IN RE ADOPTION OF THE 2003 REV. TO THE OUJI, CRIM

Full title: IN RE: ADOPTION OF THE 2003 REVISIONS TO THE OKLAHOMA UNIFORM JURY…

Court: Court of Criminal Appeals of Oklahoma

Date published: Jul 3, 2003

2003 OK CR 13 (Okla. Crim. App. 2003)

Opinion

No.CCAD-2003-2

Decided: July 3, 2003

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

¶ 1 On November 15, 2002, The Oklahoma Court of Criminal Appeals Committee for Preparation of Uniform Jury Instructions submitted its report and recommendations to the Court for the 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 2003 proposed revisions to the Uniform Jury Instructions. Pursuant to 12 O.S. 1991 § 577.2[ 12-577.2], 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:

1-5; 3-39; 4-23; 4-28; 4-40B; 4-65A; 4-68A; 4-83; 4-87A; 4-113; 4-122; 4-124; 4-125; 4-126; 4-127; 4-136; 4-136A; 4-141; 4-147; 4-147A; 4-148; 5-39; 5-40; 5-41; 5-42; 5-43; 5-93; 5-94; 5-98; 5-100; 5-101; 5-102; 5-103; 5-104; 5-106; 6-3; 6-3A; 6-3B; 6-3C; 6-16; 6-17; 6-18; 6-20; 6-21; 6-22; 6-24; 6-35; 8-58; 10-10; 10-24; 10-27.

¶ 4 The Court also accepts and authorizes the updated committee comments to be published, together with the above styled revisions and each amended page in the revisions to be noted at the bottom as follows "(2003 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 3rd day of July, 2003.

/s/ Charles A. Johnson CHARLES A. JOHNSON, Presiding Judge

/s/ Steve Lile STEVE LILE, Vice Presiding Judge

/s/ Gary L. Lumpkin GARY L. LUMPKIN, Judge

/s/ Charles S. Chapel CHARLES S. CHAPEL, Judge

/s/ Reta M. Strubhar RETA M. STRUBHAR, Judge

ATTEST:

/s/ Michael S. Richie Clerk

OUJI-CR 1-5 EXAMINATION BY THE COURT

I will now ask you a number of questions to determine your qualifications to serve as jurors in this case. To determine your qualifications I will need to obtain information from each of you, including some personal information. The purpose of these questions is to obtain a fair jury and it is not to embarrass you. If any of my questions should touch on sensitive subjects that you do not want to have heard by everyone present, you should tell me, and you can then come forward so that we can discuss those matters privately.

1. Do you reside in [Name of County] County?

Committee Comments

Okla. Const. art. 2, § 20 requires "trial by an impartial jury of the county in which the crime shall have been committed." Not every juror who reports for service on the jury panel is necessarily a resident of the county, and so the judge should make sure that all non-residents are removed from the jury.

2. The attorney(s) for the State is/are [Name the Attorney(s)]. Do any of you know the attorney(s) for the State? Has the District Attorney's office handled any matter for any of you?

3. The attorney(s) for the defendant(s) is/are [Name the Attorney(s)]. Do any of you know the attorney(s) for the defendant(s)? Has/Have the attorney(s) for the defendant(s) [or his/her law firm] represented you on any legal matter?

4. The defendant(s) in this case is/are is [Name the Defendant(s)]. Do any of you know the defendant(s)?

5. Do/Did any of you know [Name the Alleged Victim(s)], or any member of his/her/their family?

6. The witnesses who may be called in this case are [Name the Witness(es)]: Do any of you know any of the witnesses, or any member of their families?

7. Have any of you read or heard the alleged facts of this case? Have you expressed or formed an opinion concerning this case? Would any information you have read or heard concerning this case influence your ability to hear or decide this case impartially? Have you discussed this case with anyone prior to today?

8. Have any of you had any experience that you feel might affect your consideration of this case?

9. Are you or is anyone in your immediate family employed or involved with a law enforcement agency or organization? Have you or has anyone in your immediate family been connected with law enforcement in the past? Do you hold or have you held a "Reserve Deputy Commission," a "Special Deputy Commission," or an "Honorary Deputy Commission"?

Committee Comments

Under 38 O.S. Supp. 1995 2001, § 28, sheriffs or deputy sheriffs are disqualified from serving as jurors. The Court of Criminal Appeals has held that a person who holds a "reserve deputy commission," a "special deputy commission," or an "honorary deputy commission" is similarly disqualified from serving as a juror, even though the person holding this commission has no legal authority or legal duty to act as a deputy sheriff. State v. Smith, 320 P.2d 719 (Okla.Cr. 1958); Henderson v. State, 95 Okla. Cr. 342, 246 P.2d 393 (1952); Allen v. State, 70 Okla. Cr. 143, 105 P.2d 450 (1940); Carr v. State, 63 Okla. Cr. 201, 84 P.2d 42 (1938); Tripp v. State, 63 Okla. Cr. 41, 72 P.2d 529 (1937).

10. Have any of you ever been charged with or accused of a crime? Have any of your close friends or relatives ever been charged with or accused of a crime?

11. Have any of you ever been victims of a crime? Have any of your close friends or relatives ever been victims of a crime?

12. I will instruct you on the law and the rules by which the jury reaches a verdict. Your duty as jurors is to accept and follow the law as included in the instructions and rules given to you by me. If selected as a juror, will each of you accept and follow the law as included in the instructions and rules that I will give to you?

One instruction I will give is that the/each defendant is presumed innocent of the crime, and the presumption continues unless after consideration of all the evidence you are convinced of his/her/(each defendant's) guilt beyond a reasonable doubt. The State has the burden of presenting the evidence that establishes guilt beyond a reasonable doubt. The/Each defendant must be found not guilty unless the State produces evidence which convinces you beyond a reasonable doubt of each element of the crime. If selected as a juror, will each of you presume the/each defendant innocent unless proven guilty beyond a reasonable doubt?

[Select either Alternate 1 (No Death Penalty) or Alternate 2 (Death Penalty)].

Alternate 1 (No Death Penalty)

Another instruction I will give is that as jurors, if you find the defendant(s) guilty, you will have the duty to assess punishment. The punishment for the crime of [Name the Crime Charged] is a possible maximum punishment of (a term in the State Penitentiary for [possible maximum years in Penitentiary])/(a term in the County Jail for [possible maximum jail term]) and/or [a fine of (possible maximum fine)].

If selected as a juror, will each of you assess punishment in accordance with the law?

Notes on Use

Alternate 1 shall be given except when the crime charged is murder in the first degree and the death penalty is sought. It should be repeated for each crime charged.

Committee Comments

If the charge involves an "after former conviction" charge, Question 11, Alternate 1, should not be given at voir dire. See 22 O.S. 1991, § 860 2001, 860.1. No discussion of the possible punishment in an "after former conviction" case should be given to the jury until the second stage of the trial.

Alternate 2 (Death Penalty)

The defendant is charged with murder in the first degree. It will be the duty of the jury to determine whether the defendant is guilty or not guilty after considering the evidence and instructions of law presented in court.

If the jury finds beyond a reasonable doubt that the defendant is guilty of murder in the first degree, the jury will then have the duty to assess punishment. The punishment for murder in the first degree is death, imprisonment for life without parole or imprisonment for life.

If you find the defendant guilty of murder in the first degree, can you consider all three of these legal punishments — death, imprisonment for life without parole or imprisonment for life — and impose the one warranted by the law and evidence? [If answer is negative] — If you found beyond a reasonable doubt that the defendant was guilty of murder in the first degree and if under the evidence, facts and circumstances of the case the law would permit you to consider a sentence of death/(imprisonment for life without parole)/(imprisonment for life), are your reservations about the penalty of death/(imprisonment for life without parole)/ (imprisonment for life) so strong that regardless of the law, the facts and circumstances of the case, you would not impose the penalty of death/(imprisonment for life without parole)/(imprisonment for life)?

[Required To Be Asked In All Cases On Request of Defense Counsel By Either the Judge or Defense Counsel] — If you found beyond a reasonable doubt that the defendant was guilty of murder in the first degree, would you automatically impose the penalty of death?

Notes on Use

Alternate 2 shall be given when the crime charged is murder in the first degree and the death penalty is sought. The Oklahoma Court of Criminal Appeals emphasized in Hanson v. State, 2002 OK CR 12, ¶ 6, ___ P.3d ___, that "[t]his Court has repeatedly held that, if a defendant so requests, either he or the trial court must ask prospective jurors whether they would automatically impose a sentence of death." Accordingly, the jurors must be asked the last question above in all death penalty cases, if the defense counsel so requests.

Committee Comments

The punishments authorized in 21 O.S. 1991 2001 § 701.9 are death, imprisonment of life without parole, and imprisonment for life.

The United States Supreme Court held in Witherspoon v. Illinois, 391 U.S. 510, 521-22 (1968), that the death penalty could not be carried out if it was imposed by a jury from which jurors had been excluded because they voiced general objection to the death penalty or conscientious or religious scruple to it. A juror may be challenged for cause, however, if that jurors's views on capital punishment would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright v. Witt, 469 U.S. 412, 424 (1985), quoting Adams v. Texas, 448 U.S. 38, 45 (1980). See also Trice v. State, 853 P.2d 203, 209 (Okla.Cr. 1993) (applying this standard). A juror should not be excused for cause because he or she disagrees with the death penalty or even if imposing it would do violence to the juror's conscience. Banks v. State, 701 P.2d 418, 422 (Okla.Cr. 1985) ("Violence to one's conscience is not the point of the Witherspoon voir dire examination."). Instead, the trial court's concern should be "whether each jury member will consider the imposition of the death sentence, as one of the alternatives provided by state law, should the case be appropriate for that punishment." Duvall v. State, 825 P.2d 621, 630 (Okla.Cr. 1991).

In addition to being willing to consider imposition of a death sentence, if warranted, a juror must also be willing to consider the alternative sentences of imprisonment for life without parole and imprisonment for life. The United States Supreme Court held in Morgan v. Illinois, 504 U.S. 719, 735 (1992), that a trial court's refusal to inquire into whether a potential juror would automatically impose the death penalty upon conviction of a defendant was a violation of due process of law. See also Ross v. Oklahoma, 487 U.S. 81, 85 (1988) (juror who stated that he would vote to impose death automatically if the jury decided that the defendant was guilty should have been removed for cause). In Hanson v. State, 2002 OK CR 12, ¶¶ 6-8, ___ P.3d ___, the Oklahoma Court of Criminal Appeals remanded for capital resentencing because the trial court did not allow defense counsel to ask whether any juror would automatically impose death.

Although Alternate 2 does not conform exactly to the language that the Court of Criminal Appeals recommended in Duvall v. State, supra, Alternate 2 is consistent with Duvall's holding. It also incorporates the requirement in Morgan v. Illinois, supra, that the trial judge should question the jurors about whether they would give appropriate consideration to life imprisonment as well as the death penalty. Cf. Hammon v. State, 898 P.2d 1287, 1300 (Okla.Cr. 1995) ("A defendant on trial for his life must be permitted on voir dire to ascertain whether his prospective jurors function under the belief that upon conviction the death penalty should automatically be imporsed imposed.").

13. Having been asked these questions, do any of you know at this time any reason why you could not be a fair and impartial juror? If so please raise your hand.

14. The court now requests that each of you give your name, your spouse's name if you are married, your occupation, your spouse's occupation, and the number of children you have. Please speak slowly and clearly. Let us begin with [Note: Indicate the juror who is to begin.]

Committee Comments

The Commission urges that the trial court prepare and distribute to the attorneys a sheet with a facsimile of the jury box providing spaces for the attorneys to copy the information requested by the court in question 13.

Jurors should not be asked to give their addresses during voir dire. 38 O.S. Supp. 1995 2001 § 36 ("Persons serving as jurors during a trial shall not be asked or required to give their complete residence addresses or telephone number in the presence of the defendant.").

OUJI-CR 3-39 WITNESS INTIMIDATION — ELEMENTS

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

First, willfully;

Second, causing/threatening/procuring/harassing;

Third, physical/mental harm;

Fourth, through force/fear;

Fifth, to a person;

Sixth, [ with the intent to prevent the person from appearing in court to testify]

OR

[ with the intent to make the person alter his testimony]

OR

[ because of testimony given by the person in any civil or criminal trial or proceeding]

OR

[ to prevent or because of a report of abuse or neglect].

