The Committee on Model Criminal Jury Instructions has adopted the following new model criminal jury instruction, M Crim JI 11.25a (Brandishing a Firearm) for the offense found at MCL 750.234e. This new instruction is effective Dec. 1, 2022.
[NEW] M Crim JI 11.25a
Brandishing a Firearm
(1) The defendant is charged with the crime of brandishing a firearm. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant possessed a firearm or had control of a firearm. A firearm is a weapon that will shoot out a projectile by explosive action, is designed to shoot out a projectile by explosive action, or can readily be converted to shoot out a projectile by explosive action.1
(3) Second, that while possessing or controlling the firearm, the defendant was in a public place.
(4) Third, that while possessing or controlling the firearm in a public place, the defendant deliberately pointed it, waved it about, or displayed it in a threatening manner.
(5) Fourth, that when the defendant pointed, waved about, or displayed the firearm, [he/she] did so intending to cause another person or other persons to be fearful.2
Use Note
The Committee on Model Criminal Jury Instruction recognizes that in certain circumstances a claim of self-defense or defense of others may apply to a charge of brandishing a firearm. If the evidence provides a basis for such a defense, the court may provide an instruction patterned after M Crim JI 7.25 (Self-Defense as Defense to Felon in Possession of a Firearm).
1. The court need not read this sentence where it is undisputed that the weapon alleged to have been brandished was a firearm.
2. This is a specific intent crime.
The Committee on Model Criminal Jury Instructions has adopted the following new model criminal jury instruction, M Crim JI 19.1a (Taking a Child by Force or Enticement) for the offense found at MCL 750.350. This new instruction is effective Dec. 1, 2022.
[NEW] M Crim JI 19.1a
Taking a Child by Force or Enticement
(1) The defendant is charged with unlawfully taking a child by force or enticement. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant used force or trickery to take, carry, lure, or lead away [state name of child].
(3) Second, that when the defendant took, carried, lured or led [him/her] away, [state name of child] was less than fourteen years old.
(4) Third, that the defendant intended to keep or conceal [state name of child] from
[Choose from the following:]
(a) the parent or legal guardian who had legal [custody/visitation rights] at the time.
(b) [his/her] adoptive parent.
(c) the person who had lawful charge of [state name of child] at the time.
(5) Fourth, that the defendant was not the adoptive or natural parent of [state name of child].1
Use Note
1. Read this paragraph only where the defendant offers evidence of adoptive or natural parenthood.
The Committee on Model Criminal Jury Instructions has adopted the following amended model criminal jury instruction, M Crim JI 19.6 (Parental Taking or Retaining a Child) for the offense found at MCL 750.350a. This new instruction is effective Dec. 1, 2022.
[AMENDED] M Crim JI 19.6
Parental Taking or Retaining a Child
(1) The defendant is charged with unlawfully taking or retaining a child. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that on [date and time alleged], [name complainant].
[Choose one of the following:] (a) was the [parent/legal guardian] of [name of child] who had [custody of (name of child)/parenting time rights with (name of child)] under a court order.
(b) was the adoptive parent of [name of child].
(c) had lawful charge of [name of child].
(3) Second, that on [date and time alleged], the defendant [took (name of child)/kept (name of child) for more than 24 hours].
(4) Third, that when the defendant [took (name of child)/kept (name of child) for more than 24 hours], [he/she] intended to keep or conceal [name child] from [name complainant].1
Use Note
This instruction applies only where parental kidnapping is charged under MCL 750.350a. The Committee on Model Criminal Jury Instructions takes the view that whether a defendant is a “parent” under the statute is a legal question for the court, not a factual question for the jury. See People v Wambar, 300 Mich App 121, 124-126; 831 NW2d 891 (2013).
1. This is a specific intent crime. Neither MCL 750.350a nor the House Legislative Analysis accompanying it directly addresses the question as to whether apparent consent or a reasonable belief that lawful authority to take or keep the child exists, may be a defense to this crime, or otherwise negates an essential element of the crime.
The Committee on Model Criminal Jury Instructions has adopted the following new model criminal jury instruction, M Crim JI 19.9 (Prisoner Taking a Person Hostage) for the offense found at MCL 750.349a. This new instruction is effective Dec. 1, 2022.
[NEW] M Crim JI 19.9
Prisoner Taking a Person Hostage
(1) The defendant is charged with being a prisoner and taking a person hostage. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant was a prisoner at [identify facility where the defendant was incarcerated].
(3) Second, that while still subject to incarceration at [identify facility where the defendant was incarcerated], the defendant used threats, intimidation, or physical force to take, lure away, hold, or hide [name complainant].
(4) Third, that the defendant took, lured away, held, or hid [name complainant] as a hostage. To hold a person hostage means that the defendant intended to use the person as a shield or to use the person as security to force someone else to [do something/perform some act] or [not do something/to refrain from performing some act/delay in performing some act].1
(5) Fourth, that the defendant intended to hold [name complainant] as a hostage and knew [he/she] did not have the authority to do so.
