JURY INSTRUCTION DRAFTS - October 2011
If you have questions or comments, please contact please contact Jennifer M. Hauge at cjhauge@dishmail.net.
2012 NDJI CRIMINAL K - NEW
Murder of an Unborn Child (Intentionally or Knowingly)
A person who intentionally or knowingly causes the death of an unborn child is guilty of murder of an unborn child.
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;
2) The Defendant, _______________, intentionally or knowingly caused the death of the unborn child[.][; and]
[3) The Defendant did not act in self-defense.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02 & 12.1-17.1-01]
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NDCC 12.1-17.1-02(1)(a)
NDCC 12.1-05
State v. Geiser, 2009 ND 36, 763 N.W.2d 469 (recognizing a "person" does not include a pregnant woman under this Chapter 12.1-17.1 and as such a pregnant woman cannot be charged with the crimes under Chapter 12.1-17.1)
NOTE: If there is sufficient evidence supporting a claim of self-defense, use bracketed element number 3.
2012 NDJI CRIMINAL K - NEW
Murder of an Unborn Child (Extreme Indifference)
A person is guilty of murder of an unborn child if the person willfully causes the death of an unborn child under circumstances manifesting extreme indifference to the value of the life of the unborn child or the pregnant woman.
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;
2) The Defendant, ____________, willfully caused the death of the unborn child;
3) Under circumstances manifesting extreme indifference to the value of the life of the unborn child or the pregnant woman[.] [;and]
[4) The Defendant did not act in self-defense.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02 & 12.1-17.1-01]
* * * * *
NDCC 12.1-17.1-02(1)(b)
NDCC 12.1-05
State v. Geiser, 2009 ND 36, 763 N.W.2d 469 (recognizing a "person" does not include a pregnant woman under this Chapter 12.1-17.1 and as such a pregnant woman cannot be charged with the crimes under Chapter 12.1-17.1)
NOTE: If there is sufficient evidence supporting a claim of self-defense, use bracketed element number 4.
2012 NDJI CRIMINAL K - NEW
Manslaughter of an Unborn Child
[If you find the Defendant not guilty of the crime of murder of an unborn child, then you must consider whether the Defendant is guilty of the crime of manslaughter of an unborn child, an offense necessarily included in the offense charged.]
A person who recklessly causes the death of an unborn child is guilty of manslaughter of an unborn child.
ESSENTIAL ELEMENTS OF INCLUDED 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;
2) The Defendant, ___________, recklessly caused the death of an unborn child[.] [; and]
[3) The Defendant did not act in self-defense.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-01-04; 12.1-02-02 & 12.1-17.1-01]
* * * * *
NDCC 12.1-01-04(15)
NDCC 12.1-17.1-03
NDCC 12.1-02-02(1)(c)
State v. Granrud, 301 NW2d 198 (ND 1981)
State v. Leidholm, 334 NW2d 811 (ND 1983)
State v. Trieb, 315 NW2d 649 (ND 1982)
State v. Geiser, 2009 ND 36, 763 NW2d 469 (recognizing a "person" does not include a pregnant woman under this Chapter 12.1-17.1 and as such a pregnant woman cannot be charged with the crimes under Chapter 12.1-17.1)
NOTE: The first bracketed paragraph should be omitted if the Defendant is not charged with murder of an unborn child. If there is sufficient evidence supporting a claim of self-defense, use bracketed element number 3.
2012 NDJI CRIMINAL K - NEW
Negligent Homicide of an Unborn Child
[If you find the Defendant not guilty of the crime of manslaughter of an unborn child, then you must consider whether the Defendant is guilty of the crime of negligent homicide of an unborn child, an offense that is necessarily included in the offense charged.]
A person who negligently causes the death of an unborn child is guilty of negligent homicide of an unborn child.
ESSENTIAL ELEMENTS OF INCLUDED 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;
2) The Defendant, _____________, negligently caused the death of an unborn child[.][;and]
[3) The Defendant did not act in self-defense.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02; 12.1-17.1-01]
* * * * *
NDCC 12.1-17.1-04
NDCC 12.1-16-03
State v. Leidholm, 334 NW2d 811 (ND 1983)
State v. Schlickenmayer, 334 NW2d 195 (ND 1983)
State v. Skjonsby, 319 NW2d 764 (ND 1982)
State v. Geiser, 2009 ND 36, 763 N.W.2d 469 (recognizing a "person" does not include a pregnant woman Chapter 12.1-17.1, and as such a pregnant woman cannot be charged with the crimes under Chapter 12.1-17.1)
NOTE: Negligent Homicide is not limited to motor vehicle homicides; it covers any homicide caused "negligently." The bracketed language of the first paragraph should be omitted if the Defendant is not charged with manslaughter of an unborn child. If there is sufficient evidence supporting a claim of self-defense, use bracketed element number 3.
