JURY INSTRUCTION DRAFTS - March 2004
If you have questions or comments, please contact Lynn Kerbeshian at lynnak@gra.midco.net or pjic@gra.midco.netor or call/fax 701-775-7384.
CIVIL
C - 2.40 Advice of Counsel - Good Faith Defense
C - 5.50 Alternative Findings (Civil Damage Act) (Illustration) (deleted)
C - 6.00 Animals Known to be Vicious
C - 6.10 Provocation (Dog Bite Case) (deleted)
C - 6.20 Evidence of Euthanasia (deleted)
C - 6.30 Alternative Findings (Dog Bite Case) (Illustration) (deleted)
C - 6.40 Landlord Liability for Animals Known to be Vicious
C - 7.00 Civil Conspiracy
C - 7.10 Conversion
C - 7.20 Waiver of Security Interest (Conversion Action Against Purchaser) (deleted)
C - 11.20 Alternative Findings (False Imprisonment) (Illustration) (deleted)
C - 12.05 Justifiable Response to Assault
C - 74.06 Loss of Profits as Damages
C - 74.08 Measure of Damages (Breach of Warranty - Accepted Goods)
CRIMINAL
K - 3.05 Alibi (reviewed with no changes)
K - 3.07 Post-Trial Disposition of Defendant (reviewed with no changes)
K - 3.08 Effect of Intoxication on Culpability (reviewed with no changes)
K - 3.10 Effect of Voluntary Intoxication (reviewed with no changes)
K - 3.15 Restitution Not a Defense
K - 4.02 Advice of Counsel
K - 7.54 Indecent Exposure
K - 10.01 Arson (reviewed with no changes)
K - 10.10 Endangering by Fire or Explosion (Indifference to Life) (reviewed with no
changes)
K - 10.12 Endangering by Fire or Explosion (Simple) (reviewed with no changes)
K - 10.14 Tampering With Fire Alarm (new)
K - 10.15 Failure to Control or Report Dangerous Fire (reviewed with no changes)
K - 10.20 Criminal Mischief (reviewed with no changes)
K - 10.30 Tampering With or Damaging Public Service (Intentional) (reviewed with no
changes)
K - 10.32 Tampering With or Damaging Public Service (Knowing - Reckless) (reviewed
with no changes)
K - 10.34 Tampering With or Damaging Public Service
K - 10.40 Definitions (reviewed with no changes)
K - 13.20 Aiding Consummation of Crime
K - 13.22 Aiding Consummation of Crime (Class C Felony) (deleted)
K - 14.05 Failure to Appear After Release
K - 15.52 Trading in Special Influence
K - 21.10 Driving Under the Influence
K - 21.16 Chemical Test - Less Than .08
K - 21.20 Essential Elements of Offense (DUI)
K - 21.25 Actual Physical Control
K- 21.26 Essential Elements of Offense (Actual Physical Control)
K - 22.23 Endangerment of Child or Vulnerable Adult (new)
C - 2.40 Advice of Counsel
Good faith may be a defense in this case. In determining whether a person acted in good faith, you may consider whether that person acted on advice of counsel.
A person may rely on advice of counsel only if that person has 1) made a full and fair disclosure to counsel of the material facts and 2) then acted in good faith in reliance on the advice received.
Harwood State Bank v. Charon, 466 NW2d 601, 603 (ND 1991)
A & A Metal Bldgs. v. I-S, Inc, 274 NW2d 183, 187 (ND 1978)
Redahl v. Stevens, 250 NW 534 (ND 1933)
Merchant v. Pielke, 84 NW 574 (ND 1900)
NOTE: This defense is available for claims requiring proof of willful or malicious acts. See Harwood and A & A Metal Bldgs., supra.
C - 6.00 Animals Known to be Vicious
The owner or person in charge of an animal known to be vicious has a duty to exercise ordinary care to keep it confined so that it may not injure any person. The owner or person in charge of an animal known to be vicious, who negligently permits it to run at large, is at fault.
An animal is "known to be vicious," if the owner or person in charge of an animal knows of its dangerous inclination or, in the exercise of ordinary care, should have known of its dangerous inclination.
NDCC 36-11-06
Sendelbach v. Grad, 246 NW2d 496 (ND 1976)
C - 6.40 Landlord Liability for Animals Known to be Vicious
It has been alleged that a landlord is at fault for an injury by a vicious animal owned or controlled by a tenant. In order for a landlord to be found at fault for the injury by the animal, the following must be proved:
1) The landlord had actual knowledge of the dangerous or vicious propensities of the animal; and
2) The landlord had the power to remove the animal by retaking possession of the premises being rented.
