4-4; 4-5; 4-6; 4-7; 4-8; 4-15; 4-16; 4-17; 4-17A; 4-17B; 4-18; 4-18A; 4-18B; 4-18C; 4-19; 4-20; 4-21; 4-22; 4-32A; 4-57; 4-57A; 4-57B; 4-96A; 6-39; 9-5; 9-32; 10-13A; 10-13B

First, intentional and wrongful;

Second, (shooting another person with)/(discharging) a firearm;

Third, with the intent to take a human life kill any person.

2006 SUPPLEMENT

First, use of any vehicle;

Second, to facilitate the intentional discharge;

Third, of any firearm/crossbow/weapon;

Fourth, in the conscious disregard for the safety of any other person or persons.

It is the Committee's view that the terms used in this instruction are understandable to a jury and that further definition is not necessary.

First, use of any vehicle;

Second, to facilitate the intentional discharge;

Third, of any firearm/crossbow/weapon;

Fourth, in the conscious disregard for the safety of any other person or persons.

It is the Committee's view that the terms used in this instruction are understandable to a jury and that further definition is not necessary.

First, an assault and battery;

Second, upon another person;

Third, with a deadly weapon;

Fourth, with the intent to take a human life.

The Court of Criminal Appeals reversed a conviction for assault and battery with a deadly weapon in Favro v. State, 1988 OK CR 18, 749 P.2d 127 (Okl. Cr. 1988), on account of the trial court's failure to include the Fourth Element in its jury instructions.

First, an assault and battery;

Second, upon another person;

Third, with force likely to produce death;

Fourth, with the intent to take a human life.

First, an attempt to kill;

Second, another person;

Third, by (performing an act)/(omitting to perform an act when a duty to do so exists);

Fourth, with the (intent to cause)/(belief that it would cause) death.

2006 SUPPLEMENT

First, an assault and battery;

Second, upon a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer);

Third, known by the defendant(s) to be a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer);

Fourth, by inflicting great bodily injury;

Fifth, without justifiable or excusable cause;

Sixth, committed while the (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer) was in the performance of his/her duties as a (police officer)/sheriff/(deputy sheriff)/(highway patrolman)/(corrections personnel)/(State peace officer).

Former OUJI-CR 414 included definitions of "police officer" and "law officer." The Committee decided to delete this instruction, because the question of whether a victim of an assault or battery was a police officer would normally be a legal question that the trial judge would have decided before trial. Such a definition may be helpful, however, if the victim's status was a question for the jury. For a statutory definition of "police officer", see 21 O.S. 1991 Supp. 2005, § 648. For a statutory definition of "corrections personnel," see 21 O.S. § 649(C).

The third element in this instruction is included because 21 O.S. 2001, § 650 requires the aggravated assault and battery upon the peace officer to have been committed "knowingly."

2006 SUPPLEMENT

The court should use the definitions of assault and/or battery in OUJI-CR 4-2 and 4-3 with this instruction. Former OUJI-CR 414 included definitions of "police officer" and "law officer." The Committee decided to delete this instruction, because the question of whether a victim of an assault or battery was a police officer would normally be a legal question that the trial judge would have decided before trial. Such a definition may be helpful, however, if the victim's status was a question for the jury. For a statutory definition of "police officer," see 21 O.S. 1991 Supp. 2005, § 648. For a statutory definition of "corrections personnel,"see 21 O.S. § 649(C).

Section 649 of Title 21 singles out a particular type of simple assault or battery for enhanced punishment: wrongful attack upon a police officer or other officer in the performance of his/her duties. Such an attack is wrongful unless it occurs during the course of reasonable resistance by the defendant to an unlawful arrest. Sandersfield v. State, 1977 OK CR 242, 568 P.2d 313 (Okl. Cr. 1977); Cantrell v. State, 1977 OK CR 100, 561 P.2d 973 (Okl. Cr. 1977); Morrison v. State, 1974 OK CR 223, 529 P.2d 518 (Okl. Cr. 1974); Davis v. State, 1932 OK CR, 53 Okl. Cr. 411, 12 P.2d 555 (1932). Section 648 defines which officers are protected by section 649.