Use Note
1. The court may read all of the options in this paragraph or only those that apply according to the charges and evidence.
The Committee on Model Criminal Jury Instructions has adopted the following new model criminal jury instructions, M Crim JI 34.7 (Medicaid Fraud — False Statement), M Crim JI 34.7a (Medicaid Fraud — Concealing Events), M Crim JI 34.8 (Public Welfare Program — Kickback, Bribe, Payment, or Rebate), M Crim JI 34.9 (Medicaid Facilities — False Statement), M Crim JI 34.10 (Making a False Claim for Goods or Services Under the Social Welfare Act), M Crim JI 34.11 (Making a False Claim That Goods or Services Were Medically Necessary Under the Social Welfare Act), M Crim JI 34.12 (Making a False Statement or Record to Avoid or Decrease a Payment to the State Under the Social Welfare Act), M Crim JI 34.13 (Medicaid False Claims — Knowledge), M Crim JI 34.14 (Medicaid Claims — Rebuttable Presumption), and M Crim JI 34.15 (Medicaid False Claims — Venue) for the Medicaid offenses found at MCL 400.603-611. These new instructions are effective Dec. 1, 2022.
[NEW] M Crim JI 34.7
Medicaid Fraud — False Statement
(1) The defendant is charged with making a false statement or representation to obtain Medicaid benefits. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant was [making an application for Medicaid benefits/having rights to a Medicaid benefit determined].
(3) Second, that when the defendant was [making an application for Medicaid benefits/having rights to a Medicaid benefit determined], [he/she] made a false statement or false representation.
(4) Third, that the defendant knew the statement or representation was false.
(5) Fourth, that the false statement or false representation would matter or make a difference to a decision about benefits or the rights to benefits.
[NEW] M Crim JI 34.7a
Medicaid Fraud — Concealing Events
(1) The defendant is charged with the crime of concealing or failing to disclose an event affecting the right to Medicaid benefits. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant [was initially applying for Medicaid/ was receiving a Medicaid benefit/was initially applying for Medicaid on another person’s behalf/had applied on another person’s behalf for Medicaid benefits and the other person was receiving Medicaid benefits].
(3) Second, that an event occurred that affected [the defendant’s initial right to receive a Medicaid benefit/the defendant’s continuing right to receive a Medicaid benefit/the other person’s initial right to receive a Medicaid benefit/the other person’s continuing right to receive a Medicaid benefit].
In this case, the event that is alleged to have occurred was [describe event that affected right to benefits].
(4) Third, that the defendant had knowledge of the occurrence of the event.
(5) Fourth, that the defendant concealed or failed to disclose the event.
(6) Fifth, that at the time the defendant concealed or failed to disclose the event that affected [the defendant’s right to receive a Medicaid benefit/the other person’s right to receive a Medicaid benefit], [he/she] did so with an intent to obtain a benefit to which [the defendant/the other person] was not entitled or a benefit in an amount greater than [the defendant/the other person] was entitled.
[NEW] M Crim JI 34.8
Public Welfare Program — Kickback, Bribe, Payment, or Rebate
(1) The defendant is charged with the crime of making or receiving a kickback, bribe, payment, or rebate in connection with public welfare program goods or services. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant [solicited, offered, or received a kickback or bribe/made or received a payment in connection with a kickback or bribe/received a rebate of a fee or charge for referring an individual to another person for the furnishing of goods and services].
(3) Second, that the [kickback or bribe/payment made or received in connection with a kickback or bribe/rebate of a fee or charge for referring an individual to another person] was intended to secure the furnishing of goods or services for which payment was or could have been made in whole or in part under the Social Welfare Act.
[NEW] M Crim JI 34.9
Medicaid Facilities — False Statement
(1) The defendant is charged with the crime of making or inducing a false statement or representation about an institution or facility. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant knowingly and willfully [made/induced the making of/tried to cause someone to make] a false statement or false representation.
(3) Second, that the false statement or false representation was about the conditions in or operation of an institution or facility.
(4) Third, that the defendant knew at the time [he/she] [made/induced the making of/tried to cause someone to make] the statement or representation that it was false.
(5) Fourth, that when the defendant [made/induced the making of/tried to cause someone to make] the false statement or representation, [he/she] intended that it would be used for initial certification or recertification to qualify the institution or facility as a hospital, skilled nursing facility, intermediate care facility, or home health agency.
(6) Fifth, that the false statement or representation would have mattered or made a difference in the initial certification or recertification decision.
[NEW] M Crim JI 34.10
Making a False Claim for Goods or Services Under the Social Welfare Act
(1) The defendant is charged with the crime of making a false claim under the Social Welfare Act. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant made, presented, or caused to be made or presented a claim to a state employee or officer.
(3) Second, that the claim that the defendant made, presented, or caused to be made or presented was to obtain goods or services under the Social Welfare Act. (4) Third, that the claim was false.
(5) Fourth, that the defendant knew the claim was false.