Statutory Authority: 21 O.S. 2001 § 455.[ 21-455].

Notes on Use

Before giving the third alternative to the Sixth Element, the trial court should determine whether the report was made pursuant to 10 O.S. §§ 7103[ 10-7103], 7104, or 43A O.S. § 10-104[ 43A-10-104]. See Pinckley v. State, 2002 OK CR 26, Appendix A, 49 P.3d 756, 760-61.

Committee Comments

This instruction is similar to the instruction promulgated by the Oklahoma Court of Criminal Appeals in Pinckley v. State , 2002 OK CR 26, Appendix A, 49 P.3d 756, 760-61. However, it omits the statutory references in the sixth element because they would not be helpful to a jury. Whether a report of abuse or neglect was made pursuant to the particular statutes would not ordinarily be a jury issue, but if it were a jury issue, additional instructions would be necessary.

OUJI-CR 4-23 AGGRAVATED ASSAULT AND BATTERY GREAT BODILY INJURY INFLICTED — ELEMENTS

No person may be convicted of aggravated assault and battery unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, an assault and battery;

Second, upon another person;

Third, by inflicting great bodily injury.

Notes on Use

For the definition of great bodily injury, see OUJI-CR 4-28, infra .

OUJI-CR 4-28 ASSAULT, BATTERY, ASSAULT AND BATTERY — DEFINITIONS

Dangerous Weapon — Any pistol/revolver/dagger/(bowie/dirk/switch-blade/ spring-type knife)/(sword cane)/(knife having a blade which opens automatically)/ blackjack/(loaded cane)/billy/(hand chain)/(metal knuckles)/(implement likely to produce death or great bodily harm in the manner it is used or attempted to be used).

References: Wilcox v. State, 13 Okla. Cr. 599, 166 P. 74 (1917); 21 O.S. Supp. 2000 2001, § 1272.

Deadly Weapon — Any instrument designed or constructed to cause death or great bodily injury. A pistol/revolver/dagger/(bowie/dirk/switch-blade/spring-type knife)/(sword cane)/(knife having a blade which opens automatically)/blackjack/ (loaded cane)/billy/(hand chain)/(metal knuckles) is a deadly weapon.

References: Beeler v. State, 1959 OK CR 9, 334 P.2d 799; 21 O.S.Supp. 2000 2001, § 1272.

Decrepit — Physically impaired by old age, physical defects, or infirmities.

Reference: Herrington v. State, 1960 OK CR 45, 352 P.2d 931.

Execution of Legal Process — Carrying out or enforcement of a judgment, decision, or order of a court.

Reference References: Black's Law Dictionary 510 (5th ed. 1979); 15A Words and Phrases 265; 34 Words and Phrases 245.

Firearm — Weapon from which a shot or projectile is discharged by force of a chemical explosive such as gunpowder. An airgun, such as a carbon dioxide gas-powered air pistol, is not a firearm within the meaning of the definition.

Reference References: 21 O.S. Supp. 2000 2001, §§ 1289.3 et seq.; Black's Law Dictionary 570 (5th ed. 1979); Thompson v. State, 1971 OK CR 328, ¶ 8, 488 P.2d 944, 947, overruled on other grounds, Dolph v. State, 1974 OK CR 46, ¶ 10, 520 P.2d 378, 380-81.

Force — Any touching of a person regardless of how slight may be sufficient to constitute force. Such touching may be brought about directly or indirectly by defendant.

Reference: R. Perkins, Criminal Law 80 (2d ed. 1969).

Great Bodily Injury — (Bone fracture)/(protracted and obvious disfigurement)/(protracted loss/impairment of the function of a (body part)/organ/ (mental faculty))/(substantial risk of death).

Reference: 21 O.S.Supp. 2002 § 646.[ 21-646].

Intentional — Deliberate; with knowledge of the natural and probable consequences.

References: Davis v. State, 1960 OK CR 6, 354 P.2d 466; Tyner v. United States, 2 Okla. Cr. 689, 103 P. 1057 (1909).

Knowingly — Personally aware of the facts.

Reference: 21 O.S. 1991 2001, § 96.

Known — With personal awareness of the facts. Reference: 21 O.S.1991 2001, § 96.

Maiming — Note: see maiming instruction, OUJI-CR 4-113.

Malicious — The term imports a wish to vex, annoy or injure another person.

Reference: 21 O.S. 1991 2001, § 95.

Procured — Brought about or obtained.

Reference: Black's Law Dictionary 1087 (5th Ed. 1979).

Robust — Having strength or vigorous health.

Reference: Webster's Third New International Dictionary 1964 (1961).

Unlawful — Without legal justification.

Reference: 91 C.J.S. Unlawful 491.

While in the Performance of His/Her Duties — While acting in relation to law enforcement for the benefit of the general public, regardless of whether or not those acts are performed while "off duty" from the actor's regular police department or law enforcement employment; not including, however, those acts performed off duty for a private employer.

Reference References: Brooks v. State, 1977 OK CR 96, 561 P.2d 137; Stewart v. State, 1974 OK CR 173, 527 P.2d 22.

Willful — Purposeful. "Willful" does not require any intent to violate the law, or to injure another, or to acquire any advantage.

Reference: 21 O.S. 1991 2001, § 92.

Wrongful — Without justification or excuse.

Reference: Bartell v. State, 4 Okla. Cr. 135, 111 P. 669 (1910).

OUJI-CR 4-40B CHILD ENDANGERMENT — ELEMENTS

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

First, a parent/guardian/(person having custody/control) of a child under 18 years of age;

Second, knowingly;

Third, permitted;

[Fourth, physical/sexual abuse;

Fifth, of the child.]

OR

Fourth, the child to be present in a place where [Specify Controlled Dangerous Substance] was (being manufactured)/(attempted to be manufactured) .

Abuse includes ( select from the following): ( willfully or maliciously injuring, torturing, or maiming a child under 18 years of age; harm or threatened harm to a child's health or safety; nonaccidental physical or mental injury; neglect; failure or omission to provide protection from harm or threatened harm; [specify particular allegation of sexual abuse or sexual exploitation as defined in 10 O.S.Supp. 2000 2002 , § 7102(B)]).

Statutory Authority: 21 O.S.Supp. 2000 2002, § 852.1, 10 O.S. Supp. 2000 2002, § 7102(B)(1)(2).

Notes on Use

For a definition of manufacturing a controlled dangerous substance, see OUJI-CR 6-16, infra .

Committee Comments

An affirmative defense is provided if the defendant had a reasonable apprehension that any action to stop the abuse would result in substantial bodily harm to the defendant or the child. 21 O.S.Supp. 2002 § 852.1.[ 21-852.1]. For instructions on child abuse and child sexual abuse, see OUJI-CR 4-35 and 4-39, supra. See also Huskey v. State, 2002 OK CR 3, ¶ 11, 989 P.2d 1, 6 (summarizing the elements of the crime of child abuse).

OUJI-CR 4-65A MURDER IN THE FIRST DEGREE INVOLVING DEATH OF CHILD — ELEMENTS

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

First, the death of a child under the age of eighteen;

Second, the death resulted from the willful or malicious injuring/torturing/ maiming/(using of unreasonable force);

[Third, by the defendant.]

OR

[Third, which was willfully caused/procured;

Fourth, by the defendant.]

OR

[Third, which was willfully permitted by the defendant;

Fourth, who was by a person responsible for the child's health or safety.]

Statutory Authority: 21 O.S. 1991 2001, § 701.7(C).

Notes on Use

The definition of "willful" in OUJI-CR 4-39 should be used with this Instruction. Fairchild v. State, 1999 OK CR 49, ¶ 75, 998 P.2d 611, 626, Bannister v. State, 1997 OK CR 69, ¶ 6, 930 P.2d 1176, 1178; Hockersmith v. State, 1996 OK CR 51, ¶ 12, 926 P.2d 793, 795.

For the definition of a person responsible for the child's health or safety, see OUJI-CR 4-39,. 4-40D, supra.

Committee Comments

The constitutionality of 21 O.S. 1991 § 701.7[ 21-701.7](C) as applied to the perpetrator or the perpetrator's accomplice, was upheld in Drew v. State, 1989 OK CR 1, ¶¶ 10-16, 771 P.2d 224, 227-28. The Court of Criminal Appeals addressed the statute as applied to a person who willfully permitted the death of the child in Gilson v. State, 2000 OK CR 14, ¶¶ 90-95, 8 P.3d 883, 913-14.

Prior to the addition of section 701.7(C), the Oklahoma Court of Criminal Appeals had ruled that the underlying felony of child abuse could not form the basis for a felony murder conviction because it was not independent of the homicide. Tucker v. State, 1984 OK CR 36, ¶ 3, 675 P.2d 459, 461. By enacting section 701.7(C), the Oklahoma Legislature has changed this rule by clearly stating its intention to punish as murder in the first degree the use of unreasonable force upon a child that causes the child's death. Schultz v. State, 1988 OK CR 17, ¶ 6, 749 P.2d 559, 561-62 (Okla.Cr. 1988).

In Fairchild v. State, 1999 OK CR 49, ¶ 51, 992 P.2d 350, 361, the Oklahoma Court of Criminal Appeals decided that the mens rea for child-abuse murder under 21 O.S.Supp. 1999 § 701.7[ 21-701.7](C) was a general intent to commit the act which causes the injury, rather than a specific intent, and that the general intent was included within the terms "willfully" or "maliciously."

OUJI-CR 4-68A DEATH PENALTY — MENTAL RETARDATION

A conviction for Murder in the First Degree is punishable by death, life imprisonment without the possibility of parole, or life imprisonment. The Defendant has raised mental retardation as a bar to the imposition of the death penalty in this case. You must first determine if the Defendant suffers from mental retardation 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.

You are advised that a A person is mentally retarded if he or she functions at a significantly sub-average intellectual level that substantially limits his or her ability to understand and process information, to communicate, to learn from experience or mistakes, to engage in logical reasoning, to control impulses, and to understand the reactions of others. Intelligence quotients are one of the many factors that may be considered, but are not alone determinative.

In reaching your decision, you must determine:

(1) Is the Defendant a person who is mentally retarded as defined in this instruction?

(2) Was the mental retardation present and known before the Defendant was eighteen (18) years of age?

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

If you 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 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. 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.

Preponderance of the evidence means more probable than not.

Notes on Use

The verdict form in OUJI-CR 4-87A should be used with this instruction.This instruction should be used only if the defendant has an IQ below 70. See Murphy v. State , 2002 OK CR 32, ¶ 31, 56 P.3d 556, 568 ("[N]o person shall be eligible to be considered mentally retarded unless he or she has an intelligence quotient of seventy or below, as reflected by at least one scientifically recognized, scientifically approved, and contemporary intelligent quotient test.").

Committee Comments

See This instruction is based on the instruction in Murphy v. State, 2002 OK CR 32, Appendix A, 54 P.3d 556, 66 P.3d 456. It is modified to facilitate juror comprehension and to emphasize that the defendant has the burden of proof on the issue of mental retardation and that this issue must be decided before the jury may consider imposing a sentence of death.

OUJI-CR 4-83 DEATH PENALTY PROCEEDINGS — DEADLOCKED JURY

If on further deliberation you are unable to agree unanimously as to punishment, I shall discharge you and impose a sentence of imprisonment for life without the possibility of parole or imprisonment for life with the possibility of parole.

