PATTERN JURY INSTRUCTION COMMISSION
March 5-6, 2009
MEMBERS PRESENT: J. Anderson, B. Beehler, A. Boucher, T. Kolb, J. Lee, D. Lillehaug, P. Myerchin, J. Simonson, J. Webb
MEMBERS ABSENT: L. Boschee, J. Hagerty, J. Narum
GENERAL BUSINESS
Chair Judge Webb called the meeting to order. Peter Zuger, law clerk for the South Central Judicial District, assisted.
Membership: Judge Daniel Narum was appointed to replace J. Greenwood. His term will end in 2011. L. Boschee and A. Boucher were both appointed to serve a third term, which will also expire in 2011.
T. Kolb and D. Lillehaug were appointed to the Commission in 2007 to fill two open positions. T. Purdon had completed his term, and A. Paige had resigned 1 year into her term. One of their terms ends this year and the other in 2010. Bill at SBAND reviewed the minutes from the meeting but was unable to tell Staff who was serving which term. T. Kolb volunteered to take the term ending in 2009 and has already expressed interest in reappointment.
Other members whose terms end this year include P. Myerchin (1), J. Simonson (2), and J. Webb (2). All are eligible for reappointment.
Minutes: Minutes of the October 2008 meeting were reviewed.
Motion to approve: A. Boucher
Second: B. Beehler
Approved
Financial Report: The 2007-09 PJIC budget is $28,264, and the Commission has spent $21,131.50. This amount is 74.76% of the budget with 79.17% of the biennium having past. Staff was instructed to look for available publications to assist the Commission in carrying out its duties.
J. Webb sent a letter to Court Administration last fall requesting adequate funds in the next budget and also requesting an increase in salary for Staff Attorney.
Motion to approve the financial report: B. Beehler
Second: T. Kolb
Approved
Staff Attorney: Staff was excused from the room. Discussion was held regarding renewal of the 2-year contract. Staff will contact J. Webb in late May regarding the new contract.
Motion to offer 2-year contract: J. Simonson
Second: A. Boucher
Approved
Interim Activities
1. Minutes and drafts from the October 2008 meeting were prepared and posted.
2. Notice was received that L. Boschee and A. Boucher had both been appointed to serve a third term, ending 2011.
3. Notice was received that Judge Narum had been appointed to replace J. Greenwood. His first term will expire in 2011.
4. An article appeared in the fall edition of the Gavel discussing the Commission.
5. An e-mail proposing a new criminal instruction, Duty to Accept Law from the Court, similar to existing C-85.10, was received. J. Webb volunteered to work on the instruction and it was placed on the agenda for this meeting.
6. SBAND Board of Governors requested a summary of PJICÆs goals and activities for review at their January meeting. The requested information was prepared and submitted. No further communication occurred.
INSTRUCTIONS
1. Terrorizing (Threatening to Commit a Crime of Violence), K-8.32 û J. Webb was assigned this instruction after receiving correspondence from the StateÆs AttorneyÆs office in Fargo. The concern is that willfully is not included and should be. J. Webb attempted to put ôwillfulö in a single instruction but felt it was inadequate. After the October, 2008, meeting, he looked at it again and decided to draft two instructions. He proposed changes to K-8.32 and a new instruction, K-8.30. The statute does not include a culpability level, but case law says ôwillful.ö (State v. Hass, 268 NW2d 456 (ND 1978)). The Commission reviewed relevant statutory and case law and held discussion regarding culpability and the language of the statute.
Motion to approve as presented: J. Webb
Second: P. Myerchin
Motion failed unanimously
Motion to remove ôwillfullyö as the culpability level throughout the instruction and add a note after the Haas case indicating the court-directed culpability level: P. Myerchin
Second: J. Simonson
Discussion was held, amendments were made, 4 elements were reduced to 3.
Motion to adopt as amended: P. Myerchin
Second: J. Simonson
Discussion was raised as to whether it adequately informs the jury of the law
Approved (7-2) (J. Lee and B. Beehler dissented)
J. Webb also proposed K-8.30, Terrorizing (False Information), which would be an additional instruction for Terrorizing (False Information). The Commission agreed 2 instructions would be cleaner because there are 2 elements in NDCC 12.1-17-04. This instruction would apply when a person knows there is no danger but makes a threat anyway.
Motion to approve as presented: J. Simonson
Second: B. Beehler
J. Lee called a question on the motion, asking for the vote.
Motion failed (4-5)
Motion to delete use of ôwillfullyö throughout the instruction, add a note after Haas, make other changes to be consistent with K-8.32: P. Myerchin
Second: J. Simonson
Motion approved (7-2) (J. Lee and B. Beehler dissented)
2. Elections, K-16.00 - K-16.15: B. Beehler reviewed the instructions that were last reviewed in 1985. The statutes have not changed since 1973, there has been no case law, B. Beehler recommended approving the instructions with no changes.