This means that the defendant was aware or should have been aware of the wrongful nature of [his/her/their] conduct and aware that what [he/she/they] said or did could cause the payment of a Medicaid benefit. This includes acting in deliberate ignorance of the truth or falsity of facts or acting in reckless disregard of the truth or falsity of facts. Proof of an intent to defraud is not required, but it may be considered as evidence that the defendant knew a claim to be false.
[NEW] M Crim JI 34.11
Making a False Claim That Goods or Services Were Medically Necessary Under the Social Welfare Act
(1) The defendant is charged with the crime of making a false statement that goods or services were medically necessary under the Social Welfare Act. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant made, presented, or caused to be made or presented a claim for goods or services under the Social Welfare Act, [describe goods or services claimed].
(3) Second, that the defendant claimed that [describe goods or services claimed] [was/were] medically necessary according to professionally accepted standards.
(4) Third, that the claim that the [describe goods or services claimed] [was/were] medically necessary was false.
(5) Fourth, that the defendant knew the claim was false.
This means that the defendant was aware or should have been aware of the wrongful nature of [his/her/their] conduct and aware that what [he/she/they] said or did could cause the payment of a Medicaid benefit for goods or services that were not medically necessary. This includes acting in deliberate ignorance of the truth or falsity of facts or acting in reckless disregard of the truth or falsity of facts. Proof of an intent to defraud is not required, but it may be considered as evidence that the defendant knew a claim to be false.
[NEW] M Crim JI 34.12
Making a False Statement or Record to Avoid or Decrease a Payment to the State Under the Social Welfare Act
(1) The defendant is charged with the crime of making or using a false record or statement to conceal, avoid, or decrease an obligation to pay money or transmit property to the state under the Social Welfare Act. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant made, used, or caused to be made or used a record or statement to a state employee or an officer. The [record/statement] was [describe record or statement alleged].
(3) Second, that the record or statement related to a claim made under the Social Welfare Act.
(4) Third, that the record or statement concealed, avoided, or decreased an obligation to pay or send money or property to the state of Michigan, or could have concealed, avoided, or decreased such an obligation.
(5) Fourth, that the record or statement was false.
(6) Fifth, that the defendant knew the claim was false.
This means that the defendant was aware or should have been aware of the wrongful nature of [his/her/their] conduct and aware that what [he/she/they] said or did could avoid or decrease a payment or transfer of money or property to the state of Michigan. This includes acting in deliberate ignorance of the truth or falsity of facts or acting in reckless disregard of the truth or falsity of facts. Proof of an intent to defraud is not required, but it may be considered as evidence that the defendant knew a claim to be false.
[NEW] M Crim JI 34.13
Medicaid False Claims — Knowledge
It is not necessary that the prosecutor show that the defendant had knowledge of similar acts having been performed in the past by a person acting on the defendant’s behalf, nor to show that the defendant had actual notice that the acts by the persons acting on the defendant’s behalf occurred to establish the fact that a false statement or representation was knowingly made.
Use Note
The Committee on Model Criminal Jury Instructions is uncertain of the meaning or application of MCL 400.608(1), which is the statutory basis for this instruction. It may be for use in cases where someone other than the defendant made a false claim that caused a benefit to be paid or provided to the defendant.
[NEW] M Crim JI 34.14
Medicaid Claims — Rebuttable Presumption
(1) You may, but you do not have to, infer that a claim for a Medicaid benefit was knowingly made [if the defendant’s actual, facsimile, stamped, typewritten, or similar signature was used on the form required for the making of a claim/if the claim was submitted by computer billing tapes or other electronic means and the defendant had previously notified the Michigan Department of Social Services that claims will be submitted by computer billing tapes or other electronic means].
(2) The prosecutor still bears the burden of proving all of the elements beyond a reasonable doubt.
[NEW] M Crim JI 34.15
Medicaid False Claims — Venue
The prosecutor must also prove beyond a reasonable doubt that the crime[s] occurred on or about [state date alleged] within [identify county] County.
Use Note
The language describing the county should be omitted if the attorney general has chosen Ingham County as the venue under MCL 400.611.
The Committee on Model Criminal Jury Instructions has adopted the following new model criminal jury instruction, M Crim JI 41.1 (Trespassing for Eavesdropping or Surveillance) for the offense found at MCL 750.539b. This new instruction is effective Dec. 1, 2022.
[NEW] M Crim JI 41.1
Trespassing for Eavesdropping or Surveillance
(1) The defendant is charged with the crime of trespassing to engage in eavesdropping or surveillance. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
(2) First, that the defendant was on property owned or possessed by [name owner(s) or possessor(s)] without [his/her/their] permission or without [his/her/their] knowledge.
(3) Second, that the defendant went on [identify complainant(s)]’s property to [listen to, record, amplify, or transmit any part of a private conversation, discussion, or discourse/secretly observe the activities of another person or other persons].
(4) Third, that the defendant intended to [listen to, record, amplify, or transmit the private conversation of (identify complainant(s)) without the permission of all participants in the conversation/spy on and invade the privacy of the person or persons (he/she) was observing].