Notes on Use

If the jury is unable to reach a verdict within a reasonable time, the judge shall discharge the jury and impose a sentence of imprisonment for life without parole or imprisonment for life. 21 O.S. 1991 § 701.11.[ 21-701.11]. This instruction should be used only after the judge has decided that the jury in a capital case is deadlocked on the issue of punishment. Hooks v. State, 2001 OK CR 1, ¶¶ 30-31, 19 P.3d 294, 311-12. may be used if the jury is unable to reach a verdict within a reasonable time. The Oklahoma Court of Criminal Appeals has determined that whether the jury should be told what the judge would do if the jury did not reach a verdict is a matter for the trial court's discretion. Ellis v. State, 867 P.2d 1289, 1301 (Okla.Cr. 1992). See also Malone v. State, 876 P.2d 707, 713 (Okla.Cr. 1994) ("[S]uch an instruction is improper because it invites the jury to avoid its difficult duty to pass sentence on the life of an accused."); Boltz v. State, 806 P.2d 1117, 1125 (Okla.Cr. 1991) (affirming death penalty where jury was not instructed that the judge would impose a life sentence if the jury did not reach a unanimous decision); Fox v. State, 779 P.2d 562, 574 (Okla. Cr. 1989) ("Such an instruction could improperly distract the jury from performing its duty of assessing the sentence.").

OUJI-CR 4-87A DEATH PENALTY — MENTAL RETARDATION VERDICT FORM IN THE DISTRICT COURT OF THE ___ JUDICIAL DISTRICT OF THE STATE OF OKLAHOMA SITTING IN AND FOR ___ COUNTY

THE STATE OF OKLAHOMA, ) ) Plaintiff, ) ) vs ) Case No._____ ) JOHN DOE, ) ) Defendant. )

VERDICT

We, the jury, empaneled and sworn i n the above-entitled cause, do, upon our oaths, find as follows:

Defendant is:

______ Mentally retarded, as defined by the Court's instructions, and fix his/her punishment at ___________________________________.

______ Not mentally retarded, as defined by the Court's instructions, and fix his/her punishment at _____________________.

________________________ FOREPERSON

Notes on Use

This Verdict form should be used with OUJI-CR 4-68A.

Committee Comments

See Murphy v. State, 2002 OK CR 32, Appendix A, ___ P.3d ___.

OUJI-CR 4-113 CHILD STEALING — ELEMENTS

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

First, maliciously/forcibly/fraudulently;

Second, taking/enticing away;

Third, a child under the age of twelve sixteen;

[Fourth, with the intent to detain;

Fifth, and with the intent to conceal;

Sixth, from the person having legal custody of the child]

OR

[Fourth, with the intent to transport the child outside of Oklahoma/(the United States);

Fifth, without the consent of the person having legal custody of the child].

Statutory Authority: 21 O.S. 1991 2001, § 891.

Committee Comments

Only one Oklahoma appellate case has involved cases involving the crime of child stealing include Shinn v. State, 31 Okla. Cr. 366, 239 P. 269 (1925), which reversed The Shinn case does not really construe the statute but simply reverses a conviction for lack of evidence . California has an identical analogous statute, except for the specified age, which has been construed by several cases. , and Wilkins v. State, 1999 OK CR 27, 985 P.2d 184, which upheld the statute against constitutional attacks of vagueness and overbreadth.

The crime of child stealing is an offense against parental control, not an offense against the personal liberty and safety of the child. People v. Moore, 67 Cal.2d 789, 155 P.2d 403 (1945). The crime requires proof of one of the three mens rea alternatives set forth in the first element, along with proof of both the specific intent to detain the child (the fourth element) and the specific intent to conceal the child (the fifth element). The specific mens rea requirements are the gist of the offense. People v. Casagranda, 43 Cal.2d 818, 111 P.2d 672 (1941); People v. Smith, 17 Cal.2d 468, 62 P.2d 436 (1936); People v. Black, 147 Cal. 426, 81 P. 1099 (1905). Hence, if a person takes a child from the legal custody of another with the intent to detain, but the person taking the child informs the person having legal custody of where the child would be kept, the second specific mens rea does not exist. In such a situation, the person taking the child may be in contempt of court, but the crime of child stealing has not been committed.

This crime generally involves a fact situation concerning a dispute over custody of a child between divorced parents, or between parents and grandparents. The crimes of kidnapping under either sections 741 or 745(A) are probably not committed in these situations because the parent or grandparent does not possess the specific intent required by those sections. Moreover, the crime of child stealing is much broader in its protection of parental or other legal custodial authority than is the crime of abduction. See generally R. Perkins, Criminal Law 181-82 (2d ed. 1969).

OUJI-CR 4-122 RAPE — SEXUAL INTERCOURSE DEFINED

Sexual intercourse is the actual penetration of the vagina/anus by the penis. Any sexual penetration, however slight, is sufficient to complete the crime of rape.

Authority: Miller v. State, 65 Okla. Cr. 26, 36, 82 P.2d 317, 322 (1938); Ballentine's Law Dictionary 1170 (3d ed. 1969); Dorland's Illustrated Medical Dictionary 322, 748 (24th ed. 1965); C. Frike, 5000 Criminal Definitions 86. 21 O.S. 2001 § 1113.[ 21-1113].

Committee Comments

Section 1111(A) of Title 21 expressly provides that rape can be accomplished by vaginal or anal penetration of either a male or a female and that the perpetrator may be either of the same or opposite sex as the victim. Although the spouse of the victim may not be prosecuted for rape under 21 O.S. Supp. 1995 2001, § 1111(A), spousal rape may be prosecuted under 21 O.S. Supp. 1995 2001, § 1111(B). See OUJI-CR 4-121, supra.

OUJI-CR 4-124 RAPE IN THE SECOND DEGREE — ELEMENTS

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

First, sexual intercourse;

Second, with a person who is not the spouse of the defendant [and who may be of the same sex as the defendant];

[Third, where the victim was under the age of sixteen].

OR

[Third, where the victim was intoxicated by a/an narcotic/ (anesthetic agent);

Fourth, given by/(in the presence of) the defendant];

Fifth, as a means of forcing the victim to submit].

OR

[Third, where the victim was at the time unconscious of the nature of the act and this was known by the defendant].

OR

[Third, where the victim was under the belief induced by the defendant that the victim was having intercourse with his/her spouse].

OR

[Third, where the victim was under the legal custody /supervision of a State agency; and

Fourth, the victim engaged in sexual intercourse with a (State employee)/(employee of a contractor of the State) of a (state/federal agency)/county/municipality/(political subdivision) ; and

Fifth, the defendant was an employee/(employee of a contractor of)/ the (state/federal agency)/county/municipality/(political subdivision) that exercised authority over the victim;

OR

[Third, where the victim was between sixteen and eighteen years of age;

Fourth, the victim was a student/(under the legal custody/ supervision) of a/an (elementary/secondary school)/(junior high)/high/(public vocational) school;

Fifth, the defendant was eighteen years of age or older; and

Sixth, the defendant was an employee of the victim's school system].

Statutory Authority: 21 O.S. Supp. 1995 2001, § 1111, 21 O.S.1991 2001, § 1114.

Notes on Use

The trial court should read the bracketed language in the second element only if the defendant was of the same sex as the victim. In the third element the trial court should read only the alternative (or alternatives) that is (or are) supported by the evidence.

Committee Comments

In all instances, the statutory age under which a victim is legally incapable of consenting to sexual intercourse is 16, section 1111(A)(1). If a defense under section 1112 is unavailable, sexual intercourse with a person under 16 years of age is at least rape in the second degree, although if the victim is under 14 years of age, rape in the first degree is a possible charge. Even if the proof establishes that the victim is 13 years of age, a prosecution and conviction for rape in the second degree is proper because rape in the second degree is a lesser included offense of rape in the first degree. Hence, the first alternative in the third element simply indicates a victim under 16 years of age.

The other alternatives in the third element constitute, in fact or by law, sexual intercourse without the consent of the victim.

The age of the defendant is not an element of the crime of second-degree rape. If the prosecutor is uncertain whether it can be proved that the defendant has attained the age of 18, he/she can charge the defendant with second-degree rape and the conviction would be upheld although it is established that the defendant is over 18. Brasel v. State, 48 Okla. Cr. 403, 291 P. 807 (1930). The age of the defendant may become relevant as a defense, however, under section 1112, if the victim is over 14 years of age and consents, and the defendant is under 18 years of age.

Oklahoma's rape shield law, 12 O.S. Supp. 1995 2001, § 2412, limits the use of evidence of the sexual behavior of the victim in prosecutions for sexual offenses.

OUJI-CR 4-125 RAPE BY INSTRUMENTATION IN THE FIRST DEGREE — ELEMENTS

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

First, penetration of the anus/vagina;

Second, of any other person;

Third, by (an inanimate object)/(a part of the human body other than the penis);

Fourth, without his/her consent;

Fifth, which resulted in bodily harm;

Sixth, [List the Circumstance(s) Specified in Section 1111 Which Exist in This Case].

Any sexual penetration, however slight, is sufficient to complete the crime of rape by instrumentation.

Statutory Authority: 21 O.S. 1991 2001, §§ 1111.1, 1113, 1114.

OUJI-CR 4-126 RAPE BY INSTRUMENTATION IN THE FIRST DEGREE (CHILD UNDER 14) — ELEMENTS

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

First, penetration of the anus/vagina;

Second, of a child under fourteen years of age;

Third, by (an inanimate object)/(a part of the human body other than the penis).

Any sexual penetration, however slight, is sufficient to complete the crime of rape by instrumentation.

Statutory Authority: 21 O.S. 1991 2001, §§ 1111.1, 1113, 1114.

OUJI-CR 4-127 RAPE BY INSTRUMENTATION IN THE SECOND DEGREE — ELEMENTS

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

First, penetration of the anus/vagina;

Second, of any other person;

Third, by (an inanimate object)/(a part of the human body other than the penis);

Fourth, without his/her consent;

Fifth, [List the Circumstance(s) Specified in Section 1111 Which Exist in This Case].

Any sexual penetration, however slight, is sufficient to complete the crime of rape by instrumentation.

Statutory Authority: 21 O.S. 1991 2001, §§ 1111.1, 1113, 1114.

Committee Comments

The crime of rape by instrumentation 21 O.S. 1991 2001, § 1111.1, does not fall within the common law definition of rape. R. Perkins, Criminal Law 152 (2d ed. 1969). Before section 1111.1 was adopted in 1981, the acts constituting this crime would have fallen within the assault and battery crimes. Since section 1111.1 creates a specific crime covering acts falling within its purview, the State should charge under this specific statute rather than the general assault and battery statutes. 21 O.S. 1991 2001, § 11.

Most elements of rape by instrumentation are self-explanatory. In reference to the first element, note that penetration of the mouth is not included within this offense. Such a forceable act would, however, be covered by the crime against nature/forceable sodomy statutes, 21 O.S.Supp. 1995 2001, §§ 886, 888. "Any sexual penetration, however slight, is sufficient to complete this crime." 21 O.S. 1991 2001, § 1113.

The second element, "of another person," means just what it states. Under section 1111.1, spousal "rape" is specifically recognized. The Commission has concluded that the language "of another person," when used in conjunction with "penetration of the anus or vagina," means that a male can "rape" a male and a female can "rape" a female by instrumentation.

OUJI-CR 4-136 PEEPING TOM — ELEMENTS

No person may be convicted of violating the peeping tom statute unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, hid/waited/loitered hiding/waiting/loitering ;

Second, in the vicinity of near any (private dwelling house)/(apartment building)/(place of residence) /(locker/ dressing room)/ restroom/(place where a person has a right to a reasonable expectation of privacy) ;

Third, with the unlawful and willful intent;

Fourth, to watch/gaze/(look upon) the occupants any person;

Fifth, in a secretive clandestine manner. _________________

Statutory Authority: 21 O.S. 1991 2001, § 1171(A).

OUJI-CR 4-136A TAKING CLANDESTINE PHOTOS — ELEMENTS

No person may be convicted of taking clandestine photos unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, using photographic/electronic/video equipment;

Second, in a clandestine manner;

Third, for a/an illegal/illegitimate/prurient/lewd/lascivious purpose;

Fourth, with the unlawful and willful intent;

Fifth, to view/watch/gaze/(look upon) another person;

Sixth, without the knowledge and consent of the other person;

Seventh, when the other person was in a place where there is a right to a reasonable expectation of privacy.

OR

First, publishing/distributing an image obtained from;

Second, using photographic/electronic/video equipment;

Third, in a clandestine manner;

Fourth, for a/an illegal/illegitimate/prurient/lewd/lascivious purpose;

Fifth, with the unlawful and willful intent;

Sixth, to watch/gaze/(look upon) another person;

Seventh, without the knowledge and consent of the other person;

Eighth, when the other person was in a place where there is a right to a reasonable expectation of privacy.