2012 NDJI-CRIMINAL K - NEW
Unlawful Possession of a Handgun by Person Under 18 Years
A person who, under the age of eighteen (18) years, possessed a handgun when they were not under the direct supervision of an adult for the purposes of firearm safety training, target shooting, or hunting, is guilty of unlawful possession of a handgun.
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;
2) The Defendant, _______________, was under the age of eighteen (18) years; and
3) Possessed a handgun; and
4) Was not under the direct supervision of an adult for the purposes of firearm safety training, target shooting, or hunting.
DEFINITIONS
[Insert relevant definitions. NDCC § 62.1-01-01]
* * * * *
NDCC 62.1-02-01(1)(d)
State v. Eldred, 1997 ND 112, 32-34, 564 NW2d 283 (discussing the title of the jury instruction and the essential element of having to prove the underlying felony conviction)
2012 NDJI-CRIMINAL K - NEW
Unlawful Possession of a Firearm
(Felony conviction or
Class A Misdemeanor conviction for violence or intimidation)
A person who has been convicted of [a felony offense] [a Class A Misdemeanor offense involving violence or intimidation in violation of {list specific offense from chapters 12.1-16 through 12.1-25 or equivalent federal or state offense} and the offense was committed while using or possessing a firearm, destructive device or an explosive], and owned, possessed or had under the person's control a firearm within five (5) years from the date of conviction, release from incarceration, parole or probation, whichever is latest, is guilty of unlawful possession of a firearm.
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;
2) The Defendant, _______________, has been convicted of [a felony offense] [a Class A Misdemeanor {list specific offense involving violence or intimidation from chapters 12.1-16 through 12.1-25 or equivalent federal or state offense} and the offense was committed while using or possessing a firearm, destructive device or an explosive];
3) Owned, possessed, or controlled a firearm; and
4) Did so within five (5) years from the date of conviction, release from incarceration, parole or probation, whichever is latest.
DEFINITIONS
[Insert relevant definitions. NDCC § 62.1-01-01; 62.1-02-01(2)]
* * * * *
NDCC 62.1-02-01(1)(b)
State v. Eldred, 1997 ND 112, 32-34, 564 NW2d 283 (discussing the title of the jury instruction and the essential element of having to prove the underlying felony conviction)
2012 NDJI-CRIMINAL K - NEW
Unlawful Possession of a Firearm
(Felony conviction for violence or intimidation)
A person who has been convicted of a felony offense involving violence or intimidation and owned, possessed or controlled a firearm within ten (10) years from the date of conviction, release from incarceration, parole or probation, whichever is latest, is guilty of unlawful possession of a firearm.
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;
2) The Defendant, _______________, has been convicted of [list specific felony offense from chapters 12.1-16 through 12.1-25 or equivalent federal or state offense] involving violence or intimidation;
3) Owned, possessed, or controlled a firearm; and
4) Did so within ten (10) years from the date of conviction, release from incarceration, parole or probation, whichever is latest.
DEFINITIONS
[Insert relevant definitions. NDCC § 62.1-01-01; 62.1-02-01(2)]
* * * * *
NDCC 62.1-02-01(1)(a)
State v. Eldred, 1997 ND 112, 32-34, 564 NW2d 283 (discussing the title of the jury instruction and the essential element of having to prove the underlying felony conviction)
2012 NDJI-CRIMINAL K - NEW
Disobedience of Judicial Order
A person is guilty of disobedience of a judicial order if the person disobeys or resists a [lawful temporary restraining order] [preliminary injunction] [final injunction] [final order] of a court of this state.
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 [City][County], North Dakota;
2) The Defendant, _______________________, willfully disobeyed or resisted a [lawful temporary restraining order] [preliminary injunction] [final injunction] [final order] of a court of this state.
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-01-04.]
* * * * *
NDCC 12.1-10-05
State v. Holecek, 545 N.W.2d 800 (N.D. 1996)
State v. Franck, 499 N.W.2d 108 (N.D. 1993)
2012 NDJI-CRIMINAL K - 3.34
Self-Defense (Reasonableness of Accused's Belief)
The Defendant's conduct is to be judged by what the Defendant in good faith honestly believed and had reasonable grounds to believe was necessary to avoid apprehended death or great bodily injury.
* * * * *
State v. Leidholm, 334 NW2d 811, 818 (ND 1983)
See also K-3.52 (Use of Deadly Force - Presumption of Fear of Death or Serious Bodily Injury)
2012 NDJI-CRIMINAL K - 6.10
Affirmative Defenses to [Murder] [Murder of Unborn Child]
(Multiple Participants)
In a prosecution for [Murder] [Murder of Unborn Child] while committing a crime in which the Defendant was not the only participant in the underlying crime, it is an affirmative defense that the Defendant:
1) did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid the commission thereof;
2) was not armed with a firearm, destructive device, dangerous weapon, or other weapon which under the circumstances indicated a readiness to inflict serious bodily injury;
3) reasonably believed that no other participant was armed with such a weapon; and
4) reasonably believed that no other participant intended to engage in conduct likely to result in death or serious bodily injury.
