Pattern Jury Instruction Commission April 2002 Draft Instruction List

Clear and convincing evidence means that the evidence leads you to a firm belief or conviction that the allegations are true. This is a higher standard of proof than proof by the greater weight of the evidence. The evidence presented need not be undisputed to be clear and convincing.

State v. Schneider, 550 NW2d 405 n.4 (ND 1996)

In re Estate of Stanton, 472 NW2d 741 (ND 1991)

Stoner v. Nash Finch, Inc., 446 NW2d 747, 756 (ND 1989)

Pritchett v. Executive Director of Social Serv. Bd., 325 NW2d 217, 220 (ND 1982)

Zundel v. Zundel, 278 NW2d 123, 130 (ND 1979)

C - 2.05 Negligence

"Negligence" is the lack of ordinary care and diligence required by the circumstances. Ordinary care or diligence means such care as a person of ordinary prudence usually exercises about one's own affairs of ordinary importance.

Negligence involves a lack of such concern for the probable consequences of an act or failure to act as a person of ordinary prudence would have had in conducting one's own affairs. It is the lack of such care as persons of common sense and ordinary prudence usually exercise under the same or similar circumstances. Negligence is a relative term. Whether a certain act or failure to act is negligence depends upon the facts and circumstances of each particular case.

The duty to use care is based upon knowledge of danger. The care that a person must exercise in a particular situation is in proportion to the degree of danger of injury to oneself or to others in the act to be performed. The care necessary to constitute the ordinary care required by a person upon any particular occasion is measured by reference to the circumstances of danger known to one at the time or which the person should reasonably have foreseen. The greater the danger, the greater is the care required.

A person is presumed to have performed one's duty and to have exercised ordinary care, unless the contrary is shown by the greater weight of the evidence. The mere fact that a mishap occurred, considered alone, is not in itself evidence of negligence on the part of any of the people involved. You have no right to assume that the mishap was caused by negligence or other wrongful conduct of anyone.

[If the standard of care required in any given situation is prescribed by the laws of this state, a failure to observe that standard is evidence of negligence.]

NDCC 1-01-14 - 17

Chicago, M., St. P. & P.R. Co. v. Johnston Fuel Liners, 122 NW2d 140 (ND 1973)

Saetz v. Braun, 116 NW2d 628 (ND 1962)

See also NDJI C - 2.10, Gross Negligence Defined

C - 2.06 Evidence of Compliance or Non-Compliance With Statute

If you find that someone complied with a [statute] [ordinance] [code] [regulation] [standard] [rule], you may consider that as evidence tending to show reasonable care. If you find that someone failed to comply with a [statute] [ordinance] [code] [regulation] [standard] [rule], you may consider that as evidence tending to show a lack of reasonable care. Such evidence tending to show either reasonable care or a lack of reasonable care may be considered by you along with all the other evidence in the case that tends to show whether or not a person used or failed to use the ordinary care expected of a reasonable person in the circumstances that existed.

Praus v. Mack, 2001 ND 80, 636 N.W.2d 239

Larson v. Kubisiak, 1997 ND 22, 558 N.W.2d 852

Keyes v. Amundson, 391 NW2d 602 (1986)

Falkenstein v. City of Bismarck, 268 NW2d 787 (1978)

Kirton v. Williams Elec. Co-op, Inc., 265 NW2d 702 (1978)

Simon v. Woodland, 179 NW2d 422 (ND 1970)

Leake v. Hagert, 175 NW2d 675 (ND 1970)

Glatt v. Feist, 156 NW2d 819 (ND 1968)

Attleson v. Boomgarden, 73 NW2d 448 (ND 1955)

C - 2.30 Malice

The term "malice" and "maliciously" import a wish to vex, annoy, or injure another person, or an intent to commit a wrongful act, established either by proof or presumption of law. Malice may consist of 1) a direct intention to injure another or 2) a reckless disregard of another's rights and the consequences that may result. Malice is not limited to a spiteful, malignant, or revengeful disposition and intent; it includes wrongful and improper motives as well as intent to commit a wrongful and improper act. If a wrongful or unlawful act is willfully or deliberately committed, the law presumes that the act was committed with unlawful intent.

NDCC 31-11-03(2)

Maragos v. Union Oil Co. of California, 1998 ND 180, 584 NW2d 850

Ingalls v. Paul Revere Life Ins. Group, 1997 ND 43, 561 NW2d 173

Kummer v. City of Fargo, 516 NW2d 294 (ND 1994)

McLean v. Kirby Vacuum Co., 490 NW2d 229 (ND 1992)

Stoner v. Nash Finch, 446 NW2d 747 (ND 1989)

Serhienko v. Kiker, 392 NW2d 808 (ND 1986)

Redahl v. Stevens, 250 NW 534 (ND 1933)

Shoemaker v. Sonju, 108 NW 42 (ND 1906)

NOTE: This instruction includes both actual and presumed malice.

