JURY INSTRUCTION DRAFTS - March 2003
If you have questions or comments, please contact Lynn Kerbeshian at NDPJI@yahoo.com or call/fax 701-775-6220.
CIVIL
C - 1.52 (New) Party Acting as Own Attorney
C - 3.12 Duty to Assist
C - 3.14 Willful Misconduct (Deleted)
C - 3.16 Family Car Doctrine
C - 3.30 Highway Protected by "Yield" Sign
C - 3.32 Highway Protected by "Stop" Sign
C - 3.34 Pedestrian Control Signals (Reviewed with no changes)
C - 3.36 Flashing Signals
C - 3.70 Serious Injury Definition
C - 17.10 Duty of Possessor to Lawful Entrant Injury Caused by Condition of Premises
C - 23.05 Fault of Beneficiary Diminishes Recovery (Wrongful Death) (Deleted)
C - 23.10 Fault of Decedent Diminishes Recovery (Wrongful Death) (Deleted)
C - 70.10 Adequate Compensation (Tort)
C - 70.22 Damages Aggravation of Pre-existing Condition
C - 70.24 Injury Aggravated by Defendant's Wrongdoing (Deleted)
C - 72.17 Malice of Corporate Officers (formerly C - 2.35) (Deleted)
C - 72.06 Exemplary Damages (Principal/Agent)
C - 85.20 Deliberations and Conduct of the Jury
CRIMINAL
K - 1.20 (New) Defendant Acting as Own Attorney
K - 5.36 (New) Possession General Definition (revision of former K - 22.42)
K - 5.46 Dangerous Special Offender (Bifurcated Trial)
K - 5.60 Deliberations and Conduct of the Jury
K - 11.01 Theft of Property (Unauthorized Conduct)
K - 11.02 Theft of Property (Deception or Threat)
K - 11.03 Theft of Property (Receipt of Stolen Property)
K - 11.04 Theft of Services (Deception or Threat)
K - 11.05 Theft of Services (Diverting Services)
K - 11.06 Theft of Lost or Mislaid Property
K - 11.07 Theft of Property Delivered by Mistake
K - 11.15 Unauthorized Use of Vehicle (Reviewed with no changes)
K - 11.20 Misapplication of Entrusted Property
K - 11.30 Defrauding Secured Creditors (Property Subject to a Security Interest)
K - 11.40 Dealing in Stolen Property
K - 13.15 Hindering Law Enforcement
K - 14.10 Escape (By Use of Weapon)
K - 14.12 Escape (Felony Charge or Criminal Conviction)
K - 15.00 Tampering With Witnesses and Informants in Proceeding (Use of Force, Threat, Deception, or Bribery)
K - 15.22 False Report to Law Enforcement Officer or Security Official
K - 15.30 Bribery
K - 15.50 Trading in Public Office and Political Endorsement (Non-Public Servant or Party Official)
K - 17.20 Disorderly Conduct
K - 17.30 (New) Unlawful Possession or Consumption of Alcoholic Beverages
K - 17.50 (New) Carrying a Concealed Weapon
K - 19.00 Gambling (Infraction) (Deleted)
K - 22.00 Unlawful Possession of Drug Paraphernalia (Class A Misdemeanor)
K - 22.42 Possession of [a Controlled Substance] [Drug Paraphernalia] (new title)
2003
In this case, the [Plaintiff] [Defendant] is acting as (his)(her) own attorney. He/She is entitled to do so. People who act as their own attorney are required to follow the same rules as an attorney would be required to follow. The Judge must be impartial and may not assist either party.
A person acting as his/her own attorney must present evidence through testimony given by witnesses and exhibits, just as an attorney would. Questions or arguments to the Court or Jury, whether by a person acting as his/her own attorney or by an attorney, are not evidence.
City of Fargo v. Rockwell, 597 NW2d 406 (ND 1999)
State v. Hart, 569 NW2d 451 (ND 1997)
2003
2003
A person who knows, or has reason to know, that one's conduct, whether wrongful or innocent, has caused harm to another, has a duty to render assistance to prevent further harm.
A person who breaches this duty is responsible for any additional harm proximately caused by the breach.
South v. National R.R. Passenger Corp., 290 NW2d 819, 837 (ND 1980)
Restatement (2d) Torts, Duty to Aid Another Harmed by Conduct, § 322
2003
2003
If a member of a family provides an automobile for the use of other members of the family, and they use the automobile with the provider's permission, they become the agents of the provider for the purpose of that use, which includes their own personal pleasure. If a member of the family uses the automobile and wrongfully causes injury to another, the provider of the automobile is liable for the resulting damages sustained.
Applying this doctrine it must be established:
1) that the [Plaintiff][Defendant] provided for members of the [Plaintiff's] [Defendant's] family the motor vehicle involved in the accident;
2) that the driver of the motor vehicle was a member of the provider's family; and
3) that the driver was using the vehicle for a purpose for which the [Plaintiff][Defendant] provided it, with the [Plaintiff's][Defendant's] express or implied permission.
Although a member of a family may provide an automobile for general use by the family members, the automobile's use can rightfully be denied to any other member at any time. A provider who does so cannot be held liable for the fault of a member whose right of use has been denied.
It is for you to determine, from all of the evidence and under these instructions, whether the automobile provided by the [Plaintiff][Defendant] and driven by _______________, the [Plaintiff's][Defendant's] _______________, was maintained for the use of the members of the family and whether the [Plaintiff's][Defendant's] _______________ at the time of the accident, was using the automobile as a member of the [Plaintiff's][Defendant's] family, with express or implied permission of the [Plaintiff][Defendant].
McPhee v. Tufty, 2001 ND 51; 623 N.W. 2d 390
Schobinger v. Ivey, 467 NW2d 728 (ND 1991)
NOTE: A special verdict form should include a question on the family purpose doctrine as well as the allocation of fault.
2003
If a highway is protected by a "YIELD" sign, it is the duty of the driver approaching the highway from an intersecting highway, [unless otherwise directed to proceed by a police officer or traffic control signal,] to slow down to a speed reasonable for the existing conditions or to stop if required for safety [before entering the crosswalk on the near side of the intersection] [at a clearly marked stop line] [at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway] and to yield the right-of-way to any pedestrian legally crossing the driver's roadway, and to any vehicle in the intersection or approaching on another highway so closely as to constitute an immediate hazard.
After slowing down or stopping, as required, and looking both to the right and to the left, the driver, while exercising ordinary care, may proceed into the intersection. If a vehicle approaching on the protected highway is so near to the intersection as to constitute an apparent and immediate hazard, the driver of the vehicle approaching the intersection must wait until the other vehicle has passed. The driver of the yielding vehicle may enter the intersection only if a person of ordinary prudence would have had reasonable grounds to believe that the other vehicle was so distant from the intersection and proceeding at such a speed that one could safely proceed in advance of the other vehicle.
If a driver is involved in a collision with another vehicle in an [intersection] [or junction of roadways] after driving past a "YIELD" sign without stopping, such a collision is evidence the driver failed to yield the right-of-way.
NDCC 39-10-24, 39-10-44
Ross v. Scott, 386 NW2d 18 (ND 1986)
Henke v. Peyerl, 89 NW2d 1 (ND 1958)
2003
If a highway is protected by a "STOP" sign, it is the duty of the driver approaching the highway from an intersecting highway, [unless otherwise directed to proceed by a police officer or traffic control signal,] to stop [before entering the crosswalk on the near side of the intersection] [at a clearly marked stop line] [at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway] and to yield the right-of-way to any pedestrian legally crossing the driver's roadway, and to any vehicle in the intersection or approaching on another highway so closely as to constitute an immediate hazard.
