JURY INSTRUCTION DRAFTS - March 2007
If you have questions or comments, please contact please contact Lynn Kerbeshian at pjic@gra.midco.net or call/fax 701-775-7384.
CIVIL
C - 10.00 Drainage of Surface Waters
C - 10.40 Act of God (Drainage of Surface Water)
C - 10.50 Alternative Findings (Drainage Case) (Illustration) (deleted)
C - 21.00 Strict Product Liability
C - 21.03 Product Liability Negligence
C - 21.07 Rebuttable Heeding Presumption
C - 21.25 Negligent Failure to Warn of a Danger Learned Post-Sale
C - 21.41 Government and Industry Standards
C - 25.00 Civil Rights Violation
C - 72.07 Exemplary Damages (Harm to Others)
CRIMINAL
K - 2.01 Criminal Attempt
K - 2.02 Criminal Facilitation
K - 2.04 Criminal Solicitation
K - 2.06 Criminal Conspiracy
K - 2.08 Individual Accountability for Conduct on Behalf of Organization (reviewed with
no
changes)
K - 2.10 Organization - Agent (reviewed with no changes)
K - 2.12 Corporations
K - 2.20 Accomplice
K - 2.25 Testimony of Accomplice Must be Corroborated
K - 3.60 Justification (Use of Force by Persons Responsible for Care and Supervision of
Minors)
K - 5.01 Duty of Jury (To Follow "Essential Elements")
K - 5.08 View of Premises
K - 5.12 Opinion of Expert
K - 5.20 Matters of Common Knowledge and Science (reviewed with no changes)
K - 5.35 Motive
K - 5.45 Penalty or Punishment
K - 5.48 [Audio-Visual] Depositions
K - 7.10 Gross Sexual Imposition (Force or Threat) (Sexual Act)
K - 7.11 Gross Sexual Imposition (Impaired Power to Resist) (Sexual Act)
K - 7.12 Gross Sexual Imposition (Victim Unaware) (Sexual Act)
K - 7.13 Gross Sexual Imposition (Victim Less Than Fifteen-Years-Old) (Sexual Act)
K - 7.14 Gross Sexual Imposition (Mental Disease or Defect) (Sexual Act)
K - 7.16 Gross Sexual Imposition (Force or Threat) (Sexual Contact)
K - 7.17 Gross Sexual Imposition (Victim Less Than Fifteen-Years-Old) (Sexual Contact)
CIVIL
Drainage of Surface Waters
A lower landowner over whose land a draw or drainway exists must
receive in the drainway
only such surface waters from the tributary watershed as are accustomed to come in a
state of nature, whether or not unprecedented in amount. However, the waters of a natural
pond or slough collected and impounded from surface waters running down the watershed
after the winter snows or spring or other rains, and which waters remain there for
evaporation or seepage in the soil, become waters of a pond and lose their characteristics
as surface waters.
Ponded waters may not be drained by artificial means to the injury of a lower landowner.
Likewise, surface waters that would otherwise have been impounded by a natural reservoir
may not be enabled to flow by artificial means to the injury of a lower landowner.
Without fault, ponded waters or surface waters which would otherwise have been
impounded may be drained artificially, or enabled to flow, only into an established
watercourse and only in a reasonable manner.
Whether the drainage was done in a
reasonable manner is for you to determine. You should consider
such factors as the
amount of harm caused, the foreseeability of the harm, the purpose or motive of the person
in draining the waters, the capacity of the established watercourse, and all other relevant
factors. If
you find the
release of those waters is unreasonable considering the relevant
factors, the one who releases
those waters is
at fault.
* * * * *
Nilson v. Markestad, 353 N.W.2d 312 (ND 1984)
Jones v. Boeing Co., 153 N.W.2d 897 (ND 1967)
Rynestad v. Clemetson, 133 N.W.2d 559 (ND
1965)
Lemer v. Koble, 86 N.W.2d 44 (ND 1957)
Nevland v. Njust, 51 N.W.2d 845 (ND 1952)
Froemke v. Parker,171 N.W. 284 (ND 1919)
NOTE: Definitions may be found in NDCC
Chapter 61-01 and NDAC 89-02-01-02.
2007
Act of God
(Drainage of Surface Water)
The Defendant asserts as a defense to the claim of the Plaintiff that
the injury, if any,
suffered by the Plaintiff was proximately caused by
an act
of God in the form of
unprecedented or
extraordinary precipitation. If you find there
was unprecedented or
extraordinary precipitation and
the act of God was the sole proximate cause
of
the injury,
if any, suffered by the Plaintiff, the Defendant is
not at fault
for that injury.