Statutory Authority: 21 O.S. 2001 § 1171[ 21-1171](B).

OUJI-CR 4-141 ROBBERY IN THE FIRST DEGREE — ELEMENTS

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

First, wrongful;

Second, taking;

Third, carrying away;

Fourth, personal property;

Fifth, of another;

Sixth, from the person/(immediate presence) of another;

Seventh, by force/(fear of immediate injury to his/her person) when, in the course of the robbery;

[Eighth, the defendant inflicted serious bodily injury upon the other person;]

OR

[Eighth, the defendant threatened a person with serious bodily injury;]

OR

[Eighth, the defendant intentionally put a person in fear of immediate serious bodily injury;]

OR

[Eighth, the defendant committed/(threatened to commit) the crime of [Specify Felony] upon the other person].

Statutory Authority: 21 O.S. 1991 2001, §§ 791, 797.

Committee Comments

The crime of robbery is basically an aggravated form of larceny. Inman v. State, 61 Okla. Cr. 73, 65 P.2d 1228 (1937); Berry v. State, 44 Okla. Cr. 150, 279 P. 982 (1929); Randall v. State, 33 Okla. Cr. 262, 243 P. 983 (1926). The treatises list the elements of robbery as basically identical to the elements of larceny with the addition of two distinguishing elements: the taking must be from the person or the immediate presence of the one robbed; and the taking must be accomplished by use of force or fear. W. Clark W. Marshall, A Treatise on the Law of Crime § 12.09, 882 (7th ed. 1967); W. LaFave A. Scott, Criminal Law § 94, at 692 (1972); R. Perkins, Criminal Law 279 (2d ed. 1969). The statutory language of section 791, however, makes it incorrect to assert that robbery is defined in Oklahoma as it was at common law. Hence, the mens rea element of robbery in Oklahoma is "wrongful," whereas at common law the mens rea element was "the intent to deprive permanently," the same as that required for larceny. Traxler v. State, 96 Okla. Cr. 231, 251 P.2d 815 (1953); overruling Johnson v. State, 24 Okla. Cr. 326, 218 P. 179 (1923).

The statutory language of section 791 also raises the question of whether the element of asportation, "carrying away," is an element of robbery as it is of larceny. The statutory language says "taking of" with no specific reference to an action of carrying away. The syllabus to Norris v. State, 68 Okla. Cr. 172, 96 P.2d 540 (1939), states that robbery does not require an asportation. The facts and issues of Norris, however, involve the crime of kidnapping, and nowhere in the opinion is the crime of robbery even mentioned. In Karlin v. State, 540 P.2d 1181 (Okla.Cr. 1975), however, the Court of Criminal Appeals held by implication that asportation is a necessary element of the offense.

The personal property taken during the robbery must be the personal property of another. As in larceny, robbery is a crime against possessory rights of another in property, rather than against ownership. Hence, the use of force to obtain personal property pledged to another with the intent to deprive the pledgee of his possessory right would constitute robbery even though the robber is the owner of the property. It should be emphasized, however, that the person from whom the property is taken, or from whose presence the property is taken, need not be the same person as the owner or as the person having possessory rights. The person robbed need have no more than custody or control over the property taken. Robards v. State, 37 Okla. Cr. 371, 259 P. 166 (1927); Wilson v. State, 28 Okla. Cr. 102, 228 P. 1108 (1924).

The element of "taking" encompasses the concept that the property was originally in the control, custody, or possession of someone other than the taker. "Taking" indicates a transfer of control, custody, or possession. Hence, despite the statutory language "personal property in the possession of another," the Commission did not think it necessary to list as a separate element the concept of possession of another.

Nor did the Commission think it necessary to list as a separate element the concept present in the statutory language, "against his will." The seventh element indicates that the taking must be accomplished by force or fear of immediate injury. Any taking under those circumstances would necessarily be against the will of the person robbed. If the property is taken with the consent of the owner, the property has not been taken by force or fear. Shouquette v. State, 25 Okla. Cr. 169, 219 P. 727 (1923). The lack of consent is assuredly an essential concept to support a conviction for robbery, but the definition of the means used to obtain possession encompasses the concept.

The seventh element indicates that the taking must be through use of force or fear of immediate injury to the person. These two means of acquiring the property are specifically listed in section 797 as characteristic of first-degree robbery, as opposed to second-degree robbery. All robbery accomplished by use of force is first-degree robbery. However, when fear is the means used, only those robberies in which there is fear of immediate injury to the person being robbed are first-degree robberies. See Hazlewood v. State, 538 P.2d 1072 (Okla.Cr. 1975) (pointing gun at victim in threatening manner raises presumption of fear; actual fear need not be shown). Under section 794, fear is defined to include also fear of future injury to the person being robbed, fear of injury to property of the person being robbed, fear of injury to a relative or member of the family of the person being robbed, or fear of immediate injury to the person or property of a companion of the person being robbed. Fear aroused by these latter means is not sufficient for first-degree robbery but is sufficient for second-degree robbery. Tipton v. State, 23 Okla. Cr. 86, 212 P. 612 (1923). The means used to accomplish the taking, force or fear, are presented in the alternative because conviction for robbery requires that only one be proved. It is not necessary that both force and fear be used against the victim. Woods v. State, 569 P.2d 1004 (Okla.Cr. 1977); Hazlewood, supra; In re Application of Massie, 283 P.2d 573 (Okla.Cr. 1955).

The eighth element lists the alternate force and fear factors that were added to section 797 in 2001 to differentiate first degree from second degree robbery.

OUJI-CR 4-147 ABUSE OF CHARGE BY CARETAKER — ELEMENTS

No person may be convicted of abuse by a caretaker unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, a caretaker;

Second, willfully;

[Third, Second abused/neglected/(sexually abused)/exploited;

Fourth, Third, an adult who was entrusted in his/her care].

OR

[Third, Second, knowingly caused/secured/permitted an adult who was entrusted in his/her care;

Fourth, Third, to be abused/neglected/(sexually abused)/exploited].

Statutory Authority: 21 O.S. Supp. 2000 2001, § 843.1.

OUJI-CR 4-147A VERBAL ABUSE OF CHARGE BY CARETAKER — ELEMENTS

No person may be convicted of verbal abuse by a caretaker unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, a caretaker;

[Second, verbally abused;

Third, an adult who was entrusted in his/her care].

OR

[Second, knowingly caused/secured/permitted an adult who was entrusted in his/her care;

Third, to be verbally abused].

Statutory Authority: 21 O.S. 2001 § 843.2.[ 21-843.2].

OUJI-CR 4-148 ABUSE OF CHARGE BY CARETAKER — DEFINITIONS

Abuse — The intentional Causing/permitting the [infliction of (physical pain)/injury/(sexual abuse/ exploitation)/(unreasonable restraint/confinement)/, or (mental anguish)]/or the [deprivation offood, nutrition/clothing/shelter/, or medical (health care)/ care/services by a caretaker/or other (person responsible for providingthese services to a vulnerable adult).

Reference: 43A O.S. Supp. 2000 2001, § 10-103(8).

Vulnerable Adult — An incapacitated person or an individual who, because of physical or mental disability, incapacity or other disability, is substantially impaired in his/her ability to provide adequately for his/her own care or custody, or is unable to manage his/her property and affairs effectively, or to carry out the activities of daily living, or to protect himself/herself from abuse, neglect, or exploitation without assistance from others.

Reference: 43A O.S. Supp. 2000 2001, § 10-103(5).

Caretaker — A person who has [the responsibility for the (care of an a vulnerable adult)/( financial management of the resources of a vulnerable adult in need of protective services as a result of a family relationship)]/ [assumed the responsibility for the care of (a person aged 65 or over residing in Oklahoma)/(an incapacitated a vulnerable adult voluntarily/(by contract)/(as a result of the ties of friendship)]/[been appointed a guardian/ (limited guardian)/ conservator under the Oklahoma Guardianship and Conservatorship Act].

Reference: 43A O.S. Supp. 2000 2001, § 10-103(6).

Exploitation — An unjust or improper use of the resources of a vulnerable adult for the profit or advantage, pecuniary or otherwise, of another person through the use of (undue influence)/coercion/harassment/duress/deception/ (false representation/pretense).

Reference: 43A O.S. Supp. 2000 2001, § 10-103(9).

Incapacitated Adult — Any (person eighteen (18) years of age or older who is impaired by reason of mental or physical illness or disability, dementia or related disease, mental retardation, developmental disability or other cause and whose ability to receive and evaluate information effectively or to make and to communicate responsible decisions is impaired to such an extent that he/she lacks the capacity to manage his/her financial resources or to meet essential requirements for his/her mental or physical health or safety without assistance)/(person for whom a guardian/(limited guardian)/conservator has been appointed pursuant to the Oklahoma Guardianship and Conservatorship Act).

Reference: 43A O.S. Supp. 2000 2001, § 10-103(4).

Neglect — [The failure to provide protection for a vulnerable adult who is unable to protect his/ her own interest]; or [the failure to provide a vulnerable adult with adequate shelter/ nutrition/(health care)/ or clothing]; or the harming or threatening with [ causing/permitting harm/( the risk of harm) to a vulnerable adult through action/ or inaction/(lack of supervision) by either another individual or through the person's own action or inaction because of his lack of awareness, incompetence, or incapacity, which has resulted or may result in physical or mental injury a caretaker providing direct services].

Reference: 43A O.S. Supp. 2000 2001, § 10-103(10).

Sexual Abuse — [( Oral/Anal/Vagina penetration of a vulnerable adult by/ through) Union the union with the sexual organ of another a caretaker/(person providing direct services to the vulnerable adult)]/ [Anal/vaginal penetration by an object]/ [The touching/ feeling of the body/(private parts) of another a vulnerable adult for the purpose of sexual gratification by a caretaker/(person providing direct services to the vulnerable adult)]/[Indect exposure by a caretaker/(person providing direct services to a vulnerable adult)].

Reference: 43A O.S. Supp. 2000 2001, § 10-103(11).

Verbal Abuse — The repeated use by a caretaker of words/sounds/ language/actions/behaviors/(forms of communication) that are calculated to humiliate/intimidate/(cause fear/embarrassment/shame to) the person entrusted to the care of the caretaker.

Reference: 21 O.S. 2001 § 843.2[ 21-843.2](B).

OUJI-CR 5-39 ATTEMPTED FALSE PRETENSE (FELONY, SECTION 1541.2) — ELEMENTS

No person may be convicted of the felony of attempted false pretense unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, attempted to obtain title;

Second, to money/property/(a valuable thing);

Third, of another;

Fourth, valued at more than $50/$500 $500/$1,000 ;

Fifth, by means of a (trick or deception)/(false representation)/ (confidence game)/(false check)/(false written/ printed/engraved instrument)/ (spurious coin);

Sixth, known by the defendant to be false/spurious/(a trick or deception);

Seventh, with the intent to cheat and defraud.

OUJI-CR 5-40 FALSE PRETENSE (FELONY, SECTION 1541.3) — ELEMENTS

No person may be convicted of the felony of false pretense unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, obtained title;

Second, to money/property/(a valuable thing);

Third, of another;

Fourth, by means of two or more false checks written for a total amount of more than $50/$500 $500/$1,000 ;

Fifth, in pursuance of a common scheme;

Sixth, known by the defendant to be false;

Seventh, with intent to cheat and defraud.

Statutory Authority: 21 O.S. 1991 Supp. 1995 2001, §§ 1541.1, 1541.2, 1541.3.

Committee Comments

Sections 1541.1 through 1541.5 are statutes passed in 1967 to replace section 1541, the previous false-pretense and bogus-check statute. Although the 1967 law adds section 1541.3 to make it a felony to pass several checks totaling more than $50 (raised to $500 in 2001) in a common scheme, the present statutes are substantially similar to the repealed section 1541. Hence, the cases construing section 1541 are still valid precedent for statutory interpretation of sections 1541.1 through 1541.5.