Motion to approve all reviewed with no changes: J. Webb
Second: J. Lee
Approved
3. Riots, K-17.00 - K-17.15 - J. Simonson reviewed the instructions last reviewed in 1985. There have been no changes to the statues and one Supreme Court case can be added to K-17.00, 17.01 and 17.10. No other changes are proposed.
Motion to approve as reviewed, no changes: J. Lee
Second: B. Beehler
Approved
4. Forgery and Counterfeiting, K-18.00-K-18.25 - J. Anderson was asked to review the Forgery and Counterfeiting instructions that had last been reviewed in 1985. The law was enacted in 1983 and has remained unchanged. A couple cases deal with this chapter and could be added to the instructions. There are multiple statutes but the Court decided the crimes were so similar a person can only be convicted under one crime for one act. State v. Moos, 2008 ND 228, 758 NW2d 674.
K-18.00, Forgery or Counterfeiting (Class B Felony), language was changed to follow the statute (ôfacilitateö changed to ôwith knowledge that he is facilitatingö). Also proposed altering Essential Elements to follow statute and adding a note regarding Moos. Grammatical changes were made to aid reading of the instruction.
Motion to approve: J. Lee
Second: D. Lillehaug
Approved
K-18.01, Forgery or Counterfeiting (Class C Felony), language was changed similar to K-18.00 to track the statute. Essential elements were amended to track statutory language.
Motion to approve as amended: B. Beehler
Second: A. Boucher
Approved
K- 18.05, Forgery or Counterfeiting (Class A Misdemeanor), language was changed similar to K-18.00 to track the statute. A note to Moos was also added.
Motion to approve: J. Simonson
Second: B. Beehler
Approved
K-18.10, Facilitation of Counterfeiting (Trafficking in Paraphernalia), language was changed to conform to the statute. Discussion was held regarding use of the word ôthingö in NDCC 12.1-24-02(1). A note was included instructing when the defense element should be used.
Motion to approve: B. Beehler
Second: P. Myerchin
Approved
K û 18.15, Facilitation of Counterfeiting (Copying), language was changed to conform to the statute. The note was amended to conform with the note in K-18.10.
Motion to approve: J. Simonson
Second: B. Beehler
Approved
K-18.20, Facilitation of Counterfeiting (Trafficking in Counterfeit), language was changed to conform to the statute; the note from K-18.10 was also added to this instruction. Punctuation was cleaned up.
Motion to approve: B. Beehler
Second: P. Myerchin
Approved (8-1) (A. Boucher dissented)
K-18.25, Deceptive Writing, language was changed to conform to the statute. A note to the Moos case was added.
Motion to approve: J. Simonson
Second: B. Beehler
Discussion was held regarding the applicability of the elements to the offense. The offense can be Class A Misdemeanor, Class B Felony or Class C Felony depending on which elements are met.
Motion to approve with amendments: J. Simonson
Second: B. Beehler
Approved
5. K-20.00, Disseminating Obscene Material, D. Lillehaug reviewed this instruction that was last reviewed in 1985. He and A. Boucher worked together and proposed an amended instruction with three elements rather than two. Discussion was held regarding the language of the statute and the culpability level required for this crime. The intent was to separate the elements to make it easier to understand and to conform with the other JIGS. Knowingly was removed because it does not appear in the statute.
Motion to approve as amended: A. Boucher
Second: D. Lillehaug
Approved
6. K-20.20, Promoting Obscenity to Minors (Material or Performance Harmful to Minors), A. Boucher and D. Lillehaug reviewed this instruction from 1985. The conclusion was reached that three instructions were needed to accurately state the law. Proposals included an amended 20.20 and new instructions 20.22 and 20.25. Elements of 20.20 were amended to conform to the statute and establish the culpability required. Definitions were removed and a reference to the definitions in the statute was added.
K-20.22, Promoting Obscenity to Minors (Admitting Minor to Premises), is a new instruction proposed by A. Boucher to conform to the statutes. Proposed K-20.22 was amended to be consistent with K-20.20.
K-20.25, Promoting Obscenity to Minors (Permitting Participation in Performance), is another new instruction proposed by A. Boucher. Amendments were made to provide consistency with the previous two instructions.
