Criminal Jury Instructions – Party Liability, Defense of Habitation, Defense of Self or Other, Defense of Property, Assault Offenses, DUI Offenses, related Special Verdict Forms, and other Miscellaneous Updates – Comment period expired July 19, 2020

The Utah Judicial Council invites comments to the following model criminal jury instructions. The comment period expires Sunday, July 19, 2020, at 5:00 p.m. Although these instructions are subject to a comment period, they have been approved by the Committee on Model Utah Criminal Jury Instructions and are now ready for use. The instructions and special verdict forms have been posted to the MUJI website (final link at the bottom of this post). The Committee on Model Utah Criminal Jury Instructions will consider all comments made during the comment period and may revise the instructions as appropriate. The Judicial Council also encourages judges and practitioners to continuously share their experiences using any of the published instructions with the Committee on Model Utah Criminal Jury Instructions, even after the comment period closes.

Summary of Approved Model Criminal Jury Instructions

REMOVED INSTRUCTIONS:
CR309A Accomplice Liability. (replaced by CR403A and CR403B)
CR309B Accomplice Liability. (replaced by CR403A and CR403B)
CR403 Party Liability. (replaced by CR403A and CR403B)

REVISED INSTRUCTIONS / COMMITTEE NOTES / REFERENCES:
CR109B Further Admonition About Electronic Devices. (revised language regarding post-trial investigations)
CR216 Jury Deliberations. (added additional citations to “References”)
CR411 404(b) Instruction. (revised in light of State v. Lane, 2019 UT App 86)
CR1003 Driving Under the Influence of Alcohol, Drugs, or Combination (MB) (as a result of HB0139-2020)
CR1004 Driving Under the Influence of Alcohol, Drugs, or Combination (MA) (as a result of HB0139-2020)
CR1005 Driving Under the Influence of Alcohol, Drugs, or Combination (F3) (as a result of HB0139-2020)
CR1404 Aggravated Murder Elements When Extreme Emotional Distress is at Issue. (substituted “[VICTIM’S NAME]” for “the victim”)
CR1601 Definitions. (added new committee note)
CR1607 Object Rape. (revised elements in light of State v. Heath, 2019 UT App 186 and removed a committee note)
CR1613 Aggravated Sexual Abuse of a Child. (added new committee note)
CR1615 Consent. (added and revised language in light of HB0213-2020; substituted “[VICTIM’S NAME][MINOR’S INITIALS]” for “the victim” in two instances)
CR1616A Conduct Sufficient to Constitute Sexual Intercourse for Unlawful Sexual Activity with a Minor, Unlawful Sexual Conduct with a 16 or 17 year old, or Rape. (revised instruction and added additional case law references)

NEW INSTRUCTIONS:
CR403A Party Liability – Elements. (replaces CR309A, CR309B, and CR403)
CR403B Party Liability – Definition. (replaces CR309A, CR309B, and CR403)
CR510 Defense of Habitation, Self or Others, Property – Reasonableness.
CR520 Definition of Habitation.
CR521 Defense of Habitation.
CR522 Defense of Habitation – Presumption.
CR523 Defense of Habitation – Prosecutor’s Burden.
CR530 Defense of Self or Other.
CR531 Defense of Self or Other – Imminence.
CR532 Defense of Self or Other – Prosecution’s Burden.
CR533 Defense of Self or Other – No Duty to Retreat.
CR540 Use of Force in Defense of Property.
CR1001 Preamble to Driving Under the Influence Instructions.
CR1003 Driving Under the Influence of Alcohol, Drugs, or Combination (MB)
CR1004 Driving Under the Influence of Alcohol, Drugs, or Combination (MA)
CR1005 Driving Under the Influence of Alcohol, Drugs, or Combination (F3)
CR1301 Definitions for Assault and Related Offenses.
CR1302 Misdemeanor Assaults.
CR1303 Assault Against School Employees.
CR1304 Assault Against a Peace Officer
CR1305 Assault Against a Military Servicemember in Uniform.
CR1306 Assault by a Prisoner.
CR1320 Aggravated Assault.
CR1321 Aggravated Assault by a Prisoner.
CR1322 Aggravated Assault – Targeting Law Enforcement Officer.
CR1330 Domestic Violence – Special Verdict Definitions.
CR1331 Domestic Violence – Special Verdict Instructions.
CR1411 Murder.
CR1450 Practitioner’s Note: Explanation Concerning Imperfect Self-Defense.
CR1451 Explanation of Perfect and Imperfect Self-Defense as Defenses.
CR1452 Special Verdict Form – Imperfect Self-Defense.

NEW SPECIAL VERDICT FORMS:
SVF1001 Driving Under the Influence Offenses.
SVF1301 Assault Offenses.
SVF1331 DV – Cohabitant.
SVF1450 Imperfect Self-Defense.

REVISED SPECIAL VERDICT FORMS:
SVF1001 Driving Under the Influence Offenses. (revised as a result of HB0139-2020)
SVF1613 Aggravated Sexual Abuse of a Child. (added new committee note)

How to view the text of these Model Utah Criminal Jury Instructions

To view these jury instructions and submit comments, click on this link http://legacy.utcourts.gov/utc/muji-comment/2019/08/07/criminal_20200603/, then click on the relevant link(s) in the post.

How to submit comments

You can comment by entering your comment in the box and clicking “Post Comment.” Please include the instruction number at the beginning of the comment, and your name at the end of the comment. You may view other comments simply by scrolling down. The comment website is public. Although all comments will be considered, they will not be acknowledged with a response.