Two instructions in addition to the attempt instruction are presented under the heading of Felony False Pretense because two sections, 1541.2 and 1541.3, create felony false-pretense crimes. Although the language of section 1541.3 is different from the language of sections 1541.1 and 1541.2, it was the opinion of the Commission that, since these three sections are part of the same legislation, section 1541.3 does not provide a different definition of false pretense. Rather, the Commission has concluded that section 1541.3 is a statute of classification that uses the definition of "false pretense" given by section 1541.1. The elements of the two false-pretense crimes are therefore identical, with the exception of the specific aggravating facts indicated in the fourth element and the means used to accomplish the intended purpose in the fifth element.

The act of obtaining made punishable by the false-pretense crimes involves the passage of title to the accused from the person who has been deceived. As the element of taking in larceny encompasses the concept of transfer of possession, so the element of obtaining in false pretense encompasses the concept of transfer of title. Whether or not title has passed to the accused is primarily a question of the intent of the parties to the transaction, especially the intent of the victim. If the victim meant only to transfer possession, the crime is larceny by fraud. Braswell v. State, 389 P.2d 998 (Okla.Cr. 1964); Warren v. State, 93 Okla. Cr. 166, 226 P.2d 320 (1950).

The second element indicates what must be obtained in order to constitute false pretense for the purpose of sections 1541.1 through 1541.3. The statutory language reads "money, property or valuable thing." The word "money" presents no difficulty. Mason v. State, 23 Okla. Cr. 111, 212 P. 1028 (1923). The words "valuable thing" have expanded the protection of false-pretense to include, for example, telephone service and the cancellation of a promissory note and chattel mortgage. Stokes v. State, 366 P.2d 425 (Okla.Cr. 1961); Bright v. State, 76 Okla. Cr. 67, 134 P.2d 150 (1943). Nothing of value has been obtained, however, when the accused gives a false check for a pre-existing debt. The debt simply is not satisfied by the check and still exists. Jones v. State, 9 Okla. Cr. 621, 132 P. 914 (1913).

The word "property" has been used without any descriptive adjective in the instruction. The issue is thereby raised as to whether the element should be limited to personal property, or whether real property is protected by the false-pretense statutes. No Oklahoma case has dealt with the issue, and cases in American jurisdictions are split on the issue. W. LaFave A. Scott, Criminal Law § 90, at 665 (1972).

False pretense, like embezzlement, is a statutory crime created to cover situations not punishable under common law interpretations of larceny. Larceny is limited to personal property. If the legislative intent with respect to embezzlement excluded real property, as concluded in the commentary following the embezzlement instructions, it would follow that the Legislature also intended to exclude real property from the protection of the false-pretense statutes. On the other hand, 21 O.S. 1991 2001, § 104, defines "property" as including both real and personal property.

The issue may actually be moot, because the Court of Criminal Appeals has held that the deed to real property is personal property possessing a value equivalent to the value of the land it represents. Thus, a person could be convicted of larceny when the property allegedly taken is a deed to real property. State v. McCray, 15 Okla. Cr. 374, 177 P. 127 (1919) (construing section 1709). It would therefore appear that a person who obtains a deed transferring title to real property through false representations has obtained personal property. The person should then be subject to prosecution for false pretense.

The Commission has decided to use only the word "property" in the instructions on false pretenses. The Commission leaves the precise question raised to further court interpretation and decision.

The language "of another" is used in the third element to promote consistency of language with the larceny and embezzlement instructions, although the statutory language actually reads "any person, firm or corporation."

The fourth elements for both sections 1541.2 and 1541.3 are similar. Under section 1541.2, the property obtained by the defendant must be valued at more than $50, whereas, under section 1541.3, the total value of the checks must be more than $50, although the amount of each separate check need not equal more than $50. Morris v. State, 568 P.2d 1303 (Okla.Cr. 1977) (amount in statute at the time was $20). Although the defendant is guilty of a felony if the amount obtained or total value of the checks is $50 $500 or more, the range of punishment is dependent on whether the amount obtained or total value of the checks is more or less than $500 $1,000.

The fifth element lists the alternative means by which the deception can be accomplished. The Oklahoma Court of Criminal Appeals held in Broadway v. State, 818 P.2d 1253, 1255 (Okla.Cr. 1991), that the crime of false-pretense may be committed by means other than a "statement," such as by a trick, deception, false or fraudulent representation, or by a pretense. The trial court should select the appropriate means of deception in the instruction so that it fits the actual facts of the case being tried. The crime created by section 1541.3 can be committed only by means of false checks. Therefore, the fourth element of the instruction for section 1541.3 lists only that method of deception.

The fifth element of section 1541.2 and the fourth element of section 1541.3 indicate that the representation or check must be false.

The sixth element indicates that the defendant must know that a false representation has been made or a false check has been given. Although the statutory language does not indicate explicitly that the defendant must know that the representation or check is false, section 1541.4 creates a presumption of knowledge of lack of sufficient funds to pay the check if it is not paid within five days from the date the check is presented for payment. The presumption of section 1541.4 in conjunction with the general understanding of the elements of false pretense would indicate that the representation or check must be known to be false by defendant. Ross v. State, 572 P.2d 1001 (Okla.Cr. 1977); W. LaFave A. Scott, Criminal Law § 90, at 666 (1972); R. Perkins, Criminal Law 309 (2d ed. 1969).

In addition to the mens rea of knowledge concerning the falseness of the representation or check, the defendant must also have the intent to cheat and defraud. This is the specific mens rea of the crimes of false pretense. Dunaway v. State, 561 P.2d 103 (Okla.Cr. 1977); Moore v. State, 96 Okla. Cr. 118, 250 P.2d 46 (1952); Beach v. State, 28 Okla. Cr. 348, 230 P. 758 (1924). Section 1541.4 also creates a presumption of intent to defraud if the defendant fails to pay the check within the specified period.

Section 1541.1 also creates a specific attempted-false-pretense crime. OUJI-CR 5-39 has been drafted for this offense. The only variance between the false-pretense instruction and the attempted-false-pretense instruction is in the first element where "attempting to obtain title" is substituted for "obtaining title."

Since a specific attempt statute exists for false pretense under 21 O.S. 1991 2001, § 1541.1, the State is prohibited from charging an attempted false pretense under the general attempt statutes. See Ex parte Smith, 95 Okla. Cr. 370, 246 P.2d 389 (1952).

OUJI-CR 5-41 FALSE PRETENSE (MISDEMEANOR, SECTION 1541.1) — ELEMENTS

No person may be convicted of the misdemeanor of false pretense unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, obtained title;

Second, to money/property/(a valuable thing);

Third, of another;

Fourth, valued at less than $50 $500;

Fifth, by means of a (trick or deception)/(false representation)/(confidence game)/(false check)/(false written/ printed/engraved instrument)/(spurious coin);

Sixth, known by the defendant to be false/spurious/(a trick or deception);

Seventh, with intent to cheat and defraud.

OUJI-CR 5-42 ATTEMPTED FALSE PRETENSE (MISDEMEANOR, SECTION 1541.1) — ELEMENTS

No person may be convicted of the misdemeanor of attempted false pretense unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, attempted to obtain title;

Second, to money/property/(a valuable thing);

Third, of another;

Fourth, valued at less than $50 $500;

Fifth, by means of a (trick or deception)/(false representation)/(confidence game)/(false check)/(false written/ printed/engraved instrument)/ (spurious coin);

Sixth, known by the defendant to be false/spurious/(a trick or deception);

Seventh, with intent to cheat and defraud.

OUJI-CR 5-43 FALSE OR BOGUS CHECK DEFINED

A false or bogus check is one which is not honored because [of insufficient funds of the maker to pay the same]/, or because [the check or order was (drawn on a closed/ nonexistent account) or on a nonexistent account, / given (in exchange for money/property/(a benefit/( , or thing of value))/( as a down payment for the purchase of an item of which the purchaser is taking immediate possession)].

Statutory Authority: 21 O.S. 1991 2001, § 1541.4.

Committee Comments

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 $50 $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 $50 $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 5-93 GRAND LARCENY — ELEMENTS

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

First, taking;

Second, carrying away;

Third, personal property;

Fourth, of another;

Fifth, (valued at more than $50/500 $500)/(from the person of another) ;

Sixth, by fraud/stealth;

Seventh, with the intent to deprive permanently.

Statutory Authority: 21 O.S. 1991 Supp. 1995 2001, §§ 1701, 1704, 1705.

Committee Comments

The statutory language seems relatively clear as to the elements of grand larceny. The case law, however, has added the technical element of "carrying away": asportation. Although any slight carrying-away motion after possession has been acquired by the thief will be sufficient to satisfy the second element, basic research indicates "carrying away" to be a distinct element of the crime of larceny. Turner v. State, 515 P.2d 1167 (Okla.Cr. 1974); Hutchinson v. State, 427 P.2d 112 (Okla. Cr. 1967); Mercer v. State, 92 Okla. Cr. 37, 219 P.2d 1035 (1950).

When discussing the element "of another," the cases usually speak of the other as the owner of the property. Ownership of the personal property by the other person is not required, however, and larceny has been committed if another's possession has been disturbed. Hence, the owner of personal property can be convicted of larceny of his property if the owner were to take the property from the lawful possession of another with intent to deprive the possessor of his property right permanently. Borrelli v. State, 453 P.2d 312, 314 (Okla.Cr. 1969) (possession of car by owner's wife was sufficient ownership to justify charge of larceny of automobile). Grand larceny is thus a crime against lawful possession. Pershica v. State, 525 P.2d 1374 (Okla.Cr. 1974).

The fifth element lists the two alternatives which distinguish grand larceny from petit larceny in accordance with section 1704.

The word "stealth," one of the two alternative means by which the personal property must be obtained for larceny, will encompass the situation illustrated by section 1702 concerning lost property. As previously mentioned in the commentary to the introductory instruction, section 1702 does not create a separate crime but simply illustrates one factual situation which can, in certain instances, constitute larceny. Taking the property by fraud or stealth simply indicates that the taking is trespassory.

The mens rea as stated in section 1701 is "intent to deprive." Case law indicates that it is more appropriate to describe the mens rea as "intent to deprive permanently." Tate v. State, 706 P.2d 169, 171 (Okla.Cr. 1985); Barnes v. State, 387 P.2d 146 (Okla.Cr. 1964). The seventh element reflects the case law on the mens rea element of larceny. See Phipps v. State, 572 P.2d 588 (Okla.Cr. 1977); Simmons v. State, 549 P.2d 111 (Okla.Cr. 1976).

OUJI-CR 5-94 PETIT LARCENY — ELEMENTS

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

First, taking;

Second, carrying away;

Third, personal property;

Fourth, of another;

Fifth, of value;

Sixth, by fraud/stealth;

Seventh, with the intent to deprive permanently.

Statutory Authority: 21 O.S. 1991 2001, §§ 1701, 1704.

Committee Comments

The elements of the crime of petit larceny are identical to the elements of grand larceny with the exception of the fifth element. Section 1704 sets out two facts — value of more than $50 $500, and taking from the person of another — that distinguish grand larceny from petit larceny, and then simply states that all other larceny is petit larceny. The property taken must have some value, and such value remains an element of proof. Holland v. State, 29 Okla. Cr. 69, 232 P. 454 (1925). Hence, if a prosecutor charges a defendant with petit larceny and the proof at trial indicates the property was actually valued at more than $50 $500, a conviction for the misdemeanor of petit larceny is still appropriate. The defendant simply has been convicted of a lesser crime than the proof might have sustained.

Although the Commission has realized that the common practice is to allege in a petit larceny charge that the property was valued at $50 $500 or less, the allegation is not necessary.

OUJI-CR 5-98 LARCENY OF (DOMESTIC ANIMALS) /(AN IMPLEMENT OF HUSBANDRY) — ELEMENTS

No person may be convicted of larceny of a domestic animal (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, carrying away;

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

Fifth, of another;

Sixth, with the intent to steal.

Statutory Authority: 21 O.S. 1991 2001, § 1716.

Notes on Use

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

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:

First, trespassory;

Second, taking;

Third, carrying away;

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

Fifth, of another;

Sixth, with the intent to steal.

Statutory Authority: 21 O.S. 1991 2001, § 1720.

Committee Comments

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 Okla. 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 Okla. Cr. 183, 78 P.2d 712 (1938) (charged under § 1720); cf. Bingham v. State, 44 Okla. 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.Supp. 1995 2001, §§ 1719.1, 1719.2.

