EVIDENCE - EVIDENCE OF DEFENDANT’S PRIOR SEX CRIMES
You have heard evidence that the defendant may have committed another/other offenses(s) of (sexual assault)/(child molestation) in addition to the offense(s) for which he/she is now on trial. You may consider this evidence for its bearing on any matter to which it is relevant along with all of the other evidence and give this evidence the weight, if any, you deem appropriate in reaching your verdict. You may not, however, convict the defendant solely because you believe he/she committed this/these other offense(s) or solely because you believe he/she has a tendency to engage in acts of (sexual assault)/(child molestation). The prosecution’s burden of proof to establish the defendant’s guilt beyond a reasonable doubt remains as to each and every element of each/the offense charged.
Statutory Authority: 12 O.S. Supp. 2010, §§ 2413, 2414.
Notes on Use
This instruction should be given when evidence of other offenses involving sexual assault or child molestation has been introduced against a criminal defendant in a sexual assault or child molestation prosecution. For a list of the crimes constituting sexual assault or child molestation, see 12 O.S. Supp. 2010, §§ 2413(D), 2414(D).
The Oklahoma Court of Criminal Appeals upheld the constitutionality of 12 O.S. Supp. 2010, § 2413 in Horn v. State, 2009 OK CR 7, ¶¶ 28, 38, 204 P.3d 377, 784, 786. The court emphasized in Horn that 12 O.S. Supp. 2010, §§ 2413, 2414 were subject to the balancing test in 12 O.S. Supp. 2010, § 2403. It also stated that in ruling on the admissibility of other sex crimes under sections 2413 and 2414,
trial courts should consider, but not be limited to the following factors: 1) how clearly the prior act has been proved; 2) how probative the evidence is of the material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4) whether the government can avail itself of any less prejudicial evidence. When analyzing the dangers that admission of propensity evidence poses, the trial court should consider: 1) how likely is it such evidence will contribute to an improperly-based jury verdict; and 2) the extent to which such evidence will distract the jury from the central issues of the trial. [Citation omitted.] Any other matter which the trial court finds relevant may be considered. In particular, as proof of the prior act may largely rest upon testimony of the victim of that prior act, the credibility of that individual would be a factor for the court’s consideration. Further, the propensity evidence must be established by clear and convincing evidence. If the defense raises an objection to the admission of the propensity evidence, the trial court should hold a hearing, preferably pre-trial, and make a record of its findings as to the factors set forth above.
2009 OK CR 7, ¶ 40, 204 P.3d at 786 (footnote omitted).