OUJI-CR 10-21

RETURN OF VERDICT --

PRIOR CONVICTIONS CONTESTED (SECOND STAGE)

By your verdict in the first part of this trial you have already found the defendant guilty of the crime of [Crime Charged]. You must now determine the proper punishment.

The defendant has been charged with having previously been convicted of: [List Prior Convictions]. The law presumes that the defendant has NOT been previously convicted as the State has charged. You may consider the previous conviction(s) only if the State has proved beyond a reasonable doubt:

1. The fact of the conviction(s); and

2. That the defendant is the same person who was previously convicted.

The punishment for [Crime Charged] after 2 [or more] previous convictions is imprisonment in the State penitentiary for a term of   [Specify Term Provided in 21 O.S. Supp. 2004, § 51.1(B) or (C)] years. If you find the defendant guilty of [Crime Charged] after 2 [or more] previous convictions, you shall return a verdict of guilty by marking the verdict form appropriately, fill in the appropriate space on the verdict form and return the verdict to the court. If you have a reasonable doubt of the defendant's guilt to the charge of [Crime Charged] after 2 [or more] previous convictions, you shall then consider whether the defendant is guilty of [Crime Charged] after 1 previous conviction.

The punishment for [Crime Charged] after 1 previous conviction is imprisonment in the State penitentiary for a term of [Specify Term Provided in 21 O.S. 2001 & Supp. 2004, § 51.1(A), 51.1a, or 51.3] years. If you find the defendant guilty of [Crime Charged] after 1 previous conviction, you shall return a verdict of guilty by marking the verdict form appropriately, fill in the appropriate space on the verdict form and return the verdict to the court. If you have a reasonable doubt of the defendant's guilt to the charge of [Crime Charged] after 1 previous conviction, you shall then determine the proper punishment for the crime of [Crime Charged] without regard to a previous conviction.

The crime of [Crime Charged] without a previous conviction is punishable by imprisonment in the State penitentiary for a term of [State Range of Punishment].

When you have decided on the proper punishment, you shall fill in the appropriate space on the verdict form and return the verdict to the Court.

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Statutory Authority: 21 O.S. 2001 and Supp. 2004, §§ 51.1, 51.1a, 51.3.

Notes on Use

This instruction should be used for the second stage of the jury deliberation in cases where sentence enhancement is sought for prior convictions. All paragraphs of the instruction should be used where the defendant is charged with 2 or more prior convictions, but the third paragraph should be omitted if the defendant is charged with only 1 prior conviction.

If there are multiple counts, the pattern for this instruction should be repeated for each count.

A Verdict Form for the Second Stage where two prior convictions are charged is provided in OUJI-CR 10-22, infra.

Committee Comments

The prosecution has the burden of proving that the defendant on trial is the same person as the defendant listed on a prior judgment of conviction. Cooper v. State, 1991 OK CR 54, ¶¶ 6-8, 810 P.2d 1303, 1306 (overruling Henager v. State, 1986 OK CR 20, ¶¶ 46-48, 716 P.2d 669, 676).

(2005 Supp.)