## IOWA CRIMINAL JURY INSTRUCTIONS

## January 2004

## TABLE OF CONTENTS

[Introduction](#Introduction)

[Cross Reference Table - Iowa Code](#CROSS)

[Model Jury Instructions](#MODEL)

[100 General Instructions](#chapter-100)

[200 Criminal Law - Special Issues](#CH200)

[300 Accessory After The Fact](#CH300)

[400 Justification](#CH400)

[500 Solicitation](#CH500)

[600 Conspiracy](#chapter-600)

[700 Murder](#CH700)

[800 Assault](#chapter-800)

[900 Sexual Abuse](#CH900)

[1000 Kidnapping And Related Offenses](#CH1000)

[1100 Robbery And Extortion](#CH1100)

[1200 Arson](#CH1200)

[1300 Burglary And Related Offenses](#CH1300)

[1400 Theft](#CH1400)

[1500 Forgery](#CH1500)

[1600 Criminal Mischief And Criminal Trespass](#CH1600)

[1700 Computer Crime](#CH1700)

[1800 Offenses Against The Government](#CH1800)

[1900 Interference With Official Acts And Escape](#CH1900)

[2000 Perjury](#CH2000)

[2100 Vice](#CH2100)

[2200 Habitual Criminal](#chapter-2200)

[2300 Controlled Substances](#CH2300)

[2400 Weapons](#CH2400)

[2500 OWI](#chapter-2500)

[2600 Incest And Child Endangerment](#chapter-2600)

[2700 Wiretapping](#CH2700)

[2800 Criminal Street Gangs](#CH2800)

[2900 Hate Crimes](#CH2900)

[3000 Animal Torture Statute](#chapter-3000)

[Alphabetical Index](#ALPHA)

[]{#Introduction .anchor}INTRODUCTION

The Board of Governors of The Iowa State Bar Association approved the
redrafting of the Criminal Uniform Jury Instructions in plain English.
We employed a communication specialist to help us translate \"legalese\"
into plain English.

While the Iowa Supreme Court cannot give prior approval to the
instructions, it unanimously approved the principle of the plain English
redraft of the Iowa Civil and Criminal Jury Instructions. The Court also
adopted a resolution commending the Criminal Instructions for
consideration by the Trial Bench and Bar. A copy of the resolution
follows this Introduction.

The guidelines for drafting the Iowa Criminal Jury Instructions are the
same as those used for the Iowa Civil Jury Instructions. They are set
forth in the Introduction to the Iowa Civil Jury Instructions.

The \"definitional\" instructions for particular crimes have been
eliminated. They are not needed because the law is stated in the
marshaling instructions. The word \"crime\" has been substituted for the
phrase \"public offense\". The use of the phrase \"prove beyond a
reasonable doubt\" has been eliminated from most of the instructions
because Iowa Criminal Instruction 100.2 tells the jury that whenever the
State must prove something, it must be by evidence beyond a reasonable
doubt. We have not included lesser-included offenses for any particular
crime.

INSTRUCTIONS MUST ALWAYS BE TAILORED TO FIT THE FACTS OF THE CASE. These
instructions are not intended to provide jury instructions which are
applicable without change in all cases. Instead, they will provide
judges and lawyers with models of clear, concise, accurate, and
impartial instructions which are understandable to the average juror.
They can be adapted for use in particular cases or used as a guide for
tailoring instructions.

The instructions will be referred to as Iowa Criminal Jury Instructions.
There will be a cross-reference table of Iowa Code sections to the
Instructions. We have also included a model set of Criminal Jury
Instructions.

If you have any suggestions concerning these instructions, we would
appreciate having them.

IN THE SUPREME COURT OF IOWA

IN THE MATTER OF THE IOWA )

STATE BAR ASSOCIATION UNIFORM ) RESOLUTION

COURT INSTRUCTION COMMITTEE )

The court meeting en banc in administrative session at Des Moines on
June 8, 1988, upon a motion duly made and seconded unanimously adopted
the following resolution:

On May 6, 1987, we officially noted the public benefits which have been
derived from the efforts of the Special Committee on Uniform Court
Instructions of The Iowa State Bar Association.

The occasion of that resolution was to commend the committee for
promulgating the Plain English Redraft of Iowa Civil Jury Instructions.
Experience has justified our high estimate of the Plain English Redraft;
the draft has been of great benefit to the bench and bar and,
especially, to the public.

We have now been presented with a companion to this effort, the Plain
English Redraft of the Iowa Criminal Jury Instructions.

Under Iowa law any jury instructions might be challenged in the usual
manner on appeal to this court. That right of review on the part of the
future litigants again precludes us from considering the Plain English
Redraft Instructions for official approval or disapproval. We
nevertheless note this newest contribution of the committee with a deep
sense of appreciation and satisfaction.

It is readily apparent that juries will better understand legal
principles explained in the instructions under the Plain English
Redraft, now in criminal as well as in civil cases. The quality of
justice will be improved.

The court commends the Uniform Court Instruction Committee for this new
achievement and commends these instructions for consideration by the
trial bench and bar.

Dated at Des Moines, Iowa, this 8th day of June, 1988.

Arthur A. McGiverin, Chief Justice Louis A. Lavorato, Justice

David Harris, Justice Linda K. Neuman, Justice

Jerry L. Larson, Justice Bruce Snell, Jr., Justice

Louis W. Schultz, Justice James H. Andreasen, Justice

James H. Carter, Justice

## CROSS REFERENCE TABLE

**IOWA CRIMINAL JURY INSTRUCTIONS**

Code Section Instruction No.

