OREGON UNIFORM CRIMINAL JURY INSTRUCTIONS

Transcription

1 OREGON UNIFORM CRIMINAL JURY INSTRUCTIONS 2005 SUPPLEMENT Prepared by: OREGON STATE BAR COMMITTEE ON UNIFORM CRIMINAL JURY INSTRUCTIONS

2 2005 OREGON STATE BAR COMMITTEE ON UNIFORM CRIMINAL JURY INSTRUCTIONS Jennifer S. Lloyd, Chair Guy B. Greco, Secretary Hon. Cheryl A. Albrecht David H. Angeli Leah B. Cronn Steven Griffin Susan K. Hohbach Rankin Johnson Ethan D. Knight Mitch Lampson Lisa J. Ludwig Douglas R. Marteeny Karla L. Nash Michael J. Slauson Katherine Weber Ladd Wiles If you notice an error in the UCrJIs or if you have a suggestion for a new UCrJI, please contact Dean Land, UCrJI Committee Liaison, by telephone at (toll-free in Oregon, ), ext. 306, or dland@osbar.org. These instructions may be cited as: UCrJI No by the Oregon State Bar Printed in the United States of America

3 SUMMARY OF 2005 CHANGES This page provides a short explanation of the Committee s 2005 changes to the Uniform Criminal Jury Instructions. You may wish to save it for future reference. User s Guide, 1.18 User s Guide, 1.19 UCrJI No UCrJI No UCrJI No UCrJI No. 1003A UCrJI No UCrJI No. 1004A UCrJI No UCrJI No UCrJI No UCrJI No. 1017A UCrJI No The text was updated to reflect the requirement that the jury receive written or recorded instructions. This new section discusses the option of allowing jurors to ask questions. The instruction now provides options depending on whether the jury is trying guilt, offense-specific enhancement facts, offender-specific enhancement facts, or some combination thereof. An optional paragraph on juror privacy was added and the language in the final paragraph was amended. The comment was updated. The instruction now gives detailed sample procedures for allowing juror questions. This new instruction addresses situations in which jurors must determine enhancement facts. The instruction now provides the option of instructing jurors on how to evaluate answers to juror questions. It also incorporates former UCrJI No on written or recorded instructions. This new instruction addresses situations in which jurors must determine enhancement facts. The comment was revised. The instruction now covers situations in which offense-specific enhancement fats are at issue. The special verdict form now covers situations in which offense-specific enhancement facts are at issue. This new verdict form covers situations in which the jury decides only enhancement facts. The comment was revised.

4 UCrJI No UCrJI No UCrJI No UCrJI No UCrJI No UCrJI No UCrJI Nos UCrJI No UCrJI No UCrJI No UCrJI No UCrJI No UCrJI No UCrJI Nos UCrJI No UCrJI No UCrJI No UCrJI No Extensive discussion of evidentiary law was deleted from the comment. The instruction was amended to incorporate former UCrJI No. 1025, and the comment now discusses how to deal with different situations in which date becomes an issue. This instruction was deleted because it is now incorporated into UCrJI No The comment was revised. The last sentence was reworded. The instruction now covers situations in which offense-specific enhancement facts are at issue. These instructions now include optional language based on ORS (3). A number of cases were deleted from the comments. The instruction now includes optional language based on ORS (3). The comment was revised. A paragraph was deleted from the comment. The definitions of actual possession and constructive possession were revised. The comment was also revised. The instruction now distinguishes between a confession and an admission. The comment was revised. The title was changed and the word actually was deleted from the last sentence. The comments were revised. This instruction was deleted because it is now incorporated into UCrJI No The definition of law enforcement uniform was added. The language Oregon law provides that was added. Option 2A was reformatted.

5 UCrJI No UCrJI No UCrJI No UCrJI No UCrJI No UCrJI No. 1401A UCrJI No UCrJI No. 1705A UCrJI No UCrJI No UCrJI No UCrJI No UCrJI Nos UCrJI No UCrJI No. 2012A UCrJI No. 2012B UCrJI Nos UCrJI Nos The language Oregon law provides that was added. The instruction was updated to comply with 2005 legislative changes. Option 2C was reworded. The instruction was updated to comply with 2005 legislative changes. The instruction was reformatted. This new instruction addresses the new theory of first-degree assault by serious physical injury to a child. The instruction was updated to comply with 2005 legislative changes. This new instruction addresses the affirmative defense to criminal nonsupport. The instruction was updated to comply with 2005 legislative changes. The comment was revised. The instruction was updated to comply with 2005 legislative changes. Definitions for medical facility and telecommunications carrier were added. A number of citations were updated. The comments were revised. The instruction was updated to include damage to a medical facility. This new instruction addresses criminal mischief committed by interference with the service provided by a public facility. This new instruction addresses criminal mischief committed by interfering with the efficiency of a public facility. The instructions were reworded. The comments were revised.

6 UCrJI No UCrJI No. 2301A UCrJI No UCrJI No UCrJI No UCrJI No. 2311A UCrJI No UCrJI No UCrJI No UCrJI No UCrJI No UCrJI No UCrJI No UCrJI No This new instruction provides definitions for debt, debt collector, fighting, school, and violent, tumultuous, or threatening behavior. This new instruction addresses the new crime of first-degree disorderly conduct. The instruction was updated to comply with 2005 legislative changes. The comment was revised. The instruction was updated to comply with 2005 legislative changes. The comment was revised. The instruction was updated to comply with 2005 Legislative changes. This new instruction addresses the affirmative defense to telephone harassment. The instruction was reworded. Definitions for dispose and methamphetamine manufacturing waste were added. This new instruction addresses the new crime of possession or disposal of methamphetamine manufacturing waste. This new instruction addresses the crime of failure to carry a license. This new instruction addresses the crime of failure to present a license to a police officer. A statutory citation was added to the comment. The instruction was reworded, and the comment was updated. The comment was updated.

