IN RE ADOPTION OF 2019 REVISIONS TO OKLAHOMA JURY INSTRUCTIONS-CRIMINAL (2D)

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IN RE ADOPTION OF 2019 REVISIONS TO OKLAHOMA JURY INSTRUCTIONS-CRIMINAL (2D)
2019 OK CR 28
Case Number: CCAD-2019-1
Decided: 12/20/2019
IN RE ADOPTION OF THE 2019 REVISIONS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS-CRIMINAL (2D)

Cite as: 2019 OK CR 28, __ __

ORDER ADOPTING AMENDMENTS TO OKLAHOMA
UNIFORM JURY INSTRUCTIONS-CRIMINAL (SECOND EDITION)

¶1 On August 30, 2019, the Oklahoma Court of Criminal Appeals Committee for Preparation of Uniform Jury Instructions submitted its report and recommendations to the Court for adoption of amendments to Oklahoma Uniform Jury Instructions-Criminal (Second Edition). The Court has reviewed the report by the committee and recommendations for the adoption of the 2019 proposed revisions to the Uniform Jury Instructions. Pursuant to 12 O.S.2011, § 577.2, the Court accepts that report and finds the revisions should be ordered adopted.

¶2 IT IS THEREFORE ORDERED ADJUDGED AND DECREED that the report of The Oklahoma Court of Criminal Appeals Committee for Preparation of Uniform Jury Instructions shall be accepted, and its revisions adopted. The revisions shall be available for access via the internet from this Court's web site at www.okcca.net on the date of this order and provided to West Publishing Company for publication. The Administrative Office of the Courts is requested to duplicate and provide copies of the revisions to the judges of the District Courts and the District Courts of the State of Oklahoma are directed to implement the utilization of these revisions effective on the date of this order.

¶3 IT IS FURTHER ORDERED ADJUDGED AND DECREED the amendments to existing OUJI-CR 2d instructions, and the adoption of new instructions, as set out in the following designated instructions and attached to this order, are adopted, to wit:

1-11; 4-11; 4-37; 4-56A; 4-58; 4-58A; 4-58A-1; 4-58B; 4-58B-1; 4-58C; 4-58C-1; 4-58D; 4-58E; 4-58F-1; 4-58F-2; 4-58G; 4-58H; 4-58H-1; 4-87C; 4-87C-1; 4-87D; 4-113; 4-124; 4-125; 4-127; 4-128; 4-147; 4-148; 5-13; 5-14; 5-14A; 5-20; 5-21; 5-38; 5-39; 5-40; 5-41; 5-42; 5-50; 5-69; 5-72; 5-78; 5-79; 5-90A; 5-93; 5-100; 5-103; 5-104; 5-105A; 5-111; 5-116; 5-116A; 5-117; 5-117A; 8-32; 8-33; 8-33B; 8-33C; 8-33D; 10-13A; 10-13B;10-17; 10-19.

¶4 The Court also accepts and authorizes the updated committee comments to be published, together with the above styled revisions and each amended page in the revisions to be noted at the bottom as follows "(2019 Supp.)".

¶5 IT IS THE FURTHER ORDER OF THIS COURT that the members of The Oklahoma Court of Criminal Appeals Committee for Preparation of Uniform Criminal Jury Instructions be commended for their ongoing efforts to provide up-to-date Uniform Jury Instructions to the bench and the bar of the State of Oklahoma.

¶6 IT IS SO ORDERED.

¶7 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 20th day of December, 2019.

/s/DAVID B. LEWIS, Presiding Judge
Concur in Part, Dissent in Part, Writing Attached

/s/DANA KUEHN, Vice Presiding Judge
CIP/DIP attached and also I join in Presiding Judge Lewis

/s/GARY L. LUMPKIN, Judge

/s/ROBERT L. HUDSON, Judge

/s/SCOTT ROWLAND, Judge

ATTEST:
John D. Hadden
Clerk

LEWIS, P.J., CONCURRING IN PART AND DISSENTING IN PART:

¶1 I concur in adoption of most the 2019 Supplement to the Oklahoma Uniform Jury Instructions-Criminal (2d) and commend the Committee for its work. I respectfully dissent from the adoption of the proposed text of Instruction No. 1-11. At almost 250 words, the proposed instruction is lengthy and academic, with references to the Sixth Amendment and waiver jargon that is likely to confuse jurors.

¶2 I would substitute the following eighty-three word jury instruction on the subject of self-representation and standby counsel:

[Name of Defendant]
has the right to act as [his/her] own attorney. This is a proper part of the trial, and you are instructed not to let the defendant's decision to represent [himself/herself] influence your verdict. You must base your verdict on these instructions and the evidence admitted by the court. [Name of Standby Counsel] is not acting as the defendant's attorney in this case, but is standing by at the court's request to answer the defendant's questions about law and court procedures.

¶3 I am authorized to state that Vice Presiding Judge Kuehn joins in this separate writing.

KUEHN, V.P.J., CONCURRING IN PART/DISSENTING IN PART:

¶1 I concur in adopting most of the 2019 Supplement to the Oklahoma Uniform Jury Instructions -- Criminal (2d). I join Presiding Judge Lewis's separate writing concerning Instruction No. 1-11. In addition, I respectfully dissent from the adoption of the definition of Antisocial Personality Disorder contained in proposed Instruction No. 8-33D. Including this definition is potentially confusing to jurors, who are not charged with determining whether a defendant has such a disorder, but merely with determining if a defendant has already been diagnosed with such a disorder.

¶2 I also dissent to publication of the updated committee comments, insofar as they may advise or require a particular interpretation of the law. The Notes on Use and Comments are not themselves law; they are intended as useful guides for judges and practitioners in applying the Instructions. They are neither binding nor persuasive authority.

OUJI-CR 1-11

DEFENDANT'S SELF REPRESENTATION

[Name of Defendant]
has decided to represent himself/herself in this trial and not to use the services of a lawyer. He/She has a constitutional right to do that. This decision must not affect your consideration and your decision whether or not he/she is guilty or not guilty.

Although the defendant has chosen to represent himself/herself, the court has appointed [Name of Standby Counsel] to assist [Name of Defendant] as standby counsel. This is a standard procedure.

The Sixth Amendment to the United States Constitution guarantees that a person charged with a crime has the right to the assistance of counsel. This Constitutional guarantee also provides that an individual charged with a crime has the right to waive representation by legal counsel, and proceed to trial representing himself/herself, and act as his/her own attorney. The defendant has elected to waive his/her right to counsel and represent himself/herself in this matter. You are not to let the fact that [Name of Defendant] has elected to represent himself/herself influence your decision in this case. Instead, you must decide this case based upon the law in the court's instructions and the evidence received during the course of the trial.

[Name of Standby Counsel] has been appointed as standby counsel to the defendant but not to act as his/her attorney in this case. The role of standby counsel is limited to answering [Name of Defendant]'s questions and providing other assistance but standby counsel will not be participating directly in the trial. In electing to represent himself/herself, the defendant has assumed the full responsibility of acting as his/her own attorney in this case and will be held to the same standards and requirements of an actual practicing attorney. Standby counsel will be available to answer [Name of Defendant]'s questions during the course of the trial but the defendant will solely make all of the decisions concerning his/her defense.

Notes on Use

The trial court should give the second paragraph if it has appointed a standby counsel for the defendant.

Committee Comments

The Oklahoma Court of Criminal Appeals emphasized in Brown v. State, 2018 OK CR 3, ¶ 48, 422 P.3d 155, 166, that "the trial court must ensure that a defendant choosing self-representation understands his rights, not only in the guilt/innocence process, but also in the sentencing process."

OUJI-CR 4-11

ASSAULT -- DEFINITION OF TRANSFERRED INTENT

If you find that the defendant intended to kill/injure/assault [Name of Intended Victim], and by mistake or accident injured/assaulted [Name of Actual Victim], the element of intent is satisfied even though the defendant did not intend to kill/injure/assault [Name of Actual Victim]. In such a case, the law regards the intent as transferred from the original intended victim to the actual victim.

Notes on Use

This instruction should be given only if warranted by the evidence. The trial court should delete alternatives in the instruction that do not apply to the particular facts of the case. If used, it should be given immediately after the instruction on mens rea. For homicide prosecutions, see OUJI-CR 4-62, infra.