124.101(5) 2300.4

124.101(7) 2300.4

124.101(16) 2300.4

124.401 2300.7

124.401(1) 2300.1

124.401(1) 2300.2

124.401(3) 2300.3

124.406 2300.6

124.410 2300.5

321J.2(1)(a) 2500.2

321J.2(1)(a)(b) 2500.1

321J.2(1)(b) 2500.3

321J.2(2)(b)(c) 2200.1

321J.2(7) 2500.4

321J.16 2500.7

453B.12 2310.1

453B.1(3) 2310.1

453B.1(9) 2310.2

453B.1(6) 2310.3

701.4 200.10

701.4 200.11

701.6 200.39

702.7 200.21

702.7 900.2

702.11 700.2

702.12 1300.13

702.13 200.6

702.13 200.7

702.13 800.7

702.13 800.9

702.14 1400.20

702.15 2100.6

702.16 200.20

702.17 900.8

702.18 200.22

702.18 200.35

702.18 400.25

702.18 800.2

702.18 800.7

702.18 800.10

702.18 900.2

702.21 1200.12

703.1 200.4

703.1 200.8

703.2 200.7

703.3 300.1

703.4(1) 200.26

703.4(2) 200.27

703.4(3) 200.28

703.5(1) 200.29

703.5(1) 200.31

704.1 400.1

704.1 400.2

704.1 400.3

704.1 400.7

704.1 400.11

704.1 400.16

704.1 400.17

704.2 400.25

704.3 400.1

704.3 400.2

704.3 400.3

704.4 400.1

704.4 400.7

704.5 400.1

704.5 400.7

704.6 400.2

704.6 400.3

704.6 400.7

704.6 400.11

704.6(2) 400.26

704.6(3)(a) 400.23

704.6(3)(b) 400.24

704.7 400.1

704.7 400.11

704.10 200.35

705.1 200.5

705.1 500.1

705.2 500.4

706.1 600.1

706.1 600.3

706.1 600.4

706.1 600.6

706.4 600.7

707.2(1) 700.1

707.2(2) 700.2

707.2(3) 700.3

707.2(4) 700.4

707.3 700.13

707.4 700.15

707.5(1) 700.17

707.5(2) 700.18

707.6A(1) 700.19

707.6A(2) 700.20

707.11 700.21

708.1 800.1

708.1 800.2

708.1 800.3

708.1 800.4

708.1 800.5

708.1 800.8

708.1 800.11

708.2 800.1

708.2 800.2

708.2 800.4

708.2 800.5

708.2 800.17

708.3 800.7

708.3 800.9

708.4 800.10

708.5 800.12

708.6 800.13

708.6 800.17

708.8 800.15

708.8 800.17

709.1 900.1

709.2 900.1

709.3 900.2

709.4 900.3

709.4(1) 900.3.1

709.5 900.10

709.8 900.4

709.9 900.5

709.11 900.6

709.12 900.7

709.15(1)(a) 920.4

709.15(1)(b) 920.5

709.15(1)(c) 920.6

709.15(1)(d) 920.7

709.15(1)(e) 920.8

709.15(1)(f)(1) 920.1

709.15(1)(f)(2) 920.2

709.15(1)(f)(3) 920.3

710.1(4) 1000.7

710.2 1000.1

710.2 1000.6

710.3 1000.2

710.4 1000.4

710.5 1000.9

710.6 1000.10

710.7 1000.8

710.8 1000.11

711.1 1100.1

711.1 1100.2

711.2 1100.1

711.3 1100.2

711.4 1110.1

711.4 1110.2

712.1 1200.1

712.1 1200.3

712.1 1200.4

712.2 1200.1

712.3 1200.1

712.3 1200.3

712.4 1200.1

712.4 1200.4

712.5 1200.7

712.6 1200.8

712.7 1200.11

712.8 1200.10

713.1 1300.1

713.1 1300.2

713.1 1300.3

713.1 1300.4

713.1 1300.5

713.1 1300.6

713.1 1300.7

713.1 1300.8

713.1 1300.9

713.1 1300.13

713.2 1300.10

713.3 1300.1

713.3 1300.2

713.3 1300.3

713.3 1300.4

713.3 1300.5

713.3 1300.6

713.4 1300.7

713.3 1300.8

713.3 1300.9

713.4 1300.10

713.5 1300.7

713.5 1300.8

713.5 1300.9

713.6 1300.10

713.6A 1300.3

713.6A 1300.6

713.6(b) 1300.10

713.7 1300.15

714.1(1) 1400.1

714.1(1) 1400.23

714.1(2) 1400.4

714.1(2) 1400.7

714.1(2) 1400.8

714.1(3) 1400.10

714.1(3) 1400.12

714.1(4) 1400.15

714.1(5) 1400.16

714.1(6) 1400.17

714.1(6) 1400.18

714.2(2) 1400.23

714.2(3) 2200.1

714.3 1400.21

714.3 1400.22

714.4 1400.19

714.4 1400.21

714.5 1400.3

714.7 1400.23

714.7 1400.24

714.8 1400.25

714.10(2) 2200.1

714.14 1400.22

714.14 1400.26

715A.2(1)(a) 1500.1

715A.2(1)(a) 1500.3

715A.2(1)(b) 1500.2

715A.2(1)(b) 1500.4

715A.2(1)(c) 1500.3

715A.2(1)(c) 1500.4

715A.6 1500.5

716.1 1600.1

716.3 1600.3

716.5 1600.4

716.5 1600.5

716.5(1) 1600.6

716.5(2) 1600.6

716.7(1) 1610.5

716.7(2)(a) 1610.1

716.7(2)(b) 1610.2

716.7(2)(c) 1610.3

716.7(2)(d) 1610.4

716.7(3) 1610.6

716.8 1610.1

716.8 1610.2

716.8 1610.3

716.8 1610.4

716A.1 1700.3

716A.1(10)(b) 1700.3

716A.3 1700.1

716A.4 1700.4

716A.5 1700.4

716A.6 1700.4

716A.7 1700.4

716A.8 1700.4

716A.9 1700.2

716A.10 1700.4

716A.11 1700.4

716A.12 1700.4

716A.13 1700.4

716A.14 1700.4

718.1 1800.1

718.2 1800.2

718.5 1800.3

719.1 1910.1

719.1 1910.2

719.3 1910.3

719.4(1)(2) 1900.1

719.4(3) 1900.2

719.5 1900.3

719.6 1900.4

719.7 1900.5

719.8 1900.6

720.2 2000.1

720.2 2000.2

720.3 2000.5

720.3 2000.6

721.1 1810.1

721.2 1810.1

722.1 1820.1

722.2 1820.2

724.1 2400.2

724.3 2400.1

724.4 2400.3

724.4 2400.4

724.4 2400.5

724.4 2400.6

724.21 2400.10

724.25(1) 2400.7

724.26 2400.7

724.27 2400.7

725.1 2100.1

725.2 2100.3

725.2 2100.4

725.2 2100.5

726.2 2600.1

726.6(1)(a) 2610.1

726.6(1)(b) 2610.2

726.6(1)(c) 2610.3

726.6(1)(d) 2610.4

726.6(1)(d) 2610.5

726.6(1)(e) 2610.6

726.6(1)(f) 2610.7

726.6(2) 2610.1

726.6(2) 2610.2

726.6(2) 2610.3

728.1(2) 910.2

728.1(4) 910.3

728.1(4) 910.2

728.1(4) 910.4

728.1(6) 910.1

728.1(6) 910.2

728.1(6) 910.3

728.1(8) 910.1

728.1(8) 910.2

728.1(8) 910.3

728.1(9) 910.2

728.1(9) 910.5

728.12(1) 910.1

728.12(2) 910.2

728.12(3) 910.3

808B.1(2) 2700.12

808B.1(4) 2700.7

808B.1(5) 2700.8

808B.1(7) 2700.9

808B.1(9) 2700.10

808B.2(1)(a) 2700.1

808B.2(1)(b) 2700.2

808B.2(1)(c) 2700.3

808B.2(1)(c) 2700.4

808B.2(1)(d) 2700.3

808B.2(1)(d) 2700.4

808B.2(2)(a) 2700.1

808B.2(2)(a) 2700.2

808B.2(2)(a) 2700.3

808B.2(2)(a) 2700.4

808B.2(2)(b) 2700.1

808B.2(2)(b) 2700.2

808B.2(2)(b) 2700.3

808B.2(2)(b) 2700.4

808B.2(2)(c) 2700.1

808B.2(2)(c) 2700.2

808B.2(2)(c) 2700.3

808B.2(2)(c) 2700.4

808B.2(3) 2700.5

902.7 200.23

902.7 200.24

902.7 200.25

8.  2200.1

# **CHAPTER 100**

## General Instructions

[100.1](#a1001) Statement Of Charge

[100.2](#a1002) Plea

[100.3](#a1003) Indictment Or Information Not Evidence

[100.4](#a1004) Presumption Of Innocence

[100.5](#a1005) Evidence

[100.6](#a1006) Direct and Circumstantial Evidence

[100.7](#a1007) Credibility Of Witnesses

[100.8](#a1008) Consideration Of Instructions

[100.9](#a1009) Cautionary Instruction

[100.10](#a10010) Reasonable Doubt

[100.11](#a10011) Reasonable Doubt - Re Included Offenses

[100.12](#a10012) Preponderance Of Evidence - Defenses

[100.13](#a10013) Punishment Not For Jury

[100.14](#a10014) Cautionary Instruction - Joint Trials

[100.15](#a10015) Cautionary Instruction - Multiple Counts

[100.16](#a10016) Multi-Theories

[100.17](#a10017) Cautionary Instructions - Juror\'s Notes

[100.18](#a10018) Duties of Jurors - Selection Of Foreman/Forewoman

[]{#a1001 .anchor}**100.1 Statement of Charge.** The \[Trial
Information\] \[Indictment\] charges the defendant, (name of defendant),
with the crime of (name of crime).

The \[Trial Information\] \[Indictment\] includes charges of the lesser
degrees of \_\_\_\_\_\_\_\_\_\_ or crimes of \_\_\_\_\_\_.\*

## Comment

Note: \*Omit this paragraph unless lesser included offenses are
involved. To determine what offenses are lesser included, see [State v.
Jeffries]{.underline}, 430 N.W.2d 728 (Iowa 1988)

Note: If multiple offenses are charged, Instruction 100.1 should state
all of the offenses or degrees charged.

[]{#a1002 .anchor}**100.2 Plea.** (Name of defendant) has entered a plea
of not guilty. The plea of not guilty is a complete denial of the
charge(s) and places the burden on the State to prove guilt beyond a
reasonable doubt. Whenever I instruct you the State must prove
something, it must be by evidence beyond a reasonable doubt. If the
State does not prove the defendant guilty beyond a reasonable doubt,
your verdict must be not guilty.

[]{#a1003 .anchor}**100.3 Indictment Or Information Not Evidence.** The
\[Trial Information\] \[Indictment\] is the document that formally
charges the defendant with a crime and is merely the method by which the
defendant is brought into Court for trial. It is not evidence.

[]{#a1004 .anchor}**100.4 Presumption of Innocence.** (Name of
defendant) is presumed innocent and not guilty. This presumption of
innocence requires you to put aside all suspicion which might arise from
the arrest, charge, or the present situation of the defendant. The
presumption of innocence remains with the defendant throughout the trial
unless the evidence establishes guilt beyond a reasonable doubt.

[]{#a1005 .anchor}**100.5 Evidence.** You shall base your verdict only
upon the evidence and these instructions.

Evidence is:

1\. Testimony in person or by deposition.

2\. Exhibits received by the court. You may examine the exhibits
closely, but be careful not to alter or destroy them.

3\. Stipulations, which are agreements between the attorneys.

Facts may be proved by direct evidence, circumstantial evidence, or a
combination of both.

Sometimes, during a trial, references are made to pre-trial statements
and reports, witnesses\' depositions, or other miscellaneous items. Only
those things formally offered and received by the court are available to
you during your deliberations. Documents or items read from or referred
to,. which were not offered and received into evidence, are not
available to you.

The following are not evidence:

1\. Statements, arguments, questions and comments by the lawyers.

2\. Objections and rulings on objections.

3\. Any testimony I told you to disregard.

4\. Anything you saw or heard about this case outside the courtroom.

[]{#a1006 .anchor}**100.6 Direct/Circumstantial Evidence.** In
considering the evidence, make deductions and reach conclusions
according to reason and common sense. Facts may be proved by direct
evidence, circumstantial evidence, or both. Direct evidence is evidence
from a witness who claims actual knowledge of a fact, such as an
eyewitness. Circumstantial evidence is evidence about a chain of facts
which show a defendant is guilty or not guilty. The law makes no
distinction between direct evidence and circumstantial evidence. Give
all the evidence the weight and value you think it is entitled to
receive.

[]{#a1007 .anchor}**100.7 Credibility Of Witnesses.** Decide the facts
from the evidence. Consider the evidence using your observations, common
sense and experience. Try to reconcile any conflicts in the evidence;
but if you cannot, accept the evidence you find more believable.

In determining the facts, you may have to decide what testimony you
believe. You may believe all, part or none of any witness\'s testimony.

There are many factors which you may consider in deciding what testimony
to believe, for example:

1\. Whether the testimony is reasonable and consistent with other
evidence you believe.

2\. Whether a witness has made inconsistent statements.

3\. The witness\'s appearance, conduct, age, intelligence, memory and
knowledge of the facts.

4\. The witness\'s interest in the trial, their motive, candor, bias and
prejudice.

## Authority

[State v Harrington]{.underline}, 284 N.W.2d 244 (Iowa 1979)

[State v. Ochoa]{.underline}, 244 N.W.2d 773 (Iowa 1976)

[]{#a1008 .anchor}**100.8 Consideration Of Instructions.** You must
determine whether the defendant is guilty or not guilty from the
evidence and the law in these instructions.

You must consider all of the instructions together. No one instruction
includes all of the applicable law.

10/04

[]{#a1009 .anchor}**100.9 Cautionary Instruction.** Nothing I have said
or done during the trial was intended to give any opinion as to the
facts, proof, or what your verdict should be.

[]{#a10010 .anchor}**100.10 Reasonable Doubt.** The burden is on the
State to prove (name of defendant) guilty beyond a reasonable doubt.

A reasonable doubt is one that fairly and naturally arises from the
evidence or lack of evidence produced by the State.

If, after a full and fair consideration of all the evidence, you are
firmly convinced of the defendant\'s guilt, then you have no reasonable
doubt and you should find the defendant guilty.

But if, after a full and fair consideration of all the evidence or lack
of evidence produced by the State, you are not firmly convinced of the
defendant\'s guilt, then you have a reasonable doubt and you should find
the defendant not guilty.

## Authority

[State v. McFarland]{.underline}, 287 N.W.2d 162 (Iowa 1980)

[]{#a10011 .anchor}**100.11 Reasonable Doubt - Re Included Offenses.**
If there is a reasonable doubt as to the degree of the crime, the
defendant shall only be convicted of the degree for which there is no
reasonable doubt.

[]{#a10012 .anchor}**100.12 Preponderance Of Evidence - Defenses.**
Concerning the defense explained in Instruction No.\_\_\_\_\_\_,
preponderance of the evidence is evidence that is more convincing than
opposing evidence. Preponderance of the evidence does not depend upon
the number of witnesses testifying on one side or the other.