The court's construction of the phrase "while in the performance of his duties" may be perceived by contrasting two recent cases. In Stewart v. State, 1974 OK CR 173, 527 P.2d 22 (Okl. Cr. 1974), the complainant was an off-duty Norman police officer employed as a security guard at an apartment complex. At the time the altercation occurred, the officer was at his place of private employment, without a gun or a uniform. The court reversed the defendant's conviction under section 649, and held:

Id. at ¶¶ 7,8, 527 P.2d at 24.

This holding was distinguished by the court in Brooks v. State, 1977 OK CR 96, 561 P.2d 137 (Okl. Cr. 1977). The complaining officer in Brooks Brooks was not in uniform and was off-duty at the time he became involved in a fracas with the defendants, when he attempted to investigate rowdy conduct on the part of the defendants. In holding Stewart Stewart inapplicable because the officer in that case was performing his own private, rather than public, functions the court held:

Section 650 of Title 21 denominates as a felony any unlawful aggravated assault and battery perpetrated upon a police officer or other officer in the performance of duties. The Commission has incorporated only the aggravated assault and battery element of infliction of great bodily injury in the instruction, since officers on active duty are unlikely to be aged or decrepit. See 21 O.S. 1991 2001, § 646.

The third element in this instruction is included because 21 O.S. 2001, § 650 requires the aggravated assault and battery upon the peace officer to have been committed "knowingly."

This instruction previously included an element that the defendant must have known the victim was a referee, etc. The Committee has concluded, however, that this element is not required by 21 O.S. 2001, § 650.1, since there is no requirement in the statute that the assault or battery was committed knowingly.

The court should use the definitions of assault and/or battery in OUJI-CR 4-2 and 4-3 with this instruction.

Since there is no requirement in 21 O.S. 2001, § 650.7(B) that the assault or battery must have been committed knowingly, the instruction does not include an element that the defendant must have known that the victim was a school employee or student.

2006 SUPPLEMENT

The court should use the definitions of assault and/or battery in OUJI-CR 4-2 and 4-3 with this instruction. For a definition of great bodily injury, see OUJI-CR 4-28.

Since there is no requirement in 21 O.S. 2001, § 650.7(C) that the aggravated battery must have been committed knowingly, the instruction does not include an element that the defendant must have known that the victim was a school employee.

The statute, 21 O.S. Supp. 1995, § 650.2, refers to the Department of Corrections and the Department of Human Services, but not to the Office of Juvenile Affairs. The fourth element in this instruction is included because 21 O.S. 2001, § 650.2(C) requires the aggravated assault and battery upon the Department of Human Services employee to have been committed "knowingly.".

The court should use the definitions of assault and/or battery in OUJI-CR 4-2 and 4-3 with this instruction.

The fourth element in this instruction is included because 21 O.S. 2001, § 650.2(A) requires the assault or battery upon the Department of Corrections employee to have been committed "knowingly."

2006 SUPPLEMENT

The court should use the definitions of assault and/or battery in OUJI-CR 4-2 and 4-3 with this instruction.

The fourth element in this instruction is included because 21 O.S. 2001, §§ 650.2(B), 650.2(D), 650.8 all require the assault or battery upon the employee to have been committed "knowingly."

2006 SUPPLEMENT

The Committee has concluded that the assault or battery must have been as a result of the court officer's service in order to be in violation of the statute, even if the assault or battery occurred "within 6 months" of the court officer's service. See 21 O.S. Supp. 2000 2001, § 650.6. Accordingly, the Committee has omitted any reference to the time when the assault or battery occurred.

This instruction previously included an element that the defendant must have known the victim was an officer of a court. The Committee has concluded, however, that this element is not required by 21 O.S. 2001, § 650.6, since there is no requirement in the statute that the assault or battery was committed knowingly.