Committee Comments

For a description of the doctrine of transferred intent, see W. LaFave & A. Scott, Criminal Law § 3.12(d) (2d ed. 1986). The Oklahoma Court of Criminal Appeals approved a jury instruction on transferred intent in an assault case in Jones v. State, 1973 OK CR 151, ¶ 6, 508 P.2d 280, 282 (Okl. Cr. 1973). The Oklahoma Court of Criminal Appeals ruled in Runnels v. State, 2018 OK CR 27, ¶ 21, 426 P.3d 614, 620, that the doctrine of transferred intent did not permit a jury to find an intent to kill the actual victim based upon an intent to injure or assault an intended victim. Instead, the intent to kill the actual victim may only be based upon an intent to kill an intended victim.

OUJI-CR 4-37

NEGLECT OF CHILD - ELEMENTS

No person may be convicted of neglect of a child unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, a person responsible for the child's health, safety, or welfare;

Second

, willfully/maliciously;

[Third, failed/omitted to provide;

Fourth, adequate (nurturance and affection)/food/clothing/shelter /sanitation/hygiene)/(appropriate education)/(medical/dental/(behavioral health) care/supervision/(appropriate caretakers)/(special care made necessary by the physical/mental condition of the child);

Fifth, for a child under the age of eighteen.]

[Third, failed/omitted to protect;

Fourth, a child under the age of eighteen from exposure to;

Fifth, (the use/possession/sale/manufacture of illegal drugs)/(illegal activities)/(sexual acts or materials that are not age-appropriate).]

[Third, abandoned;

Fourth, a child under the age of eighteen.]

______________________________

Statutory Authority: 21 O.S. Supp. 2014 2019, § 843.5(C), 10A O.S. Supp. 2014 2019, § 1-1-105(47 48).

Committee Comments

The Committee believes some restriction on the scope of child neglect under 21 O.S. Supp. 2014 2019, § 843.5(C) and 10A O.S. Supp. 2014 2019, § 1-1-105(47 48) is necessary because otherwise a person would be in violation of the statute for failing to provide food or shelter to a child that the person had never met. The Legislature has declared that "it is the policy of this state to provide for the protection of children who have been abused or neglected ... by the conduct of persons responsible for the health, safety, and welfare of such children." 10A O.S. Supp. 2014 2019, § 1-1-102(A)(3). Accordingly, the Committee has decided that the scope of child neglect should be restricted to persons responsible for the child's health or safety, as defined in 10A O.S. Supp. 2014 2019, § 1-1-105(51 52). These persons include the child's parent or guardian, as well as other persons who are responsible for the child's safety, either in the child's home, a relative's home, a foster care home, child care facility, or a residential institution.

The crime of omission to provide for a child is governed by 21 O.S. 2011, § 852(A). See OUJI-CR 4-40A, infra. Its elements are similar to the elements for child neglect, but in contrast to child neglect, omission to provide for a child is a misdemeanor. Unlike child neglect, omission to provide for a child includes willful omission to furnish monetary child support or the payment of court-ordered day care or medical insurance costs.

In Fairchild v. State, 1999 OK CR 49, ¶ 51, 998 P.2d 611, 622-23, the Oklahoma Court of Criminal Appeals decided that the mens rea for felony murder of a child under 21 O.S. Supp. 1999, § 701.7(C) was a general intent to commit the act which causes the injury, rather than a specific intent, and that the general intent was included within the terms "willfully" or "maliciously."

OUJI-CR 4-56A

LOITERING BY A PERSON REQUIRED TO REGISTER AS A SEX OFFENDER -- ELEMENTS

No person may be convicted of loitering by a person required to register as a sex offender unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, [Name of Defendant] was convicted of a crime that required him/her to register as a sex offender; and

Second, while required to register as a sex offender he/she knowingly;

Third, was loitering within 500 feet of a/an [elementary/(junior high)/high school]/[permitted/licensed child care facility]/park/playground.

Third, was loitering within 1,000 feet of the residence of the victim of the sex crime for which [Name of Defendant] was convicted.

Loitering means to stand around or move slowly about; to spend time idly; to saunter; to delay; to linger; to lag behind.

[Loitering does not include:

(A (custodial parent)/(legal guardian) of a student enrolled at the school/(child care facility) who is enrolling/delivering/retrieving the student at the school/(child care facility) [during regular school/facility hours]/[for (school-sanctioned)/(child-care-facility-sanctioned) extracurricular activities].

(A person receiving medical treatment at a hospital/(a facility certified/ licensed by the State of Oklahoma to provide medical services), unless it is any form of psychological, social or rehabilitative counseling services or treatment programs for sex offenders).

(A person attending a recognized church/(religious denomination) for worship if he/she has notified the religious leader of his/her status as a registered sex offender and he/she was granted written permission by the religious leader).]

______________________________

Statutory Authority: 21 O.S. Supp. 2017 2019, § 1125.

Notes on Use

The trial judge should use the bracketed exceptions at the end of the instructions only if they are supported by the evidence. This Instruction should be modified as appropriate, if the defendant was convicted in another jurisdiction of an offense which would require registration if the defendant had been convicted in Oklahoma of that offense. See 21 O.S. Supp. 2017 2019, § 1125(A)(1).

Committee Comments

The Oklahoma Court of Criminal Appeals held that 21 O.S. Supp. 2010, § 1125 was not unconstitutionally vague in Weeks v. State, 2015 OK CR 16, ¶¶ 20-26, 362 P.3d 650, 656-57, and Engles v. State, 2015 OK CR 17, ¶ 6, 366 P.3d 311, 314. In Weeks, the Court of Criminal Appeals distinguished two of its previous decisions in which anti-loitering ordinances in Oklahoma City and Tulsa had been struck down on the ground that they were unconstitutionally vague. The Court explained that in contrast to the anti-loitering ordinances in its previous decisions, § 1125 includes exemptions that provide guidance as to what is and what is not prohibited and "the statute clearly defines the prohibited conduct through reference to the only conduct that is permitted." Weeks v. State, 2015 OK CR 16, ¶ 26, 362 P.3d 657. Similarly, in Engles, the Court decided that the exemptions in § 1125 avoided unconstitutional vagueness. The Court held: "By operation of these specific statutory exemptions, any sex offender convicted of a registerable offense involving a victim under thirteen, who is present in the zone of safety without a statutory exemption and the required prior notice to administrators is, by definition, loitering in violation of the law." 2015 OK CR 17, ¶ 6, 366 P.3d 311, 314 (emphasis in original).

OUJI-CR 4-58

(This Instruction is Intentionally Blank)

OUJI-CR 4-58A

TRAFFICKING IN CHILDREN -- ELEMENTS

(COMPENSATION FOR ADOPTIONS)

No person may be convicted of trafficking in children unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, [Name of Defendant] knowingly accepted/solicited/offered/paid/ transferred any compensation in money/property/(anything of value);

Second, in connection with the (acquisition/transfer of the legal/physical custody)/adoption of a minor child.

________________________

Statutory Authority: 21 O.S. 2011, § 866(A)(1)(a); 10 O.S. Supp. 2017 2019, § 7505-3.2.

Notes on Use

This Instruction covers the crime of trafficking in children as set forth in 21 O.S. 2011, § 866(A)(1)(a).

The statute provides exceptions for certain costs and expenses, and OUJI-CR 4-58A-1 covers these costs and expenses as an affirmative defense to the crime.

Committee Comments

Although the publisher of the Oklahoma Statutes added the heading for 21 O.S. 2011, § 866 "Elements of offense", the Oklahoma Session Laws do not include this heading, and it is not part of Oklahoma law. See Fairchild v. State, 1999 OK CR 49, ¶ 60, 998 P.2d 611, 624 (publisher's heading has no legal significance because it is not part of the statute); Hall v. State, 1957 OK CR 56, ¶ 5, 312 P.2d 981, 983-84 (titles or headings added by publisher after enactment for index purposes or identification are not in the law itself).

OUJI-CR 4-58A-1

TRAFFICKING IN CHILDREN-- AFFIRMATIVE DEFENSE

FOR COURT APPROVED COSTS AND EXPENSES

(COMPENSATION FOR ADOPTIONS)

[Name of Defendant] has asserted as a defense to the charge of trafficking in children that the following expenses have been approved by the Court and/or authorized by law: [Specify the applicable costs and expenses ordered by the Court or provided in 10 O.S. 2017 2019, § 7505-3.2]. The State has the burden of proving beyond a reasonable doubt that the expenses were not approved by the Court and/or were not authorized by law.