## Authority

[Mabrier v. A.M. Servicing Corp. of Raytown]{.underline}, 161 N.W.2d 180
(1968)

[]{#a10013 .anchor}**100.13 Punishment Not For Jury.** The duty of the
jury is to determine if the defendant is guilty or not guilty.

In the event of a guilty verdict, you have nothing to do with
punishment.

[]{#a10014 .anchor}**100.14 Cautionary Instruction - Joint Trials.** The
defendants have been jointly charged. You may not consider the joint
charge or joint trial as any evidence of guilt. You must determine
whether each defendant is guilty or not guilty solely upon individual
participation in the crime.

If you cannot reach a verdict as to \[all\] \[both\] of the defendants,
you shall reach a verdict only as to \[those\] \[the\] defendant(s) upon
whom you can unanimously agree.

## Authority

[Iowa R. Crim. P. 2.6(4)]{.underline} - Multiple Defendants

[Iowa R. Crim. P.2.22(4)]{.underline} - Verdict as to Several Defendants

10/04

[]{#a10015 .anchor}**100.15 Cautionary Instruction - Multiple Counts.**
The defendant has been charged with \_\_\_\_\_\_\_\_\_\_ counts. This is
just a method for bringing each of the charges to trial. If you find the
defendant guilty or not guilty on any one of the \_\_\_\_\_\_\_\_\_
counts, you are not to conclude the defendant is guilty or not guilty on
the other(s). You must determine whether the defendant is guilty or not
guilty separately on each count.

## Authority

# [Iowa R. Crim. P. 2.6(1)]{.underline} - Multiple Offenses

10/04

[]{#a10016 .anchor}**100.16 Multi - Theories.** Where two or more
alternative theories are presented, or where two or more facts would
produce the same result, the law does not require each juror to agree as
to which theory or fact leads to his or her verdict. It is the verdict
itself which must be unanimous, not the theory or facts upon which it is
based.

## Authority

[State v. Bratthauer]{.underline}, 354 N.W.2d 774 (Iowa 1984)

[State v. Williams]{.underline}, 285 N.W.2d 248 (Iowa 1979)

[]{#a10017 .anchor}**100.17 Cautionary Instruction - Juror\'s Notes.**
During the trial, you have been allowed to take notes. You may take
these with you to the jury room to use in your deliberations. Remember,
these are notes and not evidence. Generally, they reflect the
recollection or impressions of the evidence as viewed by the person
taking them, and may be inaccurate or incomplete.

Upon reaching a verdict, leave the notes in the jury room, and they will
be destroyed.

## Authority

[Iowa R. Crim. P. 2.19(5)(e)]{.underline} -Notes Taken By Jurors During
Trial

[]{#a10018 .anchor}**100.18 Duties of Jurors - Selection Of
Foreman/Forewoman.** When you begin your deliberations, you should
select a foreman or forewoman. He or she shall see that your
deliberations are carried on in an orderly manner, that the issues are
fully and freely discussed, and that every juror is given an opportunity
to express his or her views.

In order to return a verdict, each juror must agree to it. Your verdict
must be unanimous.

It is your duty as jurors to consult with one another and reach an
agreement, if you can do so without compromising your individual
judgment. Each of you must decide the case for yourself, but do so only
after an impartial consideration of the evidence with the other jurors.

During your deliberations, do not hesitate to re-examine your view and
change your opinion if convinced it is wrong. But do not change your
opinion as to the weight or effect of the evidence just because it is
the opinion of the other jurors, or for the mere purpose of returning a
verdict.

Remember, you are judges of the facts. Your sole duty is to find the
truth and do justice.

[]{#CH200 .anchor}**CHAPTER 200**

CRIMINAL LAW - SPECIAL ISSUES

[200.1](#a2001) General Criminal Intent - Definition And Proof

[200.2](#a2002) Specific Intent - Definition And Proof

[200.3](#a2003) Knowledge - Definition

[200.4](#a2004) Corroboration Of Accomplice

[200.5](#a2005) Corroboration Of Solicited Person - Crime Actually
Committed

[200.6](#a2006) Participating In A Public Offense - Definition

[200.7](#a2007) Joint Criminal Conduct - Definition

[200.8](#a2008) Aiding and Abetting

[200.9](#a2009) Insanity Defense - Consideration

[200.10](#a20010) Sanity At The Time Of Commission Of The Offense

[200.11](#a20011) Insanity - Elements - Defendant Not Guilty By Reason
Of Insanity

[200.12](#a20012) Diminished Responsibility - First Degree Murder

[200.13](#a20013) Diminished Responsibility - Other Specific Intent
Crimes - Total Defense

[200.14](#a20014) Intoxication As A Defense

[200.15](#a20015) Alibi

[200.16](#a20016) Confessions

[200.17](#a20017) Entrapment

[200.18](#a20018) Attempt

[200.19](#a20019) Malice

[200.20](#a20020) Recklessness

[200.21](#a20021) Dangerous Weapon - Definition

[200.22](#a20022) Serious Injury

[200.23](#a20023) Displaying A Firearm - Armed With A Firearm

[200.24](#a20024) Displaying A Firearm - Displayed Firearm

[200.25](#a20025) Displaying A Firearm - Representation Of Firearm

[200.26](#a20026) Responsibility Of Employers And Others - Directed
Employee To Commit Offense

[200.27](#a20027) Responsibility Of Employers And Others - Knowingly
Permits Employee To Commit Offense

[200.28](#a20028) Responsibility Of Employers

[200.29](#a20029) Liability Of Corporations, Partnerships And Voluntary
Associations

[200.30](#a20030) High Managerial Agent - Definition

[200.31](#a20031) Liability Of Corporations, Partnerships And Voluntary
Associations - Omissions

[200.32](#a20032) Liability Of Corporations, Partnerships And Voluntary
Associations - Agent And Scope Of

Authority - Definition

[200.33](#a20033) Continuous Transactions - Cautionary Instruction

[200.34](#a20034) Similar Crimes

[200.35](#a20035) Compulsion

[200.36](#a20036) Impeachment - Public Offense

[200.37](#a20037) Expert Witness

[200.38](#a20038) Character And Reputation Evidence

[200.39](#a20039) Ignorance Or Mistake Of Fact - Defense

[200.40](#a20040) Defendant\'s Failure To Testify

[200.41](#a20041) Bodily Injury

[200.42](#a20042) Contradictory Statements - Non-Party - Witness Not
Under Oath

[200.43](#a20043) Contradictory Statements - Non-Party - Witness Under
Oath

[200.44](#a20044) Statements By The Defendant

[200.45](#a20045) Eyewitness Identification

[200.46](#a20046) Destruction Of Evidence - Permissible Inference

[200.47](#a20047) Possession

[200.48](#a20048) Immediate Possession or Control of a Firearm or
Offensive Weapon.

[200.49](#a20049) Incendiary Device Or Material - Definition

[]{#a2001 .anchor}**200.1 General Criminal Intent - Definition And
Proof.** To commit a crime a person must intend to do an act which is
against the law. While it is not necessary that a person knows the act
is against the law, it is necessary that the person was aware \[he\]
\[she\] was doing the act and \[he\] \[she\] did it voluntarily, not by
mistake or accident. You may, but are not required to, conclude a person
intends the natural results of \[his\] \[her\] acts.

[]{#a2002 .anchor}**200.2 Specific Intent - Definition And Proof.**
\"Specific intent\" means not only being aware of doing an act and doing
it voluntarily, but in addition, doing it with a specific purpose in
mind.

Because determining the defendant\'s specific intent requires you to
decide what \[he\] \[she\] was thinking when an act was done, it is
seldom capable of direct proof. Therefore, you should consider the facts
and circumstances surrounding the act to determine the defendant\'s
specific intent. You may, but are not required to, conclude a person
intends the natural results of \[his\] \[her\] acts.

# Authority

[Sandstrom v. Montana]{.underline}, 99 S.Ct. 2450, 61 L. Ed.2d 39 (1979)

[State v. Rinehart]{.underline}, 283 N.W.2d 319 (Iowa 1979)

[]{#a2003 .anchor}**200.3 Knowledge - Definition.** For the defendant to
\[know\] \[have knowledge of\] something means \[he\] \[she\] had a
conscious awareness that (element requiring knowledge).

[]{#a2004 .anchor}**200.4 Corroboration Of Accomplice.** An
\"accomplice\" is a person who knowingly and voluntarily cooperates or
aids in the commission of a crime.

A person cannot be convicted only by the testimony of an accomplice. The
testimony of an accomplice must be corroborated by other evidence
tending to connect the defendant with the crime.

If you find (name of witness) is an accomplice, the defendant cannot be
convicted only by that testimony. There must be other evidence tending
to connect the defendant with the commission of the crime. Such other
evidence, if any, is not enough if it just shows a crime was committed.
It must be evidence tending to single out the defendant as one of the
persons who committed it.

# Authority

[Iowa Code]{.underline} section 703.1

[Iowa R. Crim. P. 2.21(3) -]{.underline} Corroboration of Accomplice or
Person Solicited

[State v. Berney]{.underline}, 378 N.W.2d 915 (Iowa 1985)

[]{#a2005 .anchor}**200.5 Corroboration Of Solicited Person - Crime
Actually Committed.** A \"solicited person\" is a person who is
commanded or persuaded by another to commit the crime with which the
defendant is charged.

A person cannot be convicted only be the testimony of a \"solicited
person\". The testimony of a \"solicited person\" must be corroborated
by other evidence tending to connect the defendant with the crime.

If you find (name) is a \"solicited person\", the defendant cannot be
convicted only by that testimony, and there must be other evidence
tending to single out the defendant as one of the persons who committed
the crime. Evidence which only shows a crime was committed, but does not
connect the defendant with the crime, cannot be considered
corroboration.

# Authority

[Iowa Code]{.underline} section 705.1

[Iowa R. Crim. P. 2.21(3)]{.underline} - Corroboration of Accomplice or
Person Solicited.

[]{#a2006 .anchor}**200.6 Participating In A Public Offense -
Definition.** A person participates in a crime beginning with the first
act done toward the commission of the crime and ending when a person has
been arrested or has escaped from pursuers. A person participates in a
crime regardless if \[he\] \[she\] is successful in committing it.

