News & Notices

From the Committee on Model Jury Instructions July-August 2023

Michigan Bar Journal

The Committee on Model Criminal Jury Instructions solicits comment on the following proposal by Nov. 1, 2023. Comments may be sent in writing to Andrea Crumback, 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 a model criminal jury instruction, M Crim JI 7.25a (Self-Defense as Defense to Brandishing a Firearm), for the defense found in the brandishing a firearm in public statute found at MCL 750.234e(2)(b). The instruction is entirely new.

[NEW] M Crim JI 7.25a

Self-Defense as Defense to Brandishing a Firearm

(1) The defendant claims that [he/she] acted in lawful [self-defense/defense of (identify person)] when [he/she] brandished the firearm. A person may brandish a firearm to defend [himself/herself/another person] under certain circumstances, even where it would otherwise be unlawful for [him/her] to point it, wave it about, or display it in a threatening manner. If a person brandishes a firearm to act in lawful [self-defense/defense of others], [his/her] actions are justified, and [he/she] is not guilty of brandishing a firearm.

(2) Just as when considering the claim of self-defense to the charge of [identify principal assaultive charge to which the defendant is asserting self-defense],1 you should consider all the evidence and use the following rules to decide whether the defendant used a firearm to act in lawful [self-defense/defense of (identify person)]. You should judge the defendant’s conduct according to how the circumstances appeared to [him/her] at the time [he/she] acted.

(3) First, when [he/she] acted, the defendant must have honestly and reasonably believed that [he/she] had to brandish the firearm to protect [himself/herself/(identify person)] from the imminent unlawful use of force by another. If [his/her] belief was honest and reasonable, [he/she] could act to defend [himself/herself/(identify person)] with a firearm, even if it turns out later that [he/she] was wrong about how much danger [he/she/(identify person)] was in.

(4) Second, a person is only justified in brandishing a firearm when necessary at the time to protect [himself/herself/(identify person)] from danger of death, great bodily harm, or sexual assault.2 The defendant may only point, wave about, or display a firearm in a threatening manner if it is appropriate to the attack made and the circumstances as [he/she] saw them. When you decide whether the brandishing of the firearm was what seemed necessary, you should consider whether the defendant knew about any other ways of protecting [himself/herself/(identify person)], but you may also consider how the excitement of the moment affected the choice the defendant made.

(5) Third, at the time [he/she] brandished the firearm, the defendant must not have been engaged in a criminal act that would tend to provoke a person to try to defend [himself/herself] from the defendant.3

Use Notes

The court must read M Crim JI 7.20, Burden of Proof — Self Defense, for this instruction.

1. There will not always be an assaultive-offense count charged with the brandishing-a-firearm charge. Eliminate this first phrase if no assaultive offense is charged as a principal offense.

2. People v Ogilvie, 341 Mich App 28; 989 NW2d 250 (2022), holds that merely pointing a firearm is not deadly force. The Committee on Model Criminal Jury Instructions expresses no view whether the limitation of brandishing a firearm to cases where the danger of death, great bodily harm, or sexual assault was alleged to have been the reason for brandishing the firearm as used in this sentence may be too restrictive.

3. This paragraph should be given only when supported by the facts; that is, where there is evidence that, at the time the defendant brandished the firearm, he or she was engaged in the commission of some crime likely to lead to the other person’s assaultive behavior. For example, this paragraph is usually unwarranted if the defendant was engaged in a drug transaction and used force in self-defense against an unprovoked attack by the other party in the transaction. See People v Townes, 391 Mich 578, 593; 218 NW2d 136 (1974). On the other hand, this paragraph would apply to a defendant who engaged in a robbery of another person and that other person reacted with force. This paragraph is unnecessary where there are no issues other than who was the aggressor in the situation, whether the defendant had an honest and reasonable belief of the use of imminent force by another, or whether the degree of force used was necessary.