First, (an assault)/(a battery)/(an assault and battery);

Second, upon an emergency medical care provider;

Fourth Third, without justifiable or excusable cause;

Fifth Fourth, with intent to do bodily harm;

Sixth Fifth, while the emergency medical care provider was performing medical care duties.

This instruction previously included an element that the defendant must have known the victim was an emergency medical care provider. The Committee has concluded, however, that this element is not required by 21 O.S. 2001, § 650.4, since there is no requirement in the statute that the assault or battery was committed knowingly.

2006 SUPPLEMENT

First, an (assault and battery)/(assault with a firearm/(deadly weapon));

Second, upon an emergency medical technician/(care provider);

Fifth, without justifiable or excusable cause;

Sixth, committed while the technician/(care provider) was in the performance of his/her duties as an emergency medical technician/(care provider).

The court should use the definitions of assault and battery in OUJI-CR 4-2 and 4-3 with this instruction. The fourth third paragraph should be omitted if the crime charged is an assault with a firearm or other deadly weapon.

This instruction previously included an element that the defendant must have known the victim was an emergency medical technician. The Committee has concluded, however, that this element is not required by 21 O.S. 2001, § 650.6, since there is no requirement in the statute that the aggravated assault and battery was committed knowingly.

This instruction previously included an element that the defendant must have known the victim was an emergency medical technician or emergency medical care provider. The Committee has concluded, however, that this element is not required by 21 O.S. 2001, § 650.3, since there is no requirement in the statute that the interference with the emergency medical technician or emergency medical care provider was committed knowingly.

First, willfully;

Second, by means of an electronic communication device;

Third, making a comment/request/suggestion/proposal which is obscene, as opposed to merely ungenteel or vulgar.

Section 1172 also prohibits knowingly permitting any electronic communication under the control of a person to be used for a purpose prohibited by the section and making repeated electronic communications in a conspiracy with other persons solely to harass a person at the called number. This Instruction should be appropriately modified if the defendant is charged with these types of criminal conduct. For a definition of harass, see OUJI-CR 4-31.

Section 1172(A)(1) prohibits the making of any statement "which is obscene, lewd, lascivious, filthy, or indecent." The Oklahoma Court of Criminal Appeals decided in Lenz v. State, 1987 OK CR 111, 738 P.2d 184, (Parks, J., specially concurring), that the statute did not prohibit mere "ungenteel" or "vulgar" language. Similarly, the United States Court of Appeals for the Sixth Circuit held in United States v. Landham, 251 F.3d 1072, 1085-87 (6th Cir. 2001), that 42 U.S.C. § 223 (2000), a federal statute containing identical language had to be limited to prohibiting only obscene communications on account of the First Amendment to the United States Constitution. Accordingly, the first alternative in the Instruction is limited to obscene statements, as opposed to merely ungenteel or vulgar statements. The definition of obscenity in the first alternative in the Instruction is based on the United States Supreme Court’s test in Miller v. California, 413 U.S. 15, 24 (1973).

This instruction should be given along with OUJI-CR 4-4, 4-5, 4-6, 4-7, 4-8, or 4-96A, supra, in cases where the victim was an unborn child. OUJI-CR 4-57A or 4-57B, infra, or both, should also be given, if appropriate.

The court should give the paragraphs in brackets if the issues are asserted as affirmative defenses and there is evidence to support them offered at the trial.

First, unlawfully;

Second, willfully;

Third, killing an unborn child.

The court should also give OUJI-CR 4-57, infra, and, if appropriate, OUJI-CR 4-57A or 4-57B, or both.

Prior to its 2005 amendment, 21 O.S. § 713 required an unborn child to be "quick" before criminal liability for manslaughter in the first degree could be imposed. See 21 O.S. 2001, § 713 (amended 2005). "Although ‘quick child’ is not defined by statute, the term is generally defined as a fetus that has so developed as to move within the mother’s womb." McCarty v. State, 2002 OK CR 4, n.2, 41 P.3d 981.