How to view Model Utah Jury Instructions (both civil and criminal) published for comment

Visit https://legacy.utcourts.gov/utc/muji-comment/.

How to view the work of the Committee on Model Criminal Jury Instructions

Visit http://legacy.utcourts.gov/committees/muji-criminal/ and https://legacy.utcourts.gov/resources/muji/index.asp.

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30 thoughts on “Criminal Jury Instructions – Party Liability, Defense of Habitation, Defense of Self or Other, Defense of Property, Assault Offenses, DUI Offenses, related Special Verdict Forms, and other Miscellaneous Updates – Comment period expired July 19, 2020
  1. Brent Huff

    Why has the term “person” been replaced with the term “Defendant?” This seems intentionally prejudicial.

     
  2. Brent Huff

    CR1302 states the elements of Assault to include “Intentionally, knowingly, or recklessly” attempting, with unlawful force or violence, to do bodily injury”

    Can a person recklessly attempt in Utah?

     
  3. James Vilos

    Self-Defense and Defense of Habitation Instructions CR530 & CR522 and 523:

    CR530 does not incorporate all the language of the self-defense statute 76-2-402(3)(ii) beginning w/ “unless” in cases where the felony committed by the defendant may not have anything do do with the act of self-defense.

    DEFENSE OF HABITATION – The last paragraph of 522 may confuse the burden as stated in 523 (beyond a reasonable doubt). Therefore, the last paragraph of 522 should use “prove beyond a reasonable doubt” instead of “showing” and “proving” without reference to “reasonable doubt.”

     
  4. David Ferguson

    Some comments:

    The proposed CR411 404(b) reads: “This evidence (is) (was) not admitted to prove a character trait of the defendant or to show that (he) (she) acted in a manner consistent with that trait” – The proposed rule substitute’s Rule 404’s “a person’s character or character trait” with just “character trait.” It also omits the Rule’s language of “on a particular occasion.”

    I think there’s something different between “a person’s character” and a “character trait.” The former speaks to the quality of the person, the latter speaks to an aspect of that person. To illustrate the difference, improper 404(b) evidence may include a statement like, “the defendant is a drunk.” Assuming that the statement is inadmissible, it appears to me to be inadmissible because it says something about the character of the person as a drunk, not the trait of drunkenness. I worry that a jury might not appreciate the scope of “character trait” to be as broad as to include “a person’s character.” Both terms should be included.

    Secondly, I can see how, in cases that involve multiple counts over a period of time, the words “on a particular occasion” (which are found in 404) might not fit. But the proposed wording loses some clarity without that phrase. The idea behind the rule is that you can’t hold someone’s past against them in this instance. And the words “on a particular occasion” help to anchor that the concern is biasing jurors towards convicting on propensity of action, not just pattern of who the defendant is. There may be other solutions here, but omitting “on a particular occasion” loses some meaning without any obvious benefit of clarity.

    I wonder if the committee would consider doing focus groups with community members. Well, not now since we’re in a pandemic. But soon, perhaps.

    Final point, the proposed rules related to Defense of Self or Others bring up “combat by agreement” several times without a definition. And the term pops up in places where it assumes that people understand what it means, e.g. CR530. Maybe there’s not an easy fix based on what I assume is a lack of clarity in either statute or caselaw on the topic. That said, I don’t really see that it fits where it’s at, either.

    –David Ferguson, Public Defender

     
  5. Janet Lawrence

    Comments for CR1301:

    It might be helpful for the attorneys and the jury to format this instruction differently and reword portions of it.

    (1) The code sections immediately follow each definition and appear with the instruction when a document is generated. It would be better for the references to appear at the bottom as in other instructions or for the code sections to be separated by at least one line space and labeled as “Reference.”

    (2) The definitions are currently listed in alphabetical order, but it would be helpful to the attorneys copying the definitions and to the jury determining the level of bodily injury for the bodily injury instructions to be listed together in order of severity: “Bodily Injury,” “Substantial Bodily Injury,” and then “Serious Bodily Injury.”

    (3) On the MUJI 2d webpage (but not in the proposed instruction) a dash is missing in the code section for “Bodily injury.”

    (4) The code sections need to be updated to reflect revisions in the code.
    Bodily Injury is § 76-1-601(4)
    Dangerous Weapon is § 76-1-601(7)
    Serious Bodily Injury is § 76-1-601(17)
    Substantial Bodily Injury is § 76-1-601(18)

    (5) In the “Targeting a Law Enforcement Officer” definition, the term “commission of” is not in common usage and is not plain English. I would change “the commission of” to “committing.”

    (6) For the “peace officer” definition, the fourth element is not enumerated in the proposed instruction. On the MUJI 2d webpage, it is also not separated from the third element.

    (7) The “military servicemember in uniform” and “peace officer” definitions refer the jury to sections of the code that are not defined. The jury should not be referring to the code, so these need to be defined. For example, the second element in the “military servicemember in uniform” now worded “a member of the National Guard serving as provided in Section 39-1-5 or 39-1-9” could be worded as “a member of the National Guard who the governor has ordered into active service or who the President of the United States has called into service.”

    (8) Some of the defined terms have each word capitalized while others have only the first word capitalized. This should be consistent.

     
  6. Janet Lawrence

    Since CR1320 was written in August, CR1322 was written in December. CR 1322 defines the specific elements for aggravated assault targeting a law enforcement officer. Element 4(c) in CR1320 is not clearly defined and redundant with the adoption of CR1322.