Amyotte v. Rolette County Housing Authority, 2003 ND 48, 658 NW2d 324
Twogood v. Wentz, 2001 ND 167, 634 NW2d 514
C - 7.00 Civil Conspiracy
A civil conspiracy is a combination of two or more persons who agree to act together to inflict a wrong or an injury upon another, or who agree to act together to commit a lawful act using an unlawful means to inflict a wrong or injury upon another. An agreement may be made orally, or in writing, or may be implied by the conduct of the parties. An agreement may be proved from evidence there was knowledge the wrongful act was contemplated, there was collaboration, the contemplated act was adhered to, and one or more of the alleged co-conspirators participated in the act. In order for a civil conspiracy to be found to exist, one of the parties to the alleged conspiracy must commit an act in pursuit of the agreement and the conspiracy was a proximate cause of damage.
It is alleged that the unlawful act [or means] was_____________ [name tort or illegal conduct, e.g., deceit, assault]. The elements which must be proved are:
[Insert elements.]
Higgins v. Trauger, 2003 ND 3, 656 NW2d 9
Hurt v. Freeland, 1999 ND 12, 589 NW2d 551
Messiha v. State of ND, 1998 ND 149, 583 NW2d 385
Wenzel-Mosset by R.D.Geukler v. Nickels, 1998 ND 16, 575 NW2d 425
Burr v. Kulas, 1997 ND 98, 564 NW2d 631
In re ND Personal Injury Asbestos Litigation No. 1, 737 FSupp 1087 (DND 1990)
Wedick v. Russell-Miller Milling Co., 256 NW 107 (1934)
Youmans v. Hanna, 35 ND 479, 160 NW 705 (1916)
C - 7.10 Conversion
Conversion is the wrongful taking, destruction, or detention of personal property from
the owner or other person entitled to its possession, or the exercise of dominion over
the property inconsistent with or in defiance of the rights of that person. Conversion
does not require conscious wrongdoing.
The essence of conversion is not that the wrongdoer acquired the property, but that the owner or other person entitled to its possession was wrongfully deprived of it. Any act that impairs the possessory rights of another person or any wrongful exercise or assumption of authority over the person's goods which deprives the person of possession, permanently or for an indefinite time, is a conversion. It is not important that the person who converted the property received no benefit from withholding it from the person entitled to possession.
Paxton v. Wiebe, 1998 ND 169, 584 NW2d 72
Perry Center, Inc. v. Heitkamp, 1998 ND 78, 576 NW2d 505 (governmental immunity discussed)
Sargent County v. Wentworth, 547 NW2d 753 (ND 1996)
Napoleon Livestock Auction, Inc. v. Rohrich, 406 NW2d 346 (ND 1987) (property must be specifically
identified)
Christensen v. Farmers State Bank of Richardton, 157 NW2d 352 (ND 1968)
Hook v. Crary, 142 NW2d 140 (ND 1966)
Frank v. Schaff, 123 NW2d 827 (ND 1963)
Leach v. Kelsch, 106 NW2d 358 (ND 1960)
Taugher v. N. Pac. Ry. Co.,129 NW 747 (ND 1911)
C - 12.05 Justifiable Response to Assault
An individual may use any force necessary to protect his or her person. However, the force used must be no more than the individual reasonably believed necessary at that time to provide the necessary protection.
If the claimant committed the initial assault, the burden is on the individual assaulted to
prove that no more force than was reasonably necessary was used to prevent or
contain the assault. In meeting that burden, the Defendant must have some reasonable
basis for believing he or she was in danger. In addition, the Defendant must have some
reasonableness in the belief of the amount or degree of force used under the
circumstances. In determining whether only reasonable and necessary force was used,
the relative physical strength of the attacker and the party attacked and differences in
their ages or sex are to be taken into consideration.
Jahner v. Jacob, 233 NW2d 791 (ND), cert. denied, 96 S.Ct. 134 (1975)
McLean v. Foisie, 157 NW 840 (ND 1916)
C - 74.06 Loss of Profits as Damages
A person may recover damages for loss of profits if the amount is reasonable and not speculative. Where evidence is offered estimating anticipated profits with reasonable certainty, damages for lost profits may be awarded. [In determining anticipated profits, you must reduce the contract price by the amount the person would have spent to perform the contract. However, in determining the cost of performing the contract, you should not deduct "overhead expenses" if the evidence established those expenses would have been incurred whether or not the contract was breached.]