Motion to approve all three instructions as proposed: A. Boucher
Second: D. Lillehaug
Approved
7. C-5.30, Knowingly (Dram Shop), A. Boucher reviewed this instruction that was last reviewed in 1990. Since then, one Supreme Court case has interpreted ôknowingly.ö A. Boucher proposed an instruction that included some language from case law relating to ôknowingly.ö Discussion was held regarding the definition of ôknowinglyö in a civil context. A citation to the dram shop statute was added.
Motion to approve proposed instruction: A. Boucher
Second: B. Beehler
Approved
8. K-9.30, Breaking Into or Concealment Within Vehicle (Class B Felony) and K-9.32, Breaking Into or Concealment Within Vehicle (Class C Felony), J. Hagerty was asked to review these instructions from 1985 for the October meeting. After discussion in October regarding the elements and a change to the statute, she agreed to review them again for this meeting.
Law Clerk P. Zuger proposed a revised K-9.30 with language that tracks the statute. The term ôbreaking intoö was removed from the title and instruction because the language no longer appears in the statute. Language was amended for consistency with other instructions. Discussion was had regarding use of the term ôwillfully.ö The committee recognized that the default culpability level for criminal offenses is ôwillful,ö but the language does not appear in the statute. The question is whether the default ôwillfulö should be included in all instructions with no statutory culpability level.
Motion to approve as amended: B. Beehler
Second: J. Anderson
Approved
K-9.32, Breaking Into or Concealment Within Vehicle (Class C Felony), is the same as K-9.30, except for the Class C felony.
Motion to approve: J. Anderson
Second: A. Boucher
Approved
9. Sexual Performance instructions (criminal) û The statutes regarding using a minor in a sexual performance have never been addressed in the JIGS. J. Hagerty and P. Zuger drafted proposed instructions to mirror the statutes (found at NDCC 12.1-27.2).
Motion to approve two instructions based on 12.1-27.2-02: J. Anderson
Second: J. Lee
Approved
The next statute is NDCC 12.1-27.2-03, Promoting or directing an obscene sexual performance by a minor. A proposed instruction mirrors the language of the statute.
Motion to approve proposed instruction: J. Webb
Second: J. Lee
Approved (7-2) (P. Myerchin and A. Boucher dissented)
The next proposed instruction addresses the Class C felony for Promoting a sexual performance by a minor.
Motion to approve with consistency to previous instruction: J. Simonson
Second: B. Beehler
Motion to amend and add reference to affirmative defenses section in all Performance instructions: J. Webb
Second: B. Beehler
Approved
An instruction to follow NDCC 12.1-27.2-04.1 was proposed.
Motion to approve: A. Boucher
Second: J. Simonson
Approved
An instruction including the affirmative defenses was presented and discussed. This instruction will be placed with the other sexual performance instructions rather than in the Affirmative Defenses chapter, as this appears consistent with what has been done previously. A reference to this instruction will be added to the previous instructions in addition to the reference to the affirmative defense statute.
Motion to Approve: J. Webb
Second: J. Simonson
Approved
Staff will take care of numbering and placement of the new group of JIGS.
10. C-80.56, Insurance Admonition û J. Lee was asked to review this instruction from 1986. He raised concern over whether this instruction could ever be used because evidence of insurance is cause for a mistrial under current North Dakota law. He drafted a proposed instruction, but recommends the instruction be eliminated. Discussion was held regarding the use of the instruction and whether there is a need for it.
Motion to table until October: J. Simonson
Second: T. Kolb
Approved
ASSIGNMENTS
1. Partnership, C û 55.40, 55.45, and New û L. Boschee
2. Reasonably Safe Product, C - 21.43 û L. Boschee
3. Legal Entities, C û 55.12, 55.14, and 55.50 - L. Boschee
4. Testimony of Expert, C û 80.05 û J. Lee
5. Testimony of Landowner, C û 80.08 û J. Lee
6. Matters of Common Knowledge and Science û J. Lee
7. Defrauding Secured Creditor (False Statement), K û 11.35 û J. Lee
8. Assisting Jurors at Impasse, K û 5.64 û J. Lee
9. Obviously Intoxicated Person Defined, C - 5.10 - P. Myerchin
10. Sale of Alcoholic Beverages to a Person Under 21 Years of Age, C - 5.20 - P. Myerchin
11. Interrogatories, C - 80.12 - T. Kolb
12. Duty to Accept Law From Court, New - J. Webb
The June meeting will be Tuesday, June 9 at Pirogue Grill in Bismarck at 6:00 pm.
Motion to adjourn: J. Simonson
Second: T. Kolb
Adjourned
Respectfully submitted,
Jennifer M. Hauge
Staff Attorney
8585 62nd Ave SW
Carson, ND 58529
cjhauge@dishmail.net