     
  7. Tom Brunker

    On the defense of habitation instructions (CR520-523), we noted that some of the language seemed antiquated, and the Committee may want to consider referring the statute to the Criminal Code Evaluation Task Force. For example, the defense applies when the defendant reasonably believes that the victim has entered the habitation “for the purpose of assaulting or offering personal violence to any person, dwelling, or being in the habitation.” The MUJI does substitute “threatens” for “offer[s]” personal violence. But it’s unclear what kind of “being” is anticipated other than a “person.” Also, I assume that the statute intends to provide a defense when the victim damages or threatens to damage the habitation, but typically that kind of damage or threat would not be called an assault or threat of violence.
    Further, the definition of habitation comes from case law; there is no statutory definition. And it applies to a place that the defendant inhabits “peacefully.” There is, however, no requirement that the victim inhabit the place “lawfully.” So someone who is squatting in an abandoned building “peacefully” may have this defense available to them when they use force against another squatter, even though both are trespassers.
    On the presumption of reasonableness (CR522), the list under #2 has three subpoints stated in the disjunctive, but some of the subpoints include more than one item also stated in the disjunctive. We recognize that those group related items, but we think it would be a little clearer to break each one out into a subpoint.

     
  8. Tom Brunker

    There is a typo in the title—it should read “defense of other,” not “defense or other.” Sometimes the instruction uses “another” alone; and sometimes it uses “another person.” “Another person” is clearer.
    Also, the statute makes the defense available to someone committing or fleeing from committing a felony if the use of force is “a reasonable response to factors” unrelated to the felony. The instruction does not include this contingency. Instead, it relegates the issue to the committee note, and suggests that the parties “should consider” modifying the statutory language when that is at issue.
    We think this should not be relegated to a committee note. Rather, the instruction should include optional language to cover that contingency when it arises. And we think that it’s something that the jury should be instructed on, not something that the parties should just consider.

     
  9. Tom Brunker

    The statute includes a component that is missing from the instruction—a failure to retreat cannot be considered in deciding reasonableness. 76-2-402(4)(b). That should either be added here or in the MUJI on factors for determining imminence and reasonableness (CR531). Also, the statutory reference should be to sub (4), not sub (3).

     
  10. Hyrum Hemingway

    The committee notes are misleading. Contrary to their assertion, it is not “an open question whether a mens rea is required with respect to the operation of actual physical control element of DUI” for offenses occurring before HB0139 takes effect. The amended committee notes are equally problematic, as they persist in suggesting it is unresolved whether DUI is a strict liability offense for offenses occurring before HB0139.
    The only authority relied on for the proposition that DUI is not a strict liability offense is State v. Vialpando, 2004 UT App 95, ¶26. In that case, the Court of Appeals considered whether the trial court erred by failing to instruct the jury that the State was required to prove intent in an actual physical control case. The Court ultimate concluded no such showing was necessary. In reaching its decision, the Court recognized that the plain text of the former DUI statute (Utah Code § 41-6-44) did not contain a mens rea requirement. In the absence of such requirement, the Court fell back on the general presumption in Utah Code § 76-2-102 that in the absence of a specified mens rea for a specific offense, the code requires evidence of intent, knowledge, or recklessness. The decision made no mention of Utah Code § 76-2-101’s plain text, which stated, “[t]hese standards of criminal responsibility shall not apply to the violations set forth in Title 41, Chapter 6, unless specifically provided by law.” It is unclear why the Court failed to address this controlling text, as it is simply not acknowledged in any fashion.
    In 2015, the Utah Supreme Court interpreted Utah Code Ann. 76-2-101, holding that “[v]iolations of the Utah Traffic Code . . . are strict liability offenses “unless specifically provided by law.” State v. Bird, 2015 UT 7, ¶ 18 (quoting Utah Code § 76–2–101(2)). When Bird is considered with Vialpando, the only logical outcome is that Vialpando’s holding that DUI had any mens rea requirement was overruled. Vialpando expressly held that the DUI statute (which has not materially changed since Vialpando was decided) contains no mens rea requirement. Vialpando relied on Utah Code § 76-2-102 for the default mens rea applicable to all criminal offenses that do not contain a mens rea requirement. However, the Supreme Court’s decision in Bird makes clear that Vialpando’s reliance on Utah Code § 76-2-102 was erroneous. DUI is part of the traffic code. In the absence of anything specifically providing otherwise, Utah Code § 76–2–101(2) renders DUI a strict liability offense.
    Subsequent to Bird, the Court of Appeals has twice interpreted the DUI statute (now Utah Code § 41-6a-502) and Utah Code § 76-2-101(2) as creating a strict liability crime. State v. Thompson, 2017 UT App 183, ¶ 52 (“But driving under the influence of alcohol is a strict-liability crime and therefore does not have a mens rea requirement.”); State v. Higley, 2020 UT App 45, ¶22(same). While these two cases were not directly deciding whether it was error to refuse to instruct a jury about whether DUI contains any mental state, there is no reason to believe such a case would result in a different result. The controlling statutes would be the same. And any decision addressing such an argument would have to grapple with Bird, which leaves little room for debate. The Court of Appeals’ decisions subsequent to Vialpando, which account for the Supreme Court’s interpretation of Utah Code § 76-2-101(2) in Bird, have undermined any persuasive force left in Vialpando, to the extent it suggested DUI is anything other than a strict liability offense.
    If some believe Vialpando’s mens rea analysis is still good law, that belief does not have sufficient legal justification to be published in a model jury instruction. Vialpando ignored the legislature’s clear direction that the traffic code was exempted from the standards of Utah Code § 76-2-102. Subsequent to the Supreme Court’s decision in Bird, the Court of Appeals has twice interpreted the DUI statute and Utah Code § 76-2-101(2) as creating a strict liability offense. Publishing an official model jury instruction stating it is an “open question” or “unresolved” gives too much weight to Vialpando and ignores what has happened since.
    Finally, floor remarks from Senator Curtis S. Bramble on March 4 and March 5, 2020, discussing HB0139 clearly state the bill was “clarifying” and “clarifies” that DUI was a strict liability offense. Repeated use of the root verb “clarify” signals the legislature’s opinion was that Utah Traffic Code section 502 has always been a strict liability offense. That suggests the legislature meant what it said in Utah Code Ann. § 76-2-101.