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-01-04.]
* * * * *
NDCC 12.1-16-01, 12.1-01-03(3)
NOTE: Follow this instruction with NDJI K - 4.30, Affirmative Defense - Burden of Proof.
2012 NDJI-CRIMINAL K - 7.01
Definitions for Sex Offenses
"Deviate sexual act" means any form of sexual contact with an animal, bird, or dead person.
"Disseminate" means to sell, lease, rent, advertise, broadcast, transmit, exhibit, or distribute for pecuniary gain. "Disseminate" includes any transmission of visual material shown on a cable television system, whether or not accompanied by a soundtrack, and any sound recording played on a cable television system.
"Harmful to minors" means that quality of any description or representation, in whatever form of sexual conduct or sexual excitement, when such description or representation considered as a whole, appeals to the prurient sexual interest of minors; is patently offensive to prevailing standards in the adult community in North Dakota as a whole with respect to what is suitable material for minors; and considered as a whole, lacks serious literary, artistic, political, or scientific value for minors.
"Material" means any physical object, including, but not limited to, any type of book, sound recording, film, or picture used as a means of presenting or communicating information, knowledge, sensation, image, or emotion to or through a human being's receptive senses.
"Nude or partially denuded human figures" means less than completely and opaquely covered human genitals, pubic regions, female breasts or a female breast, if the breast or breasts are exposed below a point immediately above the top of the areola, or human buttocks; and includes human male genitals in a discernibly turgid state even if completely and opaquely covered.
"Object" means anything used in commission of a sexual act other than the person of the actor.
"Obscene material" and "obscene performance" mean material or a performance which [taken as a whole, the average person, applying contemporary North Dakota standards, would find predominantly appeals to a prurient interest]; [depicts or describes in a patently offensive manner sexual conduct, whether normal or perverted]; [taken as a whole, the reasonable person would find lacking in serious literary, artistic, political, or scientific value]. Whether material or a performance is obscene must be judged with reference to ordinary adults, unless it appears from the character of the material or the circumstances of its dissemination that the material or performance is designed for minors or other specially susceptible audience, in which case the material or performance must be judged with reference to that type of audience.
"Obscene sexual performance" means any performance which includes sexual conduct by a minor in any obscene material or obscene performance.
"Patently offensive" means so offensive on its face as to affront the contemporary North Dakota standards of decency.
"Performance" means any play, dance, or other exhibition presented before an audience.
"Promote" means to procure, produce, direct, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise.
"Prurient interest" means a voyeuristic, lascivious, degrading, shameful, or morbid interest in nudity, sex, or excretion that goes substantially beyond customary limits of candor in description or representation of those matters.
"Sadomasochistic abuse" means a depiction or description of flagellation or torture by or upon a person who is nude or clad in undergarments or in a bizarre or revealing costume; or the condition of being fettered, bound, or otherwise physically restrained on the part of one so clothed.
"Sexual act" means sexual contact between human beings consisting of contact between [the penis and the vulva] [the penis and the anus] [the mouth and the penis] [the mouth and the vulva] [the use of an object which comes in contact with the victim's anus, vulva, or penis] [,or] [any other portion of the human body and the penis, anus or vulva]. Sexual contact between [the penis and the vulva] [the penis and the anus] [an object and the anus, vulva, or penis of the victim] [,or] [any other portion of the human body and the penis, anus, or vulva] occurs upon penetration, however slight. Emission is not required.
"Sexual conduct" means actual or simulated sexual intercourse, sodomy, sexual bestiality, masturbation, sadomasochistic abuse, excretion, or lewd exhibition of the buttocks, breasts, or genitals.
"Sexual contact" means any touching whether or not through the clothing or other covering of the sexual or other intimate parts of the person for the purpose of arousing or satisfying sexual or aggressive desires.
"Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.
"Sexually expressive image" means a photograph or visual representation that exhibits a nude or partially denuded human figure.
"Sexual performance" means any performance which includes sexual conduct by a minor.
"Simulated" means the explicit depiction of any of the conduct which creates the appearance of actual sexual conduct and which exhibits any nude or partially denuded human figure.
"Sodomy" means contact between the penis and the anus, the mouth and the penis, the mouth and the vulva, or the mouth and the anus.
"Where minors are or may be invited as a part of the general public" includes any public roadway or public walkway excluding a bona fide school, college, university, museum, public library, or art gallery.