C - 2.75 Assumption of Risk

A person assumes the risk of [injury] [loss] if the person 1) has actual knowledge of a risk of [injury] [loss], 2) has freedom of choice to avoid the risk, 3) voluntarily encounters the risk, and 4) [injury] [loss] is proximately caused by the encounter. If you find that a person has assumed the risk of [injury] [loss] you may consider that as evidence of fault.

NDCC 32-03.2-02

Rodenberg v. Fargo-Moorhead Young Men's Christian Ass'n, 2001 ND 139, 632 NW2d 407

Spieker v. Westgo, Inc., 479 NW2d 837 (ND 1992)

Olson v. Chesterton, 256 NW2d 530 (ND 1977)

C - 2.76 Momentary Forgetfulness of Danger

If you find that the Plaintiff voluntarily proceeded into a dangerous situation of which the Plaintiff had previous knowledge, but had momentarily forgotten the danger, such forgetfulness does not in itself constitute fault unless under all the circumstances it shows a want of ordinary care not to have kept the danger in mind.

Keller v. Vermeer Mfg. Co., 360 NW2d 502 (ND 1984)

Cf. Kreidt v. Burlington N. R.R., 2000 ND150, 615 NW2d 153

Harfield v. Tate, 1999 ND 166, 598 NW2d 840

C - 3.60 Duty of Driver to Keep Lookout (Railroad Crossing)

A driver about to cross a railroad track at a public crossing is charged with knowledge that the crossing is a dangerous place. The driver may not assume that trains are not approaching from either direction but rather must assume that trains are coming until satisfied by direct evidence to the contrary. To this end, the driver must vigilantly use sight and hearing and do all that ordinary care and prudence would dictate, having in view the surrounding circumstances, to avoid injury, regardless of whether any signal is given by an approaching train.

The greater the danger, the greater the care that must be exercised to avoid injury. And when, because of physical infirmities, darkness, snow, fog, inclemency of the weather, buildings, or other obstructions and hindrances, it is more difficult than usual to see or hear, greater precaution must be taken to avoid injury than would otherwise be necessary.

* * * * *

South v. Nat'l R.R. Passenger Corp., 290 NW2d 819 (ND 1980)

Ekren v. Mpls., St. P. & S. Ste M. R.R. Co., 61 NW2d 193 (ND 1953)

Sherlock v. Mpls., St. P. & S. Ste M. R.R. Co., 138 NW 976 (ND 1912)

Hope v. Great N. Ry. Co., 122 NW 997 (ND 1909)

Kiemele v. Soo Line R.R., 93 F3d 472 (8^th Cir 1996)

NOTE: This instruction should be given only if comparative fault of the driver is asserted or the driver is the Defendant.

C - 3.80 Duty of Passenger

One who rides in an automobile as a passenger must exercise ordinary care to avoid self- injury. If, knowing that the automobile is being driven [at an excessive rate of speed], you find that the passenger acquiesces, and though having an opportunity to do so, fails to protest to or warn the driver, that passenger is at fault. In determining whether the passenger was at fault in failing to protest, you should consider whether the passenger reasonably believed that a protest would not have been heeded.

Hurt v. Freeland, 1999 ND 12, 589 NW2d 551

Jasper v. Freitag, 145 NW2d 879 (ND 1966)

Borstad v. La Roque, 98 NW2d 16 (ND 1959)

Satterland v. Fieber, 91 NW2d 623 (ND 1958)

Wilson v. Oscar H. Kjorlie Co., 12 NW2d 526 (ND 1944)

Eddy v. Wells, 231 NW 785 (ND 1930)

NOTE: This instruction should be given only if comparative fault is asserted.

C - 3.82 Assumption of Risk (By Passenger)

DELETED

See NDJI C - 2.75, Assumption of Risk.

C - 3.84 Wrongdoing of Driver Not Imputed to Passenger

The motor vehicle in which Plaintiff was riding at the time of the incident was being driven by [Plaintiff] [Defendant]. In considering [Plaintiff's] [their respective] claim [s] against the Defendant, the wrongful conduct, if any, on the part of [Plaintiff] [Defendant], the driver, cannot be charged or imputed to the passenger. [This is not to say, however, that the passenger is in any way relieved from the consequences of either willful or negligent conduct on [Plaintiff's] [their] part, if any, that led to the [passenger's] [passengers'] own injury [and resulting demise].

Hurt v. Freeland, 1999 ND 12, 589 NW2d 551

Kunze v. Stang, 191 NW2d 526 (ND 1971)

Mertz v. Weibe, 180 NW2d 664 (ND 1970)

Kelmis v. Cardinal Petroleum Co., 156 NW2d 710 (ND 1968)

Jasper v. Freitag, 145 NW2d 879 (ND 1966)

Wilson v. Oscar H. Kjorlie Co., 12 NW2d 526 (ND 1944)

Bagan v. Bitterman, 259 NW 268 (ND 1935)

Billingsley v. McCormick Transfer Co., 228 NW 427 (ND 1929)

NOTE: The bracketed sentence should be added if comparative fault is asserted.