# Authority

[Iowa Code]{.underline} section 702.13

# Comment

Note: That portion of the statute which is not applicable to the facts
of the case should be deleted from the instruction.

[]{#a2007 .anchor}**200.7 Joint Criminal Conduct - Definition.** When
two or more persons act together and knowingly commit a crime, each is
responsible for the other\'s acts during the commission of the crime or
escape from the scene. The defendant\'s guilt is the same as the other
person\'s(s\') unless the act(s) could not reasonably be expected to be
done in aiding the commission of the crime.

# Authority

[Iowa Code]{.underline} section 703.2

# Comment

Note: For definition of \"Participation in Public Offense\", see [Iowa
Code]{.underline} section 702.13 and Iowa Criminal Jury Instruction
200.6

[]{#a2008 .anchor}**200.8 Aiding And Abetting.** All persons involved in
the commission of a crime, whether they directly commit the crime or
knowingly \"aid and abet\" its commission, shall be treated in the same
way.

\"Aid and abet\" means to knowingly approve and agree to the commission
of a crime, either by active participation in it or by knowingly
advising or encouraging the act in some way before or when it is
committed. Conduct following the crime may be considered only as it may
tend to prove the defendant\'s earlier participation. Mere nearness to,
or presence at, the scene of the crime, without more evidence, is not
\"aiding and abetting\". Likewise, mere knowledge of the crime is not
enough to prove \"aiding and abetting\".

The guilt of a person who knowingly aids and abets the commission of a
crime must be determined only on the facts which show the part \[he\]
\[she\] has in it, and does not depend upon the degree of another
person\'s guilt.

If you find the State has proved the defendant directly committed the
crime, or knowingly \"aided and abetted\" other person(s) in the
commission of the crime, then the defendant is guilty of the crime
charged.

# Authority

[Iowa Code]{.underline} section 703.1

See Also: [Iowa Criminal Jury Instruction]{.underline} 200.6

See Also[: Iowa Criminal Jury Instruction]{.underline} 200.7

[State v. Phams]{.underline}, 342 N.W.2d 792 (Iowa 1983)

[State v. Lott]{.underline}, 255 N.W.2d 105 (Iowa 1977)

[State v. Vesey]{.underline}, 241 N.W.2d 888 (Iowa 1976)

[State v. Cunha]{.underline}, 193 N.W.2d 106 (Iowa 1972)

# Comment

Note: Add the following paragraph if the offense involves specific
intent: \"The crime charged requires a specific intent. Therefore,
before you can find the defendant \"aided and abetted\" the commission
of the crime, the State must prove the defendant either has such
specific intent or \"aided and abetted\" with the knowledge the others
who directly committed the crime had such specific intent. If the
defendant did not have the specific intent, or knowledge the others had
such specific intent, \[he\] \[she\] is not guilty.\"

[]{#a2009 .anchor}**200.9 Insanity Defense - Consideration.** The
defendant claims \[he\] \[she\] is not guilty by reason of insanity. You
must first determine if the State has proved all of the elements of the
crime charged beyond a reasonable doubt. If you find the State has
proved all of the elements, then you must consider the issue of
defendant\'s sanity.

# Authority

[State v. McMullin]{.underline}, 421 N.W.2d 517 (Iowa 1988)

# Comment

Caveat: If the insanity defense is submitted, then the marshaling
instruction should be modified accordingly.

[]{#a20010 .anchor}**200.10 Sanity At The Time Of Commission Of The
Offense.** The defendant claims \[he\] \[she\] is not criminally
accountable for \[his\] \[her\] conduct by reason of insanity. A person
is presumed sane and responsible for \[his\] \[her\] acts.

Not every kind or degree of mental disease or mental disorder will
excuse a criminal act. \"Insane\" or \"insanity\" means such a diseased
or deranged condition of the mind as to make a person either incapable
of knowing or understanding the nature and quality of \[his\] \[her\]
act(s), or incapable of distinguishing right and wrong in relation to
the act(s).

A person is \"sane\" if, at the time \[he\] \[she\] committed the
criminal act, \[he\] \[she\] had sufficient mental capacity to know and
understand the nature and quality of the act and had sufficient mental
capacity and reason to distinguish right from wrong as to the particular
act.

To know and understand the nature and quality of one\'s acts means a
person is mentally aware of the particular act(s) being done and the
ordinary and probable consequences of them.

Concerning the mental capacity of the defendant to distinguish between
right and wrong, you are not interested in \[his\] \[her\] knowledge of
moral judgments, as such, or the rightness or wrongness of things in
general. Rather, you must determine the defendant\'s knowledge of
wrongness so far as the act(s) charged is/are concerned. This means
mental capacity to know the act(s) was/were wrong when \[he\] \[she\]
committed them.

The defendant must prove by a \"preponderance of the evidence\" that
\[he\] \[she\] was insane at the time of the commission of the crime.

Preponderance of the evidence is evidence that is more convincing than
opposing evidence. Preponderance of the evidence does not depend upon
the number of witnesses testifying on one side or the other.

Insanity need not exist for any specific length of time.

# Authority

[Iowa Code]{.underline} section 701.4

[State v. James]{.underline}, 393 N.W.2d 465 (Iowa 1986)

[State v. Hamann]{.underline}, 285 N.W.2d 180 (Iowa 1979)

[Pope v. U.S.]{.underline}, 372 F.2d 710 (8th CCA, 1968)

[Alexander v. U.S.]{.underline}, 380 F.2d 33 (8th CCA, 1968)

# Comment

Note: Where defendant\'s theory of insanity involves irresistible
impulse, the following might be properly added at the end of paragraph
two above: \"And where the defendant claims \[his\] \[her\] actions were
such that \[he\] \[she\] was irresistibly forced to do the act, this is
known as \"irresistible impulse\" and may be insanity. However, allowing
one\'s passions to overcome judgment and escape control so that one was
not rational at the time of the act is not sufficient to be an
\"irresistible impulse\". The impulse or overpowering of one\'s will
must be the result of a mental disease or disorder so as to make the
person incapable of knowing the nature and quality of the act with which
\[he\] \[she\] is charged or incapable of distinguishing between right
and wrong in relation to that act.\"

[]{#a20011 .anchor}**200.11 Insanity - Elements - Defendant Not Guilty
By Reason Of Insanity.** If the State has proved all of the elements of
a crime, you should then determine if the defendant has proved \[he\]
\[she\] was insane.

In order for the defendant to establish \[he\] \[she\] was insane,
\[he\] \[she\] must prove by a preponderance of the evidence either of
the following:

1\. At the time the crime was committed, the defendant did not have
sufficient mental capacity to know and understand the nature and quality
of the acts \[he\] \[she\] is accused of; or

2\. At the time the crime was committed, the defendant did not have the
mental capacity to tell the difference between right and wrong as to the
acts \[he\] \[she\] is accused of.

If the defendant has proved either of these elements by a preponderance
of the evidence, then the defendant is not guilty by reason of insanity.

If the defendant has failed to prove either of the elements by a
preponderance of the evidence, then the defendant is guilty.

# Authority

[Iowa Code]{.underline} section 701.4

[State v. McMullin]{.underline}, 421 N.W.2d 517 (Iowa 1988)

[]{#a20012 .anchor}**200.12 Diminished Responsibility - First Degree
Murder.** \"Diminished responsibility\" means a mental condition which
does not allow the person to form a premeditated, deliberate, specific
intent to kill.

\"Diminished responsibility\" does not entirely relieve a person of the
responsibility for \[his\] \[her\] actions and is not the same as an
insanity defense.

You should determine from the evidence if the defendant was capable of
premeditating, deliberating, and forming a specific intent to kill.

If you have a reasonable doubt the defendant was capable of acting
deliberately, with premeditation, and the specific intent to kill, then
the defendant cannot be guilty of First Degree Murder. You should then
consider the lesser included charges.

# Comment

Note: This instruction is to be used only in murder cases. As to
diminished responsibility being used as a total defense for all crimes
in which intent is an essential element, Iowa Criminal Jury Instruction
200.13 should be used, which was drafted by reason of [Iowa R. Crim P.
2.11(11)(b)(1)-]{.underline} Notice of Intent to Rely on Diminished
Responsibility, and [Iowa R. Crim. P. 2.22(1)]{.underline} - Forms of
Verdict.

[]{#a20013 .anchor}**200.13 Diminished Responsibility - Other Specific
Intent Crimes - Total Defense.** One of the elements the State must
prove is that the defendant acted with specific intent. The lack of
mental capacity to form a specific intent is known as "diminished
responsibility".

Evidence of \"diminished responsibility\" is permitted only as it bears
on \[his\] \[her\] capacity to form specific intent.

\"Diminished responsibility\" does not mean the defendant was insane. A
person may be sane and still not have the mental capacity to form an
intent because of a mental disease or disorder.

The defendant does not have to prove \"diminished responsibility\";
rather, the burden is on the State to prove the defendant was able to,
and did, form the specific intent required.

[]{#a20014 .anchor}**200.14 Intoxication As A Defense.** The defendant
claims \[he\] \[she\] was under the influence of \[intoxicants\]
\[drugs\] at the time of the alleged crime. The fact that a person is
under the influence of \[intoxicants\] \[drugs\] does not excuse nor
aggravate \[his\] \[her\] guilt.

Even if a person is under the influence of an \[intoxicant\] \[drug\],
\[he\] \[she\] is responsible for \[his\] \[her\] act if \[he\] \[she\]
had sufficient mental capacity to form the specific intent necessary to
the crime charged or had the specific intent before \[he\] \[she\] fell
under the influence of the \[intoxicant\] \[drug\] and then committed
the act. Intoxication is a defense only when it causes a mental
disability which makes the person incapable of forming the specific
intent.

# Authority

[State v. Caldwell]{.underline}, 385 N.W.2d 553 (Iowa 1986)

# Comment

Note: The following paragraph should be added if first or second degree
murder is charged:

\"No amount of intoxicants or drugs taken voluntarily can reduce second
degree murder to manslaughter.\"

[]{#a20015 .anchor}**200.15 Alibi.** If you have a reasonable doubt the
defendant was present at the time and place of the alleged crime, you
should find the defendant not guilty.

[]{#a20016 .anchor}**200.16 Confessions.** The defendant cannot be
convicted by a confession alone. There must be other evidence the
defendant committed the crime.

In determining the weight and believability of the confession, you
should consider:

1\. Defendant\'s mental capacity and intelligence.

2\. Defendant\'s mental and emotional state at the time it was made.

