JURY INSTRUCTION DRAFTS - October 2012
If you have questions or comments, please contact please contact Jennifer M. Hauge at cjhauge@dishmail.net.
2012 NDJI-CRIMINAL K - 6.15
Murder - Class A Felony
(Extreme Emotional Disturbance)
DELETED
2013 NDJI - CRIMINAL K - 6.01
Murder
(Intentionally or Knowingly)
A person who intentionally or knowingly causes the death of another human being is guilty of murder.
ESSENTIAL ELEMENTS OF OFFENSE
The State's burden of proof is established 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, ________________;
3) Intentionally or knowingly;
4) Caused the death of ________________, a human being[.] [; and]
[5) The Defendant did not act in self-defense.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02]
* * * * *
NDCC 12.1-16-01(1)(a)
See also NDCC Ch. 12.1-05 (defenses and accompanying jury instructions)
State v. Olander, 1998 ND 50 20, 23, 575 NW2d 658
State v. Skjonsby, 319 NW2d 764, 772-73 (ND 1982)
NOTE: If there is sufficient evidence supporting a claim of self-defense, use bracketed element number 5.
2013 NDJI - CRIMINAL K - 6.02
Murder
(Extreme Indifference to the Value of Human Life)
A person who willfully causes the death of another human being under circumstances manifesting extreme indifference to the value of human life is guilty of murder.
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, _________________;
3) Willfully;
4) Caused the death of _______________, a human being under circumstances manifesting extreme indifference to the value of human life[.] [; and]
[5) The Defendant did not act in self-defense.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02]
* * * * *
NDCC 12.1-16-01(1)(b)
State v. Olander, 1998 ND 50 20, 23, 575 NW2d 658
State v. Halvorson, 346 NW2d 704 (ND 1984)
NOTE: If there is sufficient evidence supporting a claim of self-defense, use bracketed element number 5.
2013 NDJI - CRIMINAL K - 6.03
Murder
(While Committing Crime)
A person who, acting either alone or with one or more persons, commits or attempts to commit [treason] [robbery] [burglary] [kidnapping] [felonious restraint] [arson] [gross sexual imposition] [escape] [the felony offense of ___________ against a child], and in the course of and in furtherance of that crime or of immediate flight from it, the person or another participant willfully causes the death of any person is guilty of murder.
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, _________________, acting either alone or with one or more persons;
3) Committed or attempted to commit [treason] [robbery] [burglary] [kidnapping] [felonious restraint] [arson] [gross sexual imposition] [escape] [the felony offense of ___________ against a child]; and
4) In the course of and in furtherance of that crime or of immediate flight from it;
5) The Defendant or any other participant in that crime;
6) Willfully caused the death of __________________, a human being[.] [; and]
[7) The Defendant did not act in self-defense.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02]
* * * * *
NDCC 12.1-16-01(1)(c)
State v. Olander, 1998 ND 50 20, 23, 575 NW2d 658
NOTE: If the charge alleges a felony offense against a child, insert the applicable allegation from NDCC 12.1-20-03, 12.1-27.2-02, 12.1-27.2-03, 12.1-27.2-04, or 14-09-22.
If there is sufficient evidence supporting a claim of self-defense, use bracketed element number 7.
2013 NDJI - CRIMINAL K - 6.10
Affirmative Defenses to Murder
(While Committing a Crime - Multiple Participants)
In a prosecution for murder while committing the crime of [treason] [robbery] [burglary] [kidnapping] [felonious restraint] [arson] [gross sexual imposition] [escape] [the felony offense of ___________ against a child], in which the Defendant was not the only participant, 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 in the commission of it;
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(c), 12.1-01-03(3)
NOTE: Follow this instruction with NDJI K - 4.30, Affirmative Defense - Burden of Proof.
If the charge alleges a felony offense against a child, insert the applicable allegation from NDCC 12.1-20-03, 12.1-27.2-02, 12.1-27.2-03, 12.1-27.2-04, or 14-09-22.
2013 NDJI - CRIMINAL K - 6.20
Manslaughter
(Reckless Conduct)
[If you find the Defendant not guilty of the crime of murder, then you must consider whether the Defendant is guilty of the crime of manslaughter, an offense necessarily included in the offense charged.]
A person who recklessly causes the death of another human being is guilty of manslaughter.
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, _________________;
3) Recklessly;
4) Caused the death of _______________, a human being[.][; and]
[5) The Defendant did not act in self-defense.]