Precipitation that occurs seasonably and which is not of
unprecedented magnitude should
be regarded as ordinary and not an
act of God. A
helpful test of the character of
precipitation as ordinary, rather than extraordinary, is whether its occurrence and
magnitude might reasonably have been anticipated, in light of the known precipitation
experience in the area.
Whether the precipitation involved in this case was
an act
of God is a question of fact you
must decide in determining the issue of fault
.
* * * * *
Huber v. Oliver County, 1999 ND 220, 602 N.W.2d 710
2007
DELETED
2007
To find a [manufacturer] [seller] at fault for strict product liability for defect in the [design of] [manufacture of] [adequacy or lack of warnings about] the product, the Plaintiff must prove these elements by the greater weight of the evidence:
1) The [manufacturer] [seller] was in the business of selling the type of product;
2) The product was defective because of [its design] [its manufacture] [inadequate or lack of warnings] when the [manufacturer] [seller] sold it, regardless of how careful the [manufacturer] [seller] was;
3) The defective condition made the product unreasonably dangerous to the Plaintiff when put to a use for which it was intended or could reasonably be anticipated; and
4) The product was expected to and did reach the [Plaintiff] [user] without substantial change in the condition in which it was sold.
* * * * *
Morrison v. Grand Forks Housing Auth., 436 N.W.2d 211 (ND 1989)
Kaufman v. Meditec, Inc., 353 N.W.2d 297 (ND 1984)
Downtowner, Inc. v. Acrometal Prods., Inc., 347 N.W.2d 118 (ND 1984)
Day v. General Motors Corp., 345 N.W.2d 349 (ND 1984)
Mauch v. Mfrs. Sales & Serv., Inc., 345 N.W.2d 338 (ND 1984)
Olson v. Chesterton Co., 179 N.W.2d 530 (ND 1977)
Johnson v. Am. Motors Corp., 225 N.W.2d 57 (ND 1974)
2007
To find a manufacturer at fault for negligent [design of] [manufacture of] [failure to adequately warn about] the product, the Plaintiff must prove these elements by the greater weight of the evidence:
1) The manufacturer failed to use ordinary care and diligence in [(designing) (manufacturing) the product for the purposes for which it was intended or could reasonably be anticipated] [giving adequate warnings about dangers inherent in the intended or reasonably anticipated use of the product];
2) The manufacturer's failure to use ordinary care and diligence in the [design of] [manufacture of] [giving of adequate warnings about] the product resulted in a defective condition in the product when it was sold.
* * * * *
Speiker v. Westgo, Inc., 479 N.W.2d 837 (ND 1992)
Oanes v. Westgo, Inc., 476 N.W.2d 248 (ND 1991)
2007
Rebuttable Heeding Presumption - Strict Product Liability
In considering the element of proximate cause on the strict product liability warning claim, you may presume that an adequate warning would have been read and followed, unless you find that it would not have been.
* * * * *
Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 509 (ND 1994)
Jacobs v. Anderson Building Co., 459 N.W.2d 384 (ND 1990)
Butz v. Werner, 438 N.W.2d 509 (ND 1989)
2007
To find a manufacturer at fault for negligent failure to take steps to warn of a danger learned after the product had already been sold, the Plaintiff must find these elements by the greater weight of the evidence:
1) After the sale of the product, the manufacturer learned of a danger in the use of the product that made it defective when it was sold;
2) The manufacturer failed to use ordinary care and diligence in taking steps to give an adequate warning to foreseeable users about the danger in the product; and
In considering whether the manufacturer acted with ordinary care and diligence, you may consider, the following factors, among others:
1) Whether, based upon the information available, the manufacturer knew or should have known that the product possessed a substantial risk of harm to persons without a warning.
2) Whether those to whom a warning might be provided could be identified, or may already reasonably be assumed to be aware of the risk of harm.
3) Whether a warning could have been effectively communicated to and acted on by those to whom a warning might be provided.
4) Whether the risk of harm is sufficiently great to justify the burden of providing a post-sale warning.