After stopping and looking both to the right and to the left, the driver, while exercising ordinary care, may proceed into the intersection. If a vehicle approaching on the protected highway is so near to the intersection as to constitute an apparent or immediate hazard, the driver of the yielding vehicle must wait until the other vehicle has passed. The driver of the yielding vehicle may enter the intersection only if a person of ordinary prudence would have had reasonable grounds to believe that the other vehicle was so distant from the intersection and proceeding at such a speed that one could safely proceed in advance of the other vehicle.
NDCC 39-10-24, 39-10-44
Ross v. Scott, 386 NW2d 18 (ND 1986)
Henke v. Peyerl, 89 NW2d 1 (ND 1958)
1986
(2003 - reviewed with no changes)
Pedestrian control signals exhibiting the words "WALK" or "DON'T WALK" indicate as follows:
1) "WALK": Pedestrians facing the signal may proceed across the roadway in the direction of the signal and must be given the right-of-way by the drivers of all vehicles.
2 "DON'T WALK": A pedestrian may not start to cross the roadway in the direction of the signal, but any pedestrian who has partially completed his crossing on the walk signal may proceed to a sidewalk or safety island while the "DON"T WALK" signal is showing.
2003
An illuminated flashing red or yellow light in a traffic signal or with a traffic sign, requires obedience by vehicular traffic as follows:
1) Flashing red (stop signal): When a red lens is illuminated with rapid intermittent flashes, drivers of all vehicles shall stop at a clearly marked stop line, or if none, before entering the crosswalk on the near side of the intersection, or if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it. After making a stop at a stop sign, the right to proceed is subject to the applicable rules.
2) Flashing yellow (caution signal): When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through the intersection or past the signal only with caution.
3) Flashing red arrow and flashing yellow arrow indications have the same meaning as the corresponding flashing circular indications, except that they apply only to drivers of vehicles intending to make the movement indicated by the arrow.
NDCC 39-10-07
NOTE: This rule does not apply at a railroad grade crossing. Conduct of drivers of vehicles approaching railroad grade crossings is governed by the rules set forth in NDCC 39-10-41.
2003
To recover damages for non-economic loss, Plaintiff [and/or Defendant if there is a Counterclaim] must prove by the greater weight of the evidence that the motor vehicle accident was a proximate cause of a serious injury.
"Serious injury" means an accidental bodily injury which results in [death,] [dismemberment,] [serious and permanent disfigurement,] [disability beyond 60 days,] [or] [medical expenses in excess of $2,500.00].
As used in the definition of serious injury:
1) "Accidental bodily injury" means bodily injury, sickness or disease, including death, arising out of the operation of a motor vehicle, and which is accidental [as distinguished from intentional];
2) "Disability" means the inability to engage in substantially all the injured person's usual and customary daily activities;
3) "Medical expenses" means reasonable charges incurred for necessary medical, surgical, x-ray, dental, prosthetic, ambulance, hospital or professional nursing services [or services for remedial treatment and care rendered in accordance with a recognized religious healing method]. ["Medical expenses" do not include that portion of the charge for a room in any hospital, clinic, convalescent or nursing home, extended care facility, or any similar facility in excess of the reasonable and customary charge for semiprivate accommodations unless intensive care is medically needed.]
* * * * *
NDCC 26.1-41-01(1), 26.1-41-01(6), 21.6-41-01(9), 26.1-41-01(21), 26.1-41-08
See also Anderson v. Jacobson, 2001 ND 40, 622 NW2d 730
NOTE: In cases where the injured person is furnished services for which medical expenses are ordinarily incurred, and the services are provided without charge or at less than the average reasonable charge for the service in this state, it is for the court to determine whether or not the fair and reasonable value of the services exceeds $2,500.00. See NDCC 26.1-41-01(21). There is no statutory definition for serious and permanent disfigurement.
2003
A possessor of land owes a duty to a lawful entrant upon the premises to use reasonable care to [inspect and repair the premises] [or] [warn the entrant] in order to protect the entrant from an unreasonable risk of harm caused by the condition of the premises while the entrant is on the premises.
In determining reasonable care of the possessor, the following factors may be considered:
1) The purpose for which the entrant entered the premises;
2) The circumstances under which the entrant entered the premises;
3) The use to which the premises is put or expected to be put;
4) The foreseeability or possibility of harm;
5) The reasonableness of the inspection, repair, or warning; and
6) The opportunity and ease of repair or correction or the giving of the warning.
Rittenour v. Gibson, 2003 ND 14, ¶ 17
Sendelbach v. Grad, 246 NW2d 496 (ND 1976)
Johnson v. Nash Finch Co., 216 NW2d 271 (ND 1974)
Peterson v. Balach, 199 NW2d 639 (Minn 1972)
2003
2003
2003
Damages, if allowed, should be adequate to fairly compensate the Plaintiff for all detriment proximately caused by the acts or omissions of those you find to be at fault, whether or not the detriment could have been anticipated. Damages in all cases must be reasonable.
NDCC 32-03-20, 32-03-33, 32-03-37 39
Delzer v. United Bank, 1997 ND 3, ¶16, 559 NW2d 531, 536
Hopkins v. McBane, 427 NW2d 85, 95 (ND 1988)
Cook v. Stenslie, 251 NW2d 393, 397 (ND 1977)
Kuntz v. Stelmachuk, 136 NW2d 810, 818-19 (ND 1965)
2003
A Plaintiff's pre-existing condition does not bar an award of damages. The Defendant is responsible for the Defendant's fault which aggravates the Plaintiff's condition even if that fault would not have caused as extensive an injury to a healthy person.
If a Defendant's fault aggravates a pre-existing condition, then the Defendant is responsible for the worsening effect caused by the aggravation, but not for the pre-existing condition. Any damages are limited to the additional injury or worsening of the condition.
The Defendant is not responsible for an aggravation which results from natural causes and is not due to the Defendant's fault.
Tuhy v. Schlabsz, 1998 ND 31, 574 NW2d 823
Olmstead v. First Interstate Bank, 449 NW2d 804, 808 (ND 1989)
Priel v. R.E.D., Inc., 392 NW2d 65, 69 (ND 1986)
Moser v. Wilhelm, 300 NW2d 840, 843-44 (ND 1981)
Kuntz v. Stelmachuk, 136 NW2d 810, 819-20 (ND 1965)
2003
2003
2003
2003
[I appoint _______________ to act as Jury Leader.] [When you go to the jury room, you will select a Jury Leader.]
The Jury Leader will lead your deliberations, communicate with the bailiff(s) for you and speak for you in court. The Jury Leader does not have more authority than other jurors, and the Jury Leader's opinion does not carry more weight that the opinions of other jurors.
In order to return a verdict, each Juror must agree to the verdict. Your verdict must be unanimous.
It is your duty to work with each other in an effort to reach an agreement, if you are able to do so without giving up your individual judgment. Each of you must decide the case for yourself, but you should consider the evidence impartially with the other Jurors. You should not hesitate to change your opinion if you are convinced it was wrong. But, you should not change your opinion about the weight or effect of the evidence just because of the opinion of the other Jurors, or in order to return a verdict.
If it becomes necessary for you to communicate with me during your deliberations, the Jury Leader should send a note to the bailiff(s). All questions to the Judge must be reviewed by the attorneys. This may take a period of time and some questions may not be answered.
After you have agreed on your verdict, the Jury Leader should fill in, date and sign a formal verdict, using the appropriate form which accompanies these instructions. The Jury Leader should then notify the bailiff(s) that you have reached a verdict. You will be brought to the courtroom for reception of the verdict. You must not disclose your verdict to anyone until it is returned in open court.