OUJI-CR 4-58B

TRAFFICKING IN CHILDREN-- ELEMENTS (ACCEPTING COMPENSATION BY OTHERS BESIDES CHILD-PLACING AGENCIES AND ATTORNEYS)

No person/organization may be convicted of trafficking in children unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, [Name of Defendant] knowingly accepted/solicited any compensation in money/property/(anything of value);

Second, for services performed/rendered/(purported to be performed) to facilitate/assist in the adoption/(foster care placement) of a minor child.

________________________

Statutory Authority: 21 O.S. 2011, § 866(A)(1)(b).

Notes on Use

This Instruction covers the crime of trafficking in children as set forth in 21 O.S. 2011, § 866(A)(1)(b).

Committee Comments

Although the publisher of the Oklahoma Statutes added the heading for 21 O.S. 2011, § 866 "Elements of offense", the Oklahoma Session Laws do not include this heading, and it is not part of Oklahoma law. See Fairchild v. State, 1999 OK CR 49, ¶ 60, 998 P.2d 611, 624 (publisher's heading has no legal significance because it is not part of the statute); Hall v. State, 1957 OK CR 56, ¶ 5, 312 P.2d 981, 983-84 (titles or headings added by publisher after enactment for index purposes or identification are not in the law itself).

OUJI-CR 4-58B-1

TRAFFICKING IN CHILDREN-- AFFIRMATIVE DEFENSE

FOR CHILD-PLACING AGENCIES AND ATTORNEYS

(ACCEPTING COMPENSATION FOR ADOPTIONS)

[Name of Defendant] has asserted as a defense to the charge of trafficking in children that he/she/it was (the Department of Human Services)/( a child-placing agency licensed in Oklahoma under the Oklahoma Child Care Facilities Licensing Act)/(an attorney authorized to practice law in Oklahoma)/(an attorney licensed to practice law in a state other than Oklahoma who is working with an attorney licensed in Oklahoma)/(an out-of-state licensed child-placing agency that was working with a child-placing agency licensed in Oklahoma which was providing [adoption services]/[services necessary for placing a child in an adoptive arrangement]). The State has the burden of proving beyond a reasonable doubt that [Name of Defendant] was not (the Department of Human Services)/( a child-placing agency licensed in Oklahoma under the Oklahoma Child Care Facilities Licensing Act)/(an attorney authorized to practice law in Oklahoma)/(an attorney licensed to practice law in a state other than Oklahoma who is working with an attorney licensed in Oklahoma)/(an out-of-state licensed child-placing agency that was working with a child-placing agency licensed in Oklahoma which was providing [adoption services]/[services necessary for placing a child in an adoptive arrangement]).

OUJI-CR 4-58C

TRAFFICKING IN CHILDREN-- ELEMENTS

(BRINGING CHILD INTO STATE OR SENDING OUT OF STATE)

No person may be convicted of trafficking in children unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, [Name of Defendant] knowingly brought/(caused to be brought)/sent/(caused to be sent) a child into/(out of) Oklahoma;

Second, for the purpose of placing the child (in a foster home)/(for adoption); and

Third, refused afterwards to comply upon request with the Interstate Compact on the Placement of Children.

________________________

Statutory Authority: 21 O.S. 2011, § 866(A)(1)(c).

Notes on Use

This Instruction covers the crime of trafficking in children as set forth in 21 O.S. 2011, § 866(A)(1)(c).

Committee Comments

Although the publisher of the Oklahoma Statutes added the heading for 21 O.S. 2011, § 866 "Elements of offense", the Oklahoma Session Laws do not include this heading, and it is not part of Oklahoma law. See Fairchild v. State, 1999 OK CR 49, ¶ 60, 998 P.2d 611, 624 (publisher's heading has no legal significance because it is not part of the statute); Hall v. State, 1957 OK CR 56, ¶ 5, 312 P.2d 981, 983-84 (titles or headings added by publisher after enactment for index purposes or identification are not in the law itself).

OUJI-CR 4-58C-1

TRAFFICKING IN CHILDREN-- AFFIRMATIVE DEFENSE

FOR PARENTS AND GUARDIANS

(BRINGING CHILD INTO STATE OR SENDING OUT OF STATE)

[Name of Defendant] has asserted as a defense to the charge of trafficking in children that he/she (was the parent/guardian of the child)/(brought the child into Oklahoma for the purpose of adopting the child into [Name of Defendant]'s own family). The State has the burden of proving beyond a reasonable doubt that [Name of Defendant] (was not the parent/guardian of the child)/(did not bring the child into Oklahoma for the purpose of adopting the child into [Name of Defendant]'s own family).

OUJI-CR 4-58D

TRAFFICKING IN CHILDREN-- ELEMENTS

(RECEIVING MONEY FOR ADOPTION WITH NO INTENT TO CONSENT TO ADOPTION)

No person may be convicted of trafficking in children unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, [Name of Defendant] is the birth parent of a child; and

Second, [Name of Defendant] knowingly solicited/received money/(anything of value) for expenses related to the placement of a child for the purpose of an adoption;

Third, when [Name of Defendant] had no intent to consent to eventual adoption.

________________________

Statutory Authority: 21 O.S. 2011, § 866(A)(1)(d).

Notes on Use

This Instruction covers the crime of trafficking in children as set forth in 21 O.S. 2011, § 866(A)(1)(d).

Committee Comments

Although the publisher of the Oklahoma Statutes added the heading for 21 O.S. 2011, § 866 "Elements of offense", the Oklahoma Session Laws do not include this heading, and it is not part of Oklahoma law. See Fairchild v. State, 1999 OK CR 49, ¶ 60, 998 P.2d 611, 624 (publisher's heading has no legal significance because it is not part of the statute); Hall v. State, 1957 OK CR 56, ¶ 5, 312 P.2d 981, 983-84 (titles or headings added by publisher after enactment for index purposes or identification are not in the law itself)._

OUJI-CR 4-58E

TRAFFICKING IN CHILDREN -- ELEMENTS

(RECEIVING MONEY FOR ADOPTION WHEN NOT PREGNANT)

No person may be convicted of trafficking in children unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, [Name of Defendant] is a woman who knowingly solicited/received money/(anything of value) for expenses related to the placement of a child for the purpose of an adoption; and

Second, [Name of Defendant] held herself out to be pregnant and offered to place a child upon birth for adoption;

Third, when she knew she was not pregnant.

________________________

Statutory Authority: 21 O.S. 2011, § 866(A)(1)(e).

Notes on Use

This Instruction covers the crime of trafficking in children as set forth in 21 O.S. 2011, § 866(A)(1)(e).

Committee Comments

Although the publisher of the Oklahoma Statutes added the heading for 21 O.S. 2011, § 866 "Elements of offense", the Oklahoma Session Laws do not include this heading, and it is not part of Oklahoma law. See Fairchild v. State, 1999 OK CR 49, ¶ 60, 998 P.2d 611, 624 (publisher's heading has no legal significance because it is not part of the statute); Hall v. State, 1957 OK CR 56, ¶ 5, 312 P.2d 981, 983-84 (titles or headings added by publisher after enactment for index purposes or identification are not in the law itself).

OUJI-CR 4-58F-1

TRAFFICKING IN CHILDREN-- ELEMENTS

(RECEIVING MONEY FOR ADOPTION WITHOUT DISCLOSURE TO OTHER PERSONS)

No person may be convicted of trafficking in children unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, [Name of Defendant] was a/an (birth parent)/(child-placing agency)/attorney;

Second, who knowingly received money/(anything of value) for expenses related to the placement of a child for the purpose of an adoption;

Third, and [Name of Defendant] did not disclose to each prospective adoptive parent, child-placing agency, and attorney the receipt of the money/(anything of value) immediately upon receipt.

________________________

Statutory Authority: 21 O.S. 2011, § 866(A)(1)(f)(1).

Notes on Use

This Instruction covers the crime of trafficking in children as set forth in 21 O.S. 2011, § 866(A)(1)(f)(1).