Leingang v. City of Mandan Weed Board, 468 NW2d 397 (ND 1991)
C - 74.08 Measure of Damages (Breach of Warranty - Accepted Goods)
The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
NDCC 41-02-93 (2-714 UCC)
Dakota Grain Co., Inc. v. Ehrmantrout, 502 NW2d 234, 237 (ND 1993)
Canterra Petroleum, Inc. v. W. Drilling & Mining Supply v. Northstar Equip. Corp. v. Yamin Oil Supply, 418 NW2d
267, 273 (ND 1987)
Troutman v. Pierce, Inc., 402 NW2d 920, 923 (ND 1987)
Leininger v. Sola, 314 NW2d 39, 45 (ND 1981)
Schneidt v. Absey Motors, Inc., 248 NW2d 792, 797 (ND 1976)
K - 3.15 Restitution Not a Defense (In General)
It is not a defense to a prosecution for [Robbery] [Burglary] [Theft] [Issuing an Insufficient Funds Check] [Issuing a Check Without an Account] that after the crime was committed that property [taken] [obtained] was restored in whole or in part to its lawful owner or that its loss was recouped in whole or in part by other means.
State v. Landresse, 459 NW2d 234 (ND 1990)
K - 4.02 Advice of Counsel
Defendant may not rely on advice of counsel as a defense for having violated law. However, you may consider the Defendant's reliance on advice of counsel in determining whether the state has proven a required element of criminal intent. You may consider the Defendant's reliance on the legal advice of an attorney only if the Defendant relied on it in good faith.
State v. Thorstad, 261 NW2d 899, 906 (ND 1978)
NOTE: This instruction is available for crimes requiring proof of intent. NDJI K - 4.01 may be applicable for crimes, including those not requiring proof of criminal intent.
K - 7.54 Indecent Exposure
A person who [masturbates [in a public place] [in the presence of a minor]] or [exposes one's penis, vulva, or anus [in a public place] [to a minor in a public or private place]] with intent to arouse, appeal to, or gratify that person's lust, passions, or sexual desires is guilty of Indecent Exposure.
ESSENTIAL ELEMENTS OF OFFENSE
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, _______________;
3) With intent to arouse, appeal to, or gratify the Defendant's lust, passions or sexual desires;
4) [Masturbated [in a public place] [in the presence of a minor].] [Exposed the Defendant's penis, vulva, or anus [in a public place][to a minor in a public or private place].]
K - 10.14 Tampering With Fire Alarm
A person is guilty of an offense if that person willfully [tampers with, disables, or falsely sounds an alarm signifying a fire] [tampers with or disables fire suppression equipment] in a hotel, motel, rooming house or other place of public abode or in any other public place so as to endanger person or property. [It is not an offense if a person sounds an alarm and has a reasonable belief there is a fire endangering person or property.]
ESSENTIAL ELEMENTS OF OFFENSE
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;
3) [Tampered with, disabled or falsely sounded an alarm signifying a fire]
[Tampered with or disabled fire suppression equipment];
4) In a [hotel] [motel] [rooming house] [lodging house] or other place of public abode or in any public place;
5) So as to endanger person or property.
[6) And the Defendant did not have a reasonable belief there was a fire endangering person or property.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]
K - 10.34 Tampering With or Damaging Public Service
A person who [willfully] causes a substantial interruption or impairment of a public communication, transportation, supply of water, gas, power, or other public service by [tampering with or damaging tangible property of another person] [incapacitating an operator of that service] [damaging the tangible property of another person by fire, explosive, or other dangerous means] is guilty of Tampering With or Damaging a Public Service.
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 caused a substantial [interruption] [impairment] of _______________, a public [communication] [transportation] [supply of water] [gas service] [power service] [_______________'s public service]; and
2) The Defendant did so by willfully [tampering with or damaging_______________, the tangible property of _______________] [incapacitating _______________, an operator of that service] [damaging _______________, tangible property of _______________, by fire, explosive, or other dangerous means].
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]
K - 13.20 Aiding Consummation of Crime
A person who intentionally aids another to secrete, disguise, or convert the proceeds of a crime, or otherwise profit from a crime, is guilty of Aiding Consummation of Crime.
ESSENTIAL ELEMENTS OF OFFENSE
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, _______________, did intentionally aid another person, namely, _______________, to [secrete] [disguise] [convert] the proceeds of a crime or otherwise profit from a crime[.] [; and]
[3) The Defendant knew of such conduct of the other.]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-02-02.]
K - 14.05 Failure to Appear After Release
A person who, after having been released upon condition or undertaking that the person will appear before a court or judicial officer, willfully fails to appear as required, is guilty of Failure to Appear After Release.
ESSENTIAL ELEMENTS OF OFFENSE
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, _______________, having been released upon condition or undertaking that the Defendant would subsequently appear before [the Court] [_______________ , a judicial officer];
3) Willfully failed to subsequently appear before the [Court] [judicial officer] as required[.] [; and]
[4) [The Defendant, _____________, [was awaiting sentence] [had an appeal pending after conviction of a crime, namely,__________________].] [The crime (felony) of ______________was pending against the Defendant, _______________.]]