2003
In this case, the Defendant is acting as his/her own attorney. He/She is entitled to do so. People who act as their own attorney are required to follow the same rules as an attorney would be required to follow. The Judge must be impartial and may not assist either party.
A person acting as his/her own attorney must present evidence through testimony given by witnesses and exhibits, just as an attorney would. Questions or arguments to the Court or Jury, whether by a person acting as his/her own attorney or by an attorney, are not evidence.
City of Fargo v. Rockwell, 597 NW2d 406 (ND 1999)
State v. Hart, 569 NW2d 451 (ND 1997)
2003
Possession may be actual or constructive and may be proven by direct or circumstantial evidence.
A person who [knowingly] has direct physical control over an object is in actual possession of it.
A person who [knowingly] has the ability and power to exercise control over an object is in constructive possession of it.
[Two or more persons may simultaneously possess the same object.]
In Interest of K.S., 500 NW2d 603, 606 (ND 1993)
State v. Connery, 441 NW2d 651, 655 (ND 1989)
NOTE: This is a general legal definition of possession and would not be used in situations where possession is an element of an offense and the offense does not involve either possession of alcohol by someone under 21 years of age or possession of controlled substances or drug paraphernalia by any person. The specific statutes should be considered for the culpability requirements.
2003
The Defendant has been found guilty of _________________. A dangerous special offender is a person who
[a) is a dangerous, mentally abnormal person whose conduct has been characterized by persistent aggressive behavior, and the behavior makes the offender a serious danger to other persons]; or
[b) is a professional criminal who has substantial income or resources derived from criminal activity]; or
[c) was convicted of an offense that seriously endangered the life of another person, and the offender had previously been convicted of a similar offense]; or
[d) used a firearm, dangerous weapon, or destructive device in the commission of the offense or during the flight from the scene of the offense].
The State's burden is satisfied if the evidence shows, beyond a reasonable doubt, one or more of the following:
[a) The defendant is a dangerous, mentally abnormal person whose conduct has been characterized by persistent aggressive behavior, and the behavior makes the offender a serious danger to other persons];
[b) The defendant is a professional criminal who has a substantial income or resources derived from criminal activity];
[c) The defendant was convicted of an offense that seriously endangered the life of another person, and the offender had previously been convicted of a similar offense];
[d) The defendant used a firearm, dangerous weapon, or destructive device in the commission of the offense or during the flight from the scene of the offense].
"Substantial income or resources": Substantial income is income which for any period of one year or more exceeds $ ________ and which for the same period exceeds fifty percent of the offender's declared adjusted gross income for North Dakota income tax purposes. Income or resources may be considered substantial if it is proven the Defendant has had control of income or property not explained as derived from a source other than criminal activity.
[Insert relevant definitions. 12.1-01-04.]
12.1-32-09
State v. Clark, 2000 ND 9, 621 NW2d 576
Apprendi v. New Jersey, 530 US 466, 120 SCt 2348, 147 LEd2d 435 (2000)
NOTE: If the notice specifying that the Defendant is a dangerous offender only alleges that the Defendant used a firearm, dangerous weapon, or destructive device in the commission of the offense or during the flight from the scene of the offense, the Jury may make a special finding of proof of this allegation without an additional hearing subsequent to a verdict or finding of guilt. NDCC 12.1-32-09(4)(a).
The calculation necessary for the definition of "substantial source of income" is the minimum wage, determined on the basis of a forty-hour week and a fifty-week year without reference to exceptions, under section 6(a)(1) of the Fair Labor Standards Act of 1938, as amended, for an employee engaged in commerce or in the production of goods for commerce.
2003
[I appoint _______________ to act as Jury Leader.] [When you go to the jury room, you will select a Jury Leader.]
The Jury Leader will lead your deliberations, communicate with the bailiff(s) for you and speak for you in court. The Jury Leader does not have more authority than other jurors, and the Jury Leader's opinion does not carry more weight that the opinions of other jurors.
In order to return a verdict, each Juror must agree to the verdict. Your verdict must be unanimous.
It is your duty to work with each other in an effort to reach an agreement, if you are able to do so without giving up your individual judgment. Each of you must decide the case for yourself, but you should consider the evidence impartially with the other Jurors. You should not hesitate to change your opinion if you are convinced it was wrong. But, you should not change your opinion about the weight or effect of the evidence just because of the opinion of the other Jurors, or in order to return a verdict.
If it becomes necessary for you to communicate with me during your deliberations, the Jury Leader should send a note to the bailiff(s). All questions to the Judge must be reviewed by the attorneys. This may take a period of time and some questions may not be nswered.
After you have agreed on your verdict, the Jury Leader should fill in, date and sign a formal verdict, using the appropriate form which accompanies these instructions. The Jury Leader should then notify the bailiff(s) that you have reached a verdict. You will be brought to the courtroom for reception of the verdict. You must not disclose your verdict to anyone until it is returned in open court.
2003
A person who knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, property of another person with intent to deprive the owner of the property, is guilty of Theft.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, knowingly [took or exercised unauthorized control over] [made an unauthorized transfer of] certain property, namely _______________; and
2) That property was the property of _______________;
3) The Defendant acted with intent to deprive the owner of said property[.][; and]
[4) The Defendant did not honestly believe the Defendant had a valid claim to the property.]
[5) _______________ and the Defendant were not then living together as husband and wife, and the property involved did not constitute household or personal effects or other property normally accessible to both.]
[6)The property or services stolen [exceeded ten thousand dollars in value] [were acquired or retained by a threat [to commit a [class A] [class B] felony] [to inflict serious bodily injury on the person threatened or on any other person]];] or
[7) The value of the property stolen exceeded five hundred dollars but not more than ten thousand dollars;] or
[8) The property stolen [was [acquired] [retained] by threat and was [acquired] [retained] by a public servant by a threat to [take] [withhold] official action] [exceeded fifty dollars in value but not more than five hundred dollars];] or
[9) The value of the property stolen exceeded fifty dollars but not more than five hundred dollars and was [acquired] [retained] by a public servant in the course of official duties;] or
[10) The property stolen is [a firearm, ammunition, explosive, or destructive device] [an automobile, aircraft, or other motor-propelled vehicle];] or
[11) The property stolen consisted of any government file, record, document, or other government paper stolen from any government office or from any public servant;] or
[12) The Defendant is in the business of [buying] [selling] stolen property and the property was [received] [retained] [disposed of] in the course of that business;] or
[13) The property stolen consisted of any implement, paper, or other thing uniquely associated with the preparation of any money, stamp, bond, or other document or instrument or obligation of the State;] or
[14) The property stolen consisted of livestock taken from the premises of the owner;] or
[15) The property stolen consisted of a key or other implement uniquely suited to provide access to property, the theft of which would be a felony and it was stolen to gain that access;] or
[16) The property stolen is a card, plate, or other credit device existing for the purpose of obtaining money, property, labor, or services on credit, or is a debit card, electronic fund transfer card, code, or other means of access to an account for the purposes of initiating electronic fund transfers.]
[17) The value of the property stolen did not exceed two hundred fifty dollars, and the theft was not committed by threat; and the theft was not committed by deception by one who stood in a confidential or fiduciary relationship to the victim of the theft; and the Defendant was not a public servant or an officer or employee of a financial institution who committed the theft in the course of official duties.]
[Insert relevant definitions. NDCC 12.1-02-02, 12.1-23-10.]
NDCC 12.1-23-02, 12.1-23-05, 12.1-23-09
NOTE: The bracketed language in paragraphs 4 or 5 should be used if there is evidence in the case sufficient to give rise to a reasonable doubt on the issue of the defense raised. When using paragraph 5,
Note the exception under NDCC 12.1-23-09(1)(b).
