News & Notices

From the Committee on Model Criminal Jury Instructions February 2024

 

Michigan Bar Journal

 

The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by May 1, 2024. Comments may be sent in writing to Samuel R. Smith, Reporter, Committee on Model Criminal Jury Instructions, Michigan Hall of Justice, P.O. Box 30052, Lansing, MI 48909-7604, or electronically to MCrimJI@courts.mi.gov.

PROPOSED

The Committee proposes amending jury instructions M Crim JI 20.2 (Criminal Sexual Conduct in the Second Degree [MCL 750.520c]) and M Crim JI 20.13 (Criminal Sexual Conduct in the Fourth Degree [MCL 750.520e]) to add definitional “sexual contact” language from MCL 750.520a(q). Deletions are in strike-through, and new language is underlined.

[AMENDED] M Crim JI 20.2

Criminal Sexual Conduct in the Second Degree

(1) The defendant is charged with the crime of second-degree criminal sexual conduct. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant intentionally [touched (name complainant)’s/made, permitted, or caused (name complainant) to touch (his/her)] [genital area/groin/inner thigh/buttock/(or) breast] or the clothing covering that area.

(3) Second, that this touching was done the defendant touched [name complainant] for any of these reasons: (1) for sexual arousal or gratification, (2) in a sexual manner for revenge, humiliation, or out of anger, or (3) for a sexual purposes or what could reasonably be construed as having been done for a sexual purposes.

(4) [Follow this instruction with one or more of the 13 alternatives, M Crim JI 20.3-20.11d, as warranted by the charges and evidence.]

[AMENDED] M Crim JI 20.13

Criminal Sexual Conduct in the Fourth Degree

(1) The defendant is charged with the crime of fourth-degree criminal sexual conduct. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant intentionally [touched (name complainant)’s/made, permitted, or caused (name complainant) to touch (his/her)] [genital area/groin/inner thigh/buttock/(or) breast] or the clothing covering that area.

(3) Second, that this touching was done the defendant touched (name complainant) for any of these reasons: (1) for sexual arousal or gratification, (2) in a sexual manner for revenge, humiliation, or out of anger, or (3) for a sexual purposes or what could reasonably be construed as having been done for a sexual purposes.

(4) [Follow this instruction with M Crim JI 20.14a, M Crim JI 20.14b, M Crim JI 20.14c, M Crim JI 20.14d, M Crim JI 20.15, M Crim JI 20.16, or M Crim JI 20.16a, as warranted by the charges and evidence.]

Use Note

Use this instruction where the facts describe an offensive touching not included under criminal sexual conduct in the second degree.

The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by May 1, 2024. Comments may be sent in writing to Samuel R. Smith, Reporter, Committee on Model Criminal Jury Instructions, Michigan Hall of Justice, P.O. Box 30052, Lansing, MI 48909-7604, or electronically to MCrimJI@courts.mi.gov.

PROPOSED

The Committee proposes two jury instructions, M Crim JI 40.7 (loitering where prostitution is practiced) and M Crim JI 40.7a (loitering where an illegal occupation or business is practiced or conducted) for the “loitering” crimes found in the Disorderly Person statute at MCL 750.167(i) and (j). The instructions are entirely new.

[NEW] M Crim JI 40.7

Loitering Where Prostitution Is Practiced

(1) The defendant is charged with the crime of loitering where acts of prostitution were taking place. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that acts of prostitution were allowed or being committed at [provide location where prostitution was being performed].

An act of prostitution is sexual conduct with another person for a fee or something of value.

(3) Second, that the defendant was present at that location and knew or learned that prostitution was allowed or being committed there.

(4) Third, that the defendant remained at [provide location of illegal conduct] without a lawful purpose1 knowing that prostitution was allowed or being committed there.

Use Note

1. Lawful purposes could include, among other things, gathering information to report illegal conduct to the police or attempting to dissuade persons engaging in illegal conduct from continuing their illegal activity.

[NEW] M Crim JI 40.7a

Loitering Where an Illegal Occupation or Business Is Practiced or Conducted

(1) The defendant is charged with the crime of loitering where an illegal occupation or business was being practiced or conducted. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that [identify illegal occupation or business]1 was being practiced or conducted at [provide location].

(3) Second, that the defendant was present at that location and the defendant knew or learned that [illegal occupation or business] was being practiced or conducted.