By appropriate selection of bracketed language, this instruction can be used in an action by the passenger against either a third person or the driver.

C - 16.18 Duty of Care Owed by School Authorities

School authorities are required to exercise ordinary care to keep the school premises and facilities in reasonably safe condition for the use of minor students who foreseeably will use the premises and facilities. They also owe a duty to the students to ensure their safety during playground activities. Their obligation is to exercise such care for the students as a parent of ordinary prudence would provide in the same or similar circumstances.

The duty of care owed a minor against unreasonable risk of injury is greater than that owed an adult. The degree of care required increases with the immaturity of the child.

Besette v. Enderlin Sch. Dist. No. 22, 310 NW2d 759 (ND 1981)

NOTE: Use NDJI C - 2.20, Measure of Duty of Minor to Exercise Care, if comparative fault is asserted.

C - 18.00 Loss of Consortium

If a married [person] is injured as a proximate result of the wrongful conduct of another, [that person] is entitled to recover damages against the wrongdoer for personal injuries and [the spouse] is entitled to recover damages for any interference with marital rights, deprivation of services, society, and companionship, including any impairment of the capacity for sexual intercourse [and for the reasonable expenses incurred for medical treatment and care].

The damages sustained by the [spouse] for the loss of consortium include not only the value in money for the deprivation of services, but also such reasonable amount of money as the Jury, in the exercise of its discretion, may reasonably allow as just compensation for the loss of society and companionship, including the impairment of the capacity for sexual intercourse.

In this regard, the Jury may consider the nature of the marital relationship of the husband and wife, their station in life, their disposition, temperament, and affection toward one another, their interests in life, their attainments, their character, their dependency upon one another, and all other circumstances bearing upon their personal relationship.

NDCC 9-10-01, 9-10-06;14-02-01

Wald v. City of Grafton, 442 NW2d 910 (ND 1989)

Milde v. Leigh, 28 NW2d 530 (ND 1947), 173 ALR 738

Cf. Hastings v. James River Aerie No. 2337 - Fraternal Order of Eagles, 246 NW2d 747 (ND1976)

C - 21.35 Assumption of Risk (Strict Products Liability)

DELETED

See NDJI C - 2.75, Assumption of Risk.

C - 68.02 Comparative Fault

You will return a special verdict in which you will make special findings of fact determining:

1) who was at fault, if anyone;

2) whether such fault was a proximate cause of damages;

3) the respective percentages of fault allocated to the Defendant[s], the Plaintiff, or anyone else who contributed to proximately cause any damages;

4) the amount of Plaintiff's [or Defendant's[s']] damages without reduction for fault.

[Any damages awarded will be reduced by any percentage of fault allocated to the Plaintiff. However, if you allocate 50% or more of fault to the Plaintiff, the Plaintiff will not recover any damages.]

The court will reduce the damages by any percentage of fault allocated to the Plaintiff. You are not to reduce any damage amounts.

This instruction is not meant to suggest that you should find anyone at fault. It is to explain the relationship between the allocation of fault and damages.

NDCC 32-03.2-02

Sollin v. Wangler, 2001 ND 104, 627 N.W.2d 159

NOTE: The bracketed language is derived from Sollin v. Wangler which requires the Jury to be informed of the legal consequences its special verdict answers will have on damages, if properly requested and the Court determines the instruction will not confuse or mislead the Jury. NDCC 32-03.2-02 states that the Plaintiff's fault does not bar a recovery of damages for death or injury to person or property unless the fault was as great as the combined fault of all other persons who contribute to the injury, but any damages allowed must be reduced in proportion to the Plaintiff's fault.

C - 70.47 Life Expectancy (Wrongful Death)

The Decedent, _______________, was ___ years of age at the time of the incident.

The Plaintiff, _______________, was ____ years of age at the time of this trial.

According to [identify mortality table], the life expectancy of an individual, ____ years of age is _____ years, and the life expectancy of an individual, ______ years of age is ______. These facts, of which the Court takes judicial notice, are now in evidence to be considered by you in arriving at the amount of damages, if any, to be awarded.

However, the restricted significance of this evidence should be noted. Life expectancy, as shown by a mortality table, is merely an estimate of the probable average remaining length of life of all individuals in our country of a given age, based on a limited, and not complete, record of experience. Therefore, the inference that may be drawn from the life expectancy shown by the table applies only to one who has the average health and exposure to danger of people of that age. Thus, in considering the life expectancy of any individual, you should consider, in addition to what is shown by the table of mortality, all other facts and circumstances in evidence bearing on life expectancy (such as occupation, activities, habits, and state of health) at the time of the incident.