The bracketed language of paragraph 6 should be used if a class B felony is charged.
The bracketed language of paragraphs 7 through 16 should be used, as appropriate, if a class C felony is charged. When using paragraph 8 and 9, note NDCC 12.1-23-09(3)(a) on prima facie case of theft dealing with "public servant." When using paragraph 12, note the inference of theft under NDCC 12.1-23-09(3)(d).
The bracketed language in paragraph 17 should be used if a class B misdemeanor is charged.
Under NDCC 12.1-23-05(3), all theft offenses not otherwise provided for are class A misdemeanors.
2003
Theft of Property
A person who [knowingly obtains property of another by deception or by threat with intent to deprive the owner of the property] [intentionally deprives another person of his/her property by deception or threat] is guilty of Theft.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, [knowingly obtained by deception or by threat] [intentionally deprived _______________, by deception or by threat], certain property, namely _______________;
2) That property was the property of _______________; and
3) The Defendant acted with intent to deprive said owner of said property[.] [;and]
[4) The Defendant did not honestly believe the Defendant had a valid claim to the property.]
[5) _______________ and the Defendant were not then living together as husband and wife, and the property involved did not constitute household or personal effects or other property normally accessible to both.]
[6) The property or services stolen [exceeded ten thousand dollars in value] [were acquired or retained by a threat [to commit a [class A] [class B] felony] [to inflict serious bodily injury on_______________, the person threatened or on any other person]]; or
[7) The value of the property stolen exceeded five hundred dollars but not more than ten thousand dollars;] or
[8) The property stolen [was [acquired] [retained] by threat and was [acquired] [retained] by a public servant by a threat to [take] [withhold] official action] [exceeded fifty dollars in value but not more than five hundred dollars];] or
[9) The value of the property stolen exceeded fifty dollars but not more than five hundred dollars and was [acquired] [retained] by a public servant in the course of official
duties]; or
[10) The property stolen was a [firearm, ammunition, explosive, or destructive device] [an automobile, aircraft, or other motor-propelled vehicle];] or
[11) The property stolen consisted of any government file, record, document, or other government paper stolen from any government office or from any public servant;] or
[12) The Defendant is in the business of [buying] [selling] stolen property and
the property was [received] [retained] [disposed of] in the course of that business;] or
[13) The property stolen consisted of any implement, paper, or other thing uniquely associated with the preparation of any money, stamp, bond, or other document or instrument or obligation of the State;] or
[14) The property stolen consisted of livestock taken from the premises of the owner;] or
[15) The property stolen consisted of a key or other implement uniquely suited to provide access to property, the theft of which would be a felony and it was stolen to gain that access;] or
[16) The property stolen is a card, plate, or other credit device existing for the purpose of obtaining money, property, labor, or services on credit, or is a debit card, electronic fund transfer card, code, or other means of access to an account for the purposes of initiating electronic fund transfers.]
[17) The value of the property stolen did not exceed two hundred fifty dollars, and the theft was not committed by threat; and the theft was not committed by deception by one who stood in a confidential or fiduciary relationship to the victim of the theft; and the Defendant was not a public servant or an officer or employee of a financial institution who committed the theft in the course of official duties.]
[Insert relevant definitions. NDCC 12.1-02-02, 12.1-23-10.]
NDCC 12.1-23-02, 12.1-23-05, 12.1-23-09
NOTE: The bracketed language in paragraph 4 and 5 should be used if there is evidence in the case sufficient to give rise to a reasonable doubt on the issue of the defense raised. When using paragraph 5 note the exception under NDCC12.1-23-09(1)(b).
The bracketed language of paragraph 6 should be used if a class B felony is charged.
The bracketed language of paragraphs 7 through 15 should be used, as appropriate, if a class C felony is charged. When using paragraph 8 and 9, note NDCC 12.1-23-09(3)(a) on prima facie case of theft dealing with "public servant." When using paragraph 12, note the inference of theft under NDCC 12.1-23-09(3).
The bracketed language of paragraph 17 should be used if a class B misdemeanor is charged.
Under NDCC 12.1-23-05(3), all theft offenses not otherwise provided for are class A misdemeanors.
2003
A person who knowingly [receives] [retains] [disposes of] property of another which has been stolen, with the intent to deprive the owner of the property is guilty of Theft.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, knowingly [received] [retained] [disposed of] certain stolen property, namely, _______________;
2) That property was the property of _______________; and
3) The defendant acted with intent to deprive said owner of said property[.][; and]
[4) The Defendant did not honestly believe the Defendant had a valid claim to the property.]
[5) _______________ and the Defendant were not then living together as husband and wife, and the property involved did not constitute household or personal effects or other property normally accessible to both.]
[6) The property or services stolen [exceeded ten thousand dollars in value] [were acquired or retained by a threat [to commit a [class A] [class B] felony] [to inflict serious bodily injury on the person threatened or on any other person]];] or
[7) The value of the property stolen exceeded five hundred dollars but not more than ten thousand dollars;] or
[8) The property stolen [was [acquired] [retained] by threat and was [acquired] [retained] by a public servant by a threat to [take] [withhold official action] [exceeds fifty dollars in value but not more than five hundred dollars];] or
[9) The value of the property stolen exceeded fifty dollars but not more than five hundred dollars and is [acquired] [retained] by a public servant in the course of official duties;] or
[10) The property stolen was [a firearm, ammunition, explosive, or destructive device] [an automobile, aircraft, or other motor-propelled vehicle];] or
[11) The property stolen consisted of any government file, record, document, or other government paper stolen from any government office or from any public servant;] or
[12) The Defendant is in the business of [buying] [selling] stolen property and the property was [received] [retained] [disposed of] in the course of that business;] or
[13) The property stolen consisted of any implement, paper, or other thing uniquely associated with the preparation of any money, stamp, bond, or other document or instrument or obligation of the State;] or
[14)The property stolen consisted of livestock taken from the premises of the owner;] or
[15) The property stolen consisted of a key or other implement uniquely suited to provide access to property, the theft of which would be a felony, and it was stolen to gain that access;] or
[16) The property stolen is a card, plate, or other credit device existing for the purpose of obtaining money, property, labor, or services on credit, or is a debit card, electronic fund transfer card, code, or other means of access to an account for the purposes of initiating electronic fund transfers.]
[17) The value of the property stolen did not exceed two hundred fifty dollars, and the theft was not committed by threat; and the theft was not committed by deception by one who stood in a confidential or fiduciary relationship to the victim of the theft; and the Defendant was not a public servant or an officer or employee of a financial institution who committed the theft in the course of official duties.]
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02, 12.1-23-10.]
NDCC 12.1-23-02, 12.1-23-05, 12.1-23-09
NOTE: The bracketed language in paragraphs 4 and 5 should be used when there is evidence in the case sufficient to give rise to a reasonable doubt on the issue of the defense raised. When using paragraph 5, note the exception under NDCC 12.1-23-09(1)(b).
The bracketed language in paragraph 6 should be used if a class B felony is charged.
The bracketed language of paragraphs 7 through 16 should be used, as appropriate, if a class C felony has been charged. When using paragraph 8 and 9, note NDCC 12.1-23-09(3)(a) on prima facie case of theft dealing with "public servant." When using paragraph 12, note the inference of theft under NDCC 12.1-23-09(3)(d).
The bracketed language of paragraph 17 should be used if a class B misdemeanor is charged.
Under NDCC 1 12.1-23-05(3), all theft offenses not otherwise provided for are class A misdemeanors.
