In re Adoption of 2016 Revisions to Okla. Unif. Jury Instructions-Criminal

Decision Date01 June 2016
Docket NumberCase Number: CCAD-2016-1
Citation2016 OK CR 11
PartiesIN RE ADOPTION OF 2016 REVISIONS TO OKLAHOMA UNIFORM JURY INSTRUCTIONS-CRIMINAL
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

IN RE: ADOPTION OF THE 2016 REVISIONS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS-CRIMINAL (SECOND EDITION)

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

¶1 On March 11, 2016, 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 2016 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, 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:

4-15; 4-16; 4-39; 4-124; 4-127; 4-128; 4-130; 8-32; 8-34; 9-19; 9-43A;

¶4 The Court also accepts and authorizes the updated committee comments and notes on use to be published, together with the above styled revisions and each amended page in the revisions to be noted at the bottom as follows "(2016 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 1st day of June, 2016.

/S/CLANCY SMITH, Presiding Judge

/S/GARY L. LUMPKIN, Vice Presiding Judge

/S/ARLENE JOHNSON, Judge

/S/DAVID B. LEWIS, Judge

/S/ROBERT L. HUDSON, Judge

ATTEST:

/s/Michael S. Richie

(Clerk)

OUJI-CR 4-15

AGGRAVATED ASSAULT AND BATTERY UPON POLICE

OR OTHER STATE PEACE OFFICER - ELEMENTS

No person may be convicted of aggravated assault and battery upon a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer) unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, (an assault)/(a battery)/( an assault and battery);

Second, upon a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer);

Third, known by the defendant(s) to be a (police officer)/ sheriff/(deputy sheriff)/(highway patrolman)/ (corrections personnel)/(State peace officer);

Fourth, by inflicting great bodily injury;

Fifth, without justifiable or excusable cause;

Sixth, committed while the (police officer)/sheriff/(deputy sheriff)/ (highway patrolman)/(corrections personnel)/(State peace officer) was in the performance of his/her duties as a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer).

OR

First, physical contact with a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/ (corrections personnel)/(a peace officer employed by a state/federal governmental agency to enforce state laws);

Second, in a willful attempt to gain control;

Third, of the firearm;

Fourth, of any (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/ (corrections personnel)/(a peace officer);

Fifth, known by the defendant(s) to be a (police officer)/ sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(peace officer);

Sixth, without justifiable or excusable cause;

Seventh, committed while the (police officer)/sheriff/(deputy sheriff)/ (highway patrolman)/(corrections personnel)/(peace officer) was in the performance of his/her duties as a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(peace officer).

Statutory Authority: 21 O.S. Supp. 2015, § 650.

Notes on Use

The court should use the definitions of assault and/or battery in OUJI-CR 4-2 and 4-3 and the definition of great bodily injury in OUJI-CR 4-28 with the first alternative for this instruction, but they should not be used for the second alternative. For a definition of great bodily injury, see OUJI-CR 4-28. For a statutory definition of "police officer", see 21 O.S. Supp. 2006 2011, § 648. For a statutory definition of "corrections personnel", see 21 O.S. 2001 Supp. 2015, § 649(C).

Committee Comments

The third element of the first alternative and the fifth element of the second alternative in this instruction is are included because 21 O.S. 2001 2011, § 650 requires the aggravated assault and battery upon the peace officer to have been committed "knowingly".

OUJI-CR 4-16

ASSAULT OR BATTERY UPON POLICE OR OTHER

STATE PEACE OFFICER - ELEMENTS

No person may be convicted of assault/battery/(assault and battery) upon a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer) unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, (an assault)/(a battery)/(an assault and battery);

Second, upon a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer);

Third, known by the defendant(s) to be a (police officer)/ sheriff/(deputy sheriff)/(highway patrolman)/ (corrections personnel)/(State peace officer);

Fourth, without justifiable or excusable cause;

Fifth, committed while the (police officer)/sheriff/(deputy sheriff)/ (highway patrolman)/(corrections personnel)/(State peace officer) was in the performance of his/her duties as a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer).

OR

First, a willful attempt to (reach for)/(gain control);

Second, of the firearm;

Third, of any (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/ (corrections personnel)/(a peace officer employed by a state/federal governmental agency to enforce state laws);

Fourth, known by the defendant(s) to be a (police officer)/ sheriff/(deputy sheriff)/(highway patrolman)/ (corrections personnel)/(State peace officer);

Fifth, without justifiable or excusable cause;

Sixth, committed while the (police officer)/sheriff/(deputy sheriff)/ (highway patrolman)/(corrections personnel)/(State peace officer) was in the performance of his/her duties as a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer).

Statutory Authority: 21 O.S. 2000 & Supp. 2006, §§ 648, 649 2011, § 648, 21 O.S. Supp. 2015, § 649.

Notes on Use

The court should use the definitions of assault and/or battery in OUJI-CR 4-2 and 4-3 with the first alternative for this instruction, but they should not be used for the second alternative. For a statutory definition of "police officer", see 21 O.S. Supp. 2006 2011, § 648. For a statutory definition of "corrections personnel", see 21 O.S. 2001 Supp. 2015, § 649(C).

Committee Comments

Section 649 of Title 21 singles out a particular type of simple assault or battery for enhanced punishment: wrongful attack upon a police officer or other officer in the performance of his/her duties. Such an attack is wrongful unless it occurs during the course of reasonable resistance by the defendant to an unlawful arrest. Sandersfield v. State, 1977 OK CR 242, 568 P.2d 313; Cantrell v. State, 1977 OK CR 100, 561 P.2d 973; Morrison v. State, 1974 OK CR 223, 529 P.2d 518; Davis v. State, 1932 OK CR, 53 Okl. Cr. 411, 12 P.2d 555. Section 648 defines which officers are protected by section 649.

The court's construction of the phrase "while in the performance of his duties" may be perceived by contrasting two recent cases. In Stewart v. State, 1974 OK CR 173, 527 P.2d 22, the complainant was an off-duty Norman police officer employed as a security guard at an apartment complex. At the time the altercation occurred, the officer was at his place of private employment, without a gun or a uniform. The court reversed the defendant's conviction under section 649, and held:

We believe that when an off-duty police officer accepts private employment and is receiving compensation from his private employer he changes hats from a police officer to a private citizen when engaged in this employment and he is therefore representing his private employer's interest and not the public's interest....
We therefore hold that as a matter of law when an off-duty police officer accepts private employment ... he becomes a private citizen. Therefore, to make a valid arrest he must comply with the law applicable to a citizen's arrest.

Id. at ¶ ¶ 7, 8, 527 P.2d at 24.

This holding was distinguished by the court in Brooks v. State, 1977 OK CR 96, 561 P.2d 137. The complaining officer in Brookswas not in uniform and was off-duty at the time he attempted to investigate rowdy conduct on the part of the defendants, and he became involved in a fracas with the defendants, when he attempted to investigate rowdy conduct on the part of the defendants. In holding Stewart inapplicable because the officer in that case was performing his own private, rather than public, functions the court held:

[A]ny
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