The life expectancies of both the Decedent and the Plaintiff are relevant factors. The Plaintiff's recovery is limited to an award based on the life expectancy of the shorter of the Decedent's or the Plaintiff's life expectancy, because no contribution to the Plaintiff can be presumed beyond the life expectancy of either the Decedent or the Plaintiff.

NDCC 31-08-05; 32-21-02

Schneider v. Baisch, 256 NW2d 370 (ND 1977)

Note: Mortality tables are available from various sources including: Statistical Abstract of the United States, the National Center for Health Statistics, and Lawyers and Judges Publishing Company which extracts data from the National Center for Health Statistics.

C - 70.50 Life Expectancy (Personal Injury)

The Plaintiff, _______________, is ____ years of age at the time of this trial.

According to [identify mortality table], the life expectancy of an individual, ____ years of age is _____ years. This fact, of which the Court takes judicial notice, is now in evidence to be considered by you in arriving at the amount of damages, if any, to be awarded.

* * * * *

NDCC 31-08-05

Symington v. Mayo, 1999 ND 48, 590 NW2d 450

Miller v. Breidenbach, 520 NW2d 869 (ND 1994)

C - 72.00 Exemplary Damages

You may, in your discretion, award exemplary or punitive damages if you find by clear and convincing evidence that the Defendant has been guilty of [oppression,] [fraud,] [or] [actual malice] as defined in these instructions. These damages are distinguished from damages that compensate for the detriment caused and which are called actual or compensatory damages. You may award the injured party any reasonable sum as an example to others and to punish the wrongdoer as you consider just.

In order to recover exemplary damages, you must find by clear and convincing evidence that the amount of exemplary damages awarded is consistent with the following:

1) Whether there is a reasonable relationship between the exemplary damage award claimed and the harm likely to result from the Defendant's conduct as well as the harm that actually has occurred; and

2) The degree of reprehensibility of the Defendant's conduct and the duration of that conduct.

[The Court has determined that there has been evidence presented which permits you to also consider the following factors:

1) Defendant's awareness of and any concealment of the conduct;

2) Profitability to the Defendant of the wrongful conduct and the desirability of removing that profit and of having the Defendant also sustain a loss;

3) Criminal sanctions imposed on the Defendant for the same conduct that is the basis for the exemplary damage claim are to be taken into account if offered in mitigation of the exemplary damage award.]

NDCC 32-03.2-11(5)

Ehrman v. Feist, 1997 ND 180, 568 NW2d 747

Continental Casualty Co. v. Kinsey, 499 NW2d 574 (ND 1993)

Napoleon Livestock Auction, Inc. v. Rohrich, 406 NW2d 346 (ND 1987).

NOTE: The Court should instruct the jury with the bracketed language as warranted by the evidence. A specific finding is required.

See also NDJI C- 72.02, Exemplary Damages - Compensatory Damages Required; NDJI C - 72.04, Exemplary Damages (Not Allowed); NDJI C - 72.06, Exemplary Damages (Principal/Agent); NDJI C - 72.10, Oppression; NDJI C - 72.12, Fraud; and NDJI C - 72.16, Actual Malice.

C - 72.08 Exemplary Damages (Duty of Insurer)

DELETED

See C - 72.00, Exemplary Damages.

C - 72.14 Malice

DELETED

To award exemplary damages, there must be clear and convincing evidence of oppression, fraud, or actual malice. NDCC 32-03.2-11(1). See C - 72.16, Actual Malice.

C - 72.17 Malice of Corporate Officers

A corporation can act only through its officers and employees and is liable for the wrongful acts of its officers and employees in the discharge of their duties. Malice of an officer having the direction and control of the affairs of a corporation is, in the eyes of law, the malice of the corporation. A corporation, however, is not liable in exemplary damages for the acts of its employees, as distinguished from its officers, unless the corporation authorized or ratified the wrongful acts upon which the exemplary damages are based.

NDCC 32-03.2-11(8)

John Deere Co. v. Nygard Equip. Inc., 225 NW2d 80 (ND 1974)

NOTE: Use this instruction with NDJI C - 72.00, Exemplary Damages. Instruction C - 72.17 is under review.

C - 90.56 Special Verdict Form - Suggested

We, the Jury duly impaneled and sworn in the above matter, make the following answers to the questions asked by the Court:

1) Was the [Defendant] at fault?

Answer: Yes No

If you answered Question 1 "No," sign and return this verdict. If you answered

Question 1 "Yes," then answer Question 2.

2) Was such fault a proximate cause of the [Plaintiff's] damages?

Answer: Yes No

If you answered Question 2 "No," sign and return this verdict. If you answered Question 2 "Yes," then answer Question 3.

3) Was the [Plaintiff] at fault?

Answer: Yes No

If you answered Question 3 "No," then go on to Question 5. If you answered

Question 3 "Yes," then answer Question 4.