PROPOSED

The committee proposes the following new model criminal jury instructions to cover the various provisions of Section 8 of the Tobacco Products Tax Act found at MCL 205.428 including M Crim JI 12.10 (Illegal Sale or Disposition of Untaxed Cigarettes), M Crim JI 12.10a (Illegal Possession or Transportation of Untaxed Cigarettes), M Crim JI 12.10b (Making, Possessing, or Using an Unauthorized Department of Treasury Tobacco Tax Stamp), M Crim JI 12.10c (Illegally Purchasing or Obtaining a Department of Treasury Tobacco Tax Stamp), M Crim JI 12.10d (Falsifying a Tobacco Manufacturer’s Label), and M Crim JI 12.10e (Making or Possessing a False License to Purchase or Sell Tobacco Products as a Retailer or Wholesaler). These instructions are entirely new.

[NEW] M Crim JI 12.10

Illegal Sale or Disposition of Untaxed Cigarettes

(1) The defendant is charged with the crime of illegal sale or disposal of untaxed cigarettes by a manufacturer’s representative. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant was a manufacturer’s representative for [identify tobacco manufacturer].

(3) Second, that the defendant [exchanged/sold/offered to sell/disposed of] tobacco cigarettes or a tobacco product.

(4) Third, that the tobacco cigarettes or product [did not have a stamp from the Michigan Department of Treasury showing that the tax imposed under the Tobacco Products Tax Act has been paid/had a tax stamp from another state].

(5) Fourth, that when the defendant [exchanged/sold/offered to sell/disposed of] tobacco cigarettes or a tobacco product, [he/she] knew that the tobacco cigarettes or product [did not have a stamp from the Michigan Department of Treasury showing that the tax imposed under the Tobacco Products Tax Act has been paid/had a tax stamp from another state].

[NEW] M Crim JI 12.10a

Illegal Possession or Transportation of Untaxed Cigarettes

(1) [The defendant is charged with the/You may also consider the less serious] crime of acquiring, possessing, transporting, or offering for sale [(3,000 or more untaxed cigarettes/untaxed tobacco products with a value of $250 or more)/(between 1,200 and 2,999 untaxed cigarettes/untaxed tobacco products with a value between $100 and $249.99)/(between 600 and 1,199 untaxed cigarettes/untaxed tobacco products with a value between $50 and $99.99)]. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant [acquired/possessed/transported/offered for sale] tobacco cigarettes or a tobacco product.

(3) Second, that the tobacco cigarettes or product did not have a stamp from the Michigan Department of Treasury showing that the tax imposed under the Tobacco Products Tax Act has been paid.

(4) Third, that when the defendant [acquired/possessed/transported/offered for sale] the tobacco cigarettes or tobacco product, [he/she] knew that the tobacco cigarettes or product did not have a stamp from the Michigan Department of Treasury showing that the tax imposed under the Tobacco Products Tax Act has been paid.

(5) Fourth, that the defendant [acquired/possessed/transported/offered for sale] [(3,000 or more untaxed cigarettes/untaxed tobacco products with a value of $250 or more)/(between 1,200 and 2,999 untaxed cigarettes/untaxed tobacco products with a value between $100 and $249.99)/(between 600 and 1,199 untaxed cigarettes/untaxed tobacco products with a value between $50 and $99.99)].

[NEW] M Crim JI 12.10b

Making, Possessing, or Using an Unauthorized Department of Treasury Tobacco Tax Stamp

(1) The defendant is charged with the crime of making, possessing, or using [a counterfeit tobacco tax stamp/a tobacco tax stamp without authorization from the Michigan Department of Treasury]. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant intentionally [made/possessed/used] [a counterfeit tobacco tax stamp/a tobacco tax stamp without authorization from the Michigan Department of Treasury].

(3) Second, that the defendant knew that the tobacco tax stamp [he/she] [made/possessed/used] was [a counterfeit tobacco tax stamp/a tobacco tax stamp not authorized by the Michigan Department of Treasury].