7 SUMMARY OF CONTENTS Oregon Jury Instructions for Criminal Cases USER S GUIDE Criminal Jury Instructions User s Guide... G-1 () GENERAL INSTRUCTIONS Introduction () Use of an Interpreter () Precautionary Instructions () Precautionary Instruction for Jury Sentencing Proceedings A () Functions of the Court and Jury () Functions of the Sentencing Jury A () Evaluating Witness Testimony (12/02) Inferences (12/02) Innocence of Defendant Proof Beyond a Reasonable Doubt (12/02) Affirmative Defense Defendant s Burden of Proof (12/02) Lesser Included Offense (12/02) Lesser Included Offense Order of Deliberation (12/02) Multiple Lesser Included Offenses Order of Deliberation (12/02) Lesser Included Offense[s] Explanation or Comparison (12/02) Verdict Felony Case () Verdict Misdemeanor Case (12/02) Sample Criminal Jury Verdict Form (One Charge, No Lesser Included Offense) (12/02) Subcategory Classification Factors and Offense-Specific Enhancement Facts () Sample Special Verdict Form (Subcategory Classification Factors or Offense-Specific Enhancement Facts) () Sample Enhancement Fact Verdict Form A () 1

8 Sample Criminal Jury Verdict Form (One Charge, One or More Lesser Included Offenses) () Defendant Not Testifying (12/02) Witness s Prior Conviction () Defendant s Prior Conviction (12/02) Defendant s Statements (12/02) Direct or Circumstantial Evidence (12/02) Date When Crime Committed On or About () Date When Crime Committed Within Two or Three Years Date Not Material (INCORPORATED INTO 1024) () Jury View (12/02) Deadlocked Jury (12/02) Witness False in Part () Less Satisfactory Evidence (State s Burden of Proof) (12/02) Less Satisfactory Evidence (Defendant s Burden of Proof) () Criminal Charge () Nonexpert Opinion Evidence (12/02) Expert Opinion Evidence (12/02) Intentionally and with Intent (12/02) Knowingly and with Knowledge () Recklessly () Criminal Negligence () Theft Definition (12/02) Attempt () Solicitation () Conspiracy (12/02) Dangerous or Deadly Weapon (12/02) Physical or Serious Physical Injuries (12/02) Possession () Preponderance of the Evidence (12/02) Public Place (12/02) Deadly Physical Force (12/02) 2

9 Admission or Confession Voluntariness (12/02) Confession Corroboration () Criminal Liability for Conduct of Another Person () Aid or Abet (12/02) Aider or Abettor Liability for Probable Consequences (12/02) Accomplice Witness Definition () Accomplice Witness Burden of Proof () Accomplice Corroboration () Accomplice Testimony (View with Distrust) () Other Accomplice Instructions () Recorded or Written Instructions (INCORPORATED INTO 1004) () Separate Consideration for Each Defendant (12/02) Stipulated Testimony (12/02) Stipulations of Fact (12/02) Judicial Notice (12/02) Domestic Violence (12/02) Crime Involving Domestic Violence (12/03) Voluntary Act or Omission (12/04) DEFENSES Defense Alibi (12/02) Voluntary Intoxication Generally (12/02) Defense Choice of Evils (12/04) Defense Duress (12/02) Defense Entrapment (12/02) Defense Incapacity Due to Immaturity (12/02) Defense Physical Force Defense of Person (12/03) Limitations Defense of Person Deadly Physical Force (12/02) Defense Use of Physical Force in Defense of Person Provocation (12/02) 3

10 Defense Use of Physical Force in Defense of Person Aggression (12/02) Use of Physical Force in Defense of Person Mutual Combat No Defense (12/04) Defense Physical Force Defense of Premises (12/03) Limitations Defense of Premises Deadly Physical Force (12/03) Defense Use of Physical Force in Defense of Property (12/02) Defense Physical Force Arrest by Citizen (12/02) Defense Physical Force Involving Peace Officers (12/02) Attempt Impossibility No Defense (12/02) Attempt Affirmative Defense of Renunciation (12/02) Conspiracy Affirmative Defense of Renunciation (12/02) Solicitation Affirmative Defense of Renunciation (12/02) Affirmative Defense Mental Disease or Defect Guilty Except for Insanity (12/02) Affirmative Defense Insanity Means of Disposition (12/02) Defense Physical Force Justification Parent (12/04) Defense Physical Force Justification Teacher (12/04) Defense Physical Force Justification Jail Official (12/04) Defense Physical Force Justification Common Carrier (12/04) Defense Physical Force Justification Suicide (12/04) OFFENSES AGAINST THE STATE Definitions () Bribery Bribe Giving () Bribery Bribe Receiving Solicitation (12/02) Bribery Bribe Receiving Acceptance (12/02) Perjury (12/02) Perjury Material Issue (12/02) False Swearing (12/02) Corroboration (12/02) 4

11 Retraction as a Defense (12/02) Unsworn Falsification (12/02) Escape in the First Degree () Escape in the Second Degree (12/02) Escape in the Third Degree (12/02) Aiding an Unauthorized Departure (12/02) Unauthorized Departure (12/02) Supplying Contraband (12/02) Failure to Appear in the First Degree (12/03) Failure to Appear in the Second Degree (12/03) Definition Felony; Misdemeanor as a Matter of Law (12/03) Obstructing Governmental or Judicial Administration (12/02) Tampering with a Witness (12/02) Tampering with Physical Evidence (12/02) Bribing a Witness () Bribe Receiving by a Witness (12/02) Tampering with Public Records (12/02) Resisting Arrest (12/02) Resisting Arrest Illegality of Arrest No Defense (12/02) Self-Defense Resisting Arrest (12/02) Hindering Prosecution (12/03) Compounding (12/03) Hindering Prosecution and Compounding No Defense A (12/03) Simulating Legal Process () Criminal Impersonation (12/03) Criminal Impersonation No Defense A (12/03) Initiating a False Report () Giving False Information to Peace Officer for a Citation (12/02) Criminal Impersonation of a Peace Officer () Possession of a False Law Enforcement Identification Card () 5