(4) Third, that the defendant remained at [location of illegal conduct] without a lawful purpose2 knowing that [illegal occupation or business] was being practiced or conducted there.

Use Notes

1. Whether an occupation or business is illegal appears to be a question that is decided by the court. Whether that occupation or business was occurring at the location alleged is a question of fact for the jury.

2. Lawful purposes could include, among other things, gathering information to report an illegal business to the police or attempting to dissuade persons engaging in an illegal occupation from continuing their illegal activity.

The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by May 1, 2024. Comments may be sent in writing to Samuel R. Smith, Reporter, Committee on Model Criminal Jury Instructions, Michigan Hall of Justice, P.O. Box 30052, Lansing, MI 48909-7604, or electronically to MCrimJI@ courts.mi.gov.

PROPOSED

The Committee proposes three jury instructions, M Crim JI 41.3 (placing eavesdropping devices), 41.3a (placing eavesdropping devices for a lewd or lascivious purpose), and 41.3b (disseminating images obtained by eavesdropping devices) for the crimes found in an eavesdropping and surveillance statute: MCL 750.539d. These instructions are entirely new.

[NEW] M Crim JI 41.3

Placing Eavesdropping or Surveillance Devices

(1) The defendant is charged with the crime of placing an eavesdropping or surveillance device. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant [installed/placed/used] a device for observing, recording, transmitting, photographing, or eavesdropping on the sounds or events1 of others2 at or in a private place.3

A private place is one where a person could reasonably expect to be safe from casual or unwanted intrusion or surveillance. It does not include a place where the public or a substantial group of the public has access.

(3) Second, that the defendant did not have the permission or consent of [(identify complainant(s) if possible)/the person or persons entitled to privacy at (provide location of device)] to be observed, recorded, transmitted, photographed, or eavesdropped on.3

Use Notes

Use M Crim JI 41.3a in cases where the defendant is the owner or principal occupant of the premises where an eavesdropping device was alleged to have been placed. Questions regarding whether a defendant has status as an “owner or principal occupant” appear to be legal questions decided by the court.

1. MCL 750.539d(1)(a).

2. The Committee on Model Criminal Jury Instructions believes that the statute does not encompass recording conversations or events under MCL 750.539a(2) where the person recording them is a participant because Michigan appears to be a one-party consent state. See Sullivan v Gray, 117 Mich App 476; 324 NW2d 58 (1982), cited in Lewis v LeGrow, 258 Mich App 175; 670 NW2d 675 (2003), and Fisher v Perron, 30 F4th 289 (6th Cir 2022).

3. Private place is defined in MCL 750.539a(1).

[NEW] M Crim JI 41.3a

Placing Eavesdropping or Surveillance Devices for a Lewd or Lascivious Purpose

(1) The defendant is charged with the crime of placing an eavesdropping or surveillance device for a lewd or lascivious purpose. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant [installed/placed/used] a device for observing, recording, transmitting, photographing, or eavesdropping on the sounds or events in a residence. (3) Second, that the location that the device could observe, record, photograph, or eavesdrop was a private place in or around the residence.1

A private place is one where a person could reasonably expect to be safe from casual or unwanted intrusion or surveillance.

(4) Third, that the defendant did not have the permission or consent of [(identify complainant(s) if possible)/the person or persons entitled to privacy at (provide location of device)] to be observed, recorded, photographed, or eavesdropped on.

(5) Fourth, that the defendant installed, placed, or used the device for a lewd or lascivious purpose.

A lewd or lascivious purpose means that the device was placed to observe or record [(identify complainant)/a person] under indecent or sexually provocative circumstances.

Use Note

This instruction should only be given when the defendant is the owner or principal occupant of the residence where an eavesdropping device was alleged to have been placed. Questions regarding whether a defendant has status as an “owner or principal occupant” appear to be legal questions decided by the court.

1. Private place is defined in MCL 750.539a(1).

[NEW] M Crim JI 41.3b

Transmitting Images or Recordings Obtained by Surveillance or Eavesdropping Devices

(1) The defendant is charged with the crime of transmitting images or recordings obtained by surveillance or eavesdropping devices. To prove this charge, the prosecutor must prove both of the following elements beyond a reasonable doubt:

(2) First, that the defendant intentionally distributed, disseminated, or transmitted a recording, photograph, or visual image of [identify person or complainant] so that the recording or visual image could be accessed by other persons.