[NEW] M Crim JI 12.10c

Illegally Purchasing or Obtaining a Department of Treasury Tobacco Tax Stamp

(1) The defendant is charged with the crime of illegally purchasing or obtaining a Michigan Department of Treasury tobacco tax stamp as a licensee. To prove this charge, the prosecutor must prove the following elements beyond a reasonable doubt:

(2) First, that the defendant was a licensee under the Tobacco Products Tax Act.

(3) Second, that the defendant bought or obtained a Michigan Department of Treasury stamp for showing that the tax imposed under the Tobacco Products Tax Act has been paid from a person other than the Michigan Department of Treasury.

(4) Third, that when the defendant bought or obtained the Michigan Department of Treasury stamp for showing that the tax imposed under the Tobacco Products Tax Act had been paid, [he/ she] knew that the person from whom [he/she] bought or obtained a Michigan Department of Treasury stamp was not an employee of the Michigan Department of Treasury.

[NEW] M Crim JI 12.10d

Falsifying a Tobacco Manufacturer’s Label

(1) The defendant is charged with the crime of falsifying a tobacco manufacturer’s label. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant intentionally made a label that was an imitation of a label used by the tobacco manufacturer [identify tobacco manufacturer].

(3) Second, that the defendant used the imitation label to falsely identify cigarettes that [he/she] knew were not produced by [identify tobacco manufacturer] as being made by [identify tobacco manufacturer].

[NEW] M Crim JI 12.10e

Making or Possessing a False License to Purchase or Sell Tobacco Products as a Retailer or Wholesaler

(1) The defendant is charged with the crime of [making or possessing a false license to purchase or sell tobacco products as a retailer or wholesaler/possessing a device that could be used to forge, alter, or counterfeit a license to purchase or sell tobacco products as a retailer or wholesaler]. To prove this charge, the prosecutor must prove beyond a reasonable doubt:

[Select according to the charge and evidence:]

(2) That the defendant intentionally [made, counterfeited, or altered/assisted in making or caused to be made/purchased or received] a false [license to purchase or sell tobacco products as a retailer or wholesaler/vending machine disc or marker for the sale of tobacco cigarettes or products] knowing it was false.

[Or]

(2) That the defendant intentionally possessed a device that [he/she] knew could be used to forge, alter, or counterfeit a [license to purchase or sell tobacco products as a retailer or wholesaler/vending machine disc or marker for the sale of tobacco cigarettes or products].

PROPOSED

The committee proposes the following amended model criminal jury instruction, M Crim JI 13.15 (Assaulting a Prison Employee), under MCL 750.197c to match the statutory language as observed by the Court of Appeals panel in People v. Nixon, unpublished opinion (COA #353438) issued April 21, 2022. The statute forbids an assault “through the use of violence, threats of violence or dangerous weapons,” while the instruction as currently written only requires proof of an assault, not mentioning violence, threats of violence, or dangerous weapons. Deletions are in strikethrough and new language is underlined.

[AMENDED] M Crim JI 13.15

Assaulting Employee of Place of Confinement

(1) The defendant is charged with the crime of assaulting an employee of [state place of confinement]. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant was legally confined at [state place of confinement].

(3) Second, that ~~[he/she] was legally confined there~~ [name complainant] was employed at [state place of confinement¹].

(4) Third, that [he/she] assaulted an employee of [state place of confinement]. To prove that there was an assault, the prosecutor must prove each of the following elements beyond a reasonable doubt: [state elements of assault].* the defendant knew that [name complainant] was an employee at [state place of confinement].

(5) Fourth, that ~~at the time of the assault, the defendant knew that [name complainant] was an employee of [state place of confinement].~~ the defendant assaulted [name complainant]. An assault is an attempt to commit a battery or to do something that would cause someone to fear a battery. A battery is a forceful, violent, or offensive touching of the person.