12 Interference with Making a Report (12/02) Interfering with a Peace Officer (12/04) Interfering with a Firefighter or Emergency Medical Technician (12/04) HOMICIDE Definitions (12/02) Aggravated Murder Intentional Murder Under Certain Circumstances (12/02) Aggravated Murder Felony Murder (12/02) Aggravated Murder Justice System Victims (12/02) Felony Murder (12/02) Felony Murder (Assault Victim Under 14 Years of Age) (12/02) Affirmative Defense Felony Murder (12/02) Murder Intentionally (12/02) Affirmative Defense Extreme Emotional Disturbance (12/02) Manslaughter in the First Degree Recklessly (12/02) Manslaughter in the First Degree (Victim Under 14 Years of Age or a Dependent Person Previous Assault or Torture) (12/02) Manslaughter in the First Degree (Victim Under 14 Years of Age or a Dependent Person Neglect or Maltreatment) (12/02) Manslaughter in the Second Degree Reckless Conduct (12/02) Manslaughter in the Second Degree Causing or Aiding in a Suicide (12/02) Manslaughter in the Second Degree (Victim Under 14 Years of Age or a Dependent Person Previous Assault or Torture) (12/02) Manslaughter in the Second Degree (Victim Under 14 Years of Age or a Dependent Person Neglect or Maltreatment) (12/02) Criminally Negligent Homicide (12/02) Verdict Murder or Aggravated Murder (12/02) 6

13 Aggravated Murder Penalty Phase Functions of the Court and Jury (12/02) Aggravated Murder Penalty Phase Explanation of Statutory Questions (12/02) Penalty Phase Verdict Form (12/02) Murder by Abuse (12/02) Murder by Abuse (by Neglect) (12/02) Murder by Abuse (by Neglect) Affirmative Defense (12/02) ASSAULT, MENACING, RECKLESSLY ENDANGERING, AND COERCION Definitions (12/03) Assault in the First Degree (12/02) Assault in the First Degree (Serious Physical Injury to a Child) A () Assault in the Second Degree Subsection (1)(a) (Intentionally/Knowingly Serious Physical Injury Nonweapon) (12/02) Assault in the Second Degree Subsection (1)(b) (Intentionally/Knowingly Physical Injury Weapon) (12/02) Assault in the Second Degree Subsection (1)(c) (Recklessly Serious Physical Injury Extreme Indifference Weapon) (12/02) Assault in the Third Degree Subsection (1)(a) (Recklessly Serious Physical Injury Weapon) (12/02) Assault in the Third Degree Subsection (1)(b) (Recklessly Serious Physical Injury Extreme Indifference Nonweapon) (12/02) Assault in the Third Degree Subsection (1)(c) (Recklessly Physical Injury Extreme Indifference Weapon) (12/02) Assault in the Third Degree Subsection (1)(d) (Intentionally/Knowingly/Recklessly Physical Injury Operator of Public Transit Vehicle) (12/02) 7

14 Assault in the Third Degree Subsection (1)(e) (Intentionally/Knowingly Physical Injury Aided by Another Actually Present) (12/02) Assault in the Third Degree Subsection (1)(f) (Intentionally/Knowingly Physical Injury Staff of Youth Correction Facility) (12/02) Assault in the Third Degree Subsection (1)(g) (Intentionally/Knowingly/Recklessly Physical Injury Emergency Medical Technician or Paramedic) (12/02) Assault in the Third Degree Subsection (1)(h) (Intentionally/Knowingly Physical Injury Victim 10 Years Old or Younger; Defendant at Least 18 Years Old) (12/02) Assault in the Third Degree Subsection (1)(i) (Intentionally/Knowingly Propelling Dangerous Substance Staff Member) (12/02) Assault in the Third Degree Subsection (1)(j) (Intentionally/Knowingly/Recklessly Physical Injury Operator of Taxi) (12/02) Assault in the Fourth Degree Subsection (1)(b) (Negligence Physical Injury Deadly Weapon) (12/02) Assault in the Fourth Degree Subsection (1)(a) (Intentionally/Knowingly/Recklessly Physical Injury Nonweapon) (12/02) Assault in the Fourth Degree Subsections (1)(b), (3)(a) (Negligence Physical Injury Deadly Weapon) (Previous Conviction Same Victim) (12/02) Assault in the Fourth Degree Subsections (1)(a), (3)(a) (Intentionally/Knowingly/Recklessly Physical Injury Nonweapon) (Previous Conviction Same Victim) (12/02) Assault in the Fourth Degree Subsections (1)(b), (3)(b) (Negligence Physical Injury Deadly Weapon) (Three Previous Convictions) (12/02) Assault in the Fourth Degree Subsections (1)(a), (3)(b) (Intentionally/Knowingly/Recklessly Physical Injury Nonweapon) (Three Previous Convictions) (12/02) 8