OUJI-CR 5-101 GRAND LARCENY OF OIL PRODUCTS — ELEMENTS

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

First, taking;

Second, carrying away;

Third, oil products;

Fourth, of another;

Fifth, valued at more than $50/$500 $500/$1,000 or more;

Sixth, from a pipe/pipeline/tank/(tank car)/receptacle/container;

Seventh, by fraud/stealth;

Eighth, with the intent to deprive permanently.

OUJI-CR 5-102 PETIT LARCENY OF OIL PRODUCTS — ELEMENTS

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

First, taking;

Second, carrying away;

Third, oil products;

Fourth, of another;

Fifth, valued at $50 or less than $500;

Sixth, from a pipe/pipeline/tank/(tank car)/receptacle/container;

Seventh, by fraud/stealth;

Eighth, with the intent to deprive permanently.

Statutory Authority: 21 O.S.Supp. 1995 2001, § 1722.

Committee Comments

Although the language of the statute is somewhat different from the language of the general larceny statutes, the Commission has concluded that the elements of the crimes are identical, except that the property taken must be an oil product and must be taken from specified structures. Section 1722 uses the word "unlawfully," but the Commission interpreted the word to mean that the property was obtained without the consent of the owner/possessor. Hence, the word "unlawfully" should have the same definition as "by fraud or stealth." For the sake of consistency in language, the Commission has used "fraud or stealth," as opposed to "unlawfully," as an element of the instructions. Moreover, section 1722 uses the word "owner," but in light of decisions under other larceny statutes which speak in terms of "owner" but define "owner" to include possessors, the Commission has concluded that the person from whom the property is taken should be stated as "of another," not "of the owner." Thus, the crimes of section 1722 and sections 1701 and 1704 are substantially similar.

The prosecuting attorney is apparently permitted to elect to prosecute under either section 1722 or the general grand and petit larceny statutes. See Ex parte Scherer, 60 Okla. Cr. 195, 62 P.2d 660 (1936); Bingham v. State, 44 Okla. Cr. 258, 280 P. 636 (1929).

OUJI-CR 5-103 GRAND LARCENY OF MERCHANDISE — ELEMENTS

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

First, taking;

Second, carrying away;

Third, merchandise;

Fourth, from a retailer/wholesaler;

Fifth, valued at $50/$500 $500/$1,000 or more;

Sixth, by fraud/stealth;

Seventh, with the intent to deprive permanently.

OUJI-CR 5-104 PETIT LARCENY OF MERCHANDISE — ELEMENTS

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

First, taking;

Second, carrying away;

Third, merchandise;

Fourth, from a retailer/wholesaler;

Fifth, valued at less than $50 $500;

Sixth, by fraud/stealth;

Seventh, with the intent to deprive permanently.

Statutory Authority: 21 O.S.Supp. 1995 2001, § 1731.

Committee Comments

These two instructions differ only in the element of value which distinguishes the misdemeanor from the felony crime.

The Commission has interpreted the word "larceny" as used in section 1731 to have the same basic meaning as "larceny" under sections 1701 and 1704, except that the property taken must be merchandise. The statutory language of section 1731, however, divides the felony from the misdemeanor crime at a different monetary value. Under section 1704, the crime is grand larceny only if the property is valued at more than $50 $500. Under section 1731, however, the crime is a felony if the property is valued at $50 $500 or more — one cent lower. Moreover, the Commission has interpreted the statutory language of section 1731 to require proof of value of less than $50 $500 for conviction of the misdemeanor crime. Since the crime is the larceny of merchandise from a retail or wholesale establishment, the Commission has used the terms "retailer" or "wholesaler" rather than "of another" in the fourth element.

OUJI-CR 6-3 DRUG OFFENSES: MANUFACTURING — ELEMENTS

No person may be convicted of manufacturing/(attempting to manufacture) a controlled dangerous substance unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, knowingly/intentionally;

Second, manufacturing/(attempting to manufacture);

Third, the controlled dangerous substance of [Name of Substance].

Statutory Authority: 63 O.S.Supp. 1996 2001, § 2-401(F G).

OUJI-CR 6-3A DRUG OFFENSES: POSSESSION OF THREE OR MORE PRECURSOR SUBSTANCES SUBSTANCE WITH INTENT TO MANUFACTURE

No person may be convicted of possessing a precursor substances substance with the intent to manufacture a controlled dangerous substance unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, knowingly/intentionally;

Second, possessing;

Third, three or more of the following precursor substance/substances : [ Names of Precursor Substances Listed in 63 O.S Supp. 2000 2001, § 2-322 or 2-401(G)].

Fourth, with the intent to use those three or more the precursor substance/substances to manufacture;

Fifth, the controlled dangerous substance of [ Name of Controlled Dangerous Substance].

[ You may, but are not required to, regard proof that the defendant knowingly/intentionally possessed (anhydrous ammonia in an unauthorized container)/(three or more of the following precursor substances: [Names of Precursor Substances Listed in 63 O.S 2001, § 2-322 or 2-401(G)]) as sufficient evidence that the defendant intended to use the (anhydrous ammonia)/(precursor substances) to manufacture [Name of Controlled Dangerous Substance]. The defendant's intent to use the (anhydrous ammonia)/(precursor substances) to manufacture [Name of Controlled Dangerous Substance] must be proved beyond a reasonable doubt.]

Statutory Authority: 63 O.S.Supp. 2000 2001, § 2-401(G).

Notes on Use

The bracketed sentences after the elements should be included with the instruction if evidence has been introduced that the defendant possessed either anhydrous ammonia in an unauthorized container or three or more precursor substances.

OUJI-CR 6-3B DRUG OFFENSES: ENDEAVORING TO MANUFACTURE — ELEMENTS

No person may be convicted of offering/soliciting/attempting/ endeavoring/conspiring to manufacture a controlled dangerous substance unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, knowingly/intentionally;

Second, offering/soliciting/attempting/endeavoring/conspiring;

Third, to manufacture;

Fourth, the controlled dangerous substance of [Name of Substance].

Statutory Authority: 63 O.S 2001, § 2-408.

OUJI-CR 6-16 DRUG OFFENSES — DEFINITIONS

Cultivating — Note: See Committee Comments at OUJI-CR 6-9.

Dispensing — Delivering a controlled dangerous substance to an ultimate user or human research subject by or pursuant to the lawful order of a practitioner.

Reference: 63 O.S.Supp. 1995 2001, § 2-101(11).

Distribute — "Distribute" means to deliver other than by administering or dispensing a controlled dangerous substance.

Reference: 63 O.S.Supp. 1995 2001, § 2-101(12).

Drug Paraphernalia — Any kind of equipment, products, or materials that are used/(intended for use) in planting/propagating/cultivating/growing/ harvesting/ manufacturing/compounding/converting/producing/processing/ preparing/testing/ analyzing/packaging/repackaging/storing/containing/ concealing/injecting/ ingesting/inhaling/(introducing into the body) a controlled dangerous substance. It includes, but is not limited to [Specify Applicable Item Listed in 63 O.S.Supp. 1995 2001, § 2-101( 32 36)]. [However, drug paraphernialia does not include (Specify Applicable Item Listed at the End of 63 O.S.Supp. 1995 2001, § 2-101( 32 36)).]

Reference: 63 O.S.Supp. 1995 2001, § 2-101(32 36). Note — The last bracketed sentence should be given only when applicable.

Endeavoring — Endeavoring means any effort to do or accomplish the evil purpose that the law was enacted to prevent.

References: United States v. Russell, 255 U.S. 138, 143 (1921); United States v. Ogle, 613 F.2d 233, 241-42 (10 th Cir. 1979).

Knowing — Being aware of the existence of facts that cause the act or omission to be criminal in nature. A person need not be aware of the applicable law to do an act "knowingly," but only needs to be aware of the applicable facts.

Reference: 21 O.S. 1991 2001, § 96.

Manufacturing — Production, preparation, propagation, compounding, or processing a controlled dangerous substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis; or a combination of extraction and chemical synthesis.

Reference: 63 O.S.Supp. 1995 2001, § 2-101(19 22).

Possession — Actual physical custody, or knowledge of the substance's presence, as well as power and intent to control its use or disposition.

References: Miller v. State, 579 P.2d 200 (Okla.Cr. 1978); Staples v. State, 528 P.2d 1131 (Okla.Cr. 1974). See also OUJI-CR 6-11, supra.

Willfully — Purposefully. Willfully does not require any intent to violate the law, or to injure another or to acquire any advantage.

Reference: 21 O.S. 1991 2001, § 92.

OUJI-CR 6-17 DRIVING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE, ETC. — INTRODUCTION

The defendant is charged with

[driving a motor vehicle (while under the influence of (alcohol/(an intoxicating substance)/(with a blood/breath alcohol concentration of.10 .08 or more)]

[being in actual physical control of a motor vehicle while under the influence of alcohol/(an intoxicating substance)]

[(being involved in)/causing an accident while under the influence of alcohol/(an intoxicating substance)]

[driving a motor vehicle with impaired ability]

[being in actual physical control of a motor vehicle while under the influence of alcohol/(an intoxicating substance)]

[leaving the scene of an accident with (personal injury)/death]

[failure to submit to drug and alcohol testing after an accident involving immediate death]

[driving under suspension/revocation]

upon [Description of Road, Highway, etc.] on [Date] in [Name of County] County, Oklahoma.

Notes on Use

This instruction is to be used for a number of crimes in Title 47 involving the use of a motor vehicle, including driving under the influence and being in actual physical control of a motor vehicle.

Committee Comments

The Court of Criminal Appeals has pointed out that section 11-902(A) creates two separate and distinct offenses: driving under the influence, which involves motion; and physical control of a motor vehicle while under the influence of intoxicating alcohol, which does not require proof of motion. Crane v. State, 461 P.2d 986 (Okla.Cr. 1969); Parker v. State, 424 P.2d 997 (Okla.Cr. 1967).

OUJI-CR 6-18 DRIVING A MOTOR VEHICLE (WHILE UNDER THE INFLUENCE OF ALCOHOL)/(WITH ALCOHOL CONCENTRATION OF .10 .08 OR MORE) — ELEMENTS

No person may be convicted of driving a motor vehicle (while under the influence of alcohol)/(with a blood/breath alcohol concentration of .10 .08 or more) unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, driving;

Second, (with a blood/breath alcohol concentration of 0.10 0.08 or more)/(while under the influence of alcohol) ;

Third, a motor vehicle;

Fourth, on a highway/turnpike/(public parking lot);

[Fifth, the blood/breath alcohol test was administered within 2 hours after arrest).]

Statutory Authority: 47 O.S.Supp. 1995 2001, § 11-902.

Notes on Use

The Fifth Element should be read only for prosecutions under 47 O.S.Supp. 1995 2001, § 11-902(A)(1). Read literally, section 11-902(A)(1) would make it a crime for a person to have a blood or breath alcohol concentration of .10 .08 or more at the time of a test administered within two hours after a person's arrest, even if the arrest occurred long after the person had ceased driving and there was evidence that the person had consumed additional alcohol between the driving and the time of the test. To avoid such a result, the Committee has drafted the instruction to require a nexus between the driving and the excessive blood or breath alcohol concentration. In Sanders v. State, 2002 OK CR 42, ¶ 15, 60 P.3d 1048, 1050, the Oklahoma Court of Criminal Appeals held that section 11-902(A)(1) applied in a situation where a defendant is arrested at an accident scene or soon after an accident, but not where the arrest occurs long after the accident.

Driving under the influence of alcohol must be defined if the prosecution is under 47 O.S.Supp. 1995 2001, § 11-902(A)(2). Bernhardt v. State, 719 P.2d 832, 833 (Okla.Cr. 1986). For tbe definition of "under the influence," see OUJI-CR 6-35, infra. The Bernhardt case also held that driving while impaired is a lesser included offense for driving under the influence of alcohol. 719 P.2d at 833.

The instruction on sentencing (see OUJI-CR 10-13, infra) should include the sentencing options for alcohol treatment and community services that are provided for in 47 O.S. 2001 § 11-902[ 47-11-902](A)(1). See Hicks v. State, 2003 OK CR 10, ¶ 4, ___ P.3d __.