(3) Second, that the defendant knew or had reason to know the recording or visual image of [identify person or complainant] that [he/she] transmitted was obtained using a device for eavesdropping1 that had been placed or used where a person would have a reasonable expectation of privacy that was safe from casual or unwanted intrusion or surveillance.2

Use Notes

1. MCL 750.539d(1)(a) describes these devices as “any device for observing, recording, transmitting, photographing, or eavesdropping upon the sounds or events in that place.”

2. Private place and surveillance are defined in MCL 750.539a(1) and (3).

The Committee has adopted a new jury instruction, M Crim JI 25.8 (Dumping Refuse) for the trespassing offense found at MCL 750.552a. The instruction is effective Feb. 1, 2024.

[NEW] M Crim JI 25. 8

Dumping Refuse on the Property of Another

(1) The defendant is charged with the crime of dumping refuse or garbage on property belonging to another person. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that [name complainant] owned, rented, or possessed the property or premises located at [identify address of property, including city or township and county].

(3) Second, that the defendant placed, deposited, or dumped filth, garbage, or refuse on [name complainant]’s property or premises at [identify address of property].

(4) Third, that the defendant did not have [name complainant]’s specific permission to place, deposit, or dump the filth, garbage, or refuse on the property or premises at [identify address of property].

[(5) Fourth, that the defendant knew that the location where [he/ she] dumped, deposited, or placed the filth, garbage, or refuse was not [his/her] own property.]1

Use Note

1. The Committee on Model Criminal Jury Instructions believes that a claim by the defendant that he or she thought he or she was dumping the refuse on his or her own property is an affirmative defense, and this paragraph should only be read when there is evidence to support the defense.

The Committee has adopted a new jury instruction, M Crim JI 25.9 (trespassing at a correctional facility) for the trespassing offense found at MCL 750.552b. The instruction is effective Feb. 1, 2024.

[NEW] M Crim JI 25.9

Trespassing on State Correctional Facility Property

(1) The defendant is charged with the crime of trespassing on the property of a state correctional facility. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant [entered/remained/entered and remained] on property that was part of [identify state correctional facility], which is a state correctional facility.

(3) Second, that the defendant knew [he/she] [entered/remained/ entered and remained] on property that was part of a state correctional facility.

[Select the appropriate third element:]

(4) Third, that the defendant did not have permission or authority to [enter/remain/enter and remain] on the property of the state correctional facility.

[Or]

(4) Third, that the defendant [entered/remained/entered and remained] on the property without permission or authority after being instructed [not to enter/to leave] the property.

(5) Fourth, that the defendant knew that [he/she] did not have permission or authority to [enter/remain/enter and remain] on the property.1

Use Note

1. This paragraph may not be necessary where the defendant was instructed not to enter or was instructed to leave the property.

The Committee has adopted a new jury instruction, M Crim JI 35.13b (Using a Computer to Commit a Crime) for the offense found in the Fraudulent Access to Computers chapter at MCL 750.796. The instruction is effective Feb. 1, 2024.

[NEW] M Crim JI 35.13b

Using a Computer to Commit a Crime

(1) The defendant is also charged with the separate crime of using a computer to commit [or attempt to commit, conspire to commit, or solicit another person to commit]1 the crime of [name underlying offense].

(2) To prove this charge, the prosecutor must prove both of the following elements beyond a reasonable doubt:

(3) First, that the defendant [committed/attempted to commit/conspired to commit/solicited another person to commit] the crime of [name underlying offense], which has been defined for you. It is not necessary, however, that anyone be convicted of that crime.

(4) Second, that the defendant intentionally used a computer to [commit/attempt to commit/conspire to commit/solicit another person to commit] that crime.

“Computer” means any connected, directly interoperable, or interactive device, equipment, or facility that uses a computer program or other instructions to perform specific operations including logical, arithmetic, or memory functions with or on computer data or a computer program and that can store, retrieve, alter, or communicate the results of the operations to a person, computer program, computer, computer system, or computer network.2

Use Notes

1. The court may read any that apply.

2. The definition of computer comes from MCL 752.792. MCL 750.145d(9)(a) provides the same definition but adds the following language: “Computer includes a computer game device or a cellular telephone, personal digital assistant (PDA), or other handheld device.”