First, knowingly and willfully;

Second, possessing/(having under one's immediate control)/(having in any vehicle one operates)/(having in any vehicle in which one is riding as a passenger)/(having at the place where the defendant resides);

Third, any pistol/(imitation/homemade pistol)/(machine gun)/(sawed-off shotgun/rifle)/(dangerous/deadly firearm which could be easily concealed on the person, in personal effects, or in an automobile);

Fourth, the defendant was convicted of a felony by the [Name of Court] Court of [Name of Jurisdiction] on [Date].

Section 1283 was amended by the Legislature in 1981 to change the crime from that of carrying a firearm to one of possessing a firearm. The language of the statute now reads "to have in his possession or under his or her immediate control...." The elements of this crime have been changed accordingly. It is the opinion of the Commission that this amendment prohibits a felon from knowingly and wilfully possessing firearms.

Section 1283, criminalizing the possession of designated firearms by persons adjudged guilty of a felony, has withstood numerous constitutional attacks based on due process and equal protection grounds. Roberson v. State, 1972 OK CR 278, 502 P.2d 351 (Okl. Cr. 1972); Brown v. State, 1969 OK CR 159, 456 P.2d 604 (Okl. Cr. 1969); Davis v. State, 1962 OK CR 155, 377 P.2d 266 226 (Okl. Cr. 1962). The prohibition extends to the possession of a specified firearm in one's own home. Roark v. State, 1970 OK CR 3, 465 P.2d 480 (Okl. Cr. 1970). As long as the firearm is in a vehicle operated by the defendant, the ownership of the vehicle is immaterial. Jones v. State, 1978 OK CR 92, 584 P.2d 224 (Okl. Cr. 1978). The Court of Criminal Appeals has articulated its position with respect to the constitutionality of section 1283 as follows:

Renfro v. State, 1962 OK CR 58, ¶ 20, 372 P.2d 45, 50 (Okl. Cr. 1962).

In several early cases, the court held, with little discussion, that former conviction of a felony is part of the substantive evidence that the State is required to demonstrate in order to establish the elements of the crime charged. Thus, a one-stage proceeding was deemed appropriate. Brown v. State, 1969 OK CR 159, 456 P.2d 604 (Okl. Cr. 1969); Anderson v. State, 1963 OK CR 52, 381 P.2d 892 (Okl. Cr. 1963). However, the court subsequently established the rule that any reference whatsoever to the defendant’s prior conviction, whether by way of prosecutorial allegation or by reading the language of the information, constituted reversible error. Berry v. State, 1970 OK CR 89, 476 P.2d 390 (Okl. Cr. 1970), overruled, Chapple v. State, 1993 OK CR 38, ¶ 18, 866 P.2d 1213, 1217 (Okl. Cr. 1993). More recently, though, the Oklahoma Court of Criminal Appeals overruled a number of prior cases and held in Chapple v. State, 1993 OK CR 38, ¶ 17, 866 P.2d 1213, 1216-17 (Okl. Cr. 1993), that if "a defendant is charged with one count and a prior conviction is an element of the crime charged, the prior conviction shall be introduced in the guilt stage." The court also held that bifurcation is required when a defendant is charged with multiple counts, one or more of which require a prior conviction as an element of the crime, and one or more of which do not; the court prescribed that the counts which contain an element of prior conviction shall be tried to guilt or innocence and punishment in the second stage. Id. at ¶ 18, 866 P.2d at 1217.

The Oklahoma Firearms and Oklahoma Self-Defense Acts, 21 O.S. Supp. 1996 2001 & Supp. 2005, §§ 1289.1-1289.17, 1290.1-1290.25, specifically permit the carrying of firearms in many circumstances; thus, the fact of a prior felony conviction must be pleaded and proved during a one-stage proceeding when the defendant is tried for unlawful possession of a firearm after a felony conviction. Prock v. State, 1975 OK CR 213, ¶¶ 15-16 , 542 P.2d 522, 525 (Okl. Cr. 1975); Marr v. State, 1973 OK CR 342, ¶ 5, 513 P.2d 324, 326 (Okl. Cr. 1973), overruled on other grounds, Chapple v. State, 1993 OK CR 38, ¶ 18, 866 P.2d 1213, 1217 (Okl. Cr. 1993), and Williams v. State, 1990 OK CR 39, ¶ 6, 794 P.2d 759, 762 (Okl.Cr. 1990).