4) Was such fault a proximate cause of the [Plaintiff's] damages?

Answer: Yes No

Whether you answered "Yes" or "No" to Question 4, answer Question 5.

5) Was [person other than a Party] at fault?

Answer: Yes No

If you answered Question 5 "No" and answered Question 4 "Yes," then answer

Question 7. If you answered Question 5 "No" and answered Question 4 "No," then

answer Question 8. If you answered Question 5 "Yes," then answer Question 6.

6) Was such fault a proximate cause of the [Plaintiff's] damages?

Answer: Yes No

If you answered Question 6 "No" and answered Question 4 "No," then answer

Question 8. If you answered Question 6 "No" and answered Question 4 "Yes," then

answer Question 7. If you answered Question 6 "Yes," then answer Question 7.

7) Taking all of the fault that proximately caused the [Plaintiff's] damages as 100%,

what percentage of fault do you attribute to:

Defendant %

Plaintiff %

[Others _______________%]

TOTAL 100 %

[Please answer Questions 8 and 9.]

8) What amount of money will fairly compensate the [Plaintiff] for:

a. Past economic damages $_______________

b. Future economic damages $_______________

c. Past non-economic damages $_______________

d. Future non-economic damages $_______________

9) Should the [Plaintiff] be awarded interest on the damages?

Answer: Yes No

If you answered Question 9 "No," please sign and return this verdict. If you

answered Question 9 "Yes," then answer Question 10.

What rate of interest should be used (subject to a maximum of 6%)?

_______________%

Dated this ____ day of __________, ____.

_______________

Jury Leader

NOTE: This Suggested Verdict applies to claims arising after July 8, 1987. This form must be revised as required for each case.

If properly requested and the court determines the instruction will not confuse or mislead the jury, the Jury must be informed of the legal consequences its special verdict answers will have on damages. Sollin v. Wangler, 2001 ND 104, 627 NW2d 159. See NDCC 32-03.2-02.

Question 10 does not apply to contract cases. In contract cases, when a different rate has not been provided in writing, the rate must be calculated at six percent. As a result, there is no discretion with the Jury and an interest instruction should not be given. NDCC 47-14-05; Hirschkorn v. Severson, 319 NW2d 475 (ND 1982).

CRIMINAL DRAFTS

K - 3.01 Additional Element of Offense - Nonexistence of Defense

Evidence has been presented that the Defendant [state the defense]. The State must prove beyond a reasonable doubt, as an additional element of the offense charged, that the Defendant was not [state the defense]. The Defendant does not have the burden of proof as to this defense. If the State has failed to prove beyond a reasonable doubt that the Defendant did not [state the defense], the Defendant is entitled to a verdict of not guilty.

NDCC 12.1-01-03(1) - (2)

State v. Olander, 1998 ND 50, 575 NW2d 658

State v. Thiel, 411 NW2d 66 (ND 1987)

NOTE: This instruction should immediately follow the Court's instructions setting forth the elements of the offense to which the defense applies. For affirmative defenses, see NDJI K - 4.00.

K - 3.06 Lack of Criminal Responsibility as a Defense

A person is not responsible for willful criminal conduct, if as a result of mental disease or defect existing at the time the conduct occurred 1) the person lacked substantial capacity to comprehend the harmful nature or consequences of the criminal conduct or 2) the criminal conduct was a result of a loss or serious distortion of the person's capacity to recognize reality.

NDCC 12.1-01-03, 12.1-04.1-01, 12.1-04.1-03

State v. Johnson, 2001 ND 184, 636 NW2d 391

State v. Throndson, 491 NW 628 (ND 1992)

State v. Jensen, 251 NW2d 182 (ND 1977)

K - 5.35 Motive

Proof of a motive for commission of a crime is permissible and often valuable, but never essential. If, after a consideration and comparison of all the evidence, you have a firm and abiding conviction that the Defendant committed the crime charged, the motive for its commission becomes unimportant. Evidence of motive is sometimes of assistance in removing doubt and completing proof that otherwise might be unsatisfactory. Motive may be shown by direct evidence or by facts supporting a reasonable inference. If proved, motive becomes nothing more than a circumstance to be considered by you. The absence of motive is a circumstance tending to support the presumption of innocence and should be given such weight and credibility as you think it deserves.

State v. Potter, 233 NW 650 (ND 1930)

State v. Mozinski, 191 NW 345 (ND 1922)

K - 5.46 Dangerous Special Offender (Bifurcated Trial)

The Defendant has been found guilty of _______________. A dangerous special offender is a person who

[1) is a dangerous, mentally abnormal person whose conduct has been characterized by persistent aggressive behavior and the behavior makes the offender a serious danger to other persons.]

[2) is a professional criminal who has substantial income or resources derived from criminal activity.]

[3) was convicted of an offense that seriously endangered the life of another person and the offender had previously been convicted of a similar offense.]