OUJI-CR 6-20 BEING IN ACTUAL PHYSICAL CONTROL OF A MOTOR VEHICLE WHILE UNDER THE [COMBINED] INFLUENCE OF ALCOHOL/(AN INTOXICATING SUBSTANCE) — ELEMENTS

No person may be convicted of being in actual physical control of a motor vehicle while under the influence of alcohol/(an intoxicating substance) unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, being in actual physical control of a motor vehicle;

Second, on a highway/turnpike/(public parking lot);

Third, (while having a blood/breath alcohol concentration of 0.10 0.08 or more)/(while under the influence of alcohol)/(while under the [influence of any intoxicating substance other than alcohol]/[combined influence of alcohol and any other intoxicating substance] which may render a person incapable of safely driving a motor vehicle) ;

[Fourth, the blood/breath alcohol test was administered within 2 hours after arrest).]

Statutory Authority: 47 O.S.Supp. 1995 2001, § 11-902. See also 47 O.S. 1991 2001, § 11-101.

Notes on Use

The Fourth Element should be read only for prosecutions under 47 O.S.Supp. 1995 2001, § 11-902(A)(1).

Committee Comments

Although section 11-902(A) uses the language "drive, operate," the Court of Criminal Appeals has indicated that "drive" and "operate" are synonymous. Bearden v. State, 430 P.2d 844 (Okla.Cr. 1967); Parker v. State, 424 P.2d 997 (Okla.Cr. 1967).

It should be emphasized again, however, that the words "actual physical control" are not synonymous with "drive." The Court of Criminal Appeals has stated that, by adding the words "actual physical control," the Legislature intended to apply the law to persons who control a vehicle but who may not have put the vehicle into motion. A Montana case, State v. Ruona, 133 Mont. 243, 321 P.2d 615 (1958), involving an identical statute is cited as illustration. In Ruona, the defendant was found intoxicated behind the wheel of a vehicle with the motor running, but no evidence could be adduced that the defendant had driven the vehicle. The Oklahoma court indicated that the defendant could not have been convicted of driving while under the influence but could be convicted of being in actual physical control while under the influence. See also Wofford v. State, 739 P.2d 543 (Okla.Cr. 1987) (defendant was sleeping in driver's seat); Kyle v. State, 722 P.2d 1218, 1219 (Okla.Cr. 1986) (evidence that defendant exited vehicle on the driver's side was sufficient for inference of actual physical control); Mason v. State, 603 P.2d 1146, 1147 (Okla.Cr. 1979) (defendant was unconscious behind the steering wheel of a vehicle with its engine running); Hughes v. State, 535 P.2d 1023 (Okla.Cr. 1975) (defendant was unconscious behind steering wheel); Cudjoe v. State, 521 P.2d 409 (Okla.Cr. 1974) (defendant was asleep behind wheel); Crane v. State, 461 P.2d 986 (Okla.Cr. 1969); Parker v. State, 424 P.2d 997 (Okla.Cr. 1967).

The third element requires that the motor vehicle be driven on a highway or on a public parking lot. State v. Haws, 869 P.2d 849, 851-52 (Okla. Cr. 1994). Although some confusion existed between 1961 and 1980 concerning where the driving must occur, the Court of Criminal Appeals clarified this issue in Houston v. State, 615 P.2d 305 (Okla.Cr. 1980). In Houston, the court held that section 11-902 must be read in conjunction with 47 O.S. 1991 § 11-101[ 47-11-101], which stipulates that driving a vehicle applies to driving "upon highways, turnpikes and public parking lots throughout the state." The Commission has used the wording of section 11-101. For a definition of a public parking lot, see OUJI-CR 6-35, infra.

OUJI-CR 6-21 BEING INVOLVED IN ACCIDENT WHILE UNDER THE INFLUENCE OF ALCOHOL/(AN INTOXICATING SUBSTANCE) — ELEMENTS

No person may be convicted of being involved in an accident while under the influence of alcohol/(an intoxicating substance) unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, being involved in a personal injury accident;

Second, while driving a motor vehicle;

Third, on a highway/turnpike/(public parking lot);

Fourth, (while having a blood/breath alcohol concentration of 0.10 0.08 or more)/(while under the influence of alcohol)/(while under the [influence of any intoxicating substance other than alcohol]/[combined influence of alcohol and any other intoxicating substance] which may render a person incapable of safely driving a motor vehicle) ;

[Fifth, the blood/breath alcohol test was administered within 2 hours after arrest).]

Statutory Authority: 47 O.S. 1991 2001, § 11-904(A).

Notes on Use

The Fifth Element should be read only for prosecutions based on having a blood/breath alcohol concentration of 0.10 0.08 or more.

OUJI-CR 6-22 CAUSING ACCIDENT WHILE UNDER THE INFLUENCE OF ALCOHOL/(AN INTOXICATING SUBSTANCE) — ELEMENTS

No person may be convicted of causing an accident while under the influence of alcohol/(an intoxicating substance) unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, causing an accident;

Second, resulting in great bodily injury to another person;

Third, while driving a motor vehicle;

Fourth, on a highway/turnpike/(public parking lot);

Fifth, (while having a blood/breath alcohol concentration of 0.10 0.08 or more)/ (while under the influence of alcohol)/(while under the [influence of any intoxicating substance other than alcohol]/[combined influence of alcohol and any other intoxicating substance] which may render a person incapable of safely driving a motor vehicle) ;

[Sixth, the blood/breath alcohol test was administered within 2 hours after arrest).]

Statutory Authority: 47 O.S. 1991 2001, § 11-904(B).

Notes on Use

For the definition of great bodily injury, see OUJI-CR 6-35, infra. The Sixth Element should be read only for prosecutions based on having a blood/breath alcohol concentration of 0.10 0.08 or more.

OUJI-CR 6-24 DRIVING (UNDER THE INFLUENCE)/(WHILE IMPAIRED) — CHEMICAL TEST EVIDENCE DEFINED

If you find that a chemical analysis of the defendant's blood/breath was performed within two hours of his/her arrest, then the results of this analysis may be considered by you as to the issue of whether (the defendant was under the influence of alcohol)/(the defendant's ability to drive a motor vehicle was impaired).

[Use for Driving Under the Influence]

If you are convinced that the amount of alcohol, by weight or volume, in the defendant's blood was one-tenth eight-hundredths of one percent (0.10%) (0.08%) or greater, then you may find the defendant to have been under the influence of alcohol. If, however, after considering the chemical analysis together with all other evidence in the case, you entertain a reasonable doubt as to whether the defendant was under the influence, then you should find him/her not to have been under the influence of alcohol.

[Use for Driving While Impaired]

If you are convinced that the amount of alcohol, by weight or volume, in the defendant's blood was more than five-hundredths of one percent (0.05%), then you may consider this evidence on the issue of whether the defendant's ability to drive a motor vehicle was impaired by alcohol. However, no person may be found to have been under impaired ability solely because of a blood alcohol count above 0.05%. You must find, in addition, and beyond a reasonable doubt, that the person's driving was affected by the consumption of alcohol to the extent that the public health and safety were threatened, or that the person's operation of a motor vehicle violated a State statute or local ordinance.

If you are convinced that the amount of alcohol, by weight or volume, in the defendant's blood was five-hundredths of one percent (0.05%) or less, then you must find the defendant not to have been under the influence of alcohol, unless you find by other competent evidence, and beyond a reasonable doubt, that the (defendant's ability to drive a motor vehicle was impaired by alcohol)/ (defendant was under the influence of alcohol).

Statutory Authority: 47 O.S.Supp. 1995 2001, § 756.

Notes on Use

The second paragraph is for prosecutions for driving under the influence and the third paragraph is for prosecutions for driving while impaired.

Committee Comments

Section 756, as amended by the Legislature in 1972, sets forth the percent of alcohol in the blood which is evidence that the person (1) was not under the influence of alcohol; (2) was operating a motor vehicle with impaired ability; or, (3) was under the influence of alcohol. Section 11-902 punishes for the latter possibility, while section 756 creates a crime for the second possibility. Driving with impaired ability is a misdemeanor, although the fine is more harsh for second and subsequent offenses. Section 761 sets forth the punishment for the crime of driving a motor vehicle with impaired ability.

Section 756 uses the word "operate," but in light of Bearden v. State, 430 P.2d 844 (Okla.Cr. 1967), and Parker v. State, 424 P.2d 997 (Okla. Cr. 1967), indicating that "drive" and "operate" are synonymous, the Commission has used the word "drive" as an element to promote consistency in language among the various instructions.

The crime created by section 756 is a lesser included offense of the crime created by 47 O.S.Supp. 1995 2001, § 11-902. Bernhardt v. State, 719 P.2d 832, 833 (Okla.Cr. 1986).

OUJI-CR 6-35 VEHICLE RELATED OFFENSES — DEFINITIONS

Actual Physical Control — Directing influence, domination or regulation of any motor vehicle, whether or not the motor vehicle is being driven or is in motion.

References: Crane v. State, 461 P.2d 986 (Okla.Cr. 1969); Bearden v. State, 430 P.2d 884 (Okla.Cr. 1967); Parker v. State, 424 P.2d 997 (Okla.Cr. 1967).

Careless or Wanton Manner — In disregard of an unreasonable risk of danger to another, when it is known or should be known that harm is highly probable to result.

References: Carter v. State, 376 P.2d 351 (Okla.Cr. 1962); Black's Law Dictionary 1419 (5th ed. 1979).

Driving — Operating a motor vehicle while it is in motion.

Reference: Parker v. State, 424 P.2d 997 (Okla.Cr. 1967).

Elude — To avoid, escape from, or evade, as by cunning, daring or artifice.

Reference: The American Heritage Dictionary 425 (1969).

Great Bodily Injury — Bodily injury which (creates a substantial risk of death)/ (causes serious, permanent disfigurement)/(causes prolonged loss/impairment of the function of any bodily member/organ).

Reference: 47 O.S. 1991 2001, § 11-904(B)(2).

Impaired Ability — See OUJI-CR 6-24.

Reference: 47 O.S.Supp. 1995 2001, § 756.

Intoxicating Substance — [You are instructed that [Specify Controlled Dangerous Substance listed in 63 O.S.Supp. 1995 2001, § 2-101 et seq.] is an intoxicating substance.]

[You are instructed that an intoxicating substance is any substance, other than alcohol, which is capable of being ingested/inhaled/injected/ absorbed into the human body and is capable of adversely affecting (the central nervous system)/ vision/hearing/(any sensory/motor functions).]

Reference: 47 O.S.Supp. 1995 2001, § 11-902(B). 1-140.1.

Notes on Use

The first paragraph should be used if the intoxicating substance is a controlled dangerous substance, and the second paragraph should be used for any other intoxicating substance.

Motor Vehicle — Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power or used exclusively upon stationary rails or tracks. Unless a title or registration has been issued, vehicles moved solely by animal power, implements of husbandry, special mobilized machinery, or self-propelled wheel chairs or tricycles for invalids are also excluded.

Reference: 47 O.S. 1991 2001, §§ 1-186, 4-101.

Public Parking Lot — A parking lot on a right-of-way that is ( dedicated to public use)/(owned by the State of Oklahoma or a political subdivision of the State of Oklahoma).

References: 47 O.S. 2001 § 1-142.[ 47-1-142]. Houston v. State, 1980 OK CR 63, ¶ 5, 615 P.2d 305, 306 ; cf. Justus v. State ex rel. Dept. of Public Safety, 2002 OK 46, ¶¶ 7-8, 61 P.3d 888, 890.

Peace Officer — Any sheriff, policeman, or any other law enforcement officer whose duty it is to enforce and preserve the public peace.

Reference: 21 O.S.Supp. 1995 2001, § 99.

Property — Property includes:

(a) Real Property — Every estate, interest, and right in lands, including structures or objects permanently attached to the land;

(b) Personal Property — Money, goods, chattels, effects, evidences of rights in action, and written instruments effecting a monetary obligation or right or title to property.

References: 21 O.S. 1991 2001, §§ 102, 103, 104.