In considering whether the product possessed a substantial risk of harm, you may consider the nature of the harm that may result from use of the product without notice of the danger, the likelihood that harm will occur, and the number of persons affected. In considering whether those to whom a warning might be provided could be identified, or whether a warning could be effectively communicated to them, you may consider the type of product involved, the nature of the industry, and the number of units sold. In considering the burden of providing a warning, you may consider the cost and resources involved in identifying and contacting those to whom a warning might be provided after the product had already been sold.
* * * * *
Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 509 (ND 1994)
NOTE: This instruction explains the standard of care considered when a post-sale duty to warn exists. The Court must make a legal determination before giving this instruction that a duty to warn exists in the case based upon the existence of "special circumstances" including whether the manufacturer became aware of the danger after the sale, the seriousness of the potential injury, the risk of the injury occurring, and the number of persons affected.
2007
You may presume that a product is free of defect if the alleged defect in the plans or designs of the product, or the method and techniques of manufacturing, inspecting, and testing the product conformed with [government standards established for that industry] [applicable industry standards] existing at the time the plans, designs, methods, and techniques of manufacture, inspection, and testing were adopted, unless you find to the contrary.
* * * * *
NDCC 28-01.3-09
2007
Civil Rights Violation
To be found liable for a civil rights violation the Defendant must have deprived the Plaintiff of a right, privilege, or immunity secured by the First Amendment.
Depriving a person of their civil rights may include retaliation by the Defendant for exercising those rights. Such retaliation may be shown if it tends to chill or deter the civil rights of a person of ordinary firmness. Also, through the conduct of the Defendant, there is or will be a chilling effect on the First Amendment rights of a person or persons of ordinary firmness in the present or in the future.
Civil Rights Violation - Elements
For you to find the Defendant liable for a violation of the Plaintiff's civil rights, the Plaintiff must prove:
1. That the Defendant deliberately deprived the Plaintiff of a right, privilege, or immunity provided by the United States Constitution;
2. That the deprivation of such protected right, privilege, or immunity resulted from a policy or custom of the Defendant; and
3. That the Plaintiff sustained an actual injury as defined in these instructions.
* * * * *
Strand v. Cass County, 2006 ND 190, 721 N.W.2d 374
42 USC 1983
NOTE: If requested, the Court may be required to define policy and custom.
2007
(Harm to Others)
In considering an award of exemplary or punitive damages, you may, in determining the reprehensibility of the Defendant's conduct, consider the harm the Defendant's conduct has caused to others. You may not, however, punish the Defendant for harm caused to others whose cases are not before you. You may punish the Defendant only for harm done to the Plaintiff.
* * * * *
Phillip Morris USA v. Williams, No. 05-1256, 2007 WL 505781 (U.S. Feb. 20, 2007)
NOTE: The Court should give this instruction when there has been evidence or argument about the harm the Defendant's conduct has caused to others.
CRIMINAL
2007
Criminal Attempt
A person is guilty of Criminal Attempt if, acting with the kind of culpability otherwise
required
for commission of a crime, that person intentionally engages in conduct which constitutes
a substantial step toward commission of the crime. A "substantial step" is any conduct that
tends toward but falls short of actual commission and is strongly corroborative of the
firmness of the actor's intent to complete the commission of the crime.
[A person who engages in conduct intending to aid another in committing a crime is guilty
of Criminal Attempt if the conduct would establish that person as an accomplice were the
crime committed by the other person, even if the other is not guilty of committing or
attempting the crime.]
* * * * *
NDCC 12.1-06-01
State v. Stensaker, 2007 ND 6, 725 N.W.2d 883
Note: Use the bracketed paragraph if an accomplice is involved, whether or not the accomplice is prosecuted.
2007
Criminal Facilitation
(Substantial Assistance)
A person is guilty of Criminal Facilitation if that person knowingly provides substantial
assistance to someone who intends to commit a felony and who actually commits the crime
contemplated, or a like or related felony, employing the assistance provided. [The ready,
lawful availability from others of any goods or services provided by a Defendant is a factor
to be considered in determining whether the assistance was substantial.]
[It is no defense to a prosecution for Criminal Facilitation that the person whose conduct
the Defendant facilitated has been acquitted, has not been prosecuted or convicted, has
been convicted of a different offense, is immune to prosecution, or is otherwise not subject
to justice.]
* * * * *
NDCC 12.1-06-02
State v. Keller, 2005 ND 86, 695 N.W.2d 703
State v. Langan, 410 N.W.2d 149 (ND 1987)
Note: Criminal Facilitation does not apply to a person who is either expressly or by implication made not accountable by the statute defining the felony facilitated or related statutes. Facilitation of a class A felony is a class C felony. Facilitation of a class B or class C felony is a class A misdemeanor.
