in violation of subsection G of Section 2-401 of Title 63 of the Oklahoma Statutes." See State v. Davis, 2011 OK CR 22, ¶ 5, 260 P.3d 194, 195 ("This Court is committed to the rule of strict construction in the application of criminal statutes."); Durant v. State, 2008 OK CR 17, ¶ 8, 188 P.3d 192, 194 ("The purpose of strict construction is not to reward those who commit acts which should be punishable. Rather, it is to ensure that when liberty is at stake, all citizens have fair and clear warning of what conduct is prohibited, and, equally important, the severity of punishment for any infraction.").

OUJI-CR 5-43

FALSE OR BOGUS CHECK DEFINED

A false or bogus check is one a check/order which is not honored because [of insufficient funds of the maker to pay the same]/[the check or order was drawn on a closed/nonexistent account)] when the check/order was given:

in exchange for money/property/(a benefit/(thing of value).

as a down payment for the purchase of an item of which the purchaser is taking immediate possession.

as payment made to a landlord under a lease/(rental agreement).

Statutory Authority: 21 O.S. 2001 Supp. 2014, § 1541.1 1541.4.

The elements for the misdemeanor false-pretense crime under section 1541.1 are identical to the elements of the felony false-pretense crime under section 1541.2 except for the fourth element. The statutory language of section 1541.1 indicates that the value of the property must be alleged and proved to be $500 or less. Hence, if a prosecutor is uncertain as to the value of the property, the prosecutor should charge the felony crime. If the facts at trial indicate that the property is of a value of $500 or less, the accused can then be convicted of the misdemeanor, because misdemeanor false pretense is a lesser included offense of the felony.

Section 1541.1 also creates the misdemeanor crime of attempted false pretense. As noted in the Committee Comments for the felony crime of attempted false pretense, the State is prohibited from prosecuting under the general attempt statutes because a specific attempt statute for false pretense exists.

OUJI-CR 5-98

LARCENY OF (DOMESTIC ANIMALS)/
(AN IMPLEMENT OF HUSBANDRY) - ELEMENTS

No person may be convicted of larceny of (domestic animals)/(an implement of husbandry) unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, trespassory;

Second, taking;

Third Second, carrying away;

Fourth Third, (domestic animals)/(an implement of husbandry);

Fifth Fourth, of another;

Sixth Fifth, with the intent to steal.

Statutory Authority: 21 O.S. 2001, § 1716;1730.

For a definition of domestic animals, see OUJI-CR 5-106, infra. The judge should consult 47 O.S. 2001 2011, § 1-125 for a definition of an implement of husbandry that is appropriate for the case.

OUJI-CR 5-99

LARCENY OF DOMESTIC FOWLS - ELEMENTS

No person may be convicted of larceny of domestic fowls unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

Fourth Third, domestic fowls;

Statutory Authority: 21 O.S. 2001, § 1719;1730..

OUJI-CR 5-100

LARCENY OF AUTOMOTIVE DRIVEN VEHICLE - ELEMENTS

No person may be convicted of larceny of an automotive driven vehicle unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

Fourth Third, automobile/aircraft/(automotive driven vehicle)/(construction/ farm equipment);

Fifth, of another;

Sixth, with the intent to steal.

Statutory Authority: 21 O.S. 2001, § 1720;1730..

The Commission has treated these three sections together because the language of the sections is similar and the decisions construing the sections argue for similar construction. In contrast with the other larceny crimes in Chapter 68 which depend upon section 1701 for the definition of larceny, sections 1716, 1719, and 1720 use the word "steal." The Court of Criminal Appeals has consistently held, regarding these three sections, that the word "steal" requires a different definition of the crime than the definition given for larceny by section 1701. To quote the opinion of the court in Sneed v. State, 61 Okl. Cr. 96, 101, 65 P.2d 1245, 1247 (1937) (conviction under § 1716):

An examination of the authorities will show that "larceny" and "stealing," at common law, had the same meaning; and consequently stealing, as here defined, is the wrongful or fraudulent taking and removing of personal property, by trespass, with a felonious intent to deprive the owner thereof, and to convert the same to his, the taker's, own use. The crime of larceny, by our statutes, has been widened to a considerable extent....

Thus it appears the Legislature has modified the meaning of the word "larceny," as used in the Penal Code, so that the taking of personal property accomplished by fraud or stealth, and with intent to deprive another thereof, is larceny, regardless of whether or not it was taken for the purpose of depriving the owner thereof or for the purpose of converting it to the use of the taker. Therefore, while stealing and larceny at common law were synonymous terms, our statute has given to the word "larceny" a much broader meaning than it then had; while "steal" or "stealing" has not been defined by our statutes, and must be construed according to its common-law meaning.