[4) used a firearm, dangerous weapon, or destructive device in the commission of the offense or during the flight therefrom.]

ESSENTIAL ELEMENTS

The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:

1) The Defendant, _______________,

[2) is a dangerous, mentally abnormal person whose conduct has been characterized by persistent aggressive behavior and the behavior makes the offender a serious danger to other persons.]

[3) is a professional criminal who has substantial income or resources derived from criminal activity.]

[4) was convicted of an offense that seriously endangered the life of another person and the offender had previously been convicted of a similar offense.]

[5) used a firearm, dangerous weapon, or destructive device in the commission of the offense or during the flight therefrom.]

DEFINITIONS

"Substantial source of income" means a source of income which for any period of one year or more exceeds $ _____ and which for the same period exceeds fifty percent of the offender's declared adjusted gross income for North Dakota income tax purposes.

[Insert relevant definitions of firearm, dangerous weapon, destructive device, and other relevant definitions. NDCC 12.1-01-04.]

NDCC 12.1-32-09

State v. Clark, 2000 ND 9, 621 NW2d 576

NOTE: If the notice specifying that the Defendant is a dangerous offender only alleges that the Defendant used a firearm, dangerous weapon, or destructive device in the commission of the offense or during the flight therefrom, the Jury may make a special finding of proof of this allegation without an additional hearing subsequent to a verdict or finding of guilt. NDCC 12.1-32-09(4)(a).

The calculation necessary for the definition of "substantial source of income" is the minimum wage, determined on the basis of a forty-hour week and a fifty-week year without reference to exceptions, under section 6(a)(1) of the Fair Labor Standards Act of 1938, as amended, for an employee engaged in commerce or in the production of goods for commerce.

K - 8.11 Assault

[A person who willfully causes substantial bodily injury to another human being is guilty of Assault.]

[A person who negligently causes substantial bodily injury to another human being by means of a firearm, destructive device, or other weapon, the use of which against a human being is likely to cause death or serious bodily injury is guilty of Assault.]

[A person who willfully causes substantial bodily injury to another human being under the age of twelve years is guilty of Assault.]

[A person who negligently causes substantial bodily injury to another human being under the age of twelve years by means of a firearm, destructive device, or other weapon, the use of which against a human being is likely to cause death or serious bodily injury is guilty of Assault.]

ESSENTIAL ELEMENTS OF OFFENSE

The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:

1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, caused substantial bodily injury to _______________; and

2) [The Defendant willfully caused the injury] [The Defendant negligently caused the injury by means of a firearm, destructive device, or other weapon, the use of which against a human being is likely to cause death or serious bodily injury].

[3) The victim was under the age of twelve years.]

DEFINITIONS

[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]

NDCC 12.1-17-01.1

NOTE: Paragraphs 3 and 4 are class C felonies; otherwise, Assault is a class A misdemeanor.

K - 13.01 Obstruction of Governmental Function (Defense)

It is a defense to prosecution for physical obstruction of a government function that the administration of law or other government function was not lawful, but it is no defense that the Defendant mistakenly believed that the administration of law or other governmental function was not lawful. The conduct of a public servant acting in good faith and under color of law in the execution of a warrant or other process for arrest or search and seizure is deemed lawful.

NDCC 12.1-08-01

State v. Barth, 2001 ND 201, 637 NW2d 369

NOTE: NDCC 12.1-08-01 does not apply to the conduct of a person obstructing the person's own arrest, but that conduct is subject to NDCC 12.1-08-02. NDCC 12.1-08-01 applies to the conduct of a person obstructing the arrest of another. Inapplicability under this subsection is a defense.

K - 13.05 Preventing Arrest or Discharge of Other Duties (Felony Arrest)

A person who, with intent to prevent a public servant from effecting an arrest of that person or another for a class A, B, or C felony, willfully creates a substantial risk of bodily injury to the public servant or to anyone else, or willfully employs means justifying or requiring substantial force to overcome resistance to effecting the arrest, is guilty of Preventing Arrest or Discharge of Other Duties.

ESSENTIAL ELEMENTS OF OFFENSE

The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:

1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, intended to prevent a public servant, _______________, from effecting an arrest or arresting the Defendant or another for a felony; and

2) In doing so, the Defendant willfully [created a substantial risk of bodily injury to the public servant or to anyone else] [employed means justifying or requiring substantial force to overcome the Defendant's resistance to accomplishing or effecting the arrest].

DEFINITIONS

[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]

NDCC 12.1-02-02, 12.1-08-02

State v. Tipler, 316 NW2d 97 (ND 1982)

See K - 13.10, Preventing Arrest or Discharge of Other Duties (Defense)

K - 13.08 Preventing Arrest or Discharge of Other Duties (Misdemeanor Arrest)

A person who, with intent to prevent a public servant from effecting an arrest of that person or another for a misdemeanor or infraction, or from discharging any other official duty, [willfully creates a substantial risk of bodily injury to the public servant or to anyone else] [willfully employs means justifying or requiring substantial force to overcome resistance to effecting the arrest or the discharge of the duty], is guilty of Preventing Arrest or Discharge of Other Duties.