     
  11. Corey Sherwin

    6CR1301 Definitions for Assault and Related Offenses. This is just definitions pulled from the definitions statute. The one potential assault-related definition the proposed instruction does not have is “act” (UCA 76-1-601(1)). While not frequently in need of explanation, the term “act” has a specific definition under the law and ought to be included in the instruction.

     
  12. Katie Ellis

    CR1301 Definitions for Assault and Related Offenses.
    These mostly look great. I found a few citation errors and thought we could possibly add a few more definitions:
    “Emergency medical service worker” means a person licensed under Section 26-8a-302. See Utah Code § 76-5-102.7(3)(b).
    “Health care provider” includes any person, partnership, association, corporation, or other facility or institution who causes to be rendered or who renders health care or professional services as a hospital, health care facility, physician, physician assistant, registered nurse, licensed practical nurse, nurse-midwife, licensed direct-entry midwife, dentist, dental hygienist, optometrist, clinical laboratory technologist, pharmacist, physical therapist, physical therapist assistant, podiatric physician, psychologist, chiropractic physician, naturopathic physician, osteopathic physician, osteopathic physician and surgeon, audiologist, speech-language pathologist, clinical social worker, certified social worker, social service worker, marriage and family counselor, practitioner of obstetrics, licensed athletic trainer, or others rendering similar care and services relating to or arising out of the health needs of persons or groups of persons and officers, employees, or agents of any of the above acting in the course and scope of their employment. See Utah Code §§ 76-5-102.7(3)(c); 78B-3-403.

     
  13. Blake Hills

    CR1320 Aggravated Assault.
    Parts 1-3 look good and are accurate reflections of the statute and caselaw. But the way part 4 is included makes it look like it should be present in every aggravated assault case, when it is just needed for a charge that is a F2 or F1. Maybe the committee thought that it should be obvious, but things that should be obvious don’t always gets interpreted that way.

     
  14. Hyrum Hemingway

    CR1320 Aggravated Assault.