2003
A person who intentionally obtains services, known to be available only for compensation, by [deception] [threat] [false token] [or other means], to avoid payment for the services, is guilty of Theft.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, intentionally obtained [describe services] by [deception] [threat] [false token] [other means], to avoid payment for those services; and
2) The Defendant knew then that those services were available only for compensation[.] [; and]
[3) The Defendant did not honestly believe the Defendant had a valid claim to the services.]
[4) The services stolen [exceeded ten thousand dollars in value] [were acquired or retained by a threat [to commit a [class A] [class B] felony] [to inflict serious bodily injury on the person threatened or on any other person]];] or
[5) The services stolen exceeded five hundred dollars in value;] or
[6) The services stolen [were [acquired] [retained] by threat and were [acquired] [retained] by a public servant by a threat to [take] [withhold] official action] [exceeded fifty dollars in value but not more than five hundred dollars];] or
[7) The value of the services stolen exceeded fifty dollars but not more than five hundred dollars and were [acquired] [retained] by a public servant on the course of official duties.]
[8) The value of the services stolen did not exceed two hundred fifty dollars and the theft was not committed by threat; and the theft was not committed by deception by one who stood in a confidential or fiduciary relationship to the victim of the theft; and the Defendant was not a public servant or an officer or employee of a financial institution who committed the theft in the course of official duties.]
[Insert relevant definitions, NDCC 12.1-02-02, 12.1-23-10.]
NDCC 12.1-23-03, 12.1-23-05, 12.1-23-09
NOTE: The bracketed language in paragraph 3 should be used if there is evidence in the case sufficient to give rise to a reasonable doubt on the issue of the defense raised.
The bracketed language in paragraphs 5 through 7 should be used, as appropriate, if a class C felony is charged. When using paragraph 6 and 7, note NDCC 12.1-23-09(3)(a) on prima facie case of theft dealing with a public servant.
The bracketed language of paragraph 8 should be used if a class B misdemeanor is charged.
Under NDCC 12.1-23-05(3), all theft of services offenses not otherwise provided for are class A misdemeanors.
2002
A person who has control over the disposition of services of another person to which the person is not entitled and knowingly diverts those services [for personal benefit] [for the benefit of another who is not entitled], is guilty of Theft.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, knowingly diverted [describe services] [for personal benefit] [for the benefit of another person not entitled to the services];
2) The Defendant had control then over the disposition of the services;
3) The services were _______________; and
4) The Defendant was not entitled to the services[.] [; and]
[5) The Defendant did not honestly believe the Defendant had a valid claim to the services.]
[6) The services stolen [exceeded ten thousand dollars in value] [were acquired or retained by a threat [to commit a [class A] [class B] felony] [to inflict serious bodily injury on the person threatened or on any other person]].]
[7) The value of the services stolen exceeded five hundred dollars but not more than ten thousand dollars;] or
[8) The services stolen [were [acquired] [retained] by threat and were [acquired] [retained] by a public servant by a threat to [take] [withhold] official action] [exceeded fifty dollars in value but not more than five hundred dollars]; ] or
[9) The value of the services stolen exceeded fifty dollars but not more than five hundred dollars and was [acquired] [retained] by a public servant in the course of official duties.]
[10) The value of the services did not exceed two hundred fifty dollars and the theft was not committed by threat; and the theft was not committed by deception by one who stood in a confidential or fiduciary relationship to the victim of the theft; and the Defendant was not a public servant of an officer or employee of a financial institution who committed the theft in the course of official duties.]
[Insert relevant definitions. NDCC 12.1-02-02, 12.1-23-10.]
NDCC 12.1-23-03, 12.1-23-05, 12.1-23-09
NOTE: The bracketed language in paragraph 5 should be used if there is evidence in the case sufficient to give rise to a reasonable doubt on the issue of the defense raised.
The bracketed language of paragraph 6 should be used if a class B felony is charged.
The bracketed language of paragraphs 7 through 9 should be used, as appropriate, if a class C felony is charged. When using paragraphs 8 and 9, note NDCC 12.1-23-09(3)(a) on prima facie case of theft dealing with a public servant.
2003
A person who [retains] [disposes of] property of another person while knowing the property has been [lost] [mislaid] is guilty of Theft.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, willfully [retained] [disposed of] certain [lost] [mislaid] property, namely; _______________;
2) The property belonged to _______________;
3) The Defendant knew then that the property had been [lost] [mislaid];
4) The Defendant acted with intent to deprive the owner of the property[.] [; and]
5) The Defendant failed to take readily available and reasonable measures to restore the property to a person entitled to have it [.] [; and]
[6) The Defendant did not honestly believe the Defendant had a valid claim to the property.]
[7) _______________ and the Defendant were not then living together as husband and wife, and the property involved did not constitute household or personal effects or other property normally accessible to both.]
[8) The property stolen [exceeded ten thousand dollars in value] [was [acquired] [retained] by a threat [to commit a [class A] or [class B felony] [to inflict serious bodily injury on the person threatened or on any other person]].]
[9) The property stolen exceeded five hundred dollars in value but not more than ten thousand dollars;] or
[10) The property stolen [was [acquired] [retained] by threat and was [acquired] [retained] by a public servant by a threat to [take] [withhold] official action] [exceeded fifty dollars in value but not more than five hundred dollars];] or
[11) The value of the property stolen exceeded fifty dollars but not more than five
hundred dollars and was [acquired] [retained] by a public servant in the course of official duties;] or
[12) The property stolen was [a firearm, ammunition, explosive, or destructive device] [an automobile, aircraft, or other motor-propelled vehicle];] or
[13) The property stolen consisted of any government file, record, document, or other government paper stolen from any government office or from any public servant;] or
[14) The Defendant was then in the business of [buying] [selling] stolen property and the property was [received] [retained] [disposed of] in the course of that business;] or
[15) The property stolen consisted of any implement, paper, or other thing uniquely associated with the preparation of any money, stamp, bond, or other document, instrument, or obligation of this State;] or
[16) The property stolen consisted of livestock taken from the premises of the owner;] or
[17) The property stolen consisted of a key or other implement uniquely suited to provide access to property, the theft of which would be a felony, and it was stolen to gain that access;] or
[18) The property stolen is a card, plate, or other credit device existing for the purpose of obtaining money, property, labor, or services on credit, or is a debit card, electronic fund transfer card, code, or other means of access to an account for the purposes of initiating electronic fund transfers.]
[(19) The value of property stolen was not committed by threat; and the theft was not committed by deception by one who stood in a confidential or fiduciary relationship to the victim of the theft; and the Defendant was not a public servant or an officer or employee of a financial institution who committed the theft in the course of official duties.]
[Insert relevant definitions. NDCC 12.1-02-02, 12.1-23-10]
NDCC 12.1-23-04, 12.1-23-05, 12.1-23-09
NOTE: The bracketed language in paragraphs 6 or 7 should be used if there is evidence in the case sufficient to give rise to a reasonable doubt on the issue of the defense raised. When using paragraph 7, note the exception under NDCC 12.1-23-09(1)(b).
The bracketed language of paragraph 8 should be used if a class B felony is charged.
The bracketed language of paragraph 9 through 18 should be used, as appropriate, if a class C felony is
charged. When using paragraph 10 and 11 dealing with "public servants," note NDCC 12.1-23-09(3)(a) on prima facie case of theft. When using paragraph 14, note the inference of theft under NDCC 12.1-23-09(3)(d).
The bracketed language of paragraph 19 should be used if a class B misdemeanor is charged.
Under NDCC 12.1-23-05(3), all theft offenses not otherwise provided for are class A misdemeanors.