15 Assault in the Fourth Degree Subsections (1)(b), (3)(c), (4) (Negligence Physical Injury Deadly Weapon) (Witnessed by Minor Child) (12/02) Assault in the Fourth Degree Subsections (1)(a), (3)(c), (4) (Intentionally/Knowingly/Recklessly Physical Injury Nonweapon) (Witnessed by Minor Child) (12/02) Menacing (12/02) Recklessly Endangering Another Person (12/02) Coercion (Causes Another to Act) (12/02) Coercion (Causes Another to Abstain from Conduct) (12/02) Stalking (12/02) Violating a Court s Stalking Protective Order (12/02) Assaulting a Public Safety Officer (12/03) Unlawful Use of an Electrical Stun Gun, Tear Gas, or Mace in the First Degree (12/02) Unlawful Use of an Electrical Stun Gun, Tear Gas, or Mace in the Second Degree (12/02) Endangering the Welfare of a Minor (Witness Sexual Conduct or Sadomasochistic Abuse) (12/02) Endangering the Welfare of a Minor (Unlawful Activity or Controlled Substance) (12/02) Female Genital Mutilation Subsection (1)(a) (Knowingly Performs) (12/02) Female Genital Mutilation Subsection (1)(b) (Knowingly Allows Parent, Guardian, or Legally Responsible Adult) (12/02) Strangulation (12/03) KIDNAPPING AND CUSTODIAL INTERFERENCE Definitions (12/02) Kidnapping in the First Degree (12/02) Kidnapping in the Second Degree (12/02) Kidnapping in the Second Degree Statutory Defense (12/02) Custodial Interference in the First Degree (12/02) Custodial Interference in the Second Degree (12/02) 9

16 RAPE, SODOMY, AND SEXUAL OFFENSES Definitions (12/03) Sexual and Intimate Parts as a Matter of Law (12/02) Intimacy Test (12/02) Rape in the First Degree (12/02) Rape in the Second Degree (12/02) Rape in the Third Degree (12/02) Sodomy in the First Degree (12/02) Sodomy in the Second Degree (12/02) Sodomy in the Third Degree (12/02) Unlawful Sexual Penetration in the First Degree (12/02) Unlawful Sexual Penetration in the Second Degree (12/02) Sexual Abuse in the First Degree Subsection (1)(a) (Victim Younger than 14, or Forcible Compulsion, or Victim Mentally Defective, Mentally Incapacitated, or Physically Helpless) (12/02) Sexual Abuse in the First Degree Subsection (1)(b) (Unlawful Contact with Animal for Purposes of Sexual Gratification) (12/02) Sexual Abuse in the Second Degree (12/02) Sexual Abuse in the Third Degree (12/02) Contributing to the Sexual Delinquency of a Minor (Sexual Intercourse with Minor) (12/02) Contributing to the Sexual Delinquency of a Minor (Deviate Sexual Intercourse with Minor) (12/02) Sexual Misconduct (12/02) Public Indecency (12/02) Private Indecency (12/02) Private Indecency Cohabitation Defense (12/02) Using a Child in a Display of Sexually Explicit Conduct (12/02) Encouraging Child Sexual Abuse in the First Degree (By Publication) (12/02) Encouraging Child Sexual Abuse in the First Degree (By Possession with Intent to Publish) (12/02) 10

17 Encouraging Child Sexual Abuse in the First Degree (By Bringing or Sending into State) (12/02) Incapacity to Consent (12/02) Ignorance or Mistake as a Defense to Sexual Offenses (Mentally Defective, Mentally Incapacitated, or Physically Helpless) (12/02) Ignorance or Mistake as a Defense to Sexual Offenses Subsection (1) (12/02) Ignorance or Mistake as a Defense to Sexual Offenses Subsection (2) (12/02) Defense to Unlawful Sexual Penetration (12/02) Possession of Materials Depicting Sexually Explicit Conduct of a Child in the First Degree (12/02) Possession of Materials Depicting Sexually Explicit Conduct of a Child in the Second Degree (12/02) Effect of Lack of Resistance (12/02) Invasion of Personal Privacy Subsection (1)(a) (Unlawful Recording) (12/03) Invasion of Personal Privacy Subsection (1)(b) (Unlawful Observation) (12/03) Failure to Report as Sex Offender (12/04) Sex Crime (12/04) FAMILY OFFENSES Definitions (12/02) Incest (12/02) Abandonment of a Child (12/02) Child Neglect in the Second Degree (12/02) Child Neglect in the First Degree (12/02) Criminal Nonsupport () Criminal Nonsupport Affirmative Defense A () Criminal Nonsupport Venue (12/02) Duty to Support Child (12/02) Other Marriages or Children No Defense (12/02) Failure to Support Self-Imposed (12/02) 11

18 Criminal Mistreatment in the First Degree (Withholding of Necessary Food, Physical Care, or Medical Attention) (12/02) Criminal Mistreatment in the First Degree (Dependent or Elderly Persons) () Criminal Mistreatment in the Second Degree (12/02) THEFT Definitions (12/02) Theft Short Form Definitions (12/02) Theft in the First Degree by Taking (12/02) Theft in the First Degree of Lost or Mislaid Property (12/02) Theft in the First Degree by Extortion (12/02) Theft in the First Degree by Deception (12/02) Theft in the First Degree by Receiving () Theft of Services $750 or More or $10,000 or More (12/02) Theft by Taking Second Degree or Third Degree (12/02) Theft in the Second Degree of Lost or Mislaid Property (12/02) Theft in the Second Degree by Deception (12/02) Theft by Receiving Second Degree or Third Degree (12/02) Theft of Services $50 or More or of Some Value (12/02) Theft More than One Theory of Theft (12/02) Theft by Receiving: Knowledge of Person from Whom Property Stolen Not Required (12/02) Theft Right of Possession (12/02) Theft by Deception Knowledge: Bad Check (12/02) Unauthorized Use of a Vehicle by Taking (12/02) Unauthorized Use of a Vehicle Alternative Means (12/02) Unauthorized Use of a Vehicle by One Having Custody Holding over Beyond Agreement (12/02) Unauthorized Use of a Vehicle by One Having Custody for Repair (12/02) 12