Committee Comments

Although the publisher of the Oklahoma Statutes added the heading for 21 O.S. 2011, § 866 "Elements of offense", the Oklahoma Session Laws do not include this heading, and it is not part of Oklahoma law. See Fairchild v. State, 1999 OK CR 49, ¶ 60, 998 P.2d 611, 624 (publisher's heading has no legal significance because it is not part of the statute); Hall v. State, 1957 OK CR 56, ¶ 5, 312 P.2d 981, 983-84 (titles or headings added by publisher after enactment for index purposes or identification are not in the law itself).

OUJI-CR 4-58F-2

TRAFFICKING IN CHILDREN-- ELEMENTS

(RECEIVING MONEY FROM MORE THAN ONE ADOPTIVE FAMILY)

No person may be convicted of trafficking in children unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, [Name of Defendant] was a/an (birth parent)/(child-placing agency)/attorney;

Second, who knowingly received/solicited money/(anything of value) for expenses related to the placement of a child for the purpose of the adoption of one child;

Third, from more than one prospective adoptive family.

________________________

Statutory Authority: 21 O.S. 2011, § 866(A)(1)(f)(2).

Notes on Use

This Instruction covers the crime of trafficking in children as set forth in 21 O.S. 2011, § 866(A)(1)(f)(2).

Committee Comments

Although the publisher of the Oklahoma Statutes added the heading for 21 O.S. 2011, § 866 "Elements of offense", the Oklahoma Session Laws do not include this heading, and it is not part of Oklahoma law. See Fairchild v. State, 1999 OK CR 49, ¶ 60, 998 P.2d 611, 624 (publisher's heading has no legal significance because it is not part of the statute); Hall v. State, 1957 OK CR 56, ¶ 5, 312 P.2d 981, 983-84 (titles or headings added by publisher after enactment for index purposes or identification are not in the law itself).

OUJI-CR 4-58G

TRAFFICKING IN CHILDREN-- ELEMENTS

(ADVERTISING FOR ADOPTIONS)

No person may be convicted of trafficking in children unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, [Name of Defendant] was not (the Department of Human Services)/(a child-placing agency licensed in Oklahoma)/(an attorney authorized to practice law in Oklahoma); and

Second, [Name of Defendant] knowingly advertised for (services for compensation to [assist with]/effect the placement of a child for adoption/[care in a foster home])/(legal services related to the adoption of children).

________________________

Statutory Authority: 21 O.S. 2011, § 866(A)(1)(g).

Notes on Use

This Instruction covers the crime of trafficking in children as set forth in 21 O.S. 2011, § 866(A)(1)(g).

Committee Comments

Although the publisher of the Oklahoma Statutes added the heading for 21 O.S. 2011, § 866 "Elements of offense", the Oklahoma Session Laws do not include this heading, and it is not part of Oklahoma law. See Fairchild v. State, 1999 OK CR 49, ¶ 60, 998 P.2d 611, 624 (publisher's heading has no legal significance because it is not part of the statute); Hall v. State, 1957 OK CR 56, ¶ 5, 312 P.2d 981, 983-84 (titles or headings added by publisher after enactment for index purposes or identification are not in the law itself).

OUJI-CR 4-58H

TRAFFICKING IN CHILDREN-- ELEMENTS

(ADVERTISING FOR PLACING CHILD FOR ADOPTION)

No person may be convicted of trafficking in children unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, [Name of Defendant] was not (a child-placing agency licensed in Oklahoma)/(attorney authorized to practice law in Oklahoma); and

Second, [Name of Defendant] knowingly advertised for and solicited a pregnant woman to induce her to place her child upon birth for adoption.

________________________

Statutory Authority: 21 O.S. 2011, § 866(A)(1)(h).

Notes on Use

This Instruction covers the crime of trafficking in children as set forth in 21 O.S. 2011, § 866(A)(1)(h).

Committee Comments

Although the publisher of the Oklahoma Statutes added the heading for 21 O.S. 2011, § 866 "Elements of offense", the Oklahoma Session Laws do not include this heading, and it is not part of Oklahoma law. See Fairchild v. State, 1999 OK CR 49, ¶ 60, 998 P.2d 611, 624 (publisher's heading has no legal significance because it is not part of the statute); Hall v. State, 1957 OK CR 56, ¶ 5, 312 P.2d 981, 983-84 (titles or headings added by publisher after enactment for index purposes or identification are not in the law itself).

OUJI-CR 4-58H-1

TRAFFICKING IN CHILDREN-- AFFIRMATIVE DEFENSE

FOR FAVORABLE PREPLACEMENT HOME STUDY RECOMMENDATION

[Name of Defendant] has asserted as a defense to the charge of trafficking in children that [Name of Defendant] has received a favorable preplacement home study recommendation to locate a child into his/her own home and [Name of Defendant] has not offered any money/(thing of value) to induce the pregnant woman to place the child into his/her home other than the following expenses that have been approved by the Court and/or authorized by law: [Specify the applicable costs and expenses ordered by the Court or provided in 10 O.S. 2017, § 7505-3.2]. The State has the burden of proving beyond a reasonable doubt that the expenses were not approved by the Court and/or were not authorized by law.

OUJI-CR 4-87C

LIFE WITHOUT PAROLE PROCEEDINGS - JUVENILE OFFENDER

Should you unanimously find that the State has proven the Defendant is irreparably corrupt and permanently incorrigible beyond a reasonable doubt, you are authorized to consider, but not required to impose, a sentence of life without the possibility of parole. If you do not unanimously find beyond a reasonable doubt that the State has proven the Defendant is irreparably corrupt and permanently incorrigible, you are prohibited from considering a sentence of life without the possibility of parole. In that event, the sentence must be imprisonment for life with the possibility of parole.

Committee Comments

The Oklahoma Court of Criminal Appeals directed use of this Instruction and the Verdict Form in OUJI-CR 4-87D pending Legislative action in Stevens v. State, 2018 OK CR 11, ¶ 34, 422 P.3d 741, 750.

OUJI-CR 4-87C-1

LIFE WITHOUT PAROLE PROCEEDINGS -

JUVENILES -- DEFINITIONS

Irreparably Corrupt -- No meaningful possibility exists that rehabilitation will make the defendant fit to reenter society.

Permanent Incorrigibility -- Serious misbehavior that proves defendant is the rare juvenile who has shown an inability to reform and will forever be a danger to society because of his total indifference to the life and safety of others.

Transient Immaturity -- The defendant's conduct was the result of temporary youth-related factors, such as chronological age, immaturity, impetuosity, and a failure to appreciate risks and consequences that suggest a possibility of rehabilitation.

Committee Comments

These definitions are derived from Montgomery v. Louisiana, 136 S.Ct. 718 (2016); Miller v. Alabama, 567 U.S. 460 (2012); Graham v. Florida, 560 U.S. 48 (2010); Stevens v. State, 2018 OK CR 11, ¶ 2, 422 P.3d 741, 752 (Hudson, J., concurring); and Luna v. State, 2016 OK CR 27, 387 P.3d 956.

OUJI-CR 4-87D

LIFE WITHOUT PAROLE PROCEEDINGS - JUVENILE OFFENDER

VERDICT FORM

IN THE DISTRICT COURT OF THE ____ JUDICIAL DISTRICT OF

THE STATE OF OKLAHOMA SITTING IN AND FOR ______ COUNTY

The State of Oklahoma )

)

Plaintiff, )

)

vs. )

) Case No. ______

JOHN DOE, )

)

Defendant. )

VERDICT

COUNT 1 -- [CRIME CHARGED]

We, the jury, empaneled and sworn in the above-entitled cause, do, upon our oaths, find as follows:

[Check and complete only one.]

______ the Defendant is irreparably corrupt and permanently incorrigible and sentence the Defendant to ________________________________________.

______ Defendant is not irreparably corrupt and permanently incorrigible and sentence the Defendant to life with the possibility of parole.

________________________

FOREPERSON

OUJI-CR 4-113

CHILD STEALING - ELEMENTS

No person may be convicted of child stealing unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, maliciously/forcibly/fraudulently;

Second, taking/enticing away;

Third, a child under the age of twelve sixteen;

[Fourth, with the intent to detain or conceal the child;

Fifth, and with the intent to conceal;

Sixth, Fifth, from the person having legal custody parent, guardian or other person having the lawful charge of the child.]

