OUJI-CR 10-21A

PRIOR CONVICTIONS ADMITTED AS PROPENSITY EVIDENCE DURING FIRST STAGE

Evidence has been presented in the first stage of trial as to past criminal acts the defendant committed which is evidence of the defendant's propensity to commit crimes involving sexual misconduct. That evidence was proper for you to consider in determining the defendant's guilt.

In the second stage of trial, the court has determined as a matter of law that the sexual propensity evidence constitutes [specify number] alleged prior conviction(s) for your consideration in sentencing. [Additionally, evidence has been presented of [specify number] alleged prior conviction(s).] It remains the prosecution's burden to prove beyond a reasonable doubt the existence of each alleged prior conviction, and only those alleged prior convictions, proven to your satisfaction can be considered in determining punishment.

Notes on Use

This Instruction should be given in the second stage of sentencing when prior convictions have been admitted during the first stage either after OUJI-CR 10-19, if the prior convictions are stipulated, or after OUJI-CR 10-21, if the prior convictions are contested,. In most cases, prior convictions are not admissible for proof of guilt, but they may be admissible to show propensity for sexual assault or child molestation under 12 O.S. 2011, §§ 2413, 2414. Under 21 O.S. 2011, § 51.1(B), prior convictions that arose out of the same transaction or occurrence or series of events closely related in time and location are to be counted as a single conviction for purposes of sentencing enhancement. If prior convictions arising out of the same transaction have not been admitted during the first stage, the trial court may count or list only the prior convictions that arose from separate transactions in OUJI-CR 10-17, 10-19, or 10-21, and this instruction should not be used. However, if the jury has already heard evidence of multiple prior convictions that arose from the same transaction, this instruction is needed in order to inform the jury that it is not to consider for sentencing purposes all of the prior convictions that were admitted during the first stage for proof of guilt.

Committee Comments

The Oklahoma Court of Criminal Appeals observed in Levering v. State, 2013 OK CR 19, ¶ 7, 315 P.3d 392, 395, that it was not unusual for multiple charges and convictions to have arisen out of a transactionally related series of sex related offenses, and that transactionally related offenses may not be relied on for sentencing enhancement under 21 O.S. 2011, § 51.1(B). The Court of Criminal Appeals suggested the following instruction to explain the relationship between propensity evidence offered for guilt purposes and prior convictions used for sentencing enhancement:

Evidence has been presented in the first stage of trial as to past criminal acts the defendant committed against S.E. which is evidence of the defendant's propensity to commit crimes involving sex. That evidence was proper for you to consider in determining the defendant's guilt.

In the second stage of trial, the court has determined as a matter of law that the sexual propensity evidence constitutes one prior conviction for your consideration in sentencing. Additionally, evidence has been presented of two other prior convictions. It remains the prosecution's burden to prove beyond a reasonable doubt the existence of each alleged prior conviction, and only those prior convictions proven to your satisfaction can be considered in determining punishment.

Levering v. State, 2013 OK CR 19, ¶ 13, 315 P.3d 392, 396. This instruction is based on the suggested instruction in Levering with modifications to make it more generic.

(2014 Supp.)