19 Possession of a Stolen Vehicle (12/02) Unlawfully Obtaining Public Assistance (12/02) Unlawfully Obtaining Food Stamps (12/02) Defense Theft Honest Claim of Right (12/02) Defense Theft Property of a Spouse (12/02) Defense Theft by Extortion Instilling Fear of Prosecution (12/02) Aggravated Theft in the First Degree by Taking (12/04) Aggregate Value Theft (12/02) Identity Theft (12/02) Identity Theft Affirmative Defense Under 21 and Use of Identification to Purchase Alcohol (12/02) Identity Theft Affirmative Defense Under 18 and Use of Identification to Purchase Tobacco Products (12/02) Identity Theft Affirmative Defense Use of Identification to Gain Access to Place Restricted by Age or to Benefit Based on Age (12/02) Mail Theft or Receipt of Stolen Mail (12/02) BURGLARY AND CRIMINAL TRESPASS Definitions (12/03) Burglary in the First Degree Dwelling (12/02) Burglary in the First Degree Other than Dwelling (12/03) Burglary in the Second Degree (12/02) Possession of a Burglary Tool or Theft Device (12/03) Criminal Trespass in the First Degree (12/02) Criminal Trespass in the Second Degree (Motor Vehicle or Premises) (12/02) Criminal Trespass in the Second Degree by a Guest (12/02) Criminal Trespass While in Possession of a Firearm (12/02) Unlawful Entry into a Motor Vehicle (12/02) Interfering with Public Transportation Trespass (12/02) 13

20 Interfering with Public Transportation Interfering with Movement of or Access to Vehicles (12/02) Interfering with Public Transportation Disorderly Conduct () Interfering with Public Transportation Offensive Physical Contact (12/02) ARSON AND CRIMINAL MISCHIEF Definitions () Arson in the First Degree Protected Property (12/02) Arson in the First Degree Recklessly Placing a Person in Danger (12/02) Arson in the First Degree Recklessly Placing Protected Property in Danger (12/02) Arson in the First Degree Damaging Property and Recklessly Causing Serious Physical Injury to Firefighter or Peace Officer Acting in the Line of Duty (12/02) Arson in the Second Degree (12/02) Reckless Burning (12/02) Criminal Mischief in the First Degree Intentional Damage Exceeding $ () Criminal Mischief in the First Degree Use of Explosives () Criminal Mischief in the First Degree By Starting Fire in Institution While Confined (12/02) Criminal Mischief in the First Degree Intentional Damage to Livestock (12/02) Criminal Mischief in the First Degree Intentional Damage to Police Animal (WITHDRAWN) (12/04) Criminal Mischief in the First Degree Intentional Damage to Public Facility Property () Criminal Mischief in the First Degree Public Facility Service A () Criminal Mischief in the First Degree Public Facility Interfere with Efficiency B () 14

21 Criminal Mischief in the Second Degree Damage Exceeding $ () Criminal Mischief in the Second Degree Intentional Damage () Criminal Mischief in the Second Degree Reckless Damage Exceeding $ (12/02) Criminal Mischief in the Third Degree (12/02) Interfering with a Police Animal (RENAMED AND RENUMBERED to 3008) (12/04) ROBBERY Robbery in the First Degree () Robbery in the Second Degree () Robbery in the Third Degree () FORGERY Definitions (12/04) Forgery General Definitions (12/02) Forgery in the First Degree (12/02) Forgery in the Second Degree (12/02) Criminal Possession of a Forged Instrument First Degree (12/02) Criminal Possession of a Forged Instrument Second Degree (12/02) Criminal Possession of a Forgery Device (12/02) Fraudulent Use of a Credit Card Felony or Misdemeanor (12/02) Negotiating a Bad Check (12/02) Aggregate Value Forgery (12/02) False Claim for Health Care Payment (Claim Containing False Statement) (12/02) False Claim for Health Care Payment (Knowing Concealment or Failure to Disclose) (12/02) Aggregate Value False Claims (12/02) Unlawful Possession of a Personal Identification Device (12/04) 15

22 Unlawful Possession of Fictitious Identification (12/04) Unlawful Possession of Fictitious Identification Affirmative Defense Under 21 and Production for Purposes of Purchasing Alcohol (12/04) Unlawful Possession of Fictitious Identification Affirmative Defense Under 18 and Production for Purposes of Purchasing Tobacco (12/04) RIOT, HARASSMENT, AND DISORDERLY CONDUCT Definitions () Riot (12/02) Disorderly Conduct in the First Degree A () Disorderly Conduct in the Second Degree Subsection (1)(a) () Disorderly Conduct in the Second Degree Subsections (1)(b) (g) () Harassment Physical Contact (12/02) Harassment Physical Contact with Sexual or Intimate Parts (12/02) Harassment Fighting Words (12/02) Harassment False Report (12/02) Harassment Threats (12/02) Harassment by Allowing Use of Telephone or Electronic Device (12/02) Telephone Harassment Ringing (12/02) Telephone Harassment When Prohibited () Telephone Harassment Affirmative Defense A () Intimidation in the First Degree Subsection (1)(a)(A) (Intentional/Knowing/Reckless Physical Injury) (12/02) Intimidation in the First Degree Subsection (1)(a)(B) (Criminal Negligence Deadly Weapon Physical Injury) (12/02) Intimidation in the First Degree Subsection (1)(b) (Intentional Fear of Serious Physical Injury) (12/02) 16

23 Intimidation in the Second Degree Subsection (1)(a) (Tampers with Property) (12/02) Intimidation in the Second Degree Subsection (1)(b) (Intentional Offensive Physical Contact) (12/02) Intimidation in the Second Degree Subsection (1)(c) (Intentional To Alarm by Threatening) (12/02) WEAPONS AND FIREARMS Definitions (12/02) Negligently Wounding Another (12/02) Pointing Firearm at Another (12/02) Unlawful Use of a Weapon (Attempting to Use a Dangerous or Deadly Weapon Against Another) (12/02) Unlawful Use of a Weapon (Unlawful Discharge of a Weapon Within City Toward Person or Property) (12/02) Unlawful Use of a Weapon (Carrying a Deadly or Dangerous Weapon with Intent to Use It Unlawfully) (12/02) Carrying a Concealed Weapon (12/02) Unlawful Possession of Firearm (12/02) Unlawful Possession of a Machine Gun, Short-Barreled Rifle, Short-Barreled Shotgun, or Firearms Silencer (12/03) Unlawful Possession of a Machine Gun, Short-Barreled Rifle, Short-Barreled Shotgun, or Firearms Silencer Affirmative Defense of Lawful Federal Registration A (12/04) Unlawful Possession of Firearm (Concealed on the Person) (12/04) Unlawful Possession of Firearm (Within a Vehicle) () Possession of a Firearm by a Felon (12/04) Felon in Possession of Restricted Weapon (12/02) Possession of a Weapon by Inmate of an Institution (12/02) Unlawful Possession of a Firearm or Other Dangerous Weapon in a Public Building (12/02) 17