    Element 1 and 2 should be combined. As written, the instruction is needlessly confusing. Nothing is lost by having element 1 state “DEFENDANT’S NAME intentionally, knowingly, or recklessly” and then allowing the three variations to follow as written.
    Element 3 omits necessary mens rea terms. This element lists the three alternative ways that an offense that otherwise would be a misdemeanor (Assault or Threat of Violence) becomes an Aggravated Assault. The State must prove the defendant intentionally, knowingly, or recklessly did at least one of the three actions listed. This parent element should be identical to element 1: DEFENDANT’S NAME intentionally, knowingly, or recklessly” and then let the three variations follow below.
    Element 4 suggests that targeting an officer does not have a mens rea. But Utah Code Ann. 76-5-210 defines targeting to be the “commission of any offense involving the unlawful use of force and violence against a law enforcement officer, causing serious bodily injury or death in furtherance of political or social objectives in order to intimidate or coerce a civilian population or to influence or affect the conduct of a government or a unit of government.” (emphasis added). The use of the phrase “in order to” strongly suggests the legislature anticipated that the mens rea of intent would accompany this element. The targeting element variant should be given its own element to avoid confusion and should state “DEFENDANT’S NAME intentionally targeted a law enforcement officer.” If proceeding under a “targeting” case, elements 3.a and 4 (see below) would contain the necessary facts to sustain conviction.
    Implementing these various changes produces the following modified instruction:
    1. (DEFENDANT’S NAME) intentionally, knowingly, or recklessly:
    a. attempted, with unlawful force or violence, to do bodily injury to (VICTIM’S NAME); or
    b. made a threat, accompanied by a show of immediate force or violence, to do bodily injury to (VICTIM’S NAME); or
    c. committed an act with unlawful force or violence that:
    i. caused bodily injury to (VICTIM’S NAME); or
    ii. created a substantial risk of bodily injury to (VICTIM’S NAME); and
    2. (DEFENDANT’S NAME) intentionally, knowingly, or recklessly
    a. [used a dangerous weapon; or]
    b. [committed an act that interfered with the breathing or the circulation of blood of (VICTIM’S NAME) by use of unlawful force or violence that was likely to produce a loss of consciousness by:
    i. applying pressure to the neck or throat of (VICTIM’S NAME); or
    ii. obstructing the nose, mouth, or airway of (VICTIM’S NAME); or]
    c. [used other means or force likely to produce death or serious bodily injury];
    3. [(DEFENDANT’S NAME)’s actions
    a. [resulted in serious bodily injury; or]
    b. [impeding the breathing or circulation of blood of (VICTIM’S NAME) produced a loss of consciousness];
    4. [(DEFENDANT’S NAME) intentionally targeted a law enforcement]; and
    5. [The defense of _______________ does not apply.]
    The above changes would require a committee note directing practitioners in a targeting case to include element 3.a and 4 to satisfy the requirements. It should also inform practitioners that a definitional instruction from Utah Code Ann. 76-5-210 would be necessary.
    The note includes a suggestion that co-habitancy status may require proof of mens rea. This suggestion comes from of an accurate statement, but the statement appears to be a solution in search of a problem that does not exist. The note cites to State v. Barela, 2015 UT 22, ¶26, which stands for the proposition that Utah’s “criminal code requires proof of mens rea for each element of a non-strict liability crime.” Indeed, Utah Code Ann. 76-2-101 states that for every criminal offense, “a person is not guilty of an offense unless . . . the person acts intentionally, knowingly, recklessly, with criminal negligence . . . or the person’s acts constitute an offense involving strict liability.”
    However, an offense does not become a domestic violence offense based off any action not already contemplated by the underlying offense. An Aggravated Assault has the same elements as Aggravated Assault – Domestic Violence, except for the identity of the victim. To convict a defendant of a domestic violence offense, the State must prove the underlying offense occurred, and then prove it was “committed by one cohabitant against another.” Utah Code Ann. 77-36-1(4). Any consequences of a finding regarding cohabitancy is not based on any action, but solely on status.
    The proposed special verdict form for DV offense (SVF 1331) is written in the passive voice, accurately reflecting that whether or not a DV status exists does not depend on any action. However, when mens rea terms are inserted, the form becomes nonsensical:
    We, the jury, have found the defendant, (DEFENDANT’S NAME), guilty of [CRIME(S)], as charged in Count(s) [#,#,#]. We also unanimously find the State: ¨ has ¨ has not proven beyond a reasonable doubt (DEFENDANT’S NAME) and (VICTIM’S NAME) were intentionally, knowingly, or recklessly cohabitants at the time of [this][these] offense(s)
    Whose actions is the jury being asked to assess? What actions are they assessing?
    This confusion appears to arise from a mistaken notion that every portion of a criminal offense must include proof of a specific mental state. As noted above, the general rule in the code requires that actions be accompanied with a mental state, unless the offense is one of strict liability.
    Attendant circumstances may be an element of a criminal offense. Utah Code Ann. 76-1-501(2). “Attendant circumstances” are those circumstances that may be required to be present for criminal liability in addition to the requisite physical conduct, or actus reus, and the mens rea specified for the offense. State v. Vigil, 842 P.2d 843, 846, n.4 (Utah 1992), overruled on other grounds by State v. Casey, 2003 UT 55. The presence or absence of a cohabitant relationship is best understood as a question of whether a certain attendant circumstance exists. As noted by the Court in Vigil, it is rare for an offense to require a mental state for an attendant circumstance. Id. When an attendant circumstance does require proof of a mental state, the determination is made based off the language of the specific offense. See id. In the absence of any language defining what constitutes a domestic violence offense, the proposed note, while technically accurate, will mislead parties into believing that the code’s requirement that actions be accompanied with a mental state extends to attendant circumstances, when no such general requirement is found in the code.

     
  15. Blake Hills

    CR1322 Aggravated Assault – Targeting Law Enforcement Officer. Parts 1b and 2 should be combined to state in 1b that serious bodily injury was caused, since that is the only way to commit the crime.

     
  16. Sean Brian

    CR1411 Murder.

    (DEFENDANT’S NAME) is charged [in Count _] with committing Murder [on or about DATE]. You cannot convict (him)(her) of this offense unless, based on the evidence, you find beyond a reasonable doubt each of the following elements:
    1. (DEFENDANT’S NAME)
    2. [a. Intentionally or knowingly caused the death of (VICTIM’S NAME)][; or]
    [b. Intending to cause serious bodily injury to another, (DEFENDANT’S NAME) committed an act clearly dangerous to human life that caused the death of (VICTIM’S NAME)][; or]
    [c. Acting under circumstances evidencing a depraved indifference to human life,
    (DEFENDANT’S NAME) knowingly engaged in conduct which created a grave
    risk of death to another and thereby caused the death of (VICTIM’S NAME)][;
    or]
    [d. While engaging in the commission, attempted commission, or immediate flight from the commission or attempted commission of [the predicate offense(s)], or as a party to [the predicate offense(s)],
    i. (VICTIM’S NAME) was killed;
    ADD THE FOLLOWING LANGUAGE: ii. (VICTIM’S NAME) was not a party to the offense; and
    ADD THE FOLLOWING LANGUAGE: iii . (DEFENDANT’S NAME) acted [intentionally, knowingly, recklessly, or with criminal negligence, as applicable to the predicate offense] with the intent required as an element of the predicate offense] [; or]
    [e. recklessly caused the death of (VICTIM’S NAME), a peace officer or military service member in uniform while in the commission of
    i. an assault against a peace officer;
    ii. interference with a peace officer making a lawful arrest, if (DEFENDANT’S NAME) used force against a peace officer; or
    iii. an assault against a military service member in uniform.]
    [3. The defense of ____________________ does not apply.]
    Notes/Explanation :
    (2))(d)(i) Pursuant to Utah Code § 76-5-203(2)(d)(ii), the victim cannot be a party to the predicate offense.
    (2)(d)(ii) A jury may not be able to determine the appropriate level of intent applicable to the predicate offense. The instruction would be clearer if the level of intent were directly stated.
    (2)(c) It is unclear whether the statute refers to (1) conduct that as a general rule creates a grave risk of death to another or (2) conduct that, in this instance, created a grave risk of death to another. A survey of cases giving this instruction all use the current formulation, so I did not make a suggestion for change. See State v. Medina-Juarez , 34 P. 3d 187 (Utah 2001) (citing an instruction using the second formulation with approval); State v. Thompson , 2017 UT App 183, ¶¶ 35 –36, 405 P.3d 892 (explaining the requisite mental state in terms of the particular instance of the actor’s conduct); State v. Robinson , 2018 UT App 103, 427 P. 3d 474.