(6) Fifth, that the defendant committed the assault through the use of violence, a threat to use violence, or the use of a dangerous weapon. Violence is the use of physical force likely to cause embarrassment, injury, or death.2 A dangerous weapon is an instrument that is used in a way that is likely to cause serious physical injury or death.

Use Notes

*Use M Crim JI 17.1This is a specific intent crime. See People v Norwood, 123 Mich App 287; 333 NW2d 255; leave denied, 417 Mich 1006 (1983).

~~When the use of a dangerous weapon is alleged, give the definition of dangerous weapon, M Crim JI 11.18. See People v Macklin, 46 Mich App 297, 208 NW2d 62 (1973).~~

1. Place of confinement in this context may include a prison. See People v Wingo, 95 Mich App 101; 290 NW2d 93 (1980).

2. This definition of violence comes from People v Terry, 217 Mich App 660, 662; 553 NW2d 23 (1996).

PROPOSED

The committee proposes the following amended model criminal jury instruction, M Crim JI 13.17 (Absconding on a Bond), under MCL 750.199a to add an element involving notice to the defendant concerning conditions of bond consistent with People v. Rorke, 80 Mich App 476; 264 NW2d 30 (1978). Deletions are in strikethrough and new language is underlined.

[AMENDED] M Crim JI 13.17

Absconding on a Bond

(1) The defendant is charged with the crime of absconding on a bond posted in a criminal case. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant was on bond for a felony charge. [(State charge) is a felony.]1 A bond is an agreement to do or not do certain things, including to appear in court when required.

(3) Second, that the defendant was informed that [he/she] could not leave the state of Michigan without permission of the court and that [he/she] had to appear at all scheduled court dates unless otherwise directed by the court.

(4) Third, that the defendant absconded on the bond. Absconding means to leave the state of Michigan or to hide or conceal oneself.

(5) Fourth, that the defendant left the state of Michigan or hid or concealed [himself/herself] with the intent to avoid the legal process.

Use Note

1. The defendant may stipulate that he or she was on bond for a felony to avoid the court identifying that specific felony and the prosecutor offering proof of that felony. See People v Swint, 225 Mich App 353; 572 NW2d 666 (1997), citing Old Chief v United States, 519 US 172 (1997). If that is the case, the court may say, “The defendant stipulates that [he/she] was on bond for a felony.”

PROPOSED

The committee proposes the following new model criminal jury instruction, M Crim JI 27.6, for dumping refuse on the property of another to cover criminal activity under MCL 750.552a. This instruction is entirely new.

[NEW] M Crim JI 27.6

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.

PROPOSED

The committee proposes the following new model criminal jury instruction, M Crim JI 27.7, for trespassing on state correctional facility property to cover criminal activity under MCL 750.552b. This instruction is entirely new.

[NEW] M Crim JI 27.7

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.

PROPOSED

The committee proposes the following new model criminal jury instruction, M Crim JI 35.13b (Using a Computer to Commit a Crime), for offenses found in MCL 752.796 of the “Fraudulent Access to Computers” chapter of the penal code.

[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 solicited 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.”

PROPOSED

The committee proposes the following new model criminal jury instruction, M Crim JI 40.6 (Indecent or Obscene Conduct), for offenses found in MCL 750.167(f), a subsection of the “disorderly persons” statute.

[NEW] M Crim JI 40.6

Indecent or Obscene Conduct

(1) The defendant is charged with the crime of indecent or obscene conduct. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:

(2) First, that the defendant was in a public place at [identify location] or was exposed to persons who could see defendant from a public place.

(3) Second, that while at [identify location], the defendant performed an act of [(describe sexual conduct by the defendant)/(describe other conduct alleged to have been indecent or obscene)].

(4) Third, that the defendant’s conduct was shocking to the sensibilities of a reasonable person, was outside of reasonable societal standards of decency, and would be offensive to a reasonable person.