In re Adoption of the 2018 Revisions to the Okla. Unif. Jury Instructions-Criminal

• Decision Date: 27 July 2018
• Docket Number: Case Number: CCAD-22018-2
• Parties: IN RE ADOPTION OF THE 2018 REVISIONS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS-CRIMINAL (SECOND EDITION)
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

2018 OK CR 23

IN RE ADOPTION OF THE 2018 REVISIONS TO THE OKLAHOMA UNIFORM JURY INSTRUCTIONS-CRIMINAL (SECOND EDITION)

Case Number: CCAD-22018-2

Criminal Court of Appeals of Oklahoma

Decided: July 27, 2018

ORDER ADOPTING AMENDMENTS TO OKLAHOMA

UNIFORM JURY INSTRUCTIONS-CRIMINAL (SECOND EDITION)

¶1 On April 28, 2018, 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 2018 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:

2-23; 2-24; 2-25; 4-26; 4-56A; 4-56B; 4-57; 4-57A; 4-57B; 4-58; 4-58A; 4-58A-1; 4-64; 4-65; 4-87B; 4-96A; 4-138; 4-138A; 8-31; 8-31A; 8-32; 8-33; 8-33A; 8-33B; 8-33C; 8-34; 10-13.

¶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 "(2018 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 27th day of July, 2018.

/s/GARY L. LUMPKIN, Presiding Judge

/s/DAVID B. LEWIS, Vice Presiding Judge

/s/ROBERT L. HUDSON, Judge

/s/DANA KUEHN, Judge

/s/SCOTT ROWLAND, Judge

ATTEST:

/s/John D. Hadden

Clerk

F. ATTEMPT OR THREATEN VIOLENCE

OUJI-CR 2-23

ATTEMPT ACT OF VIOLENCE - ELEMENTS

No person may be convicted of attempting to perform an act of violence unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, willfully;

Second, attempting/conspiring/endeavoring;

Third, to perform an act of violence;

Fourth, involving/(intended to involve) (serious bodily harm to)/(the death of) another person.

______________________________

Statutory Authority: 21 O.S. 2011, § 1378(A).

Notes on Use

For an Instruction on attempt, see OUJI-CR 2-11, supra. For an Instruction on conspiracy, see OUJI-CR 2-17, supra. For a definition of endeavoring, see OUJI-CR 6-16, infra.

OUJI-CR 2-24

THREATEN ACT OF VIOLENCE - ELEMENTS

No person may be convicted of threatening to perform an act of violence unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, willfully;

Second, threatening;

Third, to perform an act of violence;

Fourth, involving/(intended to involve) (serious bodily harm to)/(the death of) another person.

______________________________

Statutory Authority: 21 O.S. 2011, § 1378(B).

OUJI-CR 2-25

PLAN TO CAUSE (SERIOUS BODILY INJURY)/DEATH - ELEMENTS

No person may be convicted of planning to cause (serious bodily harm to)/(the death of) another person unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:

First, willfully;

Second, devising a plan/scheme/program of action;

Third, involving/(intended to involve) (serious bodily harm to)/(the death of) another person;

Fourth, with the intent to perform a malicious act of violence.

______________________________

Statutory Authority: 21 O.S. 2011, § 1378(C).

OUJI-CR 4-26

ASSAULT AND BATTERY - ELEMENTS

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

First, willful;

Second, unlawful;

Third, use of force or violence;

Fourth, upon another person.

______________________________

Statutory Authority: 21 O.S. 1991 2011, §§ 641, 642.

Committee Comments

Simple assault, simple battery, and simple assault and battery are misdemeanor crimes in Oklahoma. Oklahoma defines an assault in accordance with both of the common law definitions: an attempt to commit a battery, or the intentional placing of another in apprehension of receiving an immediate battery.Minnix v. State, 1955 OK CR 37, 282 P.2d 772 (Okl. Cr. 1955); Dunbar v. State, 1942 OK CR 150,75 Okl. Cr. 275, 131 P.2d 116 , 75 Okl. Cr. 275(1942),overruled on other grounds, Parker v. State, 1996 OK CR 19, ¶ 23, n.4, 917 P.2d 980, 986 n.4 (Okl.Cr. 1996); Tyner v. United States, 1909 OK CR 1082 Okl. Cr. 689, 103 P. 1057 , 2 Okl. Cr. 689(1909). See generally R. Perkins, Criminal Law 114-27 (2d ed. 1969).

Simple battery is also defined in Oklahoma in accordance with the common law concept. It is an unlawful beating, or use of wrongful physical violence or constraint upon the person of another, without that person's consent. Minnix v. State, supra. See generally R. Perkins, Criminal Law 107-13 (2d ed. 1969).

Every battery, by definition, includes an assault, although an assault can be perpetrated without a battery. The Court of Criminal Appeals has held that, when an assault culminates in a battery, the offense is assault and battery, and prosecution should be commenced for that grade of assault and battery which is reasonably supported by the State's proof of the facts. Hall v. State, 1957 OK CR 34, 309 P.2d 1096.

Specific intent is not an element of simple assault, simple battery, or simple assault and battery. Hainta v. State, 1979 OK CR 61, 596 P.2d 906; Morris v.State, 1973 OK CR 421, 515 P.2d 266.

In Steele v. State, 1989 OK CR 48, ¶12, 778 P.2d 929, 931, the Court of Criminal Appeals held that only the slightest force or touching is necessary to constitute the force required for battery. This degree of force is reflected by the definition of force in OUJI-CR 4-28.The "force or violence" constituting a battery will generally be direct and of such a nature as to produce physical injury. However, although there is a dearth of Oklahoma cases defining the nature and degree of "force or violence" required to establish a battery, it is settled in the vast majority of jurisdictions that any unconsented, offensive touching suffices as proof of "force." See, e.g., State v. Brewer, 31 Del. 363, 114 A. 604 (1921); Smith v. State, 85 Ga. App. 215, 68 S.E.2d 719 (1952); Commonwealth v. McCan, 277 Mass. 199, 178 N.E. 633 (1931); State v. Cruikshank, 13 N.D. 337, 100 N.W. 697 (1904); Weaver v. State, 66 Tex. Crim. R. 366, 146 S.W. 927 (1912); Wood v. Commonwealth, 149 Va. 401, 140 S.E. 114 (1927); Lynch v. Commonwealth, 131 Va. 762, 109 S.E. 427 (1921).

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]/[licensed child care facility]/park/playground.

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].

OR

(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).

OR

(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, § 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, § 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

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