[Fourth, with the intent to transport the child outside of Oklahoma/(the United States);

Fifth, without the consent of the person having legal custody lawful charge of the child.]

______________________________

Statutory Authority: 21 O.S. 2001 2011, § 891.

Committee Comments

Oklahoma appellate cases involving the crime of child stealing include Shinn v. State, 1925 OK CR 442 31 Okl. Cr. 366, 239 P. 269, 31 Okl. Cr. 366 (1925), which reversed a conviction for lack of evidence and Wilkins v. State, 1999 OK CR 27, 985 P.2d 184, which upheld the statute against constitutional attacks of vagueness and overbreadth.

This crime generally involves a fact situation concerning a dispute over custody of a child between divorced parents, or between parents and grandparents. The crimes of kidnapping under either sections 741 or 745(A) are probably not committed in these situations because the parent or grandparent does not possess the specific intent required by those sections. Moreover, the crime of child stealing is much broader in its protection of parental or other legal custodial authority than is the crime of abduction. See generally R. Perkins, Criminal Law 181-82 (2d ed. 1969).

OUJI-CR 4-124

RAPE IN THE SECOND DEGREE - ELEMENTS

No person may be convicted of rape in the second degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, sexual intercourse;

Second, with a person who is not the spouse of the defendant [and who may be of the same sex as the defendant];

[Third, where the victim was under the age of sixteen].

[Third, where the victim was under the belief induced by the defendant that the victim was having intercourse with his/her spouse].

[Third, where the victim was under the legal custody/supervision;

Fourth, of a (state/federal agency)/county/municipality/(political subdivision); and

Fifth, the defendant was an employee/(employee of a [subcontractor of a] contractor of)/the (state/federal agency)/county/municipality/(political subdivision) that exercised authority over the victim;].

[Third, where the victim was between sixteen and twenty years of age;

Fourth, the victim was a student/(under the legal custody/supervision) of a/an (elementary/secondary school)/(junior high)/high/(public vocational) school;

Fifth, the defendant was eighteen years of age or older; and

Sixth, the defendant was an employee of the victim's school system].

Third, where the victim was nineteen years of age or younger; and

Fourth, in the legal custody of a (state/federal agency)/(tribal court); and

Fifth, the defendant was a (foster parent)/(foster parent applicant).

[Fourth, where the victim was at least sixteen years of age but less than eighteen years of age; and

Fifth, the defendant was a person responsible for the victim's health, safety or welfare].

A person responsible for a child's health, safety or welfare includes, but is not limited to [Select applicable type of person]: a/an parent/(legal guardian)/custodian/(foster parent)/(person living with the child's parent and is eighteen years of age or older)/(adult residing in the child's home)/ (agent/employee of a public/private (residential home/institution/facility)/(day treatment program)/(owner/operator/employee of a child care facility).

You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.

______________________________

Statutory Authority: 21 O.S. Supp. 2015 2019, § 1111, 21 O.S. 2011, § 1114.

Notes on Use

The trial court should read the bracketed language in the second element only if the defendant was of the same sex as the victim. In the third element the trial court should read only the alternative (or alternatives) that is (or are) supported by the evidence.

Committee Comments

In all instances, the statutory age under which a victim is legally incapable of consenting to sexual intercourse is 16, section 1111(A)(1). If a defense under section 1112 is unavailable, sexual intercourse with a person under 16 years of age is at least rape in the second degree, although if the victim is under 14 years of age, rape in the first degree is a possible charge. Even if the proof establishes that the victim is 13 years of age, a prosecution and conviction for rape in the second degree is proper because rape in the second degree is a lesser included offense of rape in the first degree. Hence, the first alternative in the third element simply indicates a victim under 16 years of age.

The other alternatives in the third element constitute, in fact or by law, sexual intercourse without the consent of the victim.

The age of the defendant is not an element of the crime of second-degree rape. If the prosecutor is uncertain whether it can be proved that the defendant has attained the age of 18, he/she can charge the defendant with second-degree rape and the conviction would be upheld although it is established that the defendant is over 18. Brasel v. State, 1929 OK CR 216, 291 P. 807, 48 Okl. Cr. 403. The age of the defendant may become relevant as a defense, however, under section 1112, if the victim is over 14 years of age and consents, and the defendant is under 18 years of age.

Oklahoma's rape shield law, 12 O.S. 2011, § 2412, limits the use of evidence of the sexual behavior of the victim in prosecutions for sexual offenses.

OUJI-CR 4-125

RAPE BY INSTRUMENTATION IN THE FIRST DEGREE - ELEMENTS

No person may be convicted of rape by instrumentation in the first degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, the person penetrated the anus/vagina;

Second, of any victim;

Third, with (an inanimate object)/(a part of the human body other than the penis); and

Fourth, without the victim's consent; and

Fifth, resulting in bodily harm; and

Sixth Fifth, [List the Circumstance(s) Specified in Section 1111 Which Exist in This Case].

Any sexual penetration, however slight, is sufficient to complete the crime of rape by instrumentation.

First, the person was eighteen years of age or older;

Second, the person was an employee of the victim's school system; and

Third, the person penetrated the anus/vagina;

Fourth, of a student /(person under the legal custody/supervision) of a public/private (elementary/secondary school)/(junior high) /high/(public vocational) school;

Fifth, who was at least sixteen years of age and less than twenty years of age;

Sixth, with (an inanimate object)/(a part of the human body other than the penis).

Sixth, resulting in bodily harm.

Any sexual penetration, however slight, is sufficient to complete the crime of rape by instrumentation.

First, the defendant was an employee/(employee of a contractor of)/the (state/federal agency)/county/ municipality/(political subdivision); and

Second, who penetrated the anus/vagina;

Third, of a person who was under the legal custody/supervision;

Fourth, of the (state/federal agency)/county/municipality/(political subdivision) that employed the defendant;

Fifth, with (an inanimate object)/(a part of the human body other than the penis);

Fifth, resulting in bodily harm.

Any sexual penetration, however slight, is sufficient to complete the crime of rape by instrumentation.

First, the defendant was a (foster parent)/(foster parent applicant);

Second, who penetrated the anus/vagina;

Third, of a person who was nineteen years of age or younger;

Fourth, with (an inanimate object)/(a part of the human body other than the penis);

Fifth, when the person was in the legal custody of a (state/federal agency)/(tribal court).

Any sexual penetration, however slight, is sufficient to complete the crime of rape by instrumentation.

______________________________

Statutory Authority: 21 O.S. 2011 & Supp. 2019, §§ 1111.1, 1113, 1114.

Notes on Use

This Instruction should be used for crimes committed on or after November 1, 2017. If the victim is a minor, OUJI-CR 4-138A must be given.

Committee Comments

The first alternative in this Instruction requires a specification of the circumstances from 21 O.S. 2011, § 1111, while the other alternatives are for the circumstances in 21 O.S. Supp. 2019, § 1111.1, where consent is not an element.

OUJI-CR 4-127

RAPE BY INSTRUMENTATION

IN THE SECOND DEGREE - ELEMENTS

No person may be convicted of rape by instrumentation in the second degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, the person penetrated the anus/vagina;

Second, of any victim;

Third, with (an inanimate object)/(a part of the human body other than the penis);

Fourth, without the victim's consent;

Fifth, [List the Circumstance(s) Specified in Section 1111 Which Exist in This Case].

Any sexual penetration, however slight, is sufficient to complete the crime of rape by instrumentation.

First, the person was eighteen years of age or older; and

Second, the person was an employee of the victim's school system; and

Third, who penetrated the anus/vagina;

Fourth, of a student/(person under the legal custody/supervision) of a public/private (elementary/secondary school)/(junior high)/high/(public vocational) school;

Fifth, who was at least sixteen years of age and less than twenty years of age.

Any sexual penetration, however slight, is sufficient to complete the crime of rape by instrumentation.

First, the defendant was an employee/(employee of a contractor of)/the (state/federal agency)/county/ municipality/(political subdivision); and

Second, who penetrated the anus/vagina;

Third, of a person who was under the legal custody/supervision;

Fourth, of the (state/federal agency)/county/municipality/(political subdivision) that employed the defendant.

Any sexual penetration, however slight, is sufficient to complete the crime of rape by instrumentation.