     
  17. Fred Burmester

    CR141 Murder.
    The murder elements instruction is fine with one exception; the victim in the case of felony murder theory must not be a participant in the felony. Thus I think the following language must be added to the elements instruction:
    “d. While engaging in the commission, attempted commission, or immediate flight from the commission or attempted commission of [the predicate offense(s)], or as a party to [the predicate offense(s)], i. (VICTIM’S NAME), [ADD THIS LANGUAGE: “who was not a participant in the predicate offense(s)”] was killed; and…”

     
  18. Sean Brian

    CR1451 Explanation of Perfect and Imperfect Self-Defense as Defenses.
    Perfect self-defense is a complete defense to [Aggravated Murder][Attempted Aggravated Murder][Murder][Attempted Murder][Manslaughter]. The defendant is not required to prove that perfect self-defense applies. Rather, the State must prove beyond a reasonable doubt that perfect self-defense does not apply. The State has the burden of proof at all times. As Instruction ___ provides, for you to find the defendant guilty of [Aggravated Murder][Attempted Aggravated Murder][Murder][Attempted Murder][Manslaughter], the State must prove beyond a reasonable doubt that perfect self-defense does not apply. Consequently, your decision regarding perfect self-defense will be reflected in the “Verdict” form for Count [#]. You must consider imperfect self-defense only if you find the defendant guilty of [Aggravated Murder][Attempted Aggravated Murder][Murder][Attempted Murder]. Imperfect self-defense is a partial defense to [Aggravated Murder][Attempted Aggravated Murder][Murder][Attempted Murder]. It applies when the defendant caused the death of another while incorrectly, but reasonably, believing that (his)(her) conduct was legally justified or excused. The effect of the defense is to reduce the level of the offense. The defendant is not required to prove that imperfect self-defense applies. Rather, the State must prove beyond a reasonable doubt that imperfect self-defense does not apply. The State has the burden of proof at all times. Your decision will be reflected in the special verdict form titled “Special Verdict Imperfect Self-Defense.”

     
  19. Fred Burmester

    CR1452 Special Verdict Form- Imperfect Self Defense.
    The proposal to make imperfect self defense subject to a special verdict has some logic to it in my opinion, but the defense results in a lesser included manslaughter. The supporting practitioners’ notes only refer to a court of appeals case Lee and in the end Drej. State v. Lee does not take on the issue straight ahead. It has dicta that the method of the instruction misplaced the burden which is a pitfall I think the Muji drafters were trying to avoid. Drej does not apply (it is a mitigation case and not an affirmative defense case). The problem is that State v. Shumway, a Supreme Court case, says that you cannot instruct the jury on a specific order of deliberation with a lesser included manslaughter. However, the proposed instruction tells the jury they can only consider the affirmative defense (lesser included manslaughter) if they first find the defendant guilty of murder, a thing I think Shumway prohibits. I have attached the citations for the relevant cases at the bottom of this note. SHUMWAY, 63 P.3d 94; LEE, 318 P.3d 1164; LOW, 192 P.3d 867

     
  20. Sean Brian

    SVF1450 Imperfect Self Defense.
    Having found the defendant, (DEFENDANT’S NAME), guilty of [Aggravated Murder][Attempted Aggravated Murder][Murder][Attempted Murder], as charged in Count [#], Check ONLY ONE of the following boxes:
    [ ] We unanimously find that the State has proved beyond a reasonable doubt that the defense of imperfect self-defense DOES NOT apply.
    OR
    [ ] We do not unanimously find that the State has NOT (ADD THIS “NOT”) proved beyond a reasonable doubt that the defense of imperfect self-defense DOES NOT apply (ADD THIS:) and therefore the level of offense should be reduced .
    Notes/ Explanation :
    The phrasing could be misinterpreted to negate the unanimity requirement, so the “not” is moved so that it clearly modifies “proved.”
    The emphasis should be placed on the difference between the two options. It may also be helpful to the jury to clarify the consequence of their selection. The verdict form appears to successfully avoid the issue raised in State v. Campos , 2013 UT App 213, 309 P. 3d 1160, where the instruction failed to place the burden of proof on the State.

     
  21. Donna Kelly

    CR 1601 Definitions

    Regarding “indecent liberties,” where it says “any conduct” I think that should say “any sexual conduct.” To leave it as it is would mean that any act with equal seriousness would be a sex crime – so a punch or a slap could be a sex crime.
    Also, Could we include a definition of “penetration” and of “touching” here? That way, we could make clear the differences between those terms for the elements of adult crimes and child crimes.

     
  22. Blake Hills

    CR 1601 Definitions
    The code section for “health professional” is wrong. It should be 76-5-406(1)(a).
    Indecent liberties is specifically defined by 76-5-416.
    The code section for “religious counselor” is wrong. It should be 76-5-406(1)(b).
    As to the new committee note, I suppose the definition could use the term “alleged victim.” I don’t see how else it could be phrased without approaching ridiculousness.

     
  23. Clint Heiner

    SVF 1613 Aggravated Sexual Abuse of a Child.