Several cases address the issue of the nature of the object detected on the defendant's person or in a vehicle in which the defendant is present. See, e.g., Thompson v. State, 488 P.2d 944, 947-48 (Okl. Cr. 1971) (carbon dioxide gas-powered air pistol is neither "a firearm" nor "dangerous or deadly" and therefore not within the statutory prohibition), overruled on other grounds, Dolph v. State, 520 P.2d 378, 381 (Okl. Cr. 1974); Marr v. State, supra (rifle and shotgun not prohibited objects unless sawed-off), overruled on other grounds, Chapple v. State, 866 P.2d 1213, 1217 (Okl. Cr. 1993), and Williams v. State, 794 P.2d 759, 762 (Okl.Cr. 1990); Price v. State, 532 P.2d 851 (Okl. Cr. 1975) (whether a weapon was, in statutory terms, "as easily concealed on the person, in personal effects or in an automobile, as a sawed-off shotgun," and therefore restricted, was question of fact for jurors). The requirement that a dangerous or deadly firearm must be easily concealed was removed from section 1283 in 2005. 2005 Okla. Sess. Laws ch. 190, § 2. Possession of a carbon dioxide gas-powered air pistol is not prohibited under the statute, because it is neither "a firearm" nor "dangerous or deadly." Thompson v. State, 1971 OK CR 328, ¶¶ 13-14, 488 P.2d 944, 947-48.

2006 SUPPLEMENT

The characterization of evidence as "direct" or "circumstantial" pertains to the kind of inferences the finder of fact must draw from the evidence in order to use it as proof of a fact in issue. Direct evidence requires no inferences. Direct evidence may be believed or disbelieved, but because it tends to establish the fact in issue "directly", the only issue remaining for the finder of fact is that of credibility. For example, in a case where the defendant is charged with reckless driving, the testimony of an eyewitness, the arresting officer, that the witness observed the defendant's automobile traversing the highway at a speed of 90 miles per hour moments before arrest is direct evidence of the speed at which the defendant drove at the relevant time. The officer's ability to estimate the speed of moving vehicles by sight may be questioned. Similarly, his testimony may be probed for bias or impeached by his own prior inconsistent statements. But these matters bear on his credibility. If he is believed, the fact of speed at the time of the arrest is established; no other inferences are possible. Likewise, proof of a radar scan taken at the time of the arrest is direct evidence. The reliability of the radar test and of the operator administering it may be challenged. But if the finder of fact determines to credit the test, the fact of speed is directly established.

Circumstantial evidence is that which tends to establish proof of a fact in issue indirectly, requiring the finder of fact to draw inferences from the existence of circumstances adduced. For example, if an eyewitness testified that he observed the defendant driving 90 miles per hour fifteen minutes before the defendant's arrest, the trier of fact must reason inferentially that the excessive rate of speed persisted in order to conclude that the defendant was speeding when apprehended. Thus, circumstantial evidence requires the fact-finder to consider whether proof of certain facts and circumstances allows inferences from which the jury can find that connected facts and circumstances exist, as a matter of common experience and observation, which establish the fact in issue. Aday v. State, 1924 OK CR, 28 Okl. Cr. 201, 230 P. 280 (1924); Wertzberger v. State, 1923 OK CR, 25 Okl. Cr. 1, 218 P. 721 (1923).