Under the Influence — Condition in which alcohol/(an intoxicating substance)/(a combination of alcohol and another/other intoxicating substance(s)) has/have so far affected the nervous system, brain, or muscles of the driver as to hinder, to an appreciable degree, his/her ability to operate a motor vehicle in a manner that an ordinary prudent and cautious person, if in full possession of his/her faculties, using reasonable care, would operate or drive under like conditions.

References: Stanfield v. State, 1978 OK CR 34, 576 P.2d 772; 47 O.S.Supp. 1999 2001, § 11-902.

K. DEFENSE OF CONSENT OUJI-CR 8-58 BURGLARY — DEFENSE OF CONSENT

A person who enters a dwelling with the consent or authorization of an owner or occupant of that dwelling does not commit a "breaking" and therefore cannot be convicted of burglary in the first degree. Such consent or authorization to enter is adequate where it is given by one who has actual authority to give it or by one who reasonably appears to have such authority.

It is the burden of the State to prove beyond a reasonable doubt that the defendant did not enter with the consent or authorization of an owner or occupant or one who reasonably appeared to have such authority. If you find that the State has failed to sustain that burden, then the defendant must be found not guilty.

Notes on Use

This instruction should be given in a first degree burglary case where the evidence presented at trial sufficiently raises the issue of consent or authorization to enter.

Committee Comment

See Roberts v. State, 2001 OK CR 14, ¶ 19, 29 P.3d 583, 589.

OUJI-CR 10-10 GENERAL CLOSING CHARGE — CLOSING INSTRUCTION

After you have retired to consider your verdict, select one of your number as foreperson and enter upon your deliberations. [If you have questions during your deliberations, you may submit them to the bailiff, and I will attempt to answer them as fully as the law permits.] When you have agreed on a verdict, your foreperson alone will sign it, and you will, as a body, return it in open court. Your verdict must be unanimous. Forms of verdict will be furnished. You will now listen to the argument of counsel, which is a proper part of this trial.

Notes on Use

This instruction (or one of the alternatives in OUJI-CR 10-10A or 10-10B below) should be the last instruction to be given. The trial court is not required to give the second sentence of the instruction, which is in brackets.

Committee Comments

In Cohee v. State, 1997 OK CR 30, Attachment 1, 942 P.2d 211, 215 the Court of Criminal Appeals approved guidelines for trial courts when conducting jury trials in criminal cases. The guidelines included: "The trial court may instruct the jury that it may submit questions to the court during deliberations, and that the court will attempt to answer those questions as fully as the law permits."

OUJI-CR 10-24 LESSER INCLUDED OFFENSES — AS APPROPRIATE

The defendant is charged with [Crime Charged In the Information/ Indictment]. You are instructed that, in addition to evidence concerning the crime of [Crime Charged in the Information/Indictment], evidence has also been introduced concerning the crime of [Lesser Included Crime]. No person may be convicted of [Lesser Included Crime] unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

[Give Elements of Lesser Included Crime.]

If you have a reasonable doubt of the defendant's guilt of the charge of [Crime Charged In the Information/Indictment], you must then consider the charge of [Lesser Included Crime].

[Give Only If Needed for Other Lesser Included Offenses.]

[You are instructed that, in addition to the evidence concerning the crime of [Crime Charged In the Information/Indictment] evidence has been introduced concerning the crime of [First Included Crime], and evidence has also been introduced concerning the crime of [Second Included Crime].

If you have a reasonable doubt of the defendant's guilt on the charges of [List Crime Charged In the Information and First Included Crime], you must then consider the charge of [Second Included Crime]. No person may be convicted of [Second Included Crime] unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

[Give Elements of Second Included Offense.]

[Repeat Pattern As Needed for Additional Included Offenses]

You are not required to determine unanimously that the defendant is not guilty of the crime charged before you consider a lesser included offense. If you have a reasonable doubt as to which offense the defendant may be guilty of, you may find him/her guilty only of the lesser offense. If you have a reasonable doubt as to the guilt of the defendant on all such offenses, you must find him/her not guilty of any crime.

If you find the defendant guilty of any of the above named crimes, you shall then determine the proper punishment.

The crime of [Crime Charged in the Information/Indictment] is punishable by [State Range of Punishment].

The crime of [First Included Crime] is punishable by [State Range of Punishment].

The crime of [Second Included Crime] is punishable by [State Range of Punishment].

[Repeat As Needed for Additional Included Crimes]

When you have decided on the proper punishment, you shall fill in the appropriate space on the Verdict Form and return the verdict to the Court.

Notes on Use

A Verdict Form for 2 Lesser Included Offenses is provided in OUJI-CR 10-25 below.

Committee Comments

Former OUJI-CR 10-27 is incorporated into this instruction in order to avoid the problem that was noted by the Oklahoma Court of Criminal Appeals in Graham v. State, 2001 OK CR 18, 27 P.3d 1026. In addition, the instruction clarifies that the jury does not have to unanimously acquit the defendant of the charged offense before considering lesser included offenses.

The statute governing lesser included offenses is 22 O.S. 2001 § 916[ 22-916], which provides: "The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense." In addition, 22 O.S. 2001 § 915[ 22-915] provides: "Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty."

Over the years, the Oklahoma Court of Criminal Appeals has used a variety of approaches to determine which crimes are lesser included offenses of other crimes. Shrum v. State, 1999 OK CR 41, ¶ 7, 991 P.2d 1032, 1035. In the Shrum case, the Oklahoma Court of Criminal Appeals formally adopted the evidence test to determine what constitutes a lesser included offense of a charged crime. Under the evidence test, the court looks to the evidence proved at trial in addition to the statutory elements of the crimes and the allegations in the indictment or information, to decide whether to give a jury instruction on a particular lesser included offense. See also Childress v. State, 2000 OK CR 10, ¶¶ 21-25, 1 P.3d 1006 (following Shrum in applying the evidence test). The Court provided the following direction to trial courts as to how to apply this test:

In practice, if the trial court sua sponte proposes the lesser included offense instruction that is supported by the evidence and the defendant objects, the defendant shall have the right to affirmatively waive any lesser included offense instruction that the evidence supports and proceed on an "all or nothing approach." [Citation omitted.] If the State requests the lesser included offense instruction and the defendant objects, the trial court should review the Information together with all material that was made available to the defendant at preliminary hearing and through discovery to determine whether the defendant received adequate notice that the State's case raised lesser related offenses that should be deemed included. [Footnote 9. If a witness' testimony materially changes at trial which gives rise to evidence of a lesser offense of which the defendant did not have notice, the State's requested instruction should be declined. To avoid such problems, prosecutors may elect to charge the accused in the alternative pursuant to 22 O.S. 1991 § 404.[ 22-404].] [Citation omitted.] However, if the trial court proposes or the State requests the lesser included offense instruction and the defense does not object, we will presume the defendant desired the lesser included offense instruction as a benefit.

Shrum, 1999 OK CR 41, ¶ 11, 991 P.2d at 1036-37.

Examples of the application of the evidence test are found in the Shrum and Childress cases, supra. The Court of Criminal Appeals ruled in the Shrum case that the trial court did not err in giving a jury instruction on first degree heat of passion manslaughter in a case where the defendant was charged with first degree malice murder and the defendant had not objected to the instruction at the trial. The Court of Criminal Appeals followed Shrum in Childress v. State, supra, where it ordered a new trial because the trial court refused to give instructions that the defendant had requested on a lesser related offense. The defendant in the Childress case was charged with first degree malice murder and larceny of a domestic animal. Although the elements of second degree felony murder are not contained in the elements of first degree malice murder, the Court of Criminal Appeals held that the defendant was entitled to an instruction on second degree felony murder because larceny of a domestic animal is a predicate felony for second degree felony murder, and there was sufficient evidence presented at trial to support an instruction for second degree felony murder. 2000 OK CR 10, ¶ 25, 1 P.3d at 1012-13.

In addition, if a crime is divided into degrees and the evidence at trial tends to prove a lesser degree of the crime than the charged crime, the jury should be instructed on the lesser degree of the crime. E.g., Brown v. State, 1983 OK CR 174, ¶ 6, 674 P.2d 46, 47.

OUJI-CR 10-27 LESSER INCLUDED OFFENSES — REASONABLE DOUBT NO INSTRUCTION SHOULD BE GIVEN. SEE OUJI-CR 10-24.

If you have a reasonable doubt as to which offense the defendant may be guilty of, you may find him/her guilty only of the lesser offense. If you have a reasonable doubt as to the guilt of the defendant on all such offenses, you must find him/her not guilty of any crime.

_____Statutory Authority: 22 O.S. 1991 § 916. [ 22-916].

Notes on Use

This instruction should be given in every case that involves a lesser included offense immediately after OUJI-CR 10-24, supra. This instruction is incorporated into OUJI-CR 10-24 in order to avoid the problem that was noted by the Oklahoma Court of Criminal Appeals in Graham v. State, 2001 OK CR 18, 27 P.2d 1026.

Committee Comments

The statute governing lesser included offenses is 22 O.S. 1991 § 916[ 22-916], which provides: "The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense." In addition, 22 O.S. 1991 § 915[ 22-915] provides: "Whenever a crime is distinguished into degrees, the jury, if they convict the defendant, must find the degree of the crime of which he is guilty."

Over the years, the Oklahoma Court of Criminal Appeals has used a variety of approaches to determine which crimes are lesser included offenses of other crimes. Shrum v. State, 1999 OK CR 41, ¶ 7, 991 P.2d 1032, 1035. In the Shrum case, the Oklahoma Court of Criminal Appeals formally adopted the evidence test to determine what constitutes a lesser included offense of a charged crime. Under the evidence test, the court looks to the evidence proved at trial in addition to the statutory elements of the crimes and the allegations in the indictment or information, to decide whether to give a jury instruction on a particular lesser included offense. See also Childress v. State, 2000 OK CR 10, ¶¶ 21-25, 1 P.3d 1006 (following Shrum in applying the evidence test). The Court provided the following direction to trial courts as to how to apply this test:

In practice, if the trial court sua sponte proposes the lesser included offense instruction that is supported by the evidence and the defendant objects, the defendant shall have the right to affirmatively waive any lesser included offense instruction that the evidence supports and proceed on an "all or nothing approach." [Citation omitted.] If the State requests the lesser included offense instruction and the defendant objects, the trial court should review the Information together with all material that was made available to the defendant at preliminary hearing and through discovery to determine whether the defendant received adequate notice that the State's case raised lesser related offenses that should be deemed included. [Footnote 9. If a witness' testimony materially changes at trial which gives rise to evidence of a lesser offense of which the defendant did not have notice, the State's requested instruction should be declined. To avoid such problems, prosecutors may elect to charge the accused in the alternative pursuant to 22 O.S. 1991 § 404.[ 22-404].] [Citation omitted.] However, if the trial court proposes or the State requests the lesser included offense instruction and the defense does not object, we will presume the defendant desired the lesser included offense instruction as a benefit.

Shrum, 1999 OK CR 41, ¶ 11, 991 P.2d at 1036-37.

Examples of the application of the evidence test are found in the Shrum and Childress cases, supra. The Court of Criminal Appeals ruled in the Shrum case that the trial court did not err in giving a jury instruction on first degree heat of passion manslaughter in a case where the defendant was charged with first degree malice murder and the defendant had not objected to the instruction at the trial. The Court of Criminal Appeals followed Shrum in Childress v. State, supra, where it ordered a new trial because the trial court refused to give instructions that the defendant had requested on a lesser related offense. The defendant in the Childress case was charged with first degree malice murder and larceny of a domestic animal. Although the elements of second degree felony murder are not contained in the elements of first degree malice murder, the Court of Criminal Appeals held that the defendant was entitled to an instruction on second degree felony murder because larceny of a domestic animal is a predicate felony for second degree felony murder, and there was sufficient evidence presented at trial to support an instruction for second degree felony murder. 2000 OK CR 10, ¶ 25, 1 P.3d at 1012-13.

In addition, if a crime is divided into degrees and the evidence at trial tends to prove a lesser degree of the crime than the charged crime, the jury should be instructed on the lesser degree of the crime. E.g., Brown v. State, 1983 OK CR 174, ¶ 6, 674 P.2d 46, 47.