3\. Whether it was knowingly and intelligently made.

4\. Whether the defendant understood it.

5\. Any other evidence relating to the confession.

# Authority

[Iowa R. Crim. P. 2.21(4)]{.underline} - Confession of Defendant

[State v. Leiss]{.underline}, 258 Iowa 787, 140 N.W.2d 172 (1966)

[State v. Faught]{.underline}, 254 Iowa 1124, 120 N.W.2d 426 (1963)

# Comment

Note: In [State v. Holland]{.underline}, 258 Iowa 206, 138 N.W.2d 86
(1954), the Supreme Court adopted the orthodox rule for determining the
admissibility of a confession. The question whether or not the
confession was involuntary or in violation of constitutional rights is
first and finally determined by the court after a hearing outside the
presence of the jury. If found to be admissible in evidence, the weight
and credibility to be given to the confession is left to the jury.
Evidence of all circumstances surrounding the origin of the confession
and the defendant\'s mental capacity at the time it was given is
admissible before the jury as bearing on its weight and credibility.

Caveat: Cases are applicable only as to the voluntariness of confession.
Corroboration language of cases is no longer applicable by reason of
[Iowa R. Crim. P. 2.21(4).]{.underline}

[]{#a20017 .anchor}**200.17 Entrapment.** The defendant claims \[he\]
\[she\] was \"entrapped\". You must first determine if the State has
proved all of the elements of the crime charged beyond a reasonable
doubt. If you find the State has proved all of the elements, then you
must consider whether the State has proved by evidence beyond a
reasonable doubt the defendant was not entrapped.

\"Entrapment\" occurs when a law enforcement agent causes the commission
of a crime by using persuasion or other means likely to cause a normally
law-abiding person to commit the crime. Conduct merely providing an
opportunity to commit a crime does not amount to entrapment.

You should consider the conduct of the (law enforcement officer,
sheriff, agent, policeman, etc.) and the defendant. This includes
dealings leading up to the crime, the interaction between the agent and
the defendant, and the defendant\'s response to conduct of the agent.
These shall be considered in deciding what the effect of the agent\'s
conduct would be on a normally law-abiding person.

If the State has proved beyond a reasonable doubt all the elements of
the crime charged, and that the defendant was not entrapped, \[he\]
\[she\] is guilty. If the State has not proved one or more elements of
the crime charged, or has not disproved the defense of entrapment, the
defendant is not guilty.

# Authority

[State v. Cooper]{.underline}, 248 N.W.2d 908 (Iowa 1976)

[State v. Mullen]{.underline}, 216 N.W.2d 375 (Iowa 1974)

# Comment

Caveat: If the defendant asserts a \"take-back\" entrapment defense, the
instruction will have to be modified in conformity with [State v.
Overmann]{.underline}, 220 N.W.2d 914 (Iowa 1974).

Note: Where entrapment s alleged, the marshalling instruction should be
modified to reflect that if the jury finds the State has proved all of
the elements of the crime charged, then the jury shall consider the
defense of entrapment.

Note: Where the plaintiff has alleged libel (slander) per se and the
court has determined the defense of qualified privilege has been
established, then plaintiff must prove \"actual malice\" as an
additional element. In the circumstance, the following additional
element should be added: \[4. The defendant made the statements with
actual malice.\] The definition of actual malice then should also be
given to the jury as noted in [Iowa Civil Jury Instruction]{.underline}
2100.5.

[]{#a20018 .anchor}**200.18 Attempt.** Wherever the word \"attempt\" is
used in these instructions it means to try to do something. It makes no
difference whether the person accomplished what was attempted.

[]{#a20019 .anchor}**200.19 Malice.** \"Malice\" is a state of mind
which leads one to intentionally do a wrongful act \[to the injury of
another\] \[in disregard of the rights of another\] out of actual
hatred, or with an evil or unlawful purpose.

Malice may be established by evidence of actual hatred, or by proof of a
deliberate or fixed intent to do injury.

Malice may be found from the acts and conduct of the defendant, and the
means used in doing the wrongful and injurious act.

[]{#a20020 .anchor}**200.20 Recklessness.** A person is \"reckless\" or
acts \"recklessly\" when \[he\] \[she\] willfully disregards the safety
of persons or property. It is more than a lack of reasonable care which
may cause unintentional injury. Recklessness is conduct which is
consciously done with willful disregard of the consequences. For
recklessness to exist, the act must be highly dangerous. In addition,
the danger must be so obvious that the actor knows or should reasonably
foresee that harm will more likely than not result from the act. Though
recklessness is willful, it is not intentional in the sense that harm is
intended to result.

# Authority

[Iowa Code]{.underline} section 702.16

[State v. Sutton]{.underline}, 636 N.W.2d 107 (Iowa 2001)

[State v. Torres]{.underline}, 495 N.W.2d 678 (Iowa 1993)

[]{#a20021 .anchor}**200.21 Dangerous Weapon - Definition.** A
"dangerous weapon" is any device or instrument designed primarily for
use in inflicting death or injury, and when used in its designed manner
is capable of inflicting death. It is also any sort of instrument or
device actually used in such a way as to indicate the user intended to
inflict death or serious injury, and when so used is capable of
inflicting death.

# Authority

[Iowa Code]{.underline} section 702.7

# Comment

Note: Where enumerated dangerous weapons are alleged and supported by
the evidence, a substituted instruction would state: \"You are
instructed that (weapon) is, by law, a dangerous weapon.\"

Rev. 9/03

[]{#a20022 .anchor}**200.22 Serious Injury.** An element of the crime
charged is that the victim suffered a \"serious injury\". A serious
injury is a \[disabling mental illness\] \[condition which cripples,
incapacitates, weakens or destroys a person\'s normal mental functions\]
\[bodily injury which creates a substantial risk of death or which
causes serious permanent disfigurement or extended loss or impairment of
the function of any bodily part or organ\]\[an injury to a child that
requires surgical repair and necessitates the administration of general
anesthesia\]. "Serious injury" includes but is not limited to skull
fractures, rib fractures, and metaphyseal fractures of the long bones of
children under the age of four years.

# Authority

[Iowa Code]{.underline} section 702.18

# Comment

Use the last sentence in cases involving the charge of Child
Endangerment filed under [Iowa Code]{.underline} Section 726.6. In other
cases, use the last sentence only if germane to the charges.

[]{#a20023 .anchor}**200.23 Displaying A Firearm - Armed With A
Firearm.** If you find the defendant guilty, you must decide if \[he\]
\[she\] was armed with a firearm.

To be armed means the defendant had a firearm on \[his\] \[her\] person
at the time of the crime. It is not necessary the firearm was used,
displayed or represented as being in \[his\] \[her\] possession.

The State must prove beyond a reasonable doubt the defendant was armed
with a firearm. You shall answer the question about this issue which is
attached to these instructions. Your answer, as with your verdict, must
be unanimous.

# Authority

[Iowa Code]{.underline} section 902.7

[]{#a20024 .anchor}**200.24 Displaying A Firearm - Displayed Firearm.**
If you find the defendant guilty, you must decide if \[he\] \[she\]
displayed a firearm in a threatening manner.

To display a firearm in a threatening manner means to show or make the
existence of a firearm apparent in a manner which intimidates the victim
at the time of the crime.

The State must prove beyond a reasonable doubt the defendant displayed a
firearm in a threatening manner. You shall answer the question about
this issue which is attached to these instructions. Your answer, as with
your verdict, must be unanimous.

# Authority

[Iowa Code]{.underline} section 902.7

[]{#a20025 .anchor}**200.25 Displaying A Firearm - Representation Of
Firearm.** If you find the defendant guilty, you must decide if \[he\]
\[she\] represented that \[he\] \[she\] had a firearm.

To represent \[he\] \[she\] had a firearm means to state, or act as if,
a firearm was in \[his\] \[her\] possession at the time of the crime. It
is not necessary there actually was a firearm, or that it was shown.
However, there must have been an act or statement by \[him\] \[her\]
which would cause the victim to reasonably believe the defendant had a
firearm.

The State must prove beyond a reasonable doubt the defendant represented
\[he\] \[she\] had a firearm. You shall answer the question about this
issue which is attached to these instructions. Your answer, as with your
verdict, must be unanimous.

# Authority

[Iowa Code]{.underline} section 902.7

[]{#a20026 .anchor}**200.26 Responsibility Of Employers And Others -
Directed Employee To Commit Offense.** An employer, officer, director,
or employee who supervises the work of other employees, is guilty of the
same crime as that committed by an employee acting under their control,
supervision or direction, if the person directed the employee to commit
a crime.

The State must prove all of the following elements:

1\. The defendant was an \[employer\] \[agent\] \[officer\] \[director\]
\[employee\] of (employer\'s name).

2\. As an \[employer\] \[agent\] \[officer\] \[director\] \[employee\],
the defendant was a supervisor of, directed or controlled the work of
(employee committing the offense).

3\. The defendant directed (employee committing offense) to commit
(crime).

4\. (Employee committing offense) committed the crime of (crime) while
acting under the direction of \[his\] \[her\] \[employer\] \[agent\]
\[officer\] \[director\] \[employee\].

If the State has proved all of the elements, the defendant is guilty. If
the State has failed to prove any one of the elements, the defendant is
not guilty.

# Authority

[Iowa Code]{.underline} section 703.4(1)

[]{#a20027 .anchor}**200.27 Responsibility Of Employers And Others -
Knowingly Permits Employee To Commit Offense.** An employer who
supervises or directs the work of other employees is guilty of the same
crime committed by an employee acting under \[his\] \[her\] control,
supervision or direction, if \[he\] \[she\] knowingly permits an
employee to commit a crime, under circumstances in which the employer
expects to benefit from the illegal activity of the employee.

The State must prove all of the following elements:

1\. The defendant was an employer of (employee committing offense).

2\. As an employer, the defendant was a supervisor of, directed or
controlled the work of (employee committing offense).

3\. (Employee committing offense) committed the crime of (crime).

4\. The defendant knowingly permitted (employee committing offense) to
commit the crime, and as a result, expected to benefit from the actions
of (employee committing offense).

5\. (Employee committing offense) did so while under the control,
supervision of (employer\'s name), and as part of \[his\] \[her\]
employment.

If the State has proved all of the elements, the defendant is guilty. If
the State has failed to prove any one of the elements, the defendant is
not guilty.