2003
A person who willfully [retains] [disposes of] another's property while knowing it has been delivered under a mistake [as to the identity of the recipient] [as to the nature or amount of the property] is guilty of Theft.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________ willfully [retained] [disposed] of certain property, namely, _______________;
2) The property belonged to _______________;
3) The Defendant knew then [that the property had been delivered under a mistake as to the identity of the recipient] [that the property had been delivered under a mistake as to the nature or amount of the property];
4) The Defendant acted with intent to deprive the owner of the property; and
5) The Defendant failed to take readily available and reasonable measures to restore the property to a person entitled to have it [.] [; and]
[6) The Defendant did not honestly believe the Defendant had a valid claim to the property.]
[7) _______________ and the Defendant were not then living together as husband and wife, and the property involved did not constitute household or personal effects or other property normally accessible to both.]
[8) The property stolen [exceeded ten thousand dollars in value] [was acquired or retained by a threat [to commit a [class A] [class B] felony] [to inflict serious bodily injury on the person threatened or on any other person]].]
[9) The property stolen exceeded five hundred dollars in value but not more than ten thousand dollars;] or
[10) The property stolen [was [acquired] [retained] by threat and was [acquired] [retained] by a public servant by a threat to [take] [withhold official action] [exceeded fifty
dollars in value but not more than five hundred dollars];] or
[11) The value of the property stolen exceeded fifty dollars but not more than five hundred dollars and is [acquired] [retained] by a public servant in the course of his/her official duties;] or
[12) The property stolen was [a firearm, ammunition, explosive, or destructive device] [an automobile, aircraft, or other motor-propelled vehicle];] or
[13) The property stolen consisted of any government file, record, document, or other government paper stolen from any government office or from any public servant;] or
[14) The Defendant was then in the business of [buying] [selling] stolen property and the property was [received] [retained] [disposed of] in the course of that business;] or
[15) The property stolen consisted of any implement, paper, or other thing uniquely associated with the preparation of any money, stamp, bond, or other document, instrument, or obligation of this State;] or
[16) The property stolen consisted of livestock taken from the premises of the owner;] or
[17) The property stolen consisted of a key or other implement uniquely suited to provide access to property, the theft of which would be a felony and it was stolen to gain that access;]or
[18) The property stolen is a card, plate, or other credit device existing for the purpose of obtaining money, property, labor, or services on credit, or is a debit card, electronic fund transfer card, code, or other means of access to an account for the purposes of initiating electronic fund transfers.]
[19) The value of property stolen did not exceed two hundred fifty dollars and the theft was not committed by threat; and the theft was not committed by deception by one who stood in a confidential or fiduciary relationship to the victim of the theft; and the Defendant was not a public servant or an officer or employee of a financial institution who committed the theft in the course of official duties.]
[Insert relevant definitions. NDCC 12.1-02-02, 12.1-23-10.]
NDCC 12.1-23-04, 12.1-23-05, 12.1-23-09
NOTE: The bracketed language in paragraphs 6 or 7 should be used if there is evidence in the case sufficient to give rise to a reasonable doubt on the issue of the defense raised. When using paragraph 7, note the exception under NDCC 12.1-23-09(1)(b).
The bracketed language of paragraph 8 should be used if a class B felony is charged.
The bracketed language of paragraphs 9 through 18 should be used as appropriate, if a class C felony is charged. When using paragraphs 10 and 11 dealing with "public servants," note NDCC 12.1-23-09(3)(a) on prima facie case of theft. When using paragraph 14, note the inference of theft under NDCC 12.1-23-09(3(d).
The bracketed language of paragraph 19 should be used if a class B misdemeanor is charged.
Under NDCC 12.1-23-05(3), all theft offenses not otherwise provided for are class A misdemeanors.
1985
(2003 - reviewed with no changes)
A person who, knowing that the owner does not consent, willfully takes, operates, or exercises control over another's automobile, train, aircraft, motorcycle, motorboat, or other motor-propelled vehicle, is guilty of Unauthorized Use of a Vehicle.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, willfully took, operated, or exercised control over a certain [automobile] [train] [aircraft] [motorcycle] [motorboat] [other motor propelled vehicle] namely, _______________, belonging to _______________;
(2) The Defendant knew then that the owner did not consent[.] [; and]
[3) The Defendant did not then reasonably believe that the owner would have consented had the owner known of the Defendant's conduct.]
[4) The value of the use of the vehicle and the cost of retrieval and restoration exceeded five hundred dollars.]
[Insert relevant definitions. NDCC 12.1-02-02.]
NDCC 12.1-23-06
NOTE: The bracketed language in paragraph 3 should be used if there is evidence in the case sufficient to give rise to a reasonable doubt on the issue.
The bracketed language in paragraph 4 should be used if a class C felony is charged. It should be noted that the offense is also a class C felony if the vehicle involved is an aircraft. Otherwise, the offense is a class A misdemeanor.
2003
A person who willfully disposes of, uses, or transfers any interest in property to which the person has been entrusted [as a fiduciary] [in the capacity as a public servant] [as an officer, director, agent, employee of, or person controlling a financial institution], in a manner that the person knows is not authorized and that the person knows involves a risk of loss or detriment to the [owner of the property] [government] [other person for whose benefit the property was entrusted], is guilty of Misapplication of Entrusted Property.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, willfully disposed of, used, or transferred an interest in certain property, namely, _______________;
2) The property was then entrusted by _______________, the owner of the property, to the Defendant [as fiduciary] [in Defendant's capacity as public servant] [as an officer, director, agent, employee of, or a person controlling a financial institution];
3) The Defendant disposed of, used, or transferred the property in a manner that the Defendant knew was not authorized by _______________, owner; and
4) The Defendant knew that the conduct involved a risk of loss or detriment [to the owner] [to the government] [to _______________, for whose benefit the property was entrusted].
[5) The value of the property misapplied exceeds ten thousand dollars.]
[6) The value of the property misapplied exceeds five hundred dollars but does not exceed ten thousand dollars.]
[7) The value of the property misapplied exceeds two hundred fifty dollars but does not exceed five hundred dollars.]
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02, 12.1-23-10.]
2003
An owner of property who creates a security interest in such property who intentionally alters, conceals, destroys, damages, removes, encumbers, transfers, or otherwise deals with that property without the prior consent of the secured party is guilty of Defrauding Secured Creditors if that action has the effect of hindering the enforcement of the security interest.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) The Defendant created a security interest in property the Defendant owned;
2) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, intentionally [altered] [concealed] [destroyed] [damaged] [encumbered] [transferred] [removed] [or otherwise dealt with] that property without the prior consent of the secured party;
3) The action had the effect of hindering the enforcement of the security interest.
[Insert relevant definitions. NDCC 12.1-02-02, 12.1-23-10.]
2003
A person who willfully [traffics in or endeavors to traffic] [initiates, organizes, plans, finances, directs, manages, or supervises, the theft and trafficking] in the property of another that has been stolen is guilty of Dealing In Stolen Property.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, willfully [trafficked in or endeavored to traffic in] [initiated, organized, planned, financed, directed, managed, or supervised, the theft and trafficking in] certain property, namely,______________
2) The property belonged to _______________,
3) The property had been stolen [.] [; and]
[4) The Defendant did not honestly believe that Defendant had a valid claim to the property.]
[Insert relevant definitions. NDCC 12.1-02-02, 12.1-23-10.]
N.D.C.C. 12.1-23-08.3, 12-1-23-09(1)(a)
NOTE: The bracketed language in paragraph 4 should be used if there is evidence in the case sufficient to give rise to a reasonable doubt on the issue of the defense raised. A person who "traffics in, or endeavors to traffic in," is guilty of a class C felony. A person who "initiates, organizes, plans, finances, directs, manages, or supervises" the theft is guilty of a class B felony.