    The language should delete the Aggravated Sexual Abuse of a Child from the […] area because they found the person guilty of Sexual Abuse of a Child, it is by checking one of the following boxes that makes it aggravated.

     
  24. Donna Kelly

    CR 1616A Unlawful Sexual Conduct.

    Where it says “between the outer folds of the labia” I would change that to say simply “genitals” to be consistent with all the other statutes.

     
  25. Tony Graf

    CR 1616A Unlawful Sexual Conduct

    I echo Donna’s comments with the exception of “between the outer folds of the labia”. I believe that this definition is important and should be included as it is the same language being requested for Object Rape. In addition, I believe that this same language should be included in the special verdict form for SVF1613, CR1601 and CR613 to be consistent with the other proposed changes.

     
  26. Clint Heiner

    CR 1616A Unlawful Sexual Conduct

    Why are we saying “sexual penetration” of the penis. Doesn’t sexual penetration limit that definition? For example part (c) can be not only for sexual purpose but also, to cause substantial emotional or bodily pain…. Of course there is the issue of power and control as well…?

     
  27. Robert Denny

    CR1601 Definitions; CR1613 Aggravated Sexual Abuse of a Child.

    The committee notes for CR 1601 and 1613 state that the committee considered the use of the word “victim” in light of State v. Vallejo, 2019 UT 38, ¶¶99-103, but that it chose to preserve the language used in the statutes. It then opines that “[a]ny attempt to alter the instruction in an effort to avoid the use of the word ‘victim’ appears to impermissibly change the meaning of the statute.”

    Rather than commenting on whether replacing the word “victim” would impermissibly change the meaning of the statute, the committee notes should simply mention State v. Vallejo, and the Supreme Court’s concern with the word “victim.” I suggest that the comment should read as follows, “In Vallejo, the Supreme Court ‘recognize[d] the gravity of referring to witnesses as victims during a trial.’ Attorneys should consider Vallejo’s concerns in determining how to word this instruction.”

     
  28. Robert Denny

    CR1616A Unlawful Sexual Conduct.

    The revised jury instruction seems to add more confusion and strays from the statutory language. The phrase “sexual penetration of the penis” could be interpreted several different ways. Moreover, adding language to jury instructions from cases addressing the sufficiency of the evidence, such as State v. Heath, has previously been recognized as problematic. The instruction should track the language of the statute, and only state that “any sexual penetration, however slight, is sufficient to constitute sexual intercourse.” This is how the instruction was previously written.

     
  29. Thomas Brunker

    The Criminal Appeals Division of the Utah Attorney General’s Office submits the following comments on the criminal MUJI.

    Defense of habitation (CR520-523): The instruction tracks the statutory language, but some of the language seems antiquated, and the Committee may want to consider referring the statute to the Criminal Code Evaluation Task Force. For example, the defense applies when the defendant reasonably believes that the victim has entered the habitation “for the purpose of assaulting or offering personal violence to any person, dwelling, or being in the habitation.” The MUJI does substitute “threatens” for “offer[s]” personal violence. But it’s unclear what kind of “being” is anticipated other than a “person.” Also, the statute presumably intends to provide a defense when the victim damages or threatens to damage the habitation, but typically that kind of damage or threat would not be called an assault or threat of violence.

    Further, the definition of habitation comes from case law; there is no statutory definition. And it applies to a place that the defendant inhabits “peacefully.” There is, however, no requirement that the victim inhabit the place “lawfully.” So someone who is squatting in an abandoned building “peacefully” may have this defense available to them when they use force against another squatter, even though both are trespassers.

    Defense of other (CR530, et al.). There is a typo in the title—it should read “defense of other,” not “defense or other.”

    The statute makes the defense available to someone committing or fleeing from committing a felony if the use of force is “a reasonable response to factors” unrelated to the felony. The MUJI does not include this contingency. Instead, it relegates the issue to the committee note, and suggests that the parties “should consider” modifying the statutory language when that is at issue.

    This alternative theory should not be relegated to a committee note. Rather, the instruction should include optional language to cover that contingency when it arises. And when it applies, it’s something that the jury should be instructed on, not something that the parties should just consider.

    On the no-duty-to-retreat MUJI (CR533), the statute includes a component that is missing from the instruction—a failure to retreat cannot be considered in deciding reasonableness. 76-2-402(4)(b). That should either be added here or in the MUJI on factors for determining imminence and reasonableness (CR531). Also, the statutory reference should be to sub (4), not sub (3).

    Imperfect self-defense (CR1450-1452, SVF1452). The Division has seen several cases with defective imperfect self-defense instructions. As the practitioner’s note points out, it has been particularly problematic when the instructions try to fold imperfect self-defense into the elements instruction. It has resulted in either misstating who has the burden of proof or potentially misleading the jury into believing that it must reach unanimity on whether the State had failed to disprove imperfect self-defense. So the Division agrees that the imperfect self-defense instruction should be separate from the elements instruction.

    But the proposed MUJI procedure arguably conflicts with the rules. As relevant here, Utah R. Crim. P. 21(a) requires the jury to enter a verdict of “guilty” or “not guilty of the crime charged but guilty of a lesser included offense.” The proposed MUJI procedure, however, results in there being no verdict on the lesser crime.

    As proposed, and as relevant here, the jury verdict is either guilty of the greater offense or guilty of the lesser offense for reasons other than imperfect self-defense. The jury is then instructed only to make a finding on imperfect self-defense. But it is not asked to enter a verdict on the lesser crime if it finds in favor of the defendant on imperfect self-defense. So contrary to rule 21’s requirement, there is no verdict on the lesser offense.