24 Unlawful Possession of a Firearm in a Court Facility (12/02) Unlawful Possession of a Dangerous Weapon in a Court Facility (12/02) Unlawful Possession of a Destructive Device (12/02) Improperly Transferring a Handgun (12/02) Unlawful Possession of Body Armor (12/02) Misdemeanor Involving Violence as a Matter of Law (12/02) Unlawful Wearing of Body Armor (12/02) Unlawful Possession of a Firearm Affirmative Defense of License to Carry a Concealed Firearm (12/04) VICE Definitions (12/02) Prostitution (12/02) Promoting Prostitution (12/02) Compelling Prostitution (12/02) Unlawful Gambling in the First Degree (12/02) Unlawful Gambling in the Second Degree (12/02) Possession of Gambling Records in the First Degree (12/02) Possession of Gambling Records in the Second Degree (12/02) Defense to Possession of Gambling Records (12/02) Possession of a Gambling Device (12/02) Defense to Possession of a Gambling Device (12/02) CONTROLLED SUBSTANCES Definitions () Distribution of Controlled Substances to Minors (12/02) Delivery of Marijuana for Consideration (12/02) Unlawful Creation or Delivery of a Counterfeit Substance (12/02) Delivery of Marijuana for No Consideration Five Grams to One Ounce (12/02) 18

25 Unlawful Delivery of an Imitation Controlled Substance (12/02) Tampering with Drug Records (12/02) Frequenting a Place Where Controlled Substances Are Used (12/02) Manufacture or Delivery of a Controlled Substance (12/02) Possession of a Controlled Substance (12/02) Possession of a Controlled Substance Affirmative Defense of Lawful Possession (12/02) Possession of One Ounce or More of Marijuana (12/02) Controlled Substance as a Matter of Law (12/03) Using Minor in Commission of a Controlled Substance Offense (12/02) Using Minor to Deliver for No Consideration Less than Five Grams of Marijuana (12/02) Unlawful Manufacture or Delivery of a Controlled Substance Within 1,000 Feet of School Property (12/04) Delivery of Less than Five Grams of Marijuana to an Adult Within 1,000 Feet of School Property (12/02) Unlawful Possession of Less than One Ounce of Marijuana Within 1,000 Feet of School Property (12/02) Medical Marijuana Limit on Amount Cardholder A (12/04) Medical Marijuana Affirmative Defense Cardholder Greater Amount Medically Necessary B (12/04) Medical Marijuana Affirmative Defense Noncardholder C (12/04) OMMA Applied to Choice of Evils Defense D (12/04) Medical Marijuana No Defense E (12/04) Providing Liquor to an Intoxicated Person (12/02) Providing Liquor to a Person Under (12/02) Possession of Precursor Substance with Intent to Manufacture a Controlled Substance (12/03) Precursor Substance as a Matter of Law (12/03) Possession/Disposal of Methamphetamine Manufacturing Waste () 19

26 TRAFFIC OFFENSES Definitions (12/04) Definition Under the Influence Intoxicating Liquor (12/02) Definition Under the Influence Controlled Substances and/or Intoxicating Liquor (12/02) Driving While Under the Influence of Intoxicants Intoxicating Liquor (12/02) Driving While Under the Influence of Intoxicants Intoxicating Liquor Three or More Prior Convictions (12/02) Driving While Under the Influence of Intoxicants Any Combination of Intoxicating Liquor, Controlled Substances, or Inhalants (12/02) Driving While Under the Influence of Intoxicants Any Combination of Intoxicating Liquor, Controlled Substances, or Inhalants Three or More Prior Convictions (12/02) Controlled Substance as a Matter of Law (12/02) Person s Physical Condition (12/02) Opinion Evidence of Being Under the Influence of Intoxicants (12/02) Use of Chemical Analysis to Show Blood Alcohol (12/02) Breath Test Evidence (12/02) Breath Test Refusal A (12/04) Criminal Driving While Suspended or Revoked (12/02) Driving While Suspended or Revoked Defense: Injury or Immediate Threat of Injury (Necessity) (12/02) Driving While Suspended or Revoked Defense: Lack of Notice (12/02) Driving While Suspended Unavailability of Lack of Notice (12/02) Reckless Driving (12/02) Fleeing or Attempting to Elude a Police Officer (While Still in the Vehicle) (12/02) 20

27 Fleeing or Attempting to Elude a Police Officer (Out of the Vehicle) (12/02) Fleeing or Attempting to Elude a Police Officer Affirmative Defense: Unmarked Police Vehicle (12/02) Failure to Perform the Duties of a Driver When Property Is Damaged (Accident that Results Only in Damage to a Vehicle that Is Driven or Attended by Any Other Person) (12/02) Failure to Perform the Duties of a Driver When Property Is Damaged (Collision with Any Vehicle that Is Unattended) (12/02) Failure to Perform the Duties of a Driver When Property Is Damaged (Accident Resulting Only in Damage to Fixtures or Property Legally on or Adjacent to a Highway) (12/02) Failure to Perform the Duties of a Driver to Injured Persons (12/02) Giving False Information About Liability Insurance to Police Officer (12/02) Giving False Information to Police Officer (Motor Vehicle Laws) (12/02) Vehicular Assault of a Bicyclist or Pedestrian (12/02) Organizing a Speed Racing Event (12/03) Misuse of Identification Card False Application (12/04) Misuse of Identification Card Using Invalid Card (12/04) Misuse of Identification Card Permitting Misuse of Card (12/04) Misuse of Identification Card Using Another s Card (12/04) Misuse of Identification Card Failure to Return (12/04) Unlawful Production of Identification Cards, Licenses, Permits, Forms, or Camera Cards (12/04) Unlawful Production of Documents Affirmative Defense Under 21 and Production for Purpose of Purchasing Alcohol (12/04) 21