First, the defendant was a (foster parent)/(foster parent applicant);

Second, who penetrated the anus/vagina;

Third, of a person who was nineteen years of age or younger;

Fourth, when the person was in the legal custody of a (state/federal agency)/(tribal court).

Any sexual penetration, however slight, is sufficient to complete the crime of rape by instrumentation.

______________________________

Statutory Authority: 21 O.S. Supp. 2015, § 1111.1, 21 O.S. 2011, §§ 1113, 1114.

Committee Comments

This Instruction should not be used for crimes after November 1, 2017.

The crime of rape by instrumentation 21 O.S. 2011 Supp. 2015, § 1111.1, does not fall within the common law definition of rape. R. Perkins, Criminal Law 152 (2d ed. 1969). Before section 1111.1 was adopted in 1981, the acts constituting this crime would have fallen within the assault and battery crimes. Since section 1111.1 creates a specific crime covering acts falling within its purview, the State should charge under this specific statute rather than the general assault and battery statutes. 21 O.S. 2011, § 11.

Most elements of rape by instrumentation are self-explanatory. In reference to the first element, note that penetration of the mouth is not included within this offense. Such a forcible act would, however, be covered by the crime against nature/forcible sodomy statutes, 21 O.S. 2011, §§ 886, 888. "Any sexual penetration, however slight, is sufficient to complete this crime." 21 O.S. 2011, § 1113.

The second element, "of another person," means just what it states. Under section 1111.1, spousal "rape" is specifically recognized. The Commission has concluded that the language "of another person," when used in conjunction with "penetration of the anus or vagina," means that a male can "rape" a male and a female can "rape" a female by instrumentation.

OUJI-CR 4-128

FORCIBLE SODOMY -- ELEMENTS

No person may be convicted of forcible oral sodomy unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, penetration;

Second, of the mouth/vagina of the defendant/victim;

Third

, by the mouth/penis of the defendant/victim;

[Fourth, which is accomplished by means of force or violence, or threats of force or violence that are accompanied by the apparent power of execution.]

You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.

[Fourth, by a person over the age of eighteen on a child under the age of sixteen.]

You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.

[Fourth, committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent].

You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.

[Fourth, committed by a state/county/municipal/ (political subdivision) employee/contractor/[employee of a [subcontractor of a] contractor of (the state)/ (a county/municipality/(political subdivision of Oklahoma)] upon a person who was under the legal custody, supervision or authority of a (state agency)/county/ municipality/(political subdivision) of Oklahoma.

You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.

[Fourth, where the victim was at least sixteen but less than twenty years of age;

Fifth, the victim was a student of a (secondary school)/(junior high)/ high/(public vocational) school;

Sixth

, the defendant was eighteen years of age or older; and

Seventh, the defendant was an employee of the victim's school system].

You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.

[Fourth, where the victim was at the time unconscious of the nature of the act and this fact was/(should have been) known by the defendant].

You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.

[Fourth, where the victim was intoxicated by a/an narcotic/(anesthetic agent);

Fifth, (given by)/(with the knowledge of) the defendant;

Sixth, as a means of forcing the victim to submit].

You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.

[Fourth, where the victim was at least sixteen years of age but less than eighteen years of age; and

Fifth, the defendant was a person responsible for the victim's health, safety or welfare].

A person responsible for a child's health, safety or welfare includes, but is not limited to [Select applicable type of person]: a/an parent/(legal guardian)/custodian/(foster parent)/(person living with the child's parent and is eighteen years of age or older)/(adult residing in the child's home)/ (agent/employee of a public/private)/(residential home/institution/facility)/(day treatment program)/(owner/operator/employee of a child care facility).

You are further instructed that any sexual penetration, however slight, is sufficient to complete the crime.

______________________________

Statutory Authority: 21 O.S. 2011 & Supp. 2016 2019, §§ 886 - 888.

Notes on Use

This instruction is intended for use in forcible oral sodomy cases under 21 O.S. 2011 & Supp. 2016 2019, § 888. It does not cover forcible anal sodomy, which constitutes the crime of rape and is covered by OUJI-CR 4-119 through 4-127.

The trial court should select the Fourth Element that is supported by the evidence. The Fourth Element should not be included for prosecutions under 21 O.S. 2011, § 886.

The trial judge should pay particular attention to making sure the Second and Third Elements conform to the evidence at trial. In Collins v. State, 2009 OK CR 32 n.11, 223 P.3d 1014, 1018 n.11, the Court of Criminal Appeals stated that:

[I]n cases involving separate counts of forcible oral sodomy, where the crimes alleged involve different factual theories, it is advisable to instruct the jury with separate instructions. In particular, such instructions should make clear whether the crime alleged is forcing the victim to perform oral sex on the perpetrator (penetration of the mouth of the victim by the penis of the defendant) or forcing the victim to endure oral sex performed by the perpetrator (penetration of the vagina of the victim by the mouth of the defendant).

In addition, in the Second and Third Elements, the trial judge should not select the options of penetration of the vagina of the victim by the penis of the defendant, because that would constitute rape, and the appropriate instruction for rape should be used instead.

Committee Comments

Oklahoma has two sodomy statutes, 21 O.S. 2011 & Supp. 2016 2019, §§ 886, 888. Force is not an element of sodomy under 21 O.S. 2011, § 886. Hinkle v. State, 1989 OK CR 4, ¶¶ 4-5, 771 P.2d 232, 233. Proof of force is required under 21 O.S. 2011 Supp. 2019, § 888, however, unless the victim was under 16 years of age, unconscious, intoxicated, or mentally ill, or the sodomy was committed by a state employee or contractor upon a person in the custody of a political subdivision of the State.

Section 886 has been held not to be unconstitutionally vague. Golden v. State, 1985 OK CR 9, ¶ 4, 695 P.2d 6, 7. However, in Post v. State, 1986 OK CR 30, ¶¶ 11-12, 715 P.2d 1105, 1109-10, the Oklahoma Court of Criminal Appeals declared it unconstitutional as violative of the right to privacy if applied to private consensual heterosexual activity. Accordingly, the jury should receive an instruction on the defense of consent in such cases if there is evidence of consent presented. Hinkle v. State, 1989 OK CR 4, ¶¶ 4-5, 771 P.2d 232, 233. In Garcia v. State, 1995 OK CR 85, ¶ 4, 904 P.2d 144, 145, the Court of Criminal Appeals ruled that it was error for the trial court to give an instruction for non-forcible sodomy (21 O.S. 2011, § 886) as a lesser included offense of forcible sodomy (21 O.S. 2011 & Supp. 2016 2019, § 888), where the charge involved heterosexual activity and the defendant raised the defense of consent.

Penetration is required under 21 O.S. 2001, § 887. Salyers v. State, 1988 OK CR 88, ¶ 7, 755 P.2d 97, 100. Corroboration of the victim's testimony is not required unless "the victim's testimony is so incredible or has been so thoroughly impeached that a reviewing court must say that the testimony is clearly unworthy of belief." Salyer v. State, 1999 OK CR 184, ¶ 22, 761 P.2d 890, 895.

OUJI-CR 4-147

ABUSE [BY CARETAKER] OF A PERSON ENTRUSTED TO ONE'S CARE - ELEMENTS

No person may be convicted of abuse of a person entrusted to one's care unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, a caretaker/person;

[Second, abused/(financially neglected)/neglected/(sexually abused)/exploited;

Third, another person who was entrusted to his/her care].

[First, a person knowingly caused/permitted another person who was entrusted to his/her care;

Second, to be abused/(financial neglect financially neglected)/neglected/(sexually abused)/exploited].

[Note - Use only if applicable: You are further instructed that consent shall not be a defense to this crime.]

______________________________

Statutory Authority: 21 O.S. 2011, § 843.1.

Notes on Use

Under 43A O.S. 2011 Supp. 2019, § 10-103(B), good faith use of spiritual means for treatment shall not be abuse or neglect if in accordance with practices of a recognized church or the express consent of the vulnerable adult. For a prosecution for caretaker abuse, see the definitions of caretaker and vulnerable adult in OUJI-CR 4-148, infra.

Committee Comments

The Committee did not include an option for "secure," because it is covered by "cause".