Accord, Riley v. State, 64 Okl. Cr. 183, 78 P.2d 712 (1938) (charged under § 1720); cf. Bingham v. State, 44 Okl. Cr. 258, 280 P. 636 (1929) (charged under § 1719).

In the opinion of the Commission, the distinction between sections 1716, 1719, 1720 and section 1701, emphasized by the court, is found in the mens rea element of the several crimes. Section 1701 punishes for intent to deprive permanently, while sections 1716, 1719, and 1720 punish for intent to steal. The mens rea "intent to steal" encompasses two concepts: intent to deprive the owner permanently; and intent to convert to the taker's own use. Moreover, the word "trespassory" is used in the first element to present the concept of a wrongful action toward the personal property. This concept is covered by the "fraud and stealth" element in the other larceny crimes.

The Commission has used generic language to describe domestic animals, rather than specific names as listed in section 1716, because the definition of the generic language should encompass the specific names. It seems less cumbersome to use the generic language which is then appropriately defined.

The Commission has not prepared an instruction covering the situation in which one would be guilty of grand larceny under section 1719 for purchasing or receiving stolen fowls. No cases have interpreted this provision. Nor has the Committee prepared instructions for larceny of domesticated fish and game or exotic livestock under 21 O.S. 2001, §§ 1719.1, 1719.2.

Prior versions of OUJI-CR 5-98, 5-99, and 5-100 included "trespassory" as the first element. See Grissom v. State, 2011 OK CR 3, ¶ 49, 253 P.3d 969, 987. The reason for including the element of "trespassory" was that 21 O.S. 2011, § 1716, 1719, and 1720 use the term "steal," and stealing was distinguished from larceny in Sneed v State, 1937 OK CR 52, 65 P.2d 1245, 1247, 61 Okl.Cr. 96, 101. The distinction between stealing and larceny was eliminated by 21 O.S. 2011, § 1730, which provides that they mean the same thing, and therefore, the element of "trespassory" has been deleted from OUJI-CR 5-98, 5-99, and 5-100.

OUJI-CR 5-114A

RECEIVING UNLAWFUL PROCEEDS - ELEMENTS

No person may be convicted of receiving unlawful proceeds unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, knowingly/intentionally;

Second, receiving/acquiring proceeds;

Third, knowing that the proceeds were derived from a violation of [Specify Nature of Statutory Violation Unlawful Activity as Defined in 21 O.S. Supp. 2014, § 2001(F), e.g., trafficking in illegal drugs racketeering]; and

Fourth, knowingly/intentionally;

[Fifth, concealing the proceeds].

[Fifth, engaging in transactions involving the proceeds].

Statutory Authority: 21 O.S. Supp. 2004 2014, § 2001.

OUJI-CR 7-4

(MISTREATMENT OF)/(INTERFERENCE WITH)
POLICE DOG/HORSE - ELEMENTS

No person may be convicted of (mistreatment of)/(interference with) a police dog/horse unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, willfully;

Second, tortured striking/tormenting/ beat/mutilated/injured/disabled (administering a nonpoisonous desensitizing substance to) /mistreating)/ (interfering with the lawful performance of);

Third, a police dog/horse;

Fourth, owned/used by;

Fifth, a law enforcement agency [of a political subdivision] of the State.

Statutory Authority: 21 O.S. 1991 Supp. 2014, § 649.1.

OUJI-CR 7-5

(MISTREATMENT OF)/(INTERFERENCE WITH)
POLICE DOG/HORSE DURING COMMISSION
OF CRIME - ELEMENTS

No person may be convicted of (mistreatment of)/(interference with) a police dog/horse during the commission of a misdemeanor/felony unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

Second, willfully;

Third, without lawful cause or justification;

Fourth, tortured striking/tormenting/ beat/mutilated/injured/disabled (administering a nonpoisonous desensitizing substance to) /mistreating)/ (interfering with the lawful performance of);

Fifth, a police dog/horse;

Sixth, owned/used by;

Seventh, a law enforcement agency [of a political subdivision] of the State;

Eighth, during the commission of a misdemeanor/felony.

OUJI-CR 7-6

KILLING /BEATING/TORTURING ETC.
POLICE DOG/HORSE - ELEMENTS

No person may be convicted of killing /beating/torturing/(injuring so as to disfigure/disable)/(administering a poison to)/(setting a booby trap device for the purpose of injury so as to disfigure/disable/kill) a police dog/horse unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

Second, killing/beating/torturing/(injuring so as to disfigure/disable) /(administering a poison to)/(setting a booby trap device for the purpose of injury so as to disfigure/disable/kill)/(paying/(agreeing to pay) bounty for the purpose of injury so as to disfigure/disable/kill);

Fifth, a law enforcement agency [of a political subdivision] of the State.