# Authority

[Iowa Code]{.underline} section 703.4(2)

[]{#a20028 .anchor}**200.28 Responsibility Of Employers.** An employer
who supervises or directs the work of other employees is guilty of a
crime committed by an employee acting under \[his\] \[her\] control,
supervision or direction if \[he\] \[she\] assigns the employee some
duty or duties which the person knows cannot be, or is not likely to be,
accomplished unless the employee commits a crime, provided the crime
committed by the employee is one which the employer can reasonably
anticipate will follow from the assignment.

The State must prove all of the following elements:

1\. The defendant was an employer.

2\. As an employer, the defendant was a supervisor of, directed or
controlled the work of (employee committing offense).

3\. (Employee committing offense) committed the crime of (crime).

4\. The defendant assigned (employee committing offense) to perform an
act which \[he\] \[she\] knew could not be or was not likely to be
accomplished without (employee committing offense) committing the crime
of (crime).

5\. The crime committed by (employee committing offense) was one which
the defendant should have reasonably foreseen or anticipated by
(employee committing offense) performing the duty to which \[he\]
\[she\] was assigned.

6\. (Employee committing offense) did so while under the control,
supervision and as part of \[his\] \[her\] employment.

If the State has proved all of the elements, the defendant is guilty. If
the State has failed to prove any one of the elements, the defendant is
not guilty.

# Authority

[Iowa Code]{.underline} section 703.4(3)

[]{#a20029 .anchor}**200.29 Liability Of Corporations, Partnerships And
Voluntary Associations.** Where a crime is committed by an \[agent\]
\[officer\] \[director\] \[employee\] of a \[corporation\]
\[partnership\] \[voluntary association\], while acting within the scope
of \[his\] \[her\] authority and in behalf of the \[corporation\]
\[partnership\] \[voluntary association\], the corporation shall be
guilty of the crime charged, if the crime is authorized, requested or
tolerated by the board of directors or by a high managerial agent.

The State must prove all of the following elements:

1\. The act(s) constituting the crime of (crime) was committed by
(name).

2\. \[He\] \[She\] was an agent, officer, director or employee of the
defendant.

3\. The crime was committed while (name) was acting within the scope of
\[his\] \[her\] authority.

4\. (Name) acts were authorized, requested or tolerated by the board of
directors or a high managerial agent.

If the State has proved all of the elements, the defendant is guilty. If
the State has failed to prove any one of the elements, the defendant is
not guilty.

# Comment

Note: As to element number 1, an instruction will have to be prepared
setting forth the offense alleged to have been committed and its
elements.

Note: Attention is directed to [Iowa Code]{.underline} section 703.5(1)
where the offense is an omission. In such instances where this occurs,
this instruction would have to only set forth the statute, its elements
and that it was committed by the defendant. Elements 2-4 would not be
applicable. Also, Iowa [Criminal Jury]{.underline}
[Instruction]{.underline} 200.31 will have to be given.

[]{#a20030 .anchor}**200.30 High Managerial Agent - Definition.** The
term \"high managerial agent\" means \[an officer of the corporation\]
\[partner\] \[agent\] in a position of authority with respect to the
formulation of policy, or the supervision in a managerial capacity of
subordinate employees.

[]{#a20031 .anchor}**200.31 Liability Of Corporations, Partnerships And
Voluntary Associations - Omissions.** The defendant is accused of
violating (name of statute) which provides: (set forth words of
statute). This crime requires an omission; that is, neglect or failure
either to discharge a specific duty or perform an act imposed by law on
the defendant.

Though the defendant is a \[corporation\] \[partnership\] \[voluntary
association\], it would be guilty of the crime in the same manner as an
individual who had committed the crime.

# Comment

Note: This instruction would be used where the offense charged is under
[Iowa Code]{.underline} section 703.5(1).

[]{#a20032 .anchor}**200.32 Liability Of Corporations, Partnerships And
Voluntary Associations - Agent And Scope Of** **Authority -
Definition.** The term \"agent\" or \"agency\" refers to a relationship
existing between two persons when one person, known as the
\"principal\", gives to another, known as the \"agent\", authority to
act for the principal, and the agent accepts the authority and proceeds
to act as directed, subject to the control and direction of the
principal.

The term \"scope of authority\" means the express or implied
authorization given to the agent by the principal.

[]{#a20033 .anchor}**200.33 Continuous Transactions - Cautionary
Instructions.** Evidence has been received about other alleged
transactions involving the defendant. The defendant is not on trial for
those transactions.

However, the law permits such evidence when the other transactions and
the crime charged form an inseparable part of the whole act. If they are
so closely associated with each other that they form a continuous
transaction, the other transactions may reasonably help to establish the
crime charged.

# Authority

[State v. Hood]{.underline}, 346 N.W.2d 481 (Iowa 1984)

[State v. Fryer]{.underline}, 243 N.W.2d 1 (Iowa 1976)

[]{#a20034 .anchor}**200.34 Similar Crimes.** Evidence has been received
concerning other wrongful acts alleged to have been committed by the
defendant. The defendant is not on trial for those acts.

This evidence must be shown by clear proof, and can only be used to show
\[motive\] \[intent\] \[absence of mistake or accident\] \[common
scheme\] \[identity of person charged\].

If you find other wrongful acts (1) occurred; (2) were so closely
connected in time; and (3) were committed in the same or similar manner
as the crime charged, so as to form a reasonable connection between
them, then and only then may such other wrongful acts be considered for
the purpose of establishing \[motive\] \[intent\] \[absence of mistake
or accident\] \[common scheme\] \[identity of person charged\].

# Authority

[State v. Barrett]{.underline}, 401 N.W.2d 184 (Iowa 1987)

[State v. Kern]{.underline}, 392 N.W.2d 134 (Iowa 1986)

[State v Williams]{.underline}, 360 N.W.2d 782 (Iowa 1985)

[State v. Washington]{.underline}, 356 N.W.2d 192 (Iowa 1984) -
Knowledge

[State v. Heidebrink]{.underline}, 334 N.W.2d 344 (Iowa 1983) - Chosen
Scheme

[State v. Bauer]{.underline}, 324 N.W.2d 320 (Iowa 1982)

[State v. Walsh]{.underline}, 318 N.W.2d 184 (Iowa 1982)

[]{#a20035 .anchor}**200.35 Compulsion.** The defendant claims that at
the time and place in question, \[he\] \[she\] was acting under
compulsion.

When a person is compelled to act by another\'s threat of serious
injury, and reasonably believes the injury is about to take place and
can be avoided only by doing the act, then no crime has been committed.
This defense does not apply if a person intentionally or recklessly
causes physical injury to another. (Omit last sentence if not supported
by evidence.)

# Authority

[Iowa Code]{.underline} section 704.10

[Iowa Code]{.underline} section 702.18

[State v. LeCompte]{.underline}, 327 N.W.2d 221 (Iowa 1982)

[State v. Proctor]{.underline}, 585 N.W. 2d 841 (Iowa 1998)

# Comment

Note: The defense of compulsion differs from the defense of necessity.
See [Iowa Criminal Jury Instruction]{.underline}

400.18.

Note: If the defense of compulsion is raised and supported by the
evidence, it should be included in

the marshaling instruction.

[]{#a20036 .anchor}**200.36 Impeachment - Public Offense.** \[The
witness (name of witness) has admitted \[he\] \[she\]\] \[You have heard
evidence claiming that the witness (name of witness)\] was convicted of
a crime.

You may use that evidence only to help you decide whether to believe the
witness and how much weight to give their testimony.

# Authority

[Iowa R. Evid. 5.609]{.underline} - Impeachment by Evidence of
Conviction of Crime

[]{#a20037 .anchor}**200.37 Expert Witness.** You have heard testimony
from persons described as experts. Persons who have become experts in a
field because of their education and experience may give their opinion
on matters in that field and the reasons for their opinion.

Consider expert testimony just like any other testimony. You may accept
it or reject it. You may give it as much weight as you think it
deserves, considering the witness\'s education and experience, the
reasons given for the opinion, and all the other evidence in the case.

# Authority

[Crouch v. National Livestock Remedy Co.]{.underline}, 210 Iowa 849, 231
N.W. 323 (1930)

[]{#a20038 .anchor}**200.38 Character And Reputation Evidence.**
Evidence has been received concerning the defendant\'s \[character\]
\[reputation\] for (trait used should be inserted here). This evidence
should be considered with all other evidence in determining whether the
defendant is guilty or not.

If you find the defendant\'s \[character\] \[reputation\] as to (trait)
is good, you may consider this evidence in determining whether a person
of such \[character\] \[reputation\] for (trait) would be likely to
commit the crime charged.

If the evidence of such good \[character\] \[reputation\] as to (trait)
is good enough, together with all of the other evidence, to raise a
reasonable doubt as to the defendant\'s guilt, \[he\] \[she\] must be
acquitted, even though without such proof of good \[character\]
\[reputation\] the jury would convict.

However, the defendant\'s previous good \[character\] \[reputation\] as
to (trait) is not a defense if you find by evidence beyond a reasonable
doubt that the defendant committed the crime charged.

# **Authority**

[Iowa R. Evid. 5.803(21)]{.underline} - Reputation as to Character (and
Committee Comment)

[State v. Hobbs]{.underline}, 172 N.W.2d 268 (Iowa 1969)

10/04

[]{#a20039 .anchor}**200.39 Ignorance Or Mistake Of Fact - Defense.**
The defendant claims that at the time of the \[act\] \[omission\] in
question, \[he\] \[she\] was \[ignorant of (element of crime to which
ignorance is directed)\] \[acting under a mistake of fact as to (element
of crime to which mistake of fact is directed)\]. When an \[act is
committed\] \[omission is made\] because of \[ignorance\] \[mistake of
fact\], the \[ignorance\] \[mistake of fact\] must be because of a good
faith reasonable belief by the defendant, acting as a reasonably careful
person under similar circumstances.

The defendant must inquire or determine what is true when to do so would
be reasonable under the circumstances.

The State has the burden of proving the defendant was not acting under
\[ignorance\] \[mistake of fact\] as it applies to the question of
(element).

# Authority

[Iowa Code]{.underline} section 701.6

[State v. Freeman]{.underline}, 267 N.W.2d 69 (Iowa 1978)

# Comment

Caveat: When the issue is raised, the marshaling instruction must be
tailored to include this issue.