2003
A person is guilty of Hindering Law Enforcement if that person intentionally interferes with, hinders, delays, or prevents, the discovery, apprehension, prosecution, conviction, or punishment of another person for an offense, by [harboring or concealing the other] [providing the other with a weapon, money, transportation, disguise, or other means of avoiding discovery or apprehension] [concealing, altering, mutilating, or destroying a document or thing, regardless of its admissibility in evidence] [warning the other of impending discovery or apprehension other than in connection with an effort to bring another into compliance with the law] [giving false information or a false report to a law enforcement officer, knowing the information or report to be false] [and the person knows of the conduct of the other and such conduct constitutes a crime] [and the person knows that the other has been charged with or convicted of a crime].
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, did intentionally [interfere with] [hinder] [delay] [prevent] the discovery, apprehension, prosecution, conviction, punishment of another person for an offense;
2) The Defendant did [harbor or conceal the other] [provide the other with a weapon, money, transportation, disguise, other means of avoiding discovery or apprehension] [conceal, alter, mutilate, destroy, a document or thing, regardless of its admissibility in evidence] [warn the other of impending discovery or apprehension other than in connection with an effort to bring another into compliance with the law] [give false information or a false report to a law enforcement officer knowing the information or report to be false] [.] [; and]
[3) The Defendant knew of the conduct of the other and such conduct constitutes a crime.]
[4) The Defendant knew that the other had been charged with or convicted of a crime.]
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]
2003
A person who, [without lawful authority, willfully removes or attempts to remove that person from official detention or fails willfully to return to official detention following temporary leave granted for a specified purpose or limited period][is subject to official detention, if while outside the state of North Dakota and without lawful authority, removes or attempts to remove himself from official detention, or fails to return to official detention following temporary leave granted for a specified purpose or limited period, when at the time the person is in the legal custody of a warden of the penitentiary, department of corrections and rehabilitation, or other competent authority by virtue of a lawful commitment to official detention], and who uses a firearm, destructive device, or otherwise dangerous weapon in effecting or attempting to effect the actor's removal from official detention, is guilty of Escape.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, [without lawful authority willfully [removed or attempted to remove that person from official detention] [failed to return to official detention following temporary leave granted for a specified purpose or limited period]][is subject to official detention, if while outside the state of North Dakota and without lawful authority, removes or attempts to remove himself from official detention, or fails to return to official detention following temporary leave granted for a specified purpose or limited period, when at the time the person is in the legal custody of a warden of the penitentiary, department of corrections and rehabilitation, or other competent authority by virtue of a lawful commitment to official detention]; and
2) The Defendant used a firearm, destructive device, or other dangerous weapon in effecting or attempting to effect the actor's removal from official detention.
[Insert relevant definitions. NDCC12.1-02-02, K - 14.15.]
2003
A person who, [without lawful authority, willfully removes or attempts to remove that person from official detention or fails willfully to return to official detention following temporary leave granted for a specified purpose or limited period][is subject to official detention, if while outside the state of North Dakota and without lawful authority, removes or attempts to remove himself from official detention, or fails to return to official detention following temporary leave granted for a specified purpose or limited period, when at the time the person is in the legal custody of a warden of the penitentiary, department of corrections and rehabilitation, or other competent authority by virtue of a lawful commitment to official detention], and [who uses any other force or threat of force against another in effecting or attempting to effect the actor's removal from official detention] [who was in official detention by virtue of arrest for, or on charge of, a felony or pursuant to a conviction of any offense], is guilty of Escape.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, [without lawful authority willfully [removed or attempted to remove that person from official detention] [failed to return to official detention following temporary leave granted for a specified purpose or limited period]][is subject to official detention, if while outside the state of North Dakota and without lawful authority, removes or attempts to remove himself from official detention, or fails to return to official detention following temporary leave granted for a specified purpose or limited period, when at the time the person is in the legal custody of a warden of the penitentiary, department of corrections and rehabilitation, or other competent authority by virtue of a lawful commitment to official detention]; and
2) The Defendant [used any other force or threat of force against another in effecting or attempting to effect the actor's removal from official detention] [was in official detention by virtue of an arrest for, or on charge of,_______________, a felony, or pursuant to a conviction of the offense of _______________].
[Insert relevant definitions. NDCC 12.1-02-02, K - 14.15.]
2003
A person who, [without lawful authority, willfully removes or attempts to remove that person from official detention or fails willfully to return to official detention following temporary leave granted for a specified purpose or limited period][is subject to official detention, if while outside the state of North Dakota and without lawful authority, removes or attempts to remove himself from official detention, or fails to return to official detention following temporary leave granted for a specified purpose or limited period, when at the time the person is in the legal custody of a warden of the penitentiary, department of corrections and rehabilitation, or other competent authority by virtue of a lawful commitment to official detention], and [who uses any other force or threat of force against another in effecting or attempting to effect the actor's removal from official detention] [who was in official detention by virtue of arrest for, or on charge of, a felony or pursuant to a conviction of any offense], is guilty of Escape.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, [without lawful authority willfully [removed or attempted to remove that person from official detention] [failed to return to official detention following temporary leave granted for a specified purpose or limited period]][is subject to official detention, if while outside the state of North Dakota and without lawful authority, removes or attempts to remove himself from official detention, or fails to return to official detention following temporary leave granted for a specified purpose or limited period, when at the time the person is in the legal custody of a warden of the penitentiary, department of corrections and rehabilitation, or other competent authority by virtue of a lawful commitment to official detention]; and
2) The Defendant [used any other force or threat of force against another in effecting or attempting to effect the actor's removal from official detention] [was in official detention by virtue of an arrest for, or on charge of,_______________, a felony, or pursuant to a conviction of the offense of _______________].
[Insert relevant definitions. NDCC 12.1-02-02, K - 14.15.]
2003
A person who uses force, threat, deception, or bribery with intent [to influence another's testimony in an official proceeding] [[to induce or otherwise cause another][ to withhold any testimony, information, document, or thing from an official proceeding, whether or not the other person is legally privileged to do so] [to tamper with physical evidence][ to elude legal process summoning that person to testify in an official proceeding] [to fail to appear at or to leave an official proceeding after being summoned]], is guilty of Tampering With Witnesses and Informants in Proceedings.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, used force, threat, deception, or bribery;
2) With intent [to influence the testimony of _______________, in an official proceeding] [[to induce or otherwise cause another] [to withhold any testimony, information, document, or thing from an official proceeding, whether or not _______________, was legally privileged to do so] [to tamper with physical evidence] [to elude legal process summoning the person to testify in an official proceeding] [to fail to appear at or to leave an official proceeding after being summoned]].
[Insert relevant definitions. NDCC 12.1-01-04.]
NDCC 12.1-09-01(1)
State v. Howe, 247 NW2d 647 (ND 1976)
NOTE: For definition of "official proceeding," see NDCC 12.1-01-04(22).
It is a defense to a prosecution for the use of threat with intent to influence another's testimony that the threat was not of unlawful harm and was used solely to influence the other to testify truthfully. Pursuant to 12.1-01-03(1)(e), the nonexistence of a defense is an element of the offense if there is evidence in the case sufficient to give rise to a reasonable doubt on the issue. It is an affirmative defense in a prosecution for bribery, that any consideration for a person's refraining from investigating or pressing the prosecution of an offense was limited to restitution or indemnification for harm caused by the offense. Pursuant to 12.1-01-03(3), an
affirmative defense must be proved by the defendant by a preponderance of the evidence and is not an element of the offense charged. See NDJI K - 4.30, Affirmative Defense - Burden of Proof.
See NDCC 12.1-09-03, Tampering with Physical Evidence.