2007
Criminal Solicitation
A person is guilty of Criminal Solicitation if that person commands, induces, entreats, or otherwise attempts to persuade another person to commit a particular felony, whether as principal or accomplice, with intent to promote or facilitate the commission of that felony under circumstances strongly corroborative of that intent. However, a person cannot be found guilty of Criminal Solicitation unless the person solicited committed an overt act in response to the solicitation.
* * * * *
NDCC 12.1-06-03
2007
Criminal Conspiracy
A person commits Criminal Conspiracy if that person agrees with one or more persons to
engage in or cause conduct constituting an offense, and any one or more of those persons
act overtly to effect an objective of the conspiracy. The agreement need not be clearly
stated. It may be implicit in the fact of collaboration or existence of other circumstances.
If a person knows or could expect that one with whom that person agrees, has agreed, or
will agree with another to effect the same objective, that person is deemed to have agreed
with the other, whether or not the other's identity is known.
A conspiracy is deemed to continue until its objectives are accomplished, frustrated, or
abandoned. "Objectives" include escape from the scene of the crime, distribution of booty,
and measures, other than silence, for concealing the crime or obstructing justice in relation
to it. A conspiracy is deemed abandoned if no overt act to effect its objectives has been
committed by any conspirator during the applicable period of limitations.
* * * * *
NDCC 12.1-06-4
State v. Keller, 2005 ND 86, 695 N.W.2d 703
State v. Serr, 1998 ND 66, 575 N.W.2d 896
State v. McKinney, 518 N.W.2d 696 (ND 1994)
Note: It is no defense to a prosecution for Criminal Conspiracy that the person with whom the person is alleged to have conspired has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, is immune from prosecution, or is otherwise not subject to justice. Accomplice liability for offenses committed in furtherance of the conspiracy is to be determined by the law governing accomplice liability. Conspiracy is an offense of the same class as the crime that was the objective of the conspiracy.
1985
(2007 - reviewed with no changes)
Individual Accountability for Conduct on Behalf of Organization
A person who performs or causes conduct to be performed in the name of an organization
or on its behalf is legally accountable the same as if the conduct were performed in the
person's own name or behalf.
Except as otherwise expressly provided, if a duty to act is imposed upon an organization
by or pursuant to statute, any agent of the organization having primary responsibility for the
subject matter of the duty is legally accountable for an omission to perform the required act
the same as if the duty were imposed directly upon the agent.
* * * * *
NDCC 12.1-03.03 - 04
1985
(2007 - reviewed with no changes)
Organization - Agent
(Definitions)
"Organization" means any legal entity, whether or not organized as a corporation or
unincorporated association, but the term does not include an entity organized as or by a
governmental agency to perform a governmental function.
"Agent" means any partner, director, officer, servant, employee, or other person authorized
to act on behalf of an organization.
* * * * *
NDCC 12.1-03-04
2007
A corporation is liable for and may be convicted of any offense committed by an agent of the corporation within the scope of the agent's employment on the basis of conduct authorized, requested, or commanded, by any one or a combination of the following:
1) The board of directors;
2) An executive officer or any agent in a position of comparable authority with respect to the formulation of corporate policy or the supervision in a managerial capacity of subordinate employees;
3) Any person, whether or not an officer of the corporation, who controls the corporation or is responsibly involved in forming its policy; or
4) Any other person for whose act or omission the statute defining the offense provides corporate responsibility for offenses.
In addition, a corporation is liable for and may be convicted of [any offense consisting of an omission to discharge a specific duty of affirmative conduct imposed on a corporation by law] [any misdemeanor committed by an agent of the corporation within the scope of the agent's employment] [any offense for which an individual may be convicted without proof of culpability, committed by an agent of the corporation within the scope of the agent's employment].
It is no defense that an individual, upon whose conduct liability of the corporation for an offense is based, has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, is immune from prosecution, or is otherwise not subject to justice.
NDCC 12.1-03-02
State v. Smokey's Steakhouse, 478 N.W.2d 361 (ND 1991)
2007
A person may be convicted of an offense based upon the conduct of another when:
1) acting with the kind of culpability required for the offense, a person causes another to engage in that conduct;
2) with intent that an offense be committed, a person commands, induces, procures, or aids another to commit it, or, having a statutory duty to prevent its commission, a person fails to make proper effort to do so; or
3) a person is a co-conspirator whose association with the offense meets the requirements of either of the foregoing provisions.