ESSENTIAL ELEMENTS OF OFFENSE

The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:

1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, intended to prevent a public servant [from effecting an arrest of the Defendant or another for a misdemeanor or infraction] [from discharging any official duty]; and

2) The Defendant willfully [created a substantial risk of bodily injury to the public servant or to anyone else] [employed means justifying or requiring substantial force to overcome resistance to effecting the arrest or the discharge of the duty].

DEFINITIONS

[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]

NDCC 12.1-08-02

State v. Tipler, 316 NW2d 97 (ND 1982)

See also K - 13.10, Preventing Arrest or Discharge of Other Duties (Defense)

K - 13.10 Preventing Arrest or Discharge of Other Duties (Defense)

It is a defense to a prosecution for Preventing Arrest or Discharge of Other Duties that the public servant was not acting lawfully. However, it is no defense that the Defendant mistakenly believed that the public servant was not acting lawfully.

A public servant executing a warrant or other process in good faith and under color of law is deemed to be acting lawfully.

NDCC 12.1-08-02(2)

State v. Barth, 2001 ND 201, 637 NW2d 369

K - 18.30 Issuing a [Check] [Draft] [Electronic Funds Transfer] [Order] Without Sufficient Funds or Credit

A person [as the agent or representative of another] [as an officer or member of a firm, company, copartnership, or corporation] who [willfully] [makes, draws, utters, or delivers any [check] [draft] [order]] [authorizes an electronic funds transfer] for the payment of money upon a bank, banker, or depository, if at the time of the [making, drawing, uttering, or delivery] [electronically authorizing] [presentation for payment, if the presentation for payment is made within fourteen days after the original delivery thereof] there are not sufficient funds in or credit with the bank, banker, or depository to meet the [check] [draft] [electronic funds transfer] [order] in full upon its authorized presentation is guilty of issuing a [check] [draft] [electronic funds transfer] [order] without sufficient funds or credit.

ESSENTIAL ELEMENTS OF OFFENSE

The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:

1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, [as the agent or representative of another] [as an officer or member of a firm, company, copartnership, or corporation] did [willfully] [make, draw, utter, or deliver a [check] [draft] [order]] [authorize an electronic funds transfer] for the payment of money upon a bank, banker, or depository;

2) At the time of the [making, drawing, uttering, or delivery][electronically authorizing] [presentation for payment, if the presentation for payment was made within fourteen days after the original delivery thereof] there were insufficient funds in or credit with the bank, banker, or depository to meet the [check] [draft] [electronic funds transfer] [order] in full upon its authorized presentation;

[3) [The amount of insufficient funds or credit is more than fifty dollars but not more than two hundred fifty dollars] [The Defendant has pled guilty or been found guilty of two violations of this statute within three years of issuing an insufficient funds check, draft, or order];]

[4) [The amount of insufficient funds or credit is more than two hundred fifty dollars but not more than five hundred dollars] [The Defendant has pled guilty or been found guilty of two violations of this statute within three years of issuing an insufficient funds check, draft, or order];]

[5) [The amount of insufficient funds or credit is more than five hundred dollars] [TheDefendant has pled guilty or been found guilty of three or more violations of this statute within five years of willfully issuing an insufficient funds check, draft, or order];] [and]

[6) The check was not a postdated check knowingly received as such, and the check was not issued under an agreement with the payee that the check would not be presented for payment for a time specified.]

DEFINITIONS

"Credit" means an arrangement or understanding with the bank, banker, or depository for the payment of the check, draft, electronic funds transfer authorization, or order.

[Insert relevant definition of willfully. NDCC 12.1-02-02.]

NDCC 6-08-16

NOTE: If the charge is a felony based upon three prior convictions within five years of issuing an insufficient funds check, draft, or order, there is a culpability requirement of willfully.

K - 22.00 Unlawful Possession of Drug Paraphernalia

A person who uses, or possesses with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body, a controlled substance, in violation of NDCC Chapter 19-03.1, is guilty of Unlawful Possession of Drug Paraphernalia.

The use of, or possession with intent to use, , is prohibited by NDCC Chapter 19-03.1, unless used or possessed pursuant to an authorized prescription.

In determining whether an object is drug paraphernalia, you should consider, in addition to all other relevant factors, the following: [Select relevant guidelines from NDCC 19-03.4-02.]