The instructions direct the jury to consider circumstantial evidence with all the other evidence in reaching a verdict. No indication of the relative weight to be afforded circumstantial evidence in comparison with direct evidence is made, as the function of determining the relative weight to be given to the evidence is reserved to the jury. Circumstantial evidence, with the reasonable inferences drawn therefrom, has the same probative weight as direct evidence. Luker v. State, 1976 OK CR 135, 552 P.2d 715 (Okl. Cr. 1976); Brewer v. State, 1969 OK CR 107, 452 P.2d 597 (Okl. Cr. 1969); Young v. State, 1962 OK CR 70, 373 P.2d 273 (Okl. Cr. 1962).

There is law to the effect that the probative force of circumstantial evidence may surpass that of direct evidence, "where the circumstances proven are not only consistent with the guilt of a defendant, but are also inconsistent with his innocence." Doyle v. State, 44 Okl. Cr. 393, 396, 281 P. 166, 167 (1929). See also Ex parte Jefferies, 7 Okl. Cr. 544, 124 P. 924 (1912). Since this issue actually involves weighing the evidence, a function exclusively reserved to the trier of fact, the Commission has concluded that no instruction should be given other than the standard instruction which directs the jury to find that, in a case based in whole or in part on circumstantial evidence, the evidence must be inconsistent with every reasonable hypothesis of innocence. The jury is thus free to consider both direct and circumstantial evidence and to afford each whatever weight it deems appropriate.

In Easlick v. State 2004 OK CR 21, ¶ 4, 90 P.3d 556, the Court of Criminal Appeals abolished the "reasonable hypothesis" test in Oklahoma. The reasonable hypothesis test required jurors to exclude every reasonable hypothesis other than guilt in order to convict a defendant in a case where the prosecution relied on circumstantial evidence. In place of the reasonable hypothesis test, the Court of Criminal Appeals adopted a unified approach for determining the sufficiency of the evidence, in which no difference is given to the weight of circumstantial or direct evidence. Consequently, the Court of Criminal Appeals ordered modification of this instruction to remove the reasonable hypothesis test. Id. at n.3. The instruction concerning exclusion by the jurors of reasonable hypotheses of innocence in considering a case based in whole or in part upon circumstantial evidence follows the instruction, in modified form, approved in numerous cases. See, e.g., Nichols v. State, 418 P.2d 77 (Okl. Cr. 1966); Jackson v. State, 22 Okl. Cr. 338, 211 P. 1066 (1923); Carter v. State, 6 Okl. Cr. 232, 118 P. 264 (1911). The cases reiterate that, while circumstantial evidence relied upon to establish commission of a crime by the defendant need not exclude all possibility of innocence, it must be inconsistent with any reasonable hypothesis other than that of guilt. Hardy v. State, 562 P.2d 943 (Okl. Cr. 1977); Jones v. State, 523 P.2d 1126 (Okl. Cr. 1974). The instruction omits use of the term "hypothesis" in order to forestall potential jury confusion.

The fact that a jury instruction on the inconsistent-with-any- reasonable-hypothesis-of-innocence concept has been approved by the court on a number of occasions indicates that the determination of the legal sufficiency of the prosecution's evidence as well as of the reasonableness of hypotheses consistent with innocence remains a jury question. This holds true, however, only where the evidence is legally sufficient in the estimation of the trial judge to allow jury consideration, and does not apply where the court determines as a matter of law that the evidence adduced by the prosecution will not support a verdict of guilt. Where the defendant moves for a directed verdict, sometimes erroneously referred to as a "demurrer to the evidence," the trial court must determine whether the prosecution has offered evidence which, if credited, would be legally sufficient to support a guilty verdict. In making this assessment with respect to a wholly or partially circumstantial case, the trial court must necessarily determine whether the circumstantial evidence, if believed, would allow the jury to exclude every reasonable conclusion except that of guilt. Hardy v. State, supra. Where the evidence meets the test of legal sufficiency, meaning that there is evidence, although entirely circumstantial, from which the defendant may reasonably and logically be found guilty, the weight, credibility, and probative effect of such evidence is for the trier of fact, and a verdict based on such evidence will not be disturbed on grounds of legal insufficiency. Fain v. State, 551 P.2d 1140 (Okl. Cr. 1976); Mathews v. State, 530 P.2d 1044 (Okl. Cr. 1975); Edwards v. State, 508 P.2d 699 (Okl. Cr. 1973); Shoemaker v. State, 479 P.2d 621 (Okl. Cr. 1971).