[]{#a20040 .anchor}**200.40 Defendant\'s Failure To Testify.** In this
case, the defendant has decided not to testify. The defendant is not
required to testify, and no inference of guilt shall be drawn from that
fact. The burden of proof remains upon the State to prove the guilt of
the defendant.

# Authority

[Carter v. Kentucky]{.underline}, 450 U.S. 288, 67 L. Ed.2d 241; 101
S.Ct. 1112 (1981)

# Comment

Caveat: See [State v. Kimball]{.underline}, 176 N.W.2d 864, 869 (Iowa
1970). (\"We now hold that such instruction should not be given in any
future trial unless it is requested by defendant, and that it will be
considered error if it is given, absent such request, in any trial
started after the date this opinion is filed.\")

[]{#a20041 .anchor}**200.41 Bodily Injury.** The term \'bodily injury\'
means physical pain, illness or any impairment of physical condition.

# Authority

[State v. McKee]{.underline}, 312 N.W.2d 907 (Iowa 1981)

[]{#a20042 .anchor}**200.42 Contradictory Statements - Non-Party -
Witness Not Under Oath.** You have heard evidence claiming \[name of
witness\] made statements before this trial while not under oath which
were inconsistent with what the witness said in this trial.

Because the witness did not make the earlier statements under oath, you
may use them only to help you decide if you believe the witness.

Decide if the earlier statements were made and whether they were
inconsistent with testimony given at trial. You may disregard all or any
part of the testimony if you find the statements were made and they were
inconsistent with the testimony given at trial, but you are not required
to do so.

Do not disregard the testimony if other evidence you believe supports
it, or if you believe it for any other reason.

# Authority

A prior inconsistent statement of a witness made while not under oath
may be considered for impeachment purposes only. [Iowa R. Evid.
5.613]{.underline}; [State v. Barry]{.underline}, 549 N.W.2d 316, 318
(Iowa App. 1996).

# Comment

This instruction should be given when a non-party witness has made a
prior inconsistent statement while not under oath. If the non-party
witness made a prior inconsistent statement under oath, then [Iowa
Criminal Jury]{.underline} [Instruction]{.underline} 200.43 should be
given. If the non-party witness has made prior inconsistent statements
both under oath and not under oath, then both [Instruction]{.underline}
200.42 and [Instruction]{.underline} 200.43 should be given to clarify
and distinguish the two forms of statements for the jury.

[]{#a20043 .anchor}**200.43 Contradictory Statements - Non-Party -
Witness Under Oath.** You have heard evidence claiming \[name of
witness\] made statements before this trial while under oath which were
inconsistent with what \[name of witness\] said in this trial. If you
find these statements were made and were inconsistent, then you may
consider them as part of the evidence, just as if they had been made at
this trial.

You may also use these statements to help you decide if you believe
\[name of non-party witness\]. You may disregard all or any part of the
testimony if you find the statements were made and were inconsistent
with the testimony given at trial, but you are not required to do so. Do
not disregard the trial testimony if other evidence you believe supports
it or you believe it for any other reason.

# Authority

A prior inconsistent statement of a witness given under oath is
substantive evidence which may be considered for any purpose. [State v.
Thompson]{.underline}, 397 N.W.2d 679, 683 n.2 (Iowa 1986); [Iowa R.
Evid]{.underline}. [5.801(d)(1)(A).]{.underline}

# Comment

This Instruction should be given when a non-party witness has made a
prior inconsistent statement while under oath. If the non-party witness
made a prior inconsistent statement while not under oath, then
[Instruction]{.underline} 200.42 should be given. If the non-party
witness has made prior inconsistent statements both under oath and not
under oath, then both [Instruction]{.underline} 200.43 and
[Instruction]{.underline} 200.42 should be given to clarify and
distinguish the two forms of statements for the jury.

[]{#a20044 .anchor}**200.44 Statements By The Defendant.** Evidence has
been offered to show that the defendant made statements at an earlier
time and place.

If you find any of the statements were made, then you may consider them
as part of the evidence, just as if they had been made at this trial.

\*You may also use these statements to help you decide if you believe
the defendant. You may disregard all or any part of the defendant's
testimony if you find the statements were made and were inconsistent
with the defendant's testimony given at trial, but you are not required
to do so. Do not disregard the defendant's testimony if other evidence
you believe supports it or you believe it for any other reason.

## Comment

*Caveat: The instruction should be given if the evidence includes one or
more statements by the defendant that qualify as admissions under Iowa
R. Evid. 5.801(d)(2) \-- Admission by a Party Opponent.*

\**The last paragraph should be used only if the defendant testifies.*

Rev. 9/03

[]{#a20045 .anchor}**200.45 Eyewitness Identification.** The reliability
of eyewitness identification has been raised as an issue. Identification
testimony is an expression of belief or impression by the witness. Its
value depends on the opportunity the witness had to see the person at
the time of the crime and to make a reliable identification later.

In evaluating the identification testimony of a witness, you should
consider the following:

1\. If the witness had an adequate opportunity to see the person at the
time of the crime. You may consider such matters as the length of time
the witness had to observe the person, the conditions at that time in
terms of visibility and distance, and whether the witness had known or
seen the person in the past.

2\. If an identification was made after the crime, you shall consider
whether it was the result of the witness\'s own recollection. You may
consider the way in which the defendant was presented to the witness for
identification, and the length of time that passed between the crime and
the witness\'s next opportunity to see the defendant.

3\. An identification made by picking the defendant out of a group of
similar individuals is generally more reliable than one which results
from the presentation of the defendant alone to the witness.

4\. Any occasion in which the witness failed to identify the defendant
or made an inconsistent identification.

# Authority

[U.S. v. Telfaire]{.underline}, 469 F.2d 552 (D.C. Cir. 1972)

# Comment

Note: This instruction is provided for use when appropriate under [State
v. Tobin]{.underline}, 338 N.W.2d 879 (Iowa 1983)

[]{#a20046 .anchor}**200.46 Destruction Of Evidence - Permissible
Inference.** If you find that (description of the material physical
evidence) existed and the State knowingly and intentionally destroyed
(description of the material physical evidence), you may, but are not
required to, conclude that the information contained in the (description
of the material physical evidence) would be unfavorable to the State and
favorable to the defendant.

# Authority

[State v. Ueding,]{.underline} 400 N.W.2d 550 (Iowa 1987)

[State v. Maniccia]{.underline}, 355 N.W.2d 256 (Iowa App. 1984)

[State v. Brown]{.underline}, 337 N.W.2d 507 (Iowa 1983)

[Brady v. Maryland]{.underline}, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed.2d
215 (1963)

6/88

[]{#a20047 .anchor}**200.47 Possession.** \"Possession\" includes actual
as well as constructive possession, and also sole as well as joint
possession.

 

A person who has direct physical control of something on or around
\[his\] \[her\] person is in actual possession of it.

 

A person who is not in actual possession, but who has knowledge of the
presence of something and has the authority or right to maintain control
of it, either alone or together with someone else, is in constructive
possession of it.

 

If something is found in a place which is exclusively accessible to only
one person and subject to his or her dominion and control, you may, but
are not required to, conclude that that person has constructive
possession of it.

 

If one person alone has possession of something, possession is sole. If
two or more persons share possession, possession is joint.

 

# Authority

> *[State v. Reeves]{.underline}, 209 N.W.2d 18 (Iowa 1973)*
>
> *[State v. Brandt]{.underline}, 444 N.W.2d 97 (Iowa App. 1989)*
>
> *[State v. Webb]{.underline}, 648 N.W.2d 72 (Iowa 2002)*
>
> *[State v. McDowell]{.underline}, 622 N.W.2d 305 (Iowa 2001)*

 

# [Comment]{.underline}

This instruction may not be appropriate for use in theft cases. See Iowa
Criminal Jury Instruction No. [*1400.2*](#a14002) and State V.
Donaldson, 663 N.W.2d 882 (Iowa 2003).

[]{#a20048 .anchor}**200.48 Immediate Possession or Control of a Firearm
or Offensive Weapon**. To have immediate possession of a
\[firearm\]\[offensive weapon\] means to have actual possession of the
\[firearm\]\[offensive weapon\] on or around one's person. To have
immediate control of a \[firearm\] \[offensive weapon\] means to have
the \[firearm\]\[offensive weapon\] in close proximity so that the
person can reach for it or claim dominion or control over it. In order
to prove that the defendant had immediate possession or control of a
\[firearm\]\[offensive weapon\], the State must prove that the defendant
had knowledge of is existence and its general location.

 

## Authority

 

> *[Iowa Code]{.underline} section 124.401(e)*
>
> *[State v. McDowell,]{.underline} 622 N.W.2d 305 (Iowa 2001)*
>
> *[State v. Atkinson]{.underline}, 620 N.W.2d 1 (Iowa 2000)*
>
> *[State v. Engel]{.underline}, 590 N.W.2d 549 (Iowa 1998)*
>
> *[State v. Eickelberg]{.underline}, 574 N.W.2d 1 (Iowa 1997)*

 

### Comment

For a further definition of "possession or control" see Iowa Criminal
Jury Instruction No. [1400.2](#a14002)

[]{#a20049 .anchor}**200.49 Incendiary Device Or Material -
Definition.** An \"incendiary device\" or \"incendiary material\" is
something causing or designed to cause destruction of property by fire.

**Authority**

[Iowa Code]{.underline} section 702.21

6/02

[]{#CH300 .anchor}**CHAPTER 300**

ACCESSORY AFTER THE FACT

[300.1](#a3001) Accessory After The Fact - Elements

[300.2](#a3002) Accessory After The Fact - Felony, Misdemeanor Defined

[300.3](#a3003) Accessory After The Fact - Knowledge

[300.4](#a3004) Accessory After The Fact - Intent To Prevent
Apprehension

[300.5](#a3005) Accessory After The Fact - Definition - Harbor, Aid,
Conceal

[]{#a3001 .anchor}

**300.1 Accessory After The Fact - Elements.** Any person who knows that
a crime has been committed by a certain person (who is not their husband
or wife)\* and afterwards harbors, aids or conceals the person with the
intent to prevent their arrest, is an Accessory After The Fact.

The State must prove all of the following elements:

1\. The crime of (crime) was committed.

2\. The defendant knew the crime had been committed and (name) had
committed it.

3\. The defendant harbored, aided or concealed (name).

4\. This was done with the intent to prevent arrest.

5\. The defendant was not the \[husband\] \[wife\] of (name).\*

If the State has proved all of the elements, the defendant is guilty. If
the State has failed to prove any one of the elements, the defendant is
not guilty.