* * * * *
NDCC 12.1-20-02 NDCC 12.1-27.1-01, 02, 03.1
2012 NDJI CRIMINAL K - 14.00
Fleeing or Attempting to Elude a Peace Officer
The driver of a motor vehicle who willfully fails or refuses to bring the vehicle to a stop, or who otherwise flees or attempts to elude, in any manner, a pursuing police vehicle or peace officer, when given a visual or audible signal to bring the vehicle to a stop, is guilty of fleeing or attempting to elude a peace officer.
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 [City] [County], North Dakota;
2) The Defendant, _______________, drove a motor vehicle; and
3) Willfully failed or refused to bring the vehicle to a stop or otherwise fled or attempted to elude, in any manner, a pursuing police vehicle or peace officer, when given a visual or audible signal to bring the vehicle to a stop.
The signal must be perceptible to the driver and:
1) if given from a vehicle, the signal must be given by hand, voice, emergency light, or siren, and the stopping vehicle must be appropriately marked showing it to be an official police vehicle; or
2) if not given from a vehicle, the signal must be given by hand, voice, emergency light, or siren, and the officer must be in uniform or must prominently display the officer's badge of office.
DEFINITIONS
[Insert relevant definitions. NDCC 39-01-01]
* * * * *
NDCC 39-10-71
NOTE: If the Defendant was not a driver of a motor vehicle, please use NDJI K-14.01, Refusing to Halt.
2012 NDJI-CRIMINAL K - 14.01
Refusing to Halt
Any person who willfully fails or refuses to stop or who otherwise flees or attempts to elude, in any manner, a pursuing peace officer, when given a visual or audible signal to stop is guilty of refusing to halt.
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 [City][County], North Dakota;
2) The Defendant, _______________________, willfully failed or refused to stop or otherwise fled or attempted to elude, in any manner, a pursuing peace officer, when given a visual or audible signal to stop; and
3) The signal to stop must be perceptible to the Defendant and:
a) If given from a vehicle, the signal must be given by hand, voice, emergency light, or siren, and the vehicle is appropriately marked showing it to be an official law enforcement vehicle; or
b) If not given from a vehicle, the signal must be given by hand, voice, emergency light, or siren, and the officer is in uniform or prominently displays the officer's badge of office.
DEFINITIONS
[Insert relevant definitions. NDCC §12.1-02-02]
* * * * *
NDCC 12.1-08-11.
NOTE: If the Defendant was a driver of a motor vehicle, please use NDJI K-14.00, Fleeing or Attempting to Elude a Peace Officer.
2012 NDJI-CRIMINAL K - 17.20
Disorderly Conduct
A person who, [intends to harass, annoy, or alarm another] [in reckless disregard of the fact that another person is harassed, annoyed, or alarmed by the behavior], [engages in fighting, or in violent, tumultuous, or threatening behavior] [makes unreasonable noise] [in a public place, uses abusive or obscene language, or makes an obscene gesture] [obstructs vehicular or pedestrian traffic, or the use of a public facility] [persistently follows another in or about a public place or places] [while loitering in a public place for the purpose of soliciting sexual contact, solicits such contact] [creates a hazardous, physically offensive, or seriously alarming condition by any act that serves no legitimate purpose] [engaged in harassing conduct by means of intrusive or unwanted acts, words, or gestures intended to adversely affect the safety, security, or privacy of another person] [used a fixed optical device that enhanced or recorded a visual occurrence to view through any window of another pseron's property; or used a surveillance camera to capture an image from the dwelling or accessory structure of another person], is guilty of Disorderly 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, _______________, [engaged in fighting, violent, tumultuous, or threatening behavior] [made unreasonable noise] [used abusive or obscene language or made an obscene gesture while in _______________, a public place] [obstructed vehicular traffic or pedestrian traffic or the use of a public facility] [persistently followed _______________, in or about a public place or places] [while loitering in _______________, a public place, for the purpose of soliciting sexual contact, solicited such contact] [created a hazardous, physically offensive, or seriously alarming condition by an act which served no legitimate purpose][engaged in harassing conduct by means of intrusive or unwanted acts, words, or gestures intended to adversely affect the safety, security or privacy of another person] [used a fixed optical device that enhanced or recorded a visual occurrence to view through any window of another pseron's property; or used a surveillance camera to capture an image from the dwelling or accessory structure of another person]; and
[2) The Defendant did not move the optical device within seven days of being notified by a law enforcement officer to direct or shield the camera so as to not capture an image from another person's dwelling or accessory structure before there is an offense]
3) The Defendant did so [with the intent to harass, annoy, or alarm _______________] [in reckless disregard of the fact that _______________ was harassed, annoyed, or alarmed by the behavior].
DEFINITIONS[Insert relevant definitions. NDCC 12.1-02-02.]
* * * * *
2012 NDJI-CRIMINAL K - 17.20
NDCC 12.1-31-01
NOTE: Use paragraph 2 only if the defendant was using a surveillance camera.