The Court of Criminal Appeals has termed it proper to give the inconsistent-with-any-reasonable-hypothesis-of-innocence instruction in any case where the State relies even partially on circumstantial evidence. Grimmett v. State, 572 P.2d 272 (Okl. Cr. 1977); Nichols v. State, 418 P.2d 77 (Okl. Cr. 1966); Gransbury v. State, 64 Okl. Cr. 408, 81 P.2d 874 (1938). In Grimmett, the court reviewed existing authorities addressing the issue, and articulated standards to guide the determination of when to give this instruction. The trial court must instruct the jury, whether or not a request is lodged, when all of the evidence relied upon is circumstantial. However, failure to instruct in an entirely circumstantial case, in the absence of a request, is not necessarily reversible error unless the evidence incriminating the defendant is inherently weak or improbable. Where the case contains both direct and circumstantial evidence, failure to instruct in the absence of a request does not constitute error.

2006 SUPPLEMENT

It is settled law that inclusion of the testimony of an accomplice in the State's case obliges the trial court to instruct the jurors with respect to the requisite of corroboration of that testimony, in order to insure that a conviction rests on bases other than the unsupported testimony of one whose motives for testifying may be questionable. Glaze v. State, 1977 OK CR 206, 565 P.2d 710; Kern v. State, 1997 OK CR 95, 522 P.2d 644; Allen v. State, 1974 OK CR 91, 522 P.2d 243; Williams v. State, 1974 OK CR 7, 518 P.2d 322; McCormick v. State, 1969 OK CR 244, 464 P.2d 942, cert. denied, 397 U.S. 934 (1970). However, the requirements embodied in the statutory policies expressed in 22 O.S.1991 2001, § 742, relate only to a criminal trial on the merits, a proceeding from which a conviction can result; these requirements have no application to a preliminary examination. Bennett v. State, 1977 OK CR 303, 570 P.2d 345.

The trial court's obligation with respect to instructing the jury has been articulated by the Court of Criminal Appeals as follows:

Howard v. State, 1977 OK CR 93, ¶ 26, 561 P.2d 125, 130. Thus, selection of the appropriate accomplice instruction depends upon whether the witness is deemed to be an accomplice as a matter of law or whether the issue of the witness's status as an accomplice is a question of fact for the jury. An instruction covering each situation is included. Obviously, only one of these two instructions is to be given regarding any particular witness. These instructions are substantially similar to those approved in Kern v. State, supra (accomplice status determined by jury as question of fact); Young v. State, 1968 OK CR 190, 446 P.2d 79 (accomplice status determined as matter of law).

The quantum of proof necessary to establish corroboration need not be sufficient, in itself, to warrant a verdict of guilt; sufficiency is established "if the accomplice is corroborated with respect to one material fact by independent evidence tending to connect defendant with the commission of the crime." Doser v. State, 88 Okl. Cr. 299, 340, 203 P.2d 451, 472 (1949). See also Tillman v. State, 82 Okl. Cr. 276, 169 P.2d 223 (1946); Mitchell v. State, 59 Okl. Cr. 393, 60 P.2d 627 (1936). However, execution of the statutory policies expressed in section 742 mandates that the corroborating proof be independent of the testimony of another accomplice.

Refusal to instruct the jury with respect to accomplice testimony has been held to constitute reversible error, Williams v. State, supra, although the refusal to instruct has been termed nonprejudicial where a review of the record reflects abundant evidence of corroboration. Allen v. State, supra; Stidham v. State, 1973 OK CR 143, 507 P.2d 1312.

The question of whether a cautionary instruction regarding the credibility of an accomplice is warranted was resolved in the negative in Allen, supra, on the ground that a cautionary instruction is required only where "statements made by an accomplice or informer are uncorroborated." 1974 OK CR 91, ¶ 10, 522 P.2d at 246. Explication of the reasoning in Allen is necessary .