DEFINITIONS
A person engages in conduct "recklessly" if the person engages in the conduct in conscious and clearly unjustifiable disregard of a substantial likelihood of the existence of the relevant facts or risks, such disregard involving a gross deviation from acceptable standards of conduct. Awareness of the risk is not required where its absence is due to self-induced intoxication.
* * * * *
NDCC 12.1-16-01, 12.1-02-02(1)(c), 12.1-01-04(15)
State v. Olander, 1998 ND 50 20, 23, 575 NW2d 658
State v. Leidholm, 334 NW2d 811, 816, 821 (ND 1983)
State v. Trieb, 315 NW2d 649, 657 (ND 1982)
State v. Granrud, 301 NW2d 398, 403 (ND 1981)
NOTE: The first bracketed paragraph should be omitted if the Defendant is not charged with murder. If there is sufficient evidence supporting a claim of self-defense, use bracketed element number 5.
2013 NDJI - CRIMINAL K - 6.30
Negligent Homicide
(Negligently Causes Death)
[If you find the Defendant not guilty of the crime of manslaughter, then you must consider whether the Defendant is guilty of the crime of negligent homicide.]
A person who negligently causes the death of another human being is guilty of negligent homicide.
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, _________________;
3) Negligently;
4) Caused the death of _______________, a human being[.] [; and]
[5) The Defendant did not act in self-defense.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02]
NDCC 12.1-16-03, 12.1-02-02(1)(d)
See also Ch. 12.1-05 (defenses and accompanying jury instructions)
State v. Olander, 1998 ND 50, 20, 23, 575 NW2d 658
State v. Tranby, 437 NW2d 817 (ND 1989)
State v. Leidholm, 334 NW2d 811, 821 (ND 1983)
State v. Schlickenmayer, 334 NW2d 195, 198 (ND 1983)
State v. Skjonsby, 319 NW2d 764, 777 (ND 1982)
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. If there is sufficient evidence supporting a claim of self-defense, use bracketed element number 5.
2013 NDJI - CRIMINAL K - NEW (6.53)
Murder of an Unborn Child
(While Committing Crime)
A person who, acting either alone or with one or more persons, commits or attempts to commit [treason] [robbery] [burglary] [kidnapping] [felonious restraint] [arson] [gross sexual imposition] [escape], and in the course of and in furtherance of that crime or of immediate flight from it, the person or another participant willfully 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, _______________, acting either alone or with one or more persons;
3) Committed or attempted to commit [treason] [robbery] [burglary] [kidnapping] [felonious restraint] [arson] [gross sexual imposition] [escape]; and
4) In the course of and in furtherance of that crime or of immediate flight from it;
5) The Defendant or any other participant in that crime;
6) Willfully caused the death of an unborn child[.][; and]
[7) 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)(c)
NDCC 12.1-05-03
State v. Geiser, 2009 ND 36, 763 NW2d 469 (recognizing that the 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 7.
The statute allows the defendant to claim certain affirmative defenses that may apply on a case by case basis; see instruction K-6.10.
2013 NDJI - CRIMINAL K - NEW (8.05)
Aggravated Assault of an Unborn Child
A person who willfully assaults a pregnant woman and inflicts serious bodily injury to an unborn child is guilty of aggravated assault 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, ____________;
3) Willfully assaulted a pregnant woman; and
4) Inflicted serious bodily injury to an unborn child
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02]
* * * * *
NDCC 12.1-01-04(29)
NDCC 12.1-17.1-05
State v. Geiser, 2009 ND 36, 763 NW2d 469 (recognizing that the pregnant woman cannot be charged with the crimes under Chapter 12.1-17.1)
2013 NDJI - CRIMINAL K - NEW
Release of Destructive Forces
(Intentional)
A person who intentionally causes a catastrophe by any means is guilty of release of destructive forces.
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, _____________________,
3. Intentionally,
4. Caused a catastrophe by any means.
DEFINITIONS
[Insert Relevant Definitions NDCC 12.1-21-04(4), 12.1-02-02]
2013 NDJI - CRIMINAL K - NEW
Release of Destructive Forces
(Willful)
A person who willfully causes a catastrophe by any means is guilty of release of destructive forces.
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, _____________________,
3. Willfully,
4. Caused a catastrophe by any means.
DEFINITIONS
[Insert Relevant Definitions NDCC 12.1-21-04(4), 12.1-02-02]
2013 NDJI - CRIMINAL K - NEW
Release of Destructive Forces
(Willful Creation of Risk)
A person who willfully creates a risk of catastrophe is guilty of release of destructive forces.