ESSENTIAL ELEMENTS OF OFFENSE

The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:

1) On or about [month] [day] [year], in [County], North Dakota, the Defendant,_______________;

2) [Used] [possessed with intent to use] _______________, for the purpose of [planting] [propagating] [cultivating] [growing] [analyzing] [packaging] [repackaging] [storing] [containing] [concealing] [injecting] [ingesting] [inhaling] [otherwise introducing into the human body], _______________, in violation of Chapter 19-03.1.

DEFINITIONS

[Insert relevant definitions. NDCC 19-03.1-01, 19-03.4-01.]

NDCC 19-03.1, 19-03.4-03

NOTE: This instruction when given should indicate what the object is and whether the object meets the definitions in NDCC 19-03.4-01.

The culpability requirement of "willfully" was deleted from the former version of this instruction. When the Legislature moved the Drug Paraphernalia chapter from Title 12.1 to Title 19, NDCC, no culpability requirement was specified. State v. Eldred, 1997 ND 112, 564 NW2d 283.

K - 22.05 Unlawful Manufacture or Delivery of Drug Paraphernalia

A person who knowingly delivers, possesses with intent to deliver, or manufactures with intent to deliver, drug paraphernalia knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body, a controlled substance, in violation of NDCC Chapter 19-03.1, is guilty of Unlawful Manufacture or Delivery of Drug Paraphernalia.

In determining whether an object is drug paraphernalia, you should consider, in addition to all other relevant factors, the following: [Select relevant guidelines from NDCC 19-03.4-02.]

ESSENTIAL ELEMENTS OF OFFENSE

The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:

1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, knowingly [delivered] [possessed with intent to deliver] certain drug paraphernalia, namely _______________; and

2) The Defendant did so knowing, or under circumstances where one reasonably should know, that the _______________ was to be used to [plant] [propagate] [cultivate] [grow] [analyze] [package] [repackage] [store] [contain] [conceal] [inject] [ingest] [inhale] [otherwise introduce into the human body] a controlled substance.

DEFINITIONS

[Insert relevant definitions. NDCC 12.1-02-02, 19-03.1-01, 19-03.4-01.]

NDCC 19-03.1, 19-03.4-04

NOTE: This instruction should be given naming the article that is defined as drug paraphernalia in NDCC 19-03.4-01.

K - 22.10 Unlawful Delivery of Drug Paraphernalia to a Minor

A person who is eighteen (18) years of age or older and delivers drug paraphernalia to another who is both under eighteen (18) years of age and at least three years younger than the deliverer, is guilty of Unlawful Delivery of Drug Paraphernalia.

In determining whether an object is drug paraphernalia, you should consider, in addition to all other relevant factors, the following: [Select relevant guidelines from NDCC 19-03.4-02.]

ESSENTIAL ELEMENTS OF OFFENSE

The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:

1) On or about [month] [day] [year], in [County], North Dakota, the Defendant,_______________, delivered certain drug paraphernalia, namely _______________, to _______________;

2) The Defendant, _______________, was then eighteen (18) years of age or older; and

3) _______________ was under eighteen (18) years of age and at least three (3) years younger than the Defendant, _______________.

DEFINITIONS

[Insert relevant definitions. NDCC 19-03.1-01, 19-03.4-01.]

NDCC 19-03.1, 19-03.4-05

NOTE: The culpability requirement of "willfully" was deleted from the former version of this instruction. When the Legislature moved the Drug Paraphernalia chapter from Title 12.1 to Title 19, NDCC, no culpability requirement was specified. State v. Eldred, 1997 ND 112, 564 NW2d 283.

K - 22.15 Unlawful Advertisement of Drug Paraphernalia

A person who places in any newspaper, magazine, handbill, or other publication, any advertisement, while knowing or under circumstances where one should reasonably know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia, is guilty of Unlawful Advertisement of Drug Paraphernalia.

In determining whether an object is drug paraphernalia, you should consider, in addition to all other relevant factors, the following: [Select relevant guidelines from NDCC 19-03.4-02.]

ESSENTIAL ELEMENTS OF OFFENSE

The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:

1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, placed in a [newspaper,] [magazine,] [handbill,] or [other publication,] an advertisement as follows: _______________; and

2) The Defendant then knew or reasonably should have known under the circumstances, that the purpose of the advertisement, in whole or in part, was to promote the sale of objects designed and intended for use as drug paraphernalia.

DEFINITIONS

[Insert relevant definitions. NDCC 19-03.1-01, 19-03.4-01.]

NDCC 19.03.1, 19-03.4-06

K - 22.42 Possession

Possession may be actual or constructive and may be proven by direct or circumstantial evidence.

A person who knowingly has direct physical control over an object is in actual possession of it.

A person who knowingly has the ability and intent to exercise control over an object is in constructive possession of it.

[Two or more persons may simultaneously possess the same object.]

State v. McKinney, 518 NW2d 696, 700 (ND 1994)

In Interest of K.S., 500 NW2d 603, 606 (ND 1993)

State v. Connery, 441 NW2d 651, 655 (ND 1989)