DEFINITIONS
[Insert relevant definitions. NDCC 12.1-01-04, 12.1-02-02.]
NDCC 12.1-08-05
Note: If the Defendant was released upon a misdemeanor charge and has not been convicted, the offense is a class A misdemeanor. The offense is a class C felony if the person was released in connection with a charge of felony or while awaiting sentence or pending appeal after conviction of a crime.
K - 15.52 Trading in Special Influence
A person who knowingly [offers, gives, or agrees to give] [solicits, accepts, or agrees to accept] a thing of pecuniary value for exerting or procuring another to exert special influence upon a public servant with respect to legal duty or official action as a public servant is guilty of Trading in Special Influence.
ESSENTIAL ELEMENTS OF OFFENSE
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, _______________, knowingly [offered, gave, or agreed to give] [solicited, accepted, or agreed to accept] _______________, a thing of pecuniary value;
3) For exerting or procuring another to exert special influence upon a [public servant] [party official] with respect to legal duty or official action as a [public servant] [party official].
DEFINITIONS
"Special influence" means power to influence through kinship or by reason of position as a [public servant] [party official].
"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.]
K - 21.10 Driving Under the Influence
A person may not drive a vehicle on a highway [street] [or on public or private areas to which the public has a right of access for vehicular use], if:
1) the person has an alcohol concentration of at least eight one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving.
2) the person is under the influence of intoxicating liquor.
3) the person is under the influence of any drug or substance or combination of drugs or substances to a degree which renders that person incapable of safely driving.
4) the person is under the combined influence of alcohol and any other drugs or substances to a degree which renders that person incapable of safely driving.
K - 21.16 Chemical Test - Less Than .08
The amount of alcohol in a person's [blood] [breath] [saliva] [urine] is evidence to be
considered by the jury in determining whether or not the Defendant was under the influence
of intoxicating liquor. If the test shows an alcohol concentration of not more than five
one-hundredths of one percent (.05) by weight, the person is presumed not to be under the
influence of intoxicating liquor.
If the test shows there was more than five one-hundredths of one percent (.05) by weight,
then the evidence is relevant, but not conclusive evidence, indicating the Defendant was
under the influence of intoxicating liquor and must be considered and weighed with all other
facts, circumstances, and evidence in the case in determining whether the Defendant was
under the influence of intoxicating liquor at the time of driving a motor vehicle.
NDCC 39-20-07
NOTE: This instruction is to be given if a Defendant's chemical test result is less than .08.
K - 21.20 Essential Elements of Offense (DUI)
The [City's] [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 [City] [County], North Dakota, the Defendant, _______________, drove a vehicle in _______________, on a highway [street] [or on public or private areas to which the public has a right of access for vehicular use]; and,
2) Any one of the following:
[Defendant had an alcohol concentration of at least eight one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after the driving.]
[The Defendant was under the influence of intoxicating liquor.]
[The Defendant was under the influence of any drug or substance or combination of drugs or substances to a degree which renders that person incapable of safely driving.]
[The Defendant was under the combined influence of alcohol and any other drugs or substances to a degree which renders that person incapable of safely driving.]
NDCC 39-08-01
K - 21.25 Actual Physical Control
No person shall be in actual physical control of a vehicle upon a highway [street] [or on public or private areas to which the public has a right of access for vehicular use] in this State if:
1) the person has an alcohol concentration of at least eight one-hundredths of one percent by weight at the time of the performance of a chemical test within two hours after being in actual physical control of the vehicle.
2) the person is under the influence of intoxicating liquor.
3) the person is under the influence of any drug or substance or combination of drugs or substances to a degree which renders that person incapable of safely driving.
4) the person is under the combined influence of alcohol and any other drugs or
substances to a degree which renders that person incapable of safely driving.
A person is "in actual physical control" of a vehicle when the vehicle is operable and a
person is in a position to manipulate one or more of the controls of the vehicle that cause
it to move or affects its movement in some manner or direction. Whether the Defendant
was in actual physical control is a question of fact for you to decide.
K - 22.23 Endangerment of Child or Vulnerable Adult
A person who knowingly or intentionally causes or permits a child or vulnerable adult to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia is guilty of Endangerment of a Child or Vulnerable Adult.
ESSENTIAL ELEMENTS OF OFFENSE
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, _______________;
3) Knowingly or intentionally;
4) Caused or permitted a [child] [vulnerable adult];
5) [To be exposed to] [To ingest or inhale] [To have contact with] a controlled substance, chemical substance, or drug paraphernalia.
[6) And the [child] [vulnerable adult] suffered [bodily injury] [death].]
Definitions
[Insert relevant definitions. NDCC 19-03.1-22.2, 12.1-02-02, 12.1-01-04.]
NDCC 19-03.1-22.2