The defendant's argument in Allen was based on a case holding that, where incriminating testimony of an informer is uncorroborated, special cautionary instructions as to the testimony of the informer and his credibility are required. Smith v. State, 1971 OK CR 223, 485 P.2d 771. Logically, however, no such rule could be applied to accomplices, because by statute a defendant cannot be convicted on the uncorroborated testimony of an accomplice. Thus, a cautionary instruction on the credibility of an uncorroborated accomplice would never be called for, simply because the evidence would not be sufficient to support a conviction.

However, in Allen, the court based its decision affirming the conviction on the fact that the accomplice testimony was corroborated, whereas in Smith it was not. Instead of stating that the Smith rule is inapplicable to accomplice testimony, the court in Allen stated that "the cautionary instructions discussed [in Smith] are explicitly limited to those occasions when statements made by an accomplice or informer are uncorroborated. ... This requirement is, of course, necessary with uncorroborated testimony...." 1974 OK CR 91, ¶ 10, 522 P.2d at 246. A proper reading of Smith limits its rule to testimony of informers; the only reference in Smith to accomplices was in a quote from a United States Supreme Court opinion in which the Court stated that a defendant is entitled to a cautionary instruction where credibility of an accomplice or informer is in issue. Lee v. United States, 343 U.S. 747, 757 (1952).

The Oklahoma Court of Criminal Appeals ordered this Instruction modified in Pink v. State, 2004 OK CR 37, ¶ 23, 104 P.3d 584, 593, to the form shown above in order to specify that in determining whether accomplice testimony has been corroborated, the jury must (rather than may) be able to eliminate the accomplice testimony and determine that there is other evidence tending to show both that the charged offense was committed and the defendant was connected with the offense.

This Instruction must be given in trials for crimes specified in 21 O.S. Supp. 2005, § 13.1 that occurred after the effective date of the inclusion of the offense in the statute. Anderson v. State, 2006 OK CR 6, ¶ 24, ___ P.3d ___. There are also other statutes besides 21 O.S. Supp. 2005, § 13.1 that mandate limitations on parole and credits. See, e.g., 21 O.S. 2001, § 801 (robbery with dangerous weapon); 47 O.S. 2001, § 1503(J) (operation of chop shop); 63 O.S. Supp. 2005, § 2-401(F) (distribution of controlled dangerous substance within 2,000 feet of a school); 63 O.S. Supp. 2005, § 2-401(G) (manufacture of controlled dangerous substance). This Instruction should be modified as appropriate to incorporate the crimes in these statutes. If life imprisonment is an option, OUJI-CR 10-13B should be used instead of this Instruction.

In Anderson v. State, 2006 OK CR 6, ¶ 24, ___ P.3d ___, the Oklahoma Court of Criminal Appeals referred to the current policy of the Oklahoma Pardon and Parole Board and stated that "parole for any sentence over 45 years ... is calculated based upon a sentence of 45 years." The Anderson case involved a life sentence, however, and so, this statement was not a part of the Court’s holding. Section 13.1 as well as the other statutes that mandate limitations on parole and credits do not provide exceptions for sentences for over 45 years. Accordingly, the Committee has concluded that this Instruction should be given even if the possible sentence is for more than 45 years.

Because Anderson did not address the issue of the possibility of commutation of a sentence by the Governor upon a recommendation by a majority of the Pardon and Parole Board, in accordance with Okla. Const. Art. 6, § 10, this Instruction does not address this issue.

The Oklahoma Court of Criminal Appeals held in Anderson v. State, 2006 OK CR 6, ¶ 24, ___ P.3d ___, held that where life imprisonment is an option, a jury instruction "should include some reference to [the Oklahoma Pardon and Parole Board’s current] policy (or any successor policy)." Accordingly, the trial court should be satisfied that this Instruction is still consistent with the Oklahoma Pardon and Parole Board’s current policy before using this Instruction.