[A person is not liable as an accomplice for the conduct of another if the statute defining the offense or related provisions either expressly or implicitly makes the person not accountable because the person is a victim of the offense or otherwise.]
[In a prosecution in which the liability of the Defendant is based upon the conduct of another, it is no defense that:
1) the Defendant does not belong to the class of persons who, because of their official status or other capacity or characteristic, are by definition of the offense the only persons capable of directly committing it; or
2) the person for whose conduct the Defendant is being held liable has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense, is immune from prosecution, or is otherwise not subject to justice.]
NDCC 12.1-03-01
State v. Baumgartner, 2001 ND 202, 637 N.W.2d 14
In re Interest of JCS, 1997 ND 126, 565 N.W.2d 759
State v. Deery, 489 N.W.2d 887 (ND Ct App 1992)
State v. Kelly, 450 N.W.2d 729 (ND 1990)
NOTE: This instruction should follow the definition of the crime charged if the guilt of the Defendant is based on specified conduct as an accomplice. The specific incriminating conduct must be enumerated with the other essential elements of the offense.
2007
A Defendant cannot be found guilty based on the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the Defendant with the commission of the offense. Corroboration is not sufficient if it merely shows the offense was committed or the circumstances of committing the offense.
You must be satisfied that there is some evidence, either direct or circumstantial, aside from the testimony of the accomplice, from which you may infer not only that the crime charged was committed, but that the Defendant was implicated in it. The corroborating evidence need not extend to every material point of the accomplice's testimony nor be sufficient in itself to support a conviction.
The sufficiency of the corroborating evidence is for you to determine. If the testimony of an accomplice is corroborated, you have a right to consider all of that testimony the same as any other testimony in the case.
NDCC 12.1-03-01; 29-21-14
State v. Fraser, 2000 ND 53, 608 N.W.2d 244
State v. Esparza, 1998 ND 13, 575 N.W.2d 203
State v. Marshall, 531 N.W.2d 284 (ND 1995)
2007
Justification
(Use of Force by Persons Responsible for Care and Supervision of Minors)
A [parent] [guardian] [other person responsible for the care and supervision of a minor] [person responsible for the care and supervision of the minor for a special purpose] [person acting at the direction of (any of the foregoing persons)] may use reasonable force upon the minor for the purpose of safeguarding or promoting the minor's welfare, including prevention and punishment of the minor's misconduct and the maintenance of proper discipline. The force must not create a substantial risk of death, serious bodily injury, disfigurement, or gross degradation.
* * * * *
NDCC 12.1-05-05(1)
2007
If you find from all the evidence in this case, beyond a reasonable doubt, that all of the foregoing essential elements of the crime of _______________ charged in the Information, viewed in the light of the law, have been proven, then it is your duty to find the Defendant guilty [,unless the Defendant has established the affirmative defense of _______________, by the greater weight of the evidence].
If the State has failed to establish any of those essential elements beyond a reasonable doubt, [or the Defendant has established the affirmative defense of _______________ by the greater weight of the evidence,] it is your duty to find the Defendant not guilty.
NDCC 12.1-01-03
State v. Olander, 1998 ND 50, 575 N.W.2d 658
Patterson v. New York, 432 US 197, 97 SCt 2319, 53 LEd2d 281 (1977)
Cf. NDJI C - 1.50, Meaning of "Find" (use of "find" in a civil action)
NOTE: This instruction follows the "Essential Elements of Offense" instruction in every case.
2007
You have been permitted to view the [premises] [property] involved in this case solely to help you understand the evidence received during the trial and to assist you in weighing the evidence and determining the credibility of witnesses. A view of the [premises] [property] does not allow you to consider matters outside the evidence received in court.
While you need not shut your eyes to what you see when an inspection is allowed by the Court, your verdict must be within the limits of the evidence received. Your verdict cannot rest alone upon your mere inspection of the [premises] [property].
NDCC 29-21-26
State v. Schlickenmayer, 334 N.W.2d 196, 199-200 (ND 1983)
State v. Rohrich, 135 N.W.2d 175, 180 (ND 1965)
2007
The opinion of an expert is based upon certain underlying facts or data. While you need not accept that opinion, you should consider it and give it such weight and credibility as you think it deserves in the light of all the circumstances. If you conclude that the opinion is not based on sufficient education or experience, or the reasons given in support of the opinion are unsound, or the opinion is outweighed by other evidence, you may disregard the opinion.