OUJI-CR 4-148

ABUSE BY CARETAKER/(OTHER PERSON) - DEFINITIONS

Abuse -- Causing/permitting the [infliction of (physical pain)/injury/ (sexual abuse)/(sexual exploitation)/(unreasonable restraint/confinement)/ (mental anguish)]/[deprivation of nutrition/clothing/shelter/(health care)/care/ services without which serious physical/mental injury is likely to occur to a vulnerable adult by a caretaker/(person providing services to a vulnerable adult)].

Reference: 43A O.S. 2011 Supp. 2019, § 10-103(8).

Vulnerable Adult -- An incapacitated person or an individual who, because of physical or mental disability, including persons with Alzheimer's disease or other dementias, incapacity or other disability, is substantially impaired in his/her ability to provide adequately for his/her own care or custody, or is unable to manage his/her property and financial affairs effectively, or to meet essential requirements for mental or physical health or safety, or to protect himself/herself from abuse, verbal abuse, neglect, or exploitation without assistance from others.

Reference: 43A O.S. 2011 Supp. 2019, § 10-103(5).

Caretaker -- A person who has [the responsibility for the (care of a vulnerable adult)/(financial management of the resources of a vulnerable adult as a result of a family relationship)]/[assumed the responsibility for the care of a vulnerable adult voluntarily/(by contract)/(as a result of the ties of friendship)]/[been appointed a guardian/ (limited guardian)/ conservator under the Oklahoma Guardianship and Conservatorship Act].

Reference: 43A O.S. 2011 Supp. 2019, § 10-103(6).

Elderly Person -- A person who is sixty-two years of age or older.

Reference: 22 O.S. 2011, § 991a-15.

Exploitation -- An unjust or improper use of the resources of a vulnerable adult for the profit or advantage, pecuniary or otherwise, of another person through the use of (undue influence) /coercion /harassment/duress/deception/ (false representation /pretense).

Reference: 43A O.S. 2011 Supp. 2019, § 10-103(9).

Incapacitated Person -- Any (person eighteen (18) years of age or older who is impaired by reason of mental or physical illness or disability, dementia or related disease, mental retardation, developmental disability or other cause and whose ability to receive and evaluate information effectively or to make and to communicate responsible decisions is impaired to such an extent that he/she lacks the capacity to manage his/her financial resources or to meet essential requirements for his/her mental or physical health or safety without assistance)/(person for whom a guardian/(limited guardian)/conservator has been appointed pursuant to the Oklahoma Guardianship and Conservatorship Act).

Reference: 43A O.S. 2011 Supp. 2019, § 10-103(4).

Neglect -- [The failure to provide protection for a vulnerable adult who is unable to protect his/her own interest]/[the failure to provide a vulnerable adult with adequate shelter/nutrition/(health care)/clothing]/[negligent acts/omissions that result in harm/(the unreasonable risk of harm) to a vulnerable adult through the action/inaction/(lack of supervision) by a caretaker providing direct services].

Reference: 43A O.S. 2011 Supp. 2019, § 10-103(11).

Financial Neglect -- repeated instances by a caretaker/(any person, who has assumed the role of financial management) of failure to use the resources available to restore/maintain the health and physical well-being of a vulnerable adult, including, but not limited to [Select applicable subparagraph]:

a. squandering/(negligently mismanaging) the money/property/accounts of a vulnerable adult,

b. refusing to pay for necessities/utilities in a timely manner, or

c. providing substandard care to a vulnerable adult despite the availability of adequate financial resources.

Reference: 43A O.S. 2011 Supp. 2019, § 10-103(10).

Sexual Abuse - [(Oral/Anal/Vaginal penetration of a vulnerable adult by/through the union with the sexual organ of a caretaker/(person providing direct services to the vulnerable adult)]/[anal/vaginal penetration of a vulnerable adult by a caretaker/(person providing direct services to the vulnerable adult) with any object]/[The touching/feeling of the body/(private parts) of a vulnerable adult for the purpose of sexual gratification by a caretaker/(person providing direct services to the vulnerable adult)]/[Indecent exposure by a caretaker/(person providing direct services to a vulnerable adult)].

Reference: 43A O.S. 2011 Supp. 2019, § 10-103(12).

Verbal Abuse - The repeated use by a caretaker of words/sounds/ language/actions/behaviors/(forms of communication) that are calculated to humiliate/intimidate/(cause fear/embarrassment/shame/degradation to) the person entrusted to the care of the caretaker.

Reference: 21 O.S. 2011, § 843.2(B) 43A O.S. Supp. 2019, § 10-103(16).

OUJI-CR 5-13

BURGLARY IN THE SECOND DEGREE - ELEMENTS

No person may be convicted of burglary in the second degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, breaking;

Second, entering;

Third, a/an (dwelling house where no human being was present at the time)/(commercial building)/(any part of a building) /room/booth/tent/ (railroad car)/ automobile/truck/trailer/ vessel/ structure/erection;

Fourth, of another;

Fifth, in which property is kept;

Sixth, with the intent to steal/(commit any felony).

______________________________

Statutory Authority: 21 O.S. 1991 Supp. 2019, § 1435 (A).

Committee Comments

The elements of second-degree burglary are presented clearly by the statute. The statute also seems to indicate that two mental states, intent to steal and intent to commit any felony, are appropriate mens rea elements for conviction. Hence, the Commission has included the mental states alternatively to permit the trial judge to charge with respect to the appropriate mental state under the facts of the case. Please realize that facts may indicate that one or the other, or both, mental states might have existed, and the court may need to give both mens rea elements in this instruction.

In contrast to section 1431, the second-degree burglary statute does not specify that ownership or possession of the structure, vehicle, or other device upon which a breaking and entering is perpetrated must be vested in another. The Commission has concluded, however, that since at common law the proscription of burglary was intended to safeguard possessory rights, R. Perkins, Criminal Law 206 (2d ed. 1969), a right of entry negates the possibility of prosecution for burglary. Although no Oklahoma cases have addressed this question, the Supreme Court of California, in construing a statute defining as burglary the entering into any dwelling, held that a right of entry to an apartment dispels the possibility of prosecution for burglary when one cotenant forcibly entered the apartment for the purpose of feloniously assaulting another cotenant. In reversing the defendant's conviction of burglary, the court observed:

To hold otherwise could lead to potentially absurd results. If a person can be convicted for burglarizing his own home, he could violate [the burglary statute] by calmly entering his own house with intent to forge a check. A narcotics addict could be convicted of burglary by walking into his house to administer a dose of heroin to himself. Since a burglary is committed upon entry, both could be convicted even if they changed their minds and did not commit the intended crimes.

People v. Gauze
, 125 Cal. Rptr. 773, 777, 542 P.2d 1365, 1369 (1975).

Similarly absurd results would obtain under section 1435 absent the qualification "of another." A person could be convicted of second-degree burglary for entering his own store in order to engage in a narcotics transaction, or for entering his own automobile or boat for purposes of forging an instrument.

OUJI-CR 5-14

BURGLARY IN THE SECOND DEGREE

(VENDING MACHINES) - ELEMENTS

No person may be convicted of burglary in the second degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, breaking;

Second, a (coin operated)/vending machine/device;

Third, of another;

Fourth, with the intent to steal/(commit any felony).

______________________________

Statutory Authority: 21 O.S. 1991 Supp. 2019, § 1435 (A).

Committee Comments

In the opinion of the Commission, section 1435 creates a separate crime with different elements, still called burglary in the second degree, when the place burglarized is a vending machine. The Commission has concluded that "breaks into" is synonymous with "forcibly opens" so that the language indicates only one element. The Commission has also decided that "breaks into and forcibly opens" does not imply an "entry" as a separate element of the crime. The Commission has concluded that the court would decide that "breaks into or forcibly opens" means the use of force, however slight, to remove an obstruction to entry, Matthews v. State, 1975 OK CR 4, ¶ 18, 530 P.2d 1044, 1047 (Okl. Cr. 1975) (coinbox washing machine coin box opened with key); Hudson v. State, 1974 OK CR 161, ¶ 12, 525 P.2d 1380, 1382-83 (Okl. Cr. 1974) (same), but that actually reaching inside the machine to fetch the contents or money is not an element of the crime. The Commission has reached this conclusion because the other crime created by section 1435 has the specific language "breaks and enters," whereas the vending machine crime does not, although the word "into" possibly could be interpreted to require entry.