28 Unlawful Production of Documents Affirmative Defense Under 18 and Production for Purpose of Purchasing Tobacco (12/04) Transfer of Documents for Purposes of Misrepresentation (12/04) False Swearing to Receive License (12/04) False Application for License (12/04) Using Invalid License (12/04) Permitting Misuse of License (12/04) Using Another s License (12/04) Failure to Return Suspended, Revoked, or Canceled License (12/04) Failure to Carry a License () Failure to Present a License to a Police Officer () WILDLIFE OFFENSES Introductory Note... (12/02) Aiming Rifle from Moving Motor Vehicle (12/02) Hunting in Cemeteries (12/02) Depositing Trash Within 100 Yards of Water or in Water (12/02) Angling, Hunting, or Trapping Wildlife Without a License, Tag, or Permit (12/02) Hunting by Aircraft (12/02) Shining Artificial Light While in Motor Vehicle (12/02) Hunting with Artificial Light (12/02) Hunting from Motor-Propelled Vehicle (12/02) Hunting on Cultivated or Enclosed Land of Another (12/02) Permitting a Dog to Hunt (12/02) Taking or Selling Threatened or Endangered Species (12/02) Making a False Statement for a License (12/02) Possession of Altered License, Tag, or Permit (12/02) Altering, Borrowing, Loaning, or Transferring a License, Tag, or Permit (12/02) 22

29 Applying for, Obtaining, or Possessing More Licenses, Tags, or Permits than Authorized (12/02) Possession of Skinned or Plucked Wildlife (12/02) Waste of Wildlife (12/02) Chasing or Harassing Wildlife (12/02) Unlawful Taking of Wildlife by Shooting, Hunting, or Trapping a Wildlife Decoy (12/02) BOATING OFFENSES Definitions (12/02) Operating a Boat While Under the Influence of an Intoxicating Liquor () Operating a Boat While Under the Influence of a Controlled Substance (12/02) ANIMALS Definitions (12/04) Animal Abuse in the Second Degree (12/04) Animal Abuse in the First Degree Subsection (3) (12/04) Animal Abuse in the First Degree Subsection (4) () Aggravated Animal Abuse in the First Degree (12/04) Animal Neglect in the Second Degree () Animal Neglect in the First Degree (12/04) Sexual Assault of an Animal or Animal Carcass (12/04) Interfering with a Law Enforcement Animal (12/04) Assaulting a Law Enforcement Animal (12/04) COMPUTER CRIME Definitions (12/03) Computer Crime Fraud or Theft (12/03) Computer Crime Alteration, Damage, or Destruction (12/03) Computer Crime Unauthorized Use (12/03) 23

30 MISCELLANEOUS INSTRUCTIONS Representing Oneself to Be a Psychologist Without Being Licensed (12/04) Practicing Psychology Without a License (12/04) ENVIRONMENTAL CRIMES Introduction and Definitions (12/04) Unlawful Disposal, Storage, or Treatment of Hazardous Waste in the First Degree (12/04) Unlawful Disposal, Storage, or Treatment of Hazardous Waste in the Second Degree (12/04) Unlawful Transport of Hazardous Waste in the First Degree (12/04) Unlawful Transport of Hazardous Waste in the Second Degree (12/04) Unlawful Air Pollution in the First Degree (12/04) Unlawful Air Pollution in the Second Degree (12/04) Unlawful Water Pollution in the First Degree (12/04) Unlawful Water Pollution in the Second Degree (12/04) Environmental Endangerment (12/04) Supplying False Information to an Agency (12/04) Affirmative Defense Bypass (12/04) Affirmative Defense Upset (12/04) Affirmative Defense Corrective Action (12/04) TABLES Table of Statutes and Rules... () Table of Cases... () 24

31 CRIMINAL JURY INSTRUCTIONS USER S GUIDE I. ( 1.1) USING UNIFORM JURY INSTRUCTIONS A. ( 1.2) How the Book Is Organized B. ( 1.3) Using the Uniform Instructions C. ( 1.4) Drafting Special Instructions II. ( 1.5) HOW TO REQUEST A JURY INSTRUCTION III. ( 1.6) TIMING OF JURY INSTRUCTIONS IV. GENERAL CONSIDERATIONS REGARDING JURY INSTRUCTIONS A. ( 1.7) Judge s Authority to Instruct B. ( 1.8) Repetitious Instructions C. ( 1.9) Abstract Instructions D. ( 1.10) Argumentative and Formula Instructions E. ( 1.11) Complex Instructions and Incomplete Instructions F. ( 1.12) Instructions Viewed as a Whole G. ( 1.13) Comment on the Evidence H. ( 1.14) Instructions that Have the Effect of Directing a Verdict on an Element of the Offense I. ( 1.15) Facts Judicially Noticed J. ( 1.16) Reinstructing the Jury K. ( 1.17) Defendant s Right to Have the Jury Instructed on the Defendant s Theories of Defense L. ( 1.18) Written or Recorded Jury Instructions M. ( 1.19) Juror Questions V. INFERENCE AND EVIDENTIARY INSTRUCTIONS A. ( 1.20) Generally B. ( 1.21) Particular Presumptions and Inferences Disapproved G-1