NDREv 702, 703, 705
State v. Hernandez, 2005 ND 214, 8-9, 707 N.W.2d 449
1985
(2007 - reviewed with no changes)
To assist you in considering the evidence in this case, you may apply to the facts and circumstances matters of common knowledge and science that are known to all persons of ordinary understanding and intelligence, and draw reasonable inferences from them, as if they were fully proved by direct evidence. That oil is lighter than water and that there are sixty (60) seconds in a minute are examples of common knowledge and science.
NDREv 201(g)
State v. Chambers, 280 NW 196 (ND 1938)
State v. Swift, 208 NW 388 (ND 1926)
NOTE: This instruction should be limited generally to cases involving physical dynamics or phenomena. If used in other cases, it may invite the Jury to consider common gossip or common report.
2007
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.
NDREv 404(b)
State v. Ash, 526 N.W.2d 473 (ND 1995)
State v. Haugen, 458 N.W.2d 288 (ND 1990)
2007
In reaching your verdict you must not discuss or consider any possible penalty or punishment as that matter lies with the Court and other governmental agencies.
* * * * *
State v. Steen, 2000 ND 152, 615 N.W.2d 555
State v. Mounts, 484 N.W.2d 843 (ND 1992)
2007
During the trial, testimony was presented to you by way of [audio-visual] deposition. The testimony of a witness who could not be present to testify in person may be presented in this form. That testimony is under oath and is entitled to neither more nor less consideration by you simply because it was so presented. You should give it such weight and credibility, so far as possible, as you would if the witness has been present in court and testified.
NDRCrimP 15
NOTE: This instruction should not be given if the deposition is used solely for impeachment purposes. That use is covered in NDJI K - 5.10, Impeachment.
2007
Gross Sexual Imposition
(Force or Threat) (Sexual Act)
A person who willfully [engages in a sexual act with another
person] [causes another
person to engage in a sexual act] is guilty of Gross Sexual Imposition if the actor compels
another person to submit by force or by threat of imminent death, serious bodily injury, or
kidnapping, to be inflicted on any human being.
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,
, willfully [engaged] [caused to engage] in a sexual act with _______________;
2) The Defendant did so by willfully compelling
to submit by force or by
threat of imminent death, serious bodily injury, or kidnapping, to be inflicted on
, a human being[.] [;and]
[3) As a result of injuries sustained during the course of the offense, ____________________ died.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02, 12.1-20-02.]
* * * * *
NDCC 12.1-20-01(2), 12.1-20-03(1)(a)
2007
Gross Sexual Imposition
(Impaired Power to Resist) (Sexual Act)
A person who willfully [engages in a sexual act with another person] [causes another person to engage in a sexual act] is guilty of Gross Sexual Imposition, if the actor, or someone with the actor's knowledge, has substantially impaired the other person's power to appraise or control the other person's conduct by administering or employing without the other person's knowledge, intoxicants, a controlled substance, or other means with intent to prevent resistance.
ESSENTIAL ELEMENTS OF THE 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,
_______________, willfully [engaged] [caused _______________ to engage] in a sexual
act with _______________;
2) The [Defendant] [or] [someone with the Defendant's
knowledge] did so by substantially
impairing _______________'s power to appraise or control ______________'s conduct by
administering or employing without _______________'s knowledge, [intoxicants, a
controlled substance, or other means] with intent to
prevent resistance[.] [; and]
[3) In the course of the offense, the Defendant inflicted serious bodily injury on .]
[4) As a result of injuries sustained during the course of the offense, ________________ died.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02; NDJI K - 7.01.]
* * * * *
color="#003366">NDCC 12.1-20-01(2),
12.1-20-02, 12-20-03(1)(b)
Note: Paragraph 3 or paragraph 4 should be used if a class AA felony is charged.
2007
Gross Sexual Imposition
(Victim Unaware) (Sexual Act)
A person who willfully [engages in a sexual act with another person] [causes another person to engage in a sexual act] is guilty of Gross Sexual Imposition, if the actor knows that the other person is unaware that a sexual act is being committed.
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, _______________, willfully [engaged] [caused _______________ to engage] in a sexual act with _______________; and
2) The Defendant did so knowing that _______________ was unaware that a sexual act was being committed[.] [; and]
[3) In the course of the offense, the Defendant inflicted serious bodily injury on
______________.]
[4) As a result of injuries sustained during the course of the offense, ________________ died.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02, 12.1-20-02.]