2003
A person who [willfully gives false information or a false report to a law enforcement officer which that person knows to be false, and the information or report may interfere with an investigation or may materially mislead a law enforcement officer] [willfully reports falsely to a law enforcement officer or other security official the occurrence of a crime of violence or other incident calling for an emergency response while knowing the incident did not occur] is guilty of False Report to [Law Enforcement Officer] [or] [Security Official].
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota;
2) The Defendant, _______________, [willfully gave false information or a false report to a law enforcement officer which that person knows to be false, and the information or report may interfere with an investigation or may materially mislead a law enforcement officer] [willfully reported falsely to a law enforcement officer or other security official the occurrence of a crime of violence or other incident calling for an emergency response, while knowing that the incident did not occur].
"Security Official" means a public servant responsible for averting or dealing with emergencies involving public safety.
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]
NDCC 12.1-11-03
See also NDCC 12.1-11-04, General Provisions (falsification and defenses)
2003
A person who knowingly [offers, gives, or agrees to give to another] [solicits, accepts, or agrees to accept from another] a thing of value as consideration for the recipient's official action as a public servant or for the recipient's violation of a known legal duty as a public servant is guilty of Bribery.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, knowingly [offered, gave, or agreed to give to another] [solicited, accepted, or agreed to accept from another] a thing of value; and
2) The thing of value was received as consideration for [the recipient's official action as a public servant, _______________] [the recipient's violation of a known legal duty as a public servant, _______________].
It is no defense to a prosecution for this offense that the recipient was not qualified to act in the desired way, whether because the recipient had not yet assumed office, or lacked jurisdiction, or for any other reason.
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]
NDCC 12.1-12-01
Note: See NDCC 12.1-12-01(3) for a prima facie case.
2003
A person who willfully [solicits, accepts, or agrees to accept] [offers, gives, or agrees to give] a thing of pecuniary value as consideration for the approval or disapproval by a public servant or party official of a person for [appointment, employment, advancement, or retention as a public servant] [designation or nomination as a candidate for elective office] is guilty of Trading in Public Office and Political Endorsement.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, willfully [solicited, accepted, or agreed to accept] [offered, gave, or agreed to give] _______________, a thing of pecuniary value, as consideration for the approval or disapproval by _______________, a [public servant] [party official] of a person;
2) For [appointment, employment, advancement, or retention as a public servant] [designation or nomination as a candidate for elective office].
"Approval" includes recommendation, failure to disapprove, or any other manifestation of favor or acquiescence.
"Disapproval" includes failure to approve or any other manifestation of disfavor or non-acquiescence.
"Party official" means a person who holds a position or office in a political party, whether by election, appointment, or otherwise.
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]
2003
A person who, [intends to harass, annoy, or alarm another] [in reckless disregard of the fact that another person is harassed, annoyed, or alarmed by the behavior], [engages in fighting, or in violent, tumultuous, or threatening behavior] [makes unreasonable noise] [in a public place, uses abusive or obscene language, or makes an obscene gesture] [obstructs vehicular or pedestrian traffic, or the use of a public facility] [persistently follows another in or about a public place or places] [while loitering in a public place for the purpose of soliciting sexual contact, solicits such contact] [creates a hazardous, physically offensive, or seriously alarming condition by any act that serves no legitimate purpose] [engaged in harassing conduct by means of intrusive or unwanted acts, words, or gestures intended to adversely affect the safety, security, or privacy of another person], is guilty of Disorderly Conduct.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, [engaged in fighting, violent, tumultuous, or threatening behavior] [made unreasonable noise] [used abusive or obscene language or made an obscene gesture while in _______________, a public place] [obstructed vehicular traffic or pedestrian traffic or the use of a public facility] [persistently followed _______________ , in or about a public place or places] [while loitering in _______________, a public place, for the purpose of soliciting sexual contact, solicited such contact] [created a hazardous, physically offensive, or seriously alarming condition by an act which served no legitimate purpose][engaged in harassing conduct by means of intrusive or unwanted acts, words, or gestures intended to adversely affect the safety, security or privacy of another person]; and
2) The Defendant did so [with the intent to harass, annoy, or alarm _______________] [in reckless disregard of the fact that _______________ was harassed, annoyed, or alarmed by the behavior].
[Insert relevant definitions. NDCC 12.1-02-02.]
2003
Unlawful Possession or Consumption of Alcoholic Beverages
Any person under twenty-one years of age consuming or having recently consumed alcoholic beverages other than during a religious service, or being in actual possession of alcoholic beverages is guilty of Unlawful Possession or Consumption of Alcoholic Beverages.
ESSENTIAL ELEMENTS OF OFFENSE
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
l) On or about [month] [day] [year], in [County], North Dakota, the Defendant,__________________, was under twenty-one(21)years of age; and
2) [consumed or recently consumed alcoholic beverages other than during a religious service] [was in actual possession of alcoholic beverages].
DEFINITION
"Actual possession" may be proven by direct or circumstantial evidence. Two or more persons may simultaneously possess the same object. A person is in actual possession of an alcoholic beverage if that person knowingly has direct physical control over the alcoholic beverage. Actual possession requires that a person exercise some degree of actual dominion or control (authority) over an alcoholic beverage.
* * * * *
In the Interest of K.S., 500 NW2d 603, 606-608(ND 1993)
2003
A person who carries any firearm or dangerous weapon concealed unless the person is licensed to do so, a law enforcement officer, or exempt under North Dakota law, is guilty of Carrying a Concealed Firearm or Dangerous Weapon.
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant, _______________, carried a concealed firearm or dangerous weapon; and
2) The Defendant was not licensed to carry a concealed weapon, a law enforcement officer or exempt under North Dakota law.
[Insert relevant definitions. NDCC 62.1-01-01, 62.1-04-01.]
2003
2003
(Class A Misdemeanor)
A person who uses, or possesses with intent to use, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body, a controlled substance, is guilty of Unlawful Possession of Drug Paraphernalia.
The use of, or possession with intent to use, _______________, is prohibited unless used or possessed pursuant to an authorized prescription.
In determining whether an object is drug paraphernalia, you should consider, in addition to all other relevant factors, the following: [Select relevant guidelines from NDCC 19-03.4-02.]
The State's burden of proof is satisfied if the evidence shows, beyond a reasonable doubt, the following essential elements:
1) On or about [month] [day] [year], in [County], North Dakota, the Defendant,_______________;
2) [Used] [Possessed with intent to use] _______________, for the purpose of [planting] [propagating] [cultivating] [growing] [analyzing] [packaging] [repackaging] [storing] [containing] [concealing] [injecting] [ingesting] [inhaling] [otherwise introducing into the human body], _______________.
[Insert relevant definitions. NDCC 12.1-02-02, 19-03.4-03, 19-03.1-01.]
NDCC 19-03.4-03
NOTE: This instruction when given should indicate what the object is and whether the object meets the definitions in NDCC 19-03.4-03.
The Defendant may be entitled to present an affirmative defense. See State v. Michlitsch, 438 NW2d 175 (ND 1989).
2003
Possession of [a controlled Substance] [Drug Paraphernalia]
Possession of [a controlled substance] [drug paraphernalia] may be actual or constructive and may be proven by direct or circumstantial evidence.
A person who has direct physical control over [a controlled substance] [drug paraphernalia] is in actual possession of it.
A person who has the power and ability to exercise control over [a controlled substance] [drug paraphernalia] is in constructive possession of it.
[Two or more persons may simultaneously possess [a controlled substance] [drug paraphernalia.]]
* * * * *
State v. McKinney, 518 NW2d 696, 700 (ND 1994)
State v. Connery, 441 NW2d 651, 655 (ND 1989)