OUJI-CR 6-58A

PARTICIPATING IN RIOT - PUNISHMENT

If you find beyond a reasonable doubt that the defendant committed the crime of participating in riot, you shall return a verdict of guilty by marking the Verdict Form appropriately.

If you have a reasonable doubt of the defendant's guilt of the charge of participating in riot, or you find that the State has failed to prove each element of the charge of participating in riot beyond a reasonable doubt, you shall return a verdict of not guilty by marking the Verdict Form appropriately.

If you find the defendant guilty, you shall then determine the proper punishment.

[Select the appropriate paragraph]:

If you determine that the State has proved that the crime of murder/maiming/robbery/rape/arson was committed in the course of the riot by proving the following elements beyond a reasonable doubt: [specify elements], then the crime of participating in riot is punishable by [state range of punishment].

OR

If you determine beyond a reasonable doubt that the riotous assembly was to (resist execution of [specify state or federal statute)/(obstruct [identify state or federal officer] in the performance of ([specify legal duty])/(serving/executing a [specify legal process]), then the crime of participating in riot is punishable by imprisonment in the penitentiary not exceeding ten years and not less than two.

OR

If you determine beyond a reasonable doubt that [Name of Defendant] was (carrying a firearm/(deadly/dangerous weapon)/disguised at the time of the riot, then the crime of participating in riot is punishable by imprisonment in the penitentiary not exceeding ten years and not less than two.

OR

If you determine beyond a reasonable doubt that [Name of Defendant] directed/advised/encouraged/solicited other persons, who participated in the riot to acts of force/violence, then the crime of participating in riot is punishable by imprisonment in the penitentiary not exceeding ten years and not less than two.

Otherwise, it is punishable by a fine of up to $1,000, or imprisonment for up to 1 year, or both. When you have decided on 1) whether [Name of Defendant] is guilty or not guilty, 2) whether [specify additional findings for enhancement of punishment: e.g., [Name of Defendant] was carrying a firearm at the time of the riot], and 3) the proper punishment, you shall fill in the appropriate spaces on the Verdict Form for the crime of participating in riot and return the verdict to the Court.

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Statutory Authority: 21 O.S. 1991, § 1312.

Notes on Use

This is the basic instruction for participating in a riot, and it should be given in place of OUJI-CR 10-13 at the end of the the case. It should be modified appropriately if there are prior convictions or lesser included offenses. See OUJI-CR 10-15 to 10-25. The trial court should also prepare a Verdict Form on which the jury must indicate whether or not it determined the additional findings for the enhanced punishment as well as its finding of guilt and the propoer punishment.

Committee Comments

The different sections in 21 O.S. 1991, § 1312 specify different punishments for the crime of participating in a riot, rather than separate offenses. Symonds v. State, 66 Okl.Cr. 49, 53-54, 89 P.2d 970, 973 (1939); Schwatzfeger v. State, 57 Okl.Cr. 92, 94, 45 P.2d 550, 551 (1935).

(2000 Supp.)