* * * * *
NDCC 12.1-20-01, 12.1-20-03(1)(c)
NOTE: Use the bracketed language of paragraph 3 or paragraph 4 if a class AA felony is charged.
2007
Gross Sexual Imposition
(Victim Less Than Fifteen-Years-Old) (Sexual Act)
A person who willfully [engages in a sexual act with another person] [causes another person to engage in a sexual act] is guilty of Gross Sexual Imposition if the other person was less than fifteen (15)-years-old.
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, _______________, willfully [engaged] [caused _______________ to engage] in a sexual act with _______________;
2) _______________was less than fifteen (15)-years-old; and
[3) In the course of the offense, the Defendant inflicted serious bodily injury on _______________.]
[4) The Defendant, , was more than five years older than _________________ at the time of the offense.]
[5) The Defendant , , was at least four but not more than five years older than ________________.]
[ 6) As a result of injuries sustained during the course of the offense, ________________ died.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02, 12.1-20-02.]
* * * * *
NDCC 12.1-20-01(2), 12.1-20-03(1)(d)
Note: Paragraph 3, 4, or 6 should be used if a class AA felony is charged. Paragraph 5 should be used if a Class C felony is charged.
2007
Gross Sexual Imposition
(Mental Disease or Defect) (Sexual Act)
A person who willfully [engages in a sexual act with another person] [causes another person to engage in a sexual act] is guilty of Gross Sexual Imposition if the actor knows or has reasonable cause to believe that the other person suffers from a mental disease or defect that prevents understanding the nature of the conduct.
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, , willfully [engaged] [caused to engage] in a sexual act with _______________; and
2) The Defendant then knew or had reasonable cause to believe that suffered from a mental disease or defect that prevented understanding the nature of the conduct[.] [; and]
[3) In the course of the offense, the Defendant inflicted serious bodily injury on _______________.]
[4) As a result of injuries sustained during the course of the offense, ________________ died.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02, 12.1-20-02.]
* * * * *
NDCC 12.1-20-01(2), 12.1-20-03(1)(e)
NOTE: Paragraph 3 or paragraph 4 should be used if a class AA felony is charged.
2007
Gross Sexual Imposition
(Force or Threat) (Sexual Contact)
A person who willfully [engages in sexual contact with another
person] [causes another
person to engage in sexual contact] is guilty of Gross Sexual Imposition if the actor
compels another person to submit by force or by threat of imminent death, serious bodily
injury, or kidnapping, to be inflicted on any human being.
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, , willfully [engaged] [caused _______________ to engage] in sexual contact with _______________;
2) The Defendant did so by willfully compelling _______________ to submit by force or by threat of imminent death, serious bodily injury, or kidnapping, to be inflicted on
, a human being[.] [;and]
[3) In the course of the offense, the Defendant inflicted serious bodily injury on_______________.]
[4) As a result of injuries sustained during the course of the offense, ________________ died.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02, 12.1-20-02.]
* * * * *
color="#003366">NDCC 12.1-20-01(2), 12.1-20-03(1)(a)
Note: Paragraph 3 or paragraph 4 should be used if a class AA felony is being charged; otherwise, the offense is a class A felony.
2007
Gross Sexual Imposition
(Victim Less Than Fifteen-Years-Old) (Sexual Contact)
A person who willfully [engages in sexual contact with another person] [causes another person to engage in sexual contact] is guilty of Gross Sexual Imposition if the other person was less than fifteen (15)-years-old.
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, _______________, willfully [engaged] [caused _______________ to engage] in sexual contact with _______________;
2) _______________was less than fifteen (15)-years-old; and
[3) In the course of the offense, the Defendant inflicted serious bodily injury on ____________.]
[4) The Defendant, , was more than five years older than _________________ at the time of the offense.]
[5) The Defendant, ,was at least four but not more than five years older than ________________.]
[6) As a result of injuries sustained during the course of the offense, ________________ died.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02, 12.1-20-02.]
* * * * *
NDCC 12.1-20-01(2), 12.1-20-03(1)(d)
Note: Paragraph
4 should be used if a class A felony is charged. Paragraph 5 should be used if a class
C felony is charged. Paragraph 3 or paragraph 6 should be used
if a class AA felony is charged.