    The parties sometimes agree to bifurcate proceedings so that the jury enters a verdict on a particular crime and the judge decides whether aggravating circumstances that enhance the crime—usually prior convictions—exist. But in that case, the defendant has agreed to waive a jury verdict on the second step. Here, the defendant has not expressly waived the jury verdict on the lesser offense. Rather than entering a verdict on the lesser offense, the jury enters a verdict on the greater offense and only enters a finding that results in a lesser offense.

    It may be that the disconnect between the rule and the proposed MUJI won’t make a difference. But a fix would eliminate the problem.

    A related concern is that the proposed instructions speak in terms of the jury finding the defendant guilty of the greater offense before considering imperfect self-defense. For example, CR 1451 states, “You must consider imperfect self-defense only if you find the defendant guilty of [Aggravated Murder][Attempted Aggravated Murder][Murder][Attempted Murder].” But if the jury ultimately finds that the State has not disproven imperfect self-defense beyond a reasonable doubt, then the defendant is not guilty of the greater crime. We therefore recommend that when describing the jury’s finding on the greater offense the instructions should speak in terms of the jury having found that the State proved all the elements of the greater offense, or some similar phrasing, not that the jury has found the defendant guilty of the greater offense. This change would need to be incorporated into CR 1450, 1451, 1452, and the Special Verdict Form.

    Misdemeanor assault (CR1302). The instruction purports to cover both class B and class A misdemeanor assault. But when there are aggravators at issue that may increase the assault to a class A misdemeanor, the instruction, as written, allows the jury only to either convict or acquit of the higher crime. It should allow for a conviction of the lower crime if the State fails to prove the aggravator.

    The elements instruction says (both before and after the listed elements) that the jury must find that each of the elements applies before it can convict. Elements 3 and 4 list alternative facts that must be found by the jury to enhance the penalty to a class A misdemeanor. If neither of those facts are found, but every other element is found, then the defendant is still guilty of a class B misdemeanor. But as the instruction is written, the jury is required to find the enhancement in order to find the defendant guilty of any assault. In other words, including elements 3 and 4 effectively eliminates class B misdemeanor assault as a crime. Elements 3 and 4 should be handled through a special verdict form rather than the elements instruction.

    Aggravated Assault (CR1320). The enhancement element on aggravated assault (element 4) raises a similar problem. Again, the elements instruction says (both before and after the listed elements) that the jury must find that each of the elements applies before it can convict. Element 4 lists facts that must be found by the jury to enhance the penalty to a second- or first-degree felony. If none of those facts are found, but every other element is found, then the defendant is still guilty of a third-degree felony. But as the instruction is written, the jury is required to find the enhancement facts in order to find the defendant guilty of aggravated assault. In other words, including element 4 effectively eliminates third degree felony aggravated assault as a crime.

    The committee notes indicate that if “more than one” possible enhancement factor under element 4 is involved in the case, then a special verdict form should be used. The committee note should be rewritten to list all the enhancement factors and state that a special verdict form should be used if ANY factor is at issue, and cross-reference SVF1301. Even if only one enhancement factor is at issue, a special verdict form should be used. Otherwise, the instruction tells the jury to acquit if the State fails to prove the enhancement. In reality, the jury should convict if the State proves every element of aggravated assault but fails to prove an enhancement—but the conviction will be for a third degree felony rather than a second or first.

    The instruction could also entirely eliminate the reference to targeting a law enforcement officer as an enhancement, because CR1322 should be used in place of CR1320 in that situation. However, if a prosecutor uses CR1322, she may want to use CR1320 as a lesser-included offense to avoid the problems addressed above.

    Aggravated Assault—Targeting Law Enforcement Officer (CR1322). The MUJI is confusing because it effectively requires the jury to find both bodily injury and serious bodily. But aggravated assault targeting a law enforcement officer requires serious bodily injury. So element 2 should be eliminated and 1(b) changed to require a finding of serious bodily injury. If the intent was to try to capture both a greater and lesser offense, the better approach would be to suggest in committee notes asking for separate instructions on aggravated assault targeting a law enforcement officer and aggravated assault.

    Definitions of Assault and Related Offenses (CR1301). Consider removing the definition of “targeting a law enforcement officer.” CR1322 presents an elements instruction for aggravated assault involving targeting a law enforcement officer. That could be used as a model for other offenses that involve targeting a law enforcement officer. The statutory language defining targeting a law enforcement officer is hard to follow; repeating that language for the jury is not helpful. Breaking it out into elements, as in CR1322, is helpful.

    Assault Offenses (SVF1301). If you remove the definition of “targeting a law enforcement officer” from CR1301 and keep the elements instruction for aggravated assault—targeting a law enforcement officer (CR1322), then targeting a law enforcement officer should be eliminated from the special form.

    404(b) instruction (CR411). The language in the brackets would be clearer if it were reworded to be “practitioners must specify a proper non-character purpose such as motive, intent, etc., whether the evidence is to prove or disprove that purpose, and the issues to which that purpose applies.” Ambiguity issues have arisen when the jury is not instructed how to use the 404(b) evidence. For example, in a self-defense case, instructing the jury that the 404(b) evidence is to be used “for the limited purpose of self-defense” is ambiguous when it’s being offered “for the limited purpose of rebutting a claim of self-defense.” Or if the defendant argues mistake or accident, the instruction should say “for the limited purpose of rebutting a claim of mistake or accident.” And if the evidence is to prove motive, it should say “for the limited purpose of proving motive.”