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, _____________________,
3. Willfully,
4. Created a risk of catastrophe, even though no fire, explosion, or other destruction resulted.
DEFINITIONS
[Insert Relevant Definitions NDCC 12.1-21-04(4), 12.1-02-02]
2013 NDJI - CRIMINAL K - NEW
Release of Destructive Forces
(Failure to Take Reasonable Measures to Prevent Catastrophe)
A person who knowingly does an act which causes or which the person knows is likely to cause a catastrophe or assents to the doing of such act is guilty of release of destructive forces if that person willfully fails to take reasonable measures to prevent the catastrophe.
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, ___________________________,
3. Knowingly did an act which caused or which the person knew was likely to cause a catastrophe or assented to the doing of such act, and
4. Willfully failed to take reasonable measures to prevent the catastrophe.
DEFINITIONS
[Insert Relevant Definitions NDCC 12.1-21-04(4), 12.1-02-02]
2013 NDJI - CRIMINAL K - NEW
Interference with Telephone During Emergency Call
(Knowingly or Recklessly)
A person who knowingly or recklessly removes, damages, or obstructs any telephone or telephone line or any part or apparatus on the line, or severs any wire connected to the line, so as to interfere with an emergency telephone call is guilty of interference with a telephone during an emergency call.
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, ___________________________,
3. Knowingly or recklessly,
4. Removed, damaged, or obstructed any telephone or telephone line or any part or apparatus on the line, or severed any wire connected to the line, so as to interfere with an emergency telephone call.
DEFINITIONS
[Insert Relevant Definitions NDCC 12.1-02-02]
* * * * *
NDCC 12.1-21-06.1
2013 NDJI - CRIMINAL K - NEW
Interference with Telephone During Emergency Call
(Intentional)
A person who intentionally removes, damages, or obstructs any telephone or telephone line or any part or apparatus on the line, or severs any wire connected to the line, so as to interfere with an emergency telephone call is guilty of interference with a telephone during an emergency call.
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, ___________________________,
3. Intentionally,
4. Removed, damaged, or obstructed any telephone or telephone line or any part or apparatus on the line, or severed any wire connected to the line, so as to interfere with an emergency telephone call.
DEFINITIONS
[Insert Relevant Definitions NDCC 12.1-02-02]
* * * * *
NDCC 12.1-21-06.1
2013 NDJI - CRIMINAL K - NEW
Detection Shielding Device
A person who knowingly manufactures, sells, offers for sale, or distributes any laminated or coated bag or device peculiar to shielding and intended to shield merchandise from detection by an electronic or magnetic theft alarm sensor is guilty of unlawful distribution of a theft detection shielding device.
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, ______________________________,
3) Knowingly,
4) [Manufactured] [Sold] [Offered for sale] [Distributed] [a laminated bag] [a device] peculiar to shielding and intended to shield merchandise from detection by an electronic or magnetic theft alarm sensor.
DEFINITIONS
[Insert relevant definitions, N.D.C.C. §12.1-02-02, 12.1-23-10]
* * * * *
NDCC 12.1-23-13(1)
2013 NDJI - CRIMINAL K - NEW
Unlawful Possession of a Theft Detection Shielding Device
A person who knowingly possesses any laminated or coated bag or device peculiar to and designed for shielding and intended to shield merchandise from detection by an electronic or magnetic theft alarm sensor, with the intent to commit theft is guilty of unlawful possession of a theft detection shielding device.
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, ______________________________,
3) Knowingly,
4) Possessed [a laminated or coated bag] [a device] peculiar to and designed for shielding and intended to shield merchandise from detection by an electronic or magnetic theft alarm sensor,
5) With the intent to commit theft.
DEFINITIONS
[Insert relevant definitions, N.D.C.C. §12.1-02-02, 12.1-23-10]
* * * * *
NDCC 12.1-23-13(2)
2013 NDJI - CRIMINAL K - NEW
Unlawful Possession of a Theft Detection
Device Deactivator or Remover
A person who knowingly possesses any tool or device designed to allow the deactivation or removal of any theft detection device from any merchandise without the permission of the merchant or person owning or holding the merchandise is guilty of unlawful possession of a theft detection device deactivator or remover.
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, __________________________________,
3) Knowingly,
4) Possessed a tool or device designed to allow the deactivation or removal of any theft detection device from merchandise,
5) Without the permission of the merchant or person owning or holding the merchandise.
DEFINITIONS
[Insert relevant definitions, NDCC 12.1-02-02, 12.1-23-10]
* * * * *
NDCC 12.1-23-13(3)
2013 NDJI - CRIMINAL K - NEW
Unlawful Deactivation or Removal of Theft Detection Device
A person who intentionally deactivates or removes a theft detection device from a product before purchase is guilty of unlawful deactivation or removal of theft detection device.