Statutory Authority: 21 O.S. 1991 Supp. 2014, § 649.2.

OUJI-CR 7-7

KILLING /BEATING/TORTURING ETC. POLICE
DOG/HORSE DURING COMMISSION OF CRIME - ELEMENTS

No person may be convicted of killing /beating/torturing/(injuring so as to disfigure/disable)/(administering a poison to)/(setting a booby trap device for the purpose of injury so as to disfigure/disable/kill) a police dog/horse during the commission of a misdemeanor/felony unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

Fourth, killing/beating/torturing/(injuring so as to disfigure/disable) /(administering a poison to)/(setting a booby trap device for the purpose of injury so as to disfigure/disable/kill)/(paying/(agreeing to pay) bounty for the purpose of injury so as to disfigure/disable/kill);

Seventh, a law enforcement agency [of a political subdivision] of the State;

OUJI-CR 9-6A

EVIDENCE - SEPARATE CONSIDERATION FOR EACH CHARGE

You must give separate consideration for each charge in the case. The defendant is entitled to have his/her case decided on the basis of the evidence and the law which is applicable to each charge. The fact that you return a verdict of guilty or not guilty for one charge should not, in any way, affect your verdict for any other charge.

This Instruction should be given if two or more charges against the same defendant are tried together. This Instruction is not required unless any party has made a timely request for it. See Taylor v. State, 2011 OK CR 8, ¶¶ 14-18, 248 P.3d 362,

This instruction is similar to the one given in Smith v. State, 2007 OK CR 16, ¶ 38, 157 P.3d 1155, 1168-69.

OUJI-CR 10-21A

PRIOR CONVICTIONS ADMITTED AS PROPENSITY EVIDENCE DURING FIRST STAGE

Evidence has been presented in the first stage of trial as to past criminal acts the defendant committed which is evidence of the defendant's propensity to commit crimes involving sexual misconduct. That evidence was proper for you to consider in determining the defendant's guilt.

In the second stage of trial, the court has determined as a matter of law that the sexual propensity evidence constitutes [specify number] alleged prior conviction(s) for your consideration in sentencing. [Additionally, evidence has been presented of [specify number] alleged prior conviction(s).] It remains the prosecution's burden to prove beyond a reasonable doubt the existence of each alleged prior conviction, and only those alleged prior convictions, proven to your satisfaction can be considered in determining punishment.

This Instruction should be given in the second stage of sentencing when prior convictions have been admitted during the first stage either after OUJI-CR 10-19, if the prior convictions are stipulated, or after OUJI-CR 10-21, if the prior convictions are contested,. In most cases, prior convictions are not admissible for proof of guilt, but they may be admissible to show propensity for sexual assault or child molestation under 12 O.S. 2011, §§ 2413, 2414. Under 21 O.S. 2011, § 51.1(B), prior convictions that arose out of the same transaction or occurrence or series of events closely related in time and location are to be counted as a single conviction for purposes of sentencing enhancement. If prior convictions arising out of the same transaction have not been admitted during the first stage, the trial court may count or list only the prior convictions that arose from separate transactions in OUJI-CR 10-17, 10-19, or 10-21, and this instruction should not be used. However, if the jury has already heard evidence of multiple prior convictions that arose from the same transaction, this instruction is needed in order to inform the jury that it is not to consider for sentencing purposes all of the prior convictions that were admitted during the first stage for proof of guilt.

The Oklahoma Court of Criminal Appeals observed in Levering v. State, 2013 OK CR 19, ¶ 7, 315 P.3d 392, 395, that it was not unusual for multiple charges and convictions to have arisen out of a transactionally related series of sex related offenses, and that transactionally related offenses may not be relied on for sentencing enhancement under 21 O.S. 2011, § 51.1(B). The Court of Criminal Appeals suggested the following instruction to explain the relationship between propensity evidence offered for guilt purposes and prior convictions used for sentencing enhancement:

Evidence has been presented in the first stage of trial as to past criminal acts the defendant committed against S.E. which is evidence of the defendant's propensity to commit crimes involving sex. That evidence was proper for you to consider in determining the defendant's guilt.

In the second stage of trial, the court has determined as a matter of law that the sexual propensity evidence constitutes one prior conviction for your consideration in sentencing. Additionally, evidence has been presented of two other prior convictions. It remains the prosecution's burden to prove beyond a reasonable doubt the existence of each alleged prior conviction, and only those prior convictions proven to your satisfaction can be considered in determining punishment.

Levering v. State, 2013 OK CR 19, ¶ 13, 315 P.3d 392, 396. This instruction is based on the suggested instruction in Levering with modifications to make it more generic.

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