OUJI-CR 5-14A

BURGLARY IN THE THIRD DEGREE - ELEMENTS

No person may be convicted of burglary in the third degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, breaking;

Second, entering;

Third, a/an automobile/truck/trailer/vessel;

Fourth, of another;

Fifth, in which property is kept;

Sixth, with the intent to (steal any property in the automobile/truck/ trailer/vessel)/(commit any felony).

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Statutory Authority: 21 O.S. Supp. 2019, § 1435(B).

OUJI-CR 5-20

EMBEZZLEMENT (APPROPRIATING) - ELEMENTS

No person may be convicted of felony/misdemeanor embezzlement unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First

, fraudulently;

Second

, appropriated;

Third

, personal property;

Fourth

, (of value)/(valued at more than $1,000) with a value of (less than $1,000)/($1,000-$2,499.99)/($2,500-$14,999.99/($15,000 or more);

Fifth

, of a person/(legal entity);

Sixth

, to any use or purpose not intended or authorized by its owner;

Seventh

, where the property was legally obtained; and
[Eighth, the property was entrusted to the defendant for a specific purpose/use/disposition, including any funds "held in trust" for any purpose].

[Eighth, the defendant obtained the property by virtue of a power of attorney for the sale/transfer of the property].

[Eighth, the property was controlled/possessed for the use of another person].

[Eighth, the property was to be used for a public/benevolent purpose].

[Eighth, the defendant diverted money appropriated by law from the purpose and object of the appropriation].

[Eighth, the defendant failed/refused to pay over to the state/(Specify Other Appropriate Authority) any tax/ (Specify Other Type of Monies) collected in accordance with state law; and

Ninth, the defendant appropriated the tax/(Specify Other Type of Monies) for (his/her own use)/(the use of another person)].

[Eighth, the defendant possessed the property for the purpose of transportation without regard to whether packages containing the property have been broken].

[Eighth, the defendant removed crops from leased/rented premises with the intent to deprive the owner/landlord of rent due from the premises].

[Eighth, the defendant fraudulently appropriated rent from leased/rented premises to himself/herself/(any person)].

[Eighth, the property was possessed/controlled by virtue of a lease/rental agreement; and

Ninth, the defendant willfully/intentionally did not return the property within 10 days after the agreement expired].

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Statutory Authority: 21 O.S. Supp. 2004 2019, § 1451.

Notes on Use

If the prosecution seeks to aggregate the value of multiple offenses, OUJI-CR 5-90A, infra, should also be used.

Committee Comments

Two element instructions are given for embezzlement under section 1451 because two fact situations constitute crimes under the statute. This instruction covers the usual case in which the State will present evidence that the accused has in fact appropriated the property. The next instruction (OUJI-CR 5-21, infra) covers the case in which no appropriation has occurred but the accused has hidden the property with fraudulent intent to appropriate it at a more convenient time. Common law cases are split on the question of whether the act of hiding the property constitutes a conversion. Section 1451 explicitly resolves the question. Hence, instructions are presented to cover both situations. The trial judge should use the instruction more appropriate for the facts of the pending case.

The third element indicates that the property which is subject to embezzlement is personal property, not real property. The statutory language does not specify personal property, but merely "property." Basic research into Oklahoma cases has not revealed a case addressing this question. Only a few cases in the United States have dealt with the specific question of whether real property is covered by the embezzlement crime. See People v. Roland, 134 Cal. App. 675, 26 P.2d 517 (1933) (real property is subject to embezzlement); Manning v. State, 175 Ga. 875, 166 S.E. 658 (1932); State v. Clark, 60 Ohio App. 367, 21 N.E.2d 484 (1938) (real property is not subject to embezzlement). Even the treatise writers appear divided on the question. R. Perkins, Criminal Law 291 (2d ed. 1969) and W. Clark & W. Marshall, A Treatise on the Law of Crimes 904-07 (7th ed. 1967) imply that real property cannot be embezzled, whereas W. LaFave & A. Scott, Criminal Law § 89, at 646-647 (1972), state that, on principle, conviction for embezzlement of real property should be possible.

The Committee has concluded that real property was not meant to be included within the embezzlement statutes of Oklahoma. The Committee reached this conclusion for several reasons. First, embezzlement historically has been used to fill the gaps opened by interpretation of common law larceny. Larceny applies to personal property only because real property cannot be taken and carried away. Second, the punishment for embezzlement in Oklahoma is correlated to the punishment for larceny. 21 O.S. 2001 2011, § 1462. Third, the common law definition is to be followed, in the opinion of the Commission, unless the Legislature has clearly indicated otherwise. If the Legislature had meant to expand embezzlement, it should have used the words "real or personal property."

The seventh element presents the concept of lawful acquisition by the person who has embezzled. If the property is wrongfully acquired initially, the crime is larceny, not embezzlement. Ennis v. State, 1917 OK CR 150, 13 Okl. Cr. 675, 167 P. 229; Bivens v. State, 1912 OK CR 11, 6 Okl. Cr. 521, 120 P. 1033; Flohr v. Territory, 1904 OK CR 93, 14 Okl. 477, 78 P. 565.

In light of the statutory language of section 1451, a question arises whether the Legislature intended to abolish the distinction made at common law between custody and possession. At common law if a person merely acquired custody of property, i.e., physical possession, and then converted the property, the person had committed larceny but not embezzlement. The common law reasoning is that a person who has custody does not have legal possession of the property; hence, the conversion is a trespassory taking, rather than an appropriation. Taking is an element of larceny, whereas appropriating is an element of embezzlement. R. Perkins, Criminal Law 289 (2d ed. 1969). The language of the statute is susceptible to a construction indicating that it is immaterial whether the embezzler had custody or possession when he converted.

Conflicting lines of cases decided under prior Oklahoma statutes exist in Oklahoma concerning the custody/possession dichotomy. In Cunningham v. District Court of Tulsa, 1967 OK CR 183, 432 P.2d 992, and Gibson v. State, 1958 OK CR 74, 328 P.2d 718, overruled on other grounds, Parker v. State, 1996 OK CR 19, n.4, 917 P.2d 980, 986, the distinction between custody and possession is drawn. In Smith v. State, 1929 OK CR, 42 Okl. Cr. 136, 275 P. 359, the distinction is repudiated. Although Cunningham, Gibson, and Smith construe separate statutes, the language of the statutes is similar. Former section 1452 read, "in his possession or under his control"; former section 1454 read, "entrusted with or having in his control"; former section 1456 read, "has come into his control or care"; and former section 1453 read, "having under his control." The Commission has concluded that the reasoning of the court in the Cunningham and Gibson cases should be adopted when construing the embezzlement statutes in order to preserve the custody/possession distinction.

The fourth element is included to indicate whether the defendant is charged with felony or misdemeanor embezzlement and for the purposes of determining the appropriate range of punishment.

Some overlap with the larceny statutes may result from the following provision at the end of 21 O.S. Supp. 2002 2019, § 1451(A)(7): "without regard to whether packages containing the property have been broken." The common law courts hold that misappropriation of the entire package delivered to a carrier is not larceny because the carrier has lawful possession. Misappropriation of the entire package is therefore embezzlement. If the carrier opened the package and took an item in the package, however, the courts held that larceny has been committed because the carrier did not have lawful possession of the individual items in the package. This is known as the "breaking bulk" doctrine. However, under section 1451(A)(7) this latter factual situation is also embezzlement. The language of section 1451(A)(7) indicates that embezzlement is committed whether the carrier takes the whole package or individual items. R. Perkins, Criminal Law 260-62 (2d ed. 1969).

OUJI-CR 5-21

EMBEZZLEMENT (SECRETING) - ELEMENTS

No person may be convicted of felony/misdemeanor embezzlement unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First

, secreted;

Second

, personal property;

Third

, (of value)/(valued at more than $1,000) with a value of (less than $1,000)/($1,000-$2,499.99)/($2,500-$14,999.99/($15,000 or more);

Fourth

, of a person/(legal entity);

Fifth

, with fraudulent intent to appropriate;

Sixth

, to any use or purpose not intended or authorized by its owner;

Seventh

, where the property was legally obtained; and

[Eighth, the property was entrusted to the defendant for a specific purpose/use/disposition, including any funds "held in trust" for any purpose].