32 VI. EXCEPTIONS A. ( 1.22) The Proper Way to Make an Exception B. ( 1.23) The Purpose of Exceptions C. ( 1.24) The Timing of Exceptions D. ( 1.25) The Exception Must State the Proper Grounds E. ( 1.26) The Exception Cannot Be General F. ( 1.27) Discussing Exceptions in Chambers VII. ( 1.28) LESSER INCLUDED OFFENSE INSTRUCTIONS A. ( 1.29) Legal Determination B. ( 1.30) Factual Determination C. ( 1.31) Requesting the Instruction D. ( 1.32) Order of Deliberations E. ( 1.33) Other I. ( 1.1) USING UNIFORM JURY INSTRUCTIONS Oregon has had uniform jury instructions since The Oregon State Bar Uniform Criminal Jury Instructions Committee (hereinafter the Committee ) was formed in 1982 to update the Uniform Criminal Jury Instructions, make them more understandable, eliminate unnecessary words, include statute and case references, and adapt them for use as written jury instructions. A. ( 1.2) How the Book Is Organized This book begins with a chapter on general and preliminary instructions and a chapter on defenses. The next 14 chapters follow the same sequence as the substantive offenses in ORS chapters The next seven chapters gather instructions on controlled substances, traffic offenses, wildlife offenses, boating offenses, animals, computer crime, and miscellaneous offenses. The last chapter is a guide to drafting instructions on environmental crimes. A table of statutes and rules and a table of cases follow the instructions. G-2

33 User s Guide (continued) Each chapter has its own outline of instructions and many chapters begin with a series of definition instructions for terms used in that chapter. Comments following each instruction contain statutory and case citations relating to the instructions. These comments are not exhaustive, but are intended to alert the lawyer to some issues and helpful statutory and case law. A culpable mental state is an element of almost every case tried to a jury. ORS ; State v. Cho, 297 Or 195, 681 P2d 1152 (1984); City v. Chicharrao, 53 Or App 483, 488, 632 P2d 489 (1981). The comments discuss culpable mental state elements for each crime. B. ( 1.3) Using the Uniform Instructions The Committee recommends that instructions on uncontroverted issues be simplified by telling the jury, for example, that a check is a written instrument; or, if there is no issue whether cocaine is a controlled substance, that cocaine is a controlled substance. See also the comment at UCrJI No Take care, however, that the court does not, in effect, direct a verdict on a controverted issue. See 1.14, infra. When it is not possible to provide all the special language of the offense charged, the Committee has left a blank where appropriate specific language from the charging document should be inserted. However, even if no blank is provided, tailor the instructions to the specific case by inserting specific language from the charging document. After considerable discussion, the Committee adopted the following format for the crimes-elements instructions: When various alternative allegations are possible, a blank is inserted in the instructions. At the bottom of the page, the corresponding alternatives are listed. For example, in the robbery III instruction, UCrJI No. 2103, the instruction on the fourth element is [Defendant s name], in the course of 1A/1B the theft, 9A/9B physical force on [victim s name]. After the blanks are filled in using the numbered alternatives from the bottom of the page, the instruction is ready to be read to the jury. It may, however, be appropriate under the circumstances of the particular case to instruct on both of the alternatives. Accordingly, in UCrJI No. 2103, the instruction on the fourth element could be given as follows: [Defendant s name], in the course of committing or attempting to commit the theft, used or threatened the immediate use of physical force on [victim s name]. This format seems to be the best way to account for the various alternatives in the crimes-elements instructions while still providing a way for the court to avoid unnecessary language. G-3

34 UCrJI No SUBCATEGORY CLASSIFICATION FACTORS AND OFFENSE-SPECIFIC ENHANCEMENT FACTS If you find the defendant guilty of A, then you must consider the additional allegation that B. The state bears the burden to prove that allegation to be true beyond a reasonable doubt. In order for the jury to return a finding of yes on that allegation, at least 10 of the same jurors who voted to find the defendant guilty of A must agree that the state has proved B. A B [applicable crime] [applicable subcategory classification factor or offense-specific enhancement fact] COMMENT: This instruction is appropriate for both subcategory enhancements and offense-specific enhancement facts. Subcategory classification factors are offense-specific sentence classifiers; they are not elements of the underlying offense. However, like elements, subcategory classification factors are for the jury to determine beyond a reasonable doubt. State v. Mack, 108 Or App 643, 645, 817 P2d 1321 (1991). The various subcategory classification factors are set forth in divisions 18 and 19 of the felony sentencing guidelines (OAR chapter 213). For a subcategory classification factor to be submitted to the jury, it must be specially alleged within the same count of the indictment that charges the underlying felony. See ORS , ; State v. Drake, 113 Or App 16, 832 P2d 44 (1992); State v. Owens, 112 Or App 462, 829 P2d 726 (1992). Whether the subcategory classification factor may be established by the conduct of a codefendant depends on whether or not the factor is defined in terms of an offender s personal conduct. See State v. Flanigan, 316 Or 329, 851 P2d 1120 (1993); State v. Lark, 316 Or 317, 851 P2d 1114 (1993). Enhancement facts are facts that are constitutionally required to be found by a jury in order to increase the sentence that may be imposed upon conviction of a crime Or Laws ch 463, 1(2). See State v. Sawatzky, 339 Or 689, 125 P3d 722 (2005); State v. Upton, 339 Or 673, 125 P3d 713 (2005); State v. Gornick, 196 Or App 397, 102 P3d 734 (2004), rev. allowed, 338 Or 583 (2005); State v. Perez, 196 Or App 364, 102 P3d 705 (2004), rev. allowed, 338 Or 488 (2005); Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed2d 403 (2004) (regarding facts that are constitutionally required to be found by jury); Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed2d 435 (2000). NOTE: A special verdict instruction may be given on any subcategory classification factor. See UCrJI No (Sample Special Verdict Form). Regarding the use of special verdicts, see ORS (2), , , and