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, ______________________________,
3) Intentionally,
4) Deactivated or removed a theft detection device from a product before purchase.
DEFINITIONS
[Insert relevant definitions, NDCC 12.1-02-02, 12.1-23-10]
* * * * *
NDCC 12.1-23-13(4)
2013 NDJI - CRIMINAL K - NEW
Unlawful Distribution of a Theft Detection Device
Deactivator or Remover
A person who knowingly manufactures, sells, offers for sale, or distributes any tool or device designed to allow the deactivation or removal of any theft detection device from merchandise without the permission of the merchant or person owning or holding the merchandise is guilty of unlawful distribution of a theft detection device deactivator or remover.
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, __________________________________,
3) Knowingly,
4) [Manufactured] [Sold] [Offered for sale] [Distributed] a tool or device designed to allow the deactivation or removal of a theft detection device from merchandise,
5) Without the permission of the merchant or person owning or holding the merchandise.
DEFINITIONS
[Insert relevant definitions, NDCC 12.1-02-02, 12.1-23-10]
* * * * *
NDCC 12.1-23-13(5)
2013 NDJI-CIVIL C - 12.05
Justifiable Response to Assault
An individual may use any force necessary to protect his or her person. However, the force used must be no more than the individual reasonably believed necessary at that time to provide the necessary protection.
If the Plaintiff committed the initial assault, the burden is on the individual assaulted to prove that no more force than was reasonably necessary was used to prevent or contain the assault. In meeting that burden, the Defendant must have some reasonable basis for believing he or she was in danger. In addition, the Defendant must have some reasonableness in the belief of the amount or degree of force used under the circumstances. In determining whether only reasonable and necessary force was used, the relative physical strength of the attacker and the party attacked and differences in their ages or sex are to be taken into consideration.
* * * * *
Jahner v. Jacob, 233 NW2d 791 (ND 1975), cert. denied, 423 US 870 (1975)
McLean v. Foisie, 33 ND 646, 157 NW 840 (1916)
See also: NDCC 12.1-05-07.1 and -07.2; Dahlen v. Landeis 314 NW2d 63 (ND 1981)
2013 NDJI CRIMINAL K - 5.16
Direct and Circumstantial Evidence
A fact can be proved by either direct evidence or circumstantial evidence, or by both.
If an eyewitness testifies about what the witness saw, that is an example of direct evidence.
If the ground is bare when you go to sleep but is covered with a blanket of snow when you awake, this is circumstantial evidence that it snowed while you were asleep.
The law makes no distinction between direct and circumstantial evidence. You should give all evidence the weight and value you believe it is entitled to receive. A conviction may be justified on circumstantial evidence alone if the circumstantial evidence has such probative force as to enable you to find the Defendant guilty beyond a reasonable doubt.
* * * * *
State v. Nakvinda, 2011 ND 217, 807 NW2d 204
State v. Noorlun, 2005 ND 189, 705 NW2d 819
8TH CIR. CRIM. JURY INSTR. § 1.03 (2011)
1985 NDJI-CRIMINAL K - 3.40
(reviewed 2013 with no changes)
Defense of Others
A person is justified in using force upon another in order to defend anyone else if the one defended would be justified to act in self-defense and the person coming to the defense has not, by provocation or otherwise, forfeited the right of
self-defense.* * * * *
NDCC 12.1-05-04, 12.1-05-12(1), 14-02-07
2013 NDJI-CRIMINAL K - 3.80
Excuse
(Necessary and Appropriate Conduct)
A person's conduct is excused if the person believes that the facts are such that the conduct is necessary and appropriate, even though that belief is mistaken. [However, if that belief is negligently or recklessly held, it is not an excuse in a prosecution for any offense for which negligent or reckless conduct suffices to establish culpability.]
* * * * *
NDCC 12.1-05-08
State v. Skjonsby, 319 NW2d 764, 776 (ND 1982)
State v. Hass, 268 NW2d 456, 461 (ND 1978)
State v. Kleppe, 2011 ND 141, 800 NW2d 311
Note: This instruction should be given if evidence has been received sufficient to support a finding of excuse, in which case the "Essential Elements of Offense" instruction should require a negative finding of the exculpatory belief. The bracketed sentence should be given only if negligent or reckless conduct suffices to establish culpability for the offense charged. See: State v. Zottnick, 2011 ND 84, 796 NW2d 666, for discussion on when excuse instruction should be given.