# Authority

[Iowa Code]{.underline} section 703.3

# Comment

Note: \*This should be included only when the husband-wife relationship
is raised.

[]{#a3002 .anchor}**300.2 Accessory After The Fact - Felony, Misdemeanor
Defined.** Concerning element number 1 of Instruction No.\_\_\_\_\_, the
State must prove that the crime of (crime) was committed.

(Set forth the elements of the offense.)

[]{#a3003 .anchor}**300.3 Accessory After The Fact - Knowledge.** The
term \"knew\" as used in element number 3 of Instruction
No.\_\_\_\_\_\_, refers to a state of mind which is seldom capable of
direct or positive proof. It means more than suspicion, speculation or
conjecture. It must be shown that the defendant was aware of, informed,
perceived or had information of the commission of the crime and (name)
had committed it.

[]{#a3004 .anchor}**300.4 Accessory After The Fact - Intent To Prevent
Apprehension.** Mere harboring, aiding or concealing a person who
committed a crime will not support a finding of guilt, unless the State
proves the defendant had specific intent to prevent arrest.

(Insert Iowa Criminal Jury Instruction 200.2 here).

[]{#a3005 .anchor}**300.5 Accessory After The Fact - Definition -
Harbor, Aid, Conceal.** To \"harbor, aid or conceal\" means to shelter,
hide or provide a place of refuge or safety; or to lend assistance or
help.

[]{#CH400 .anchor}**CHAPTER 400**

JUSTIFICATION

[400.1](#a4001) Justification - Definition - Reasonable Force - Burden
Of Proof

[400.2](#a4002) Justification - Elements - Self-Defense Of Person

[400.3](#a4003) Justification - Elements - Defense Of Third Person

[400.4](#a4004) Justification - Elements - Defense Of Property

[400.5](#a4005) Justification - Elements - Aiding Another In Defense Of
Property

[400.6](#a4006) Justification - Elements - Resisting A Forcible Felony

[400.7](#a4007) Reasonable Belief

[400.8](#a4008) Real Or Apparent Danger

[400.9](#a4009) Knowledge Of Forcible Felony Being Committed

[400.10](#a40010) Alternate Course of Action

[400.11](#a40011) Words Of Provocation

[400.12](#a40012) Previous Threats Against Defendant

[400.13](#a40013) Victim\'s Previous Bad Acts Or Character

[400.14](#a40014) Provocation - Disproportionate Force

[400.15](#a40015) Provocation - Withdrawal From Combat

[400.16](#a40016) Deadly Force - General Statement

[400.17](#a40017) Defense Not Available To Provocator

[400.18](#a40018) Justification - Elements - Necessity in Escaping From
Place Of Confinement

[400.19](#a40019) Justification - Elements - \[Citizen\'s\] Arrest of
Another for Felony

[400.20](#a40020) Justification - Elements - \[Citizen\'s\] Arrest of
Another Committing a Public Offense

[400.21](#a40021) Use of Deadly Force in Making Arrest

[]{#a4001 .anchor}**400.1 Justification - Definition - Reasonable
Force - Burden Of Proof.** The defendant claims \[he\] \[she\] acted
with justification.

A person may use reasonable force to prevent \[injury to a person,
including the defendant\] \[the loss of defendant\'s property,
another\'s property or public property\] \[the commission of a
crime\].\* The use of this force is known as justification.

Reasonable force is only the amount of force a reasonable person would
find necessary to use under the circumstances to prevent \[death\]
\[injury\] \[loss of property\] \[completion of a forcible felony\].\*

A person can use deadly force against another if it is reasonable to
believe that such force is necessary to avoid injury or risk to one\'s
life or safety or the life or safety of another, or it is reasonable to
believe that such force is necessary to resist a like force or
threat.\*\*

The State must prove the defendant was not acting with justification.

# Authority

[Iowa Code]{.underline} sections 704.1, 704.3, 704.4, 704.5, 704.7

[State v. Stallings]{.underline}, 541 N.W.2d 855 (Iowa 1995)

# Comment

Note: \*Use that language which is supported by the evidence.

Note: \*\*Use this paragraph only if deadly force was used. Iowa
Criminal Jury Instruction 400.16 (Deadly Force) must then be used.

[]{#a4002 .anchor}**400.2 Justification - Elements - Self-Defense Of
Person.** A person is justified in using reasonable force if \[he\]
\[she\] reasonably believes the force is necessary to defend \[himself\]
\[herself\] from any imminent use of unlawful force.

If the State has proved any one of the following elements, the defendant
was not justified:

1\. The defendant started or continued the incident which resulted in
\[injury\] \[death\].

2\. An alternative course of action was available to the defendant.

3\. The defendant did not believe \[he\] \[she\] was in imminent danger
of death or injury and the use of force was not necessary to save
\[him\] \[her\].

4\. The defendant did not have reasonable grounds for the belief.

5\. The force used by the defendant was unreasonable.

# Authority

[Iowa Code]{.underline} sections 704.1, 704.3

# Comment

Note: [Iowa Code]{.underline} section 704.6 (When Justification Not
Available). When supported by the evidence, one of the enumerated
paragraphs should be added as an element to the instruction.
Instructions 400.14 (Provocation - Disproportionate Force), 400.15
(Provocation - Withdrawal From Combat) or 400.17 (Provocation - Defense
Not Available To Provocator) may then need to be used.

Note: Iowa Criminal Jury Instructions 400.7 (Reasonable Belief), 400.8
(Real Or apparent Danger), 400.10 (Alternative Course Of Action) should
be used.

[]{#a4003 .anchor}**400.3 Justification - Elements - Defense Of Third
Person.** A person is justified in using reasonable force if \[he\]
\[she\] reasonably believes the force is necessary to defend another
from any imminent use of unlawful force.

If the State has proved any one of the following elements, then the
defendant was not justified:

1\. The defendant knew the person \[he\] \[she\] helped had started or
continued the incident, or the defendant \[himself\] \[herself\] started
or continued the incident which resulted in \[injury\] \[death\].

2\. An alternative course of action was available to the defendant.

3\. The defendant did not believe the person \[he\] \[she\] helped was
in imminent danger of death or injury and the use of force was not
necessary to save the person.

4\. The defendant did not have reasonable grounds for the belief.

5\. The force used by the defendant was unreasonable.

# Authority

[Iowa Code]{.underline} section 704.1, 704.3

# Comment

Note: Iowa Code section 704.6 (When Justification Not Available). When
supported by the evidence, one of the enumerated paragraphs should be
added as an element to the instruction. Instructions 400.14
(Provocation - Disproportionate Force), 400.15 (Provocation - Withdrawal
From Combat) or 400.17 (Provocation - Defense Not Available to
Provocator) may then need to be used.

Note: Iowa Criminal Jury Instructions 400.7 (Reasonable Belief), 400.8
(Real Or apparent Danger), 400.10 (Alternative Course of Action) should
be used.

[]{#a4004 .anchor}**400.4 Justification - Elements - Defense Of
Property.** A person is justified in using reasonable force to prevent
or stop an unlawful interference with \[his\] \[her\] property.

If the State has proved any one of the following elements, the defendant
was not justified:

1\. The defendant started or continued the incident which resulted in
injury.

2\. The defendant did not believe \[he\] \[she\] was in imminent danger
of losing the property and the use of force was not necessary to prevent
its loss.

3\. The defendant did not have reasonable grounds for the belief.

4\. The force used by the defendant was unreasonable.

# Authority

[Iowa Code]{.underline} sections 704.1, 704.4, 704.5

# Comment

Note: [Iowa Code]{.underline} section 704.6 (When Justification Not
Available). When supported by the evidence, one of the enumerated
paragraphs should be added as an element to the instruction.
Instructions 400.14 (Provocation - Disproportionate Force), 400.15
(Provocation - Withdrawal From Combat) or 400.17 (Provocation - Defense
Not Available To Provocator) may then need to be used.

Note: If the defense is that of public property, the instruction should
be modified accordingly.

Note: Iowa Criminal Jury Instructions 400.7 (Reasonable Belief), 400.8
(Real Or Apparent Danger) should be used.

[]{#a4005 .anchor}**400.5 Justification - Elements - Aiding Another In
Defense Of Property.** A person is justified in using reasonable force
in aiding others in the lawful defense of their property.

If the State has proved any one of the following elements, the defendant
was not justified:

1\. The defendant knew the person \[he\] \[she\] had started or
continued the incident, or the defendant \[himself\] \[herself\] started
or continued the incident which resulted in injury.

2\. The defendant did not believe the person \[he\] \[she\] helped was
in imminent danger of losing the property and the use of force was not
necessary to prevent its loss.

3\. The force used by the defendant was unreasonable

# Authority

[Iowa Code]{.underline} section 704.5

# Comment

Note: Iowa Criminal Jury Instructions 400.7 (Reasonable Belief), 400.8
(Real Or Apparent Danger) should be used.

[]{#a4006 .anchor}**400.6 Justification - Elements - Resisting A
Forcible Felony.** A person is justified in using reasonable force
against someone committing a forcible felony to prevent completion of
the felony if \[he\]she\] knows a (name of forcible felony) is being
committed.

If the State has proved any one of the following elements, the defendant
was not justified:

1\. The defendant knew (name of forcible felony) was not being committed
by (name of victim).

2\. The defendant did not believe the force was necessary to prevent the
(name of forcible felony).

3\. The defendant did not have reasonable grounds for the belief.

4\. The force used by the defendant was unreasonable.

# Authority

[Iowa Code]{.underline} section 704.7

# Comment

Note: Iowa Criminal Jury Instruction 400.7 (Reasonable Belief) should be
used.

[]{#a4007 .anchor}**400.7 Reasonable Belief.** concerning element number
\_\_\_\_\_ of Instruction No. \_\_\_\_\_, the defendant was not required
to act with perfect judgment. However, \[he\] \[she\] was required to
act with the care and caution a reasonable person would have used under
the circumstances which existed at that time.

If in the defendant\'s mind the \[danger\] \[danger of loss of
property\] \[need to use force to prevent (name of forcible felony)\]
was actual, real, imminent or unavoidable, even though it did not exist,
that is sufficient if a reasonable person would have seen it in the same
light.

# Authority

[State v. Elam]{.underline}, 328 N.W.2d 314 (Iowa 1982)

[]{#a4008 .anchor}**400.8 Real Or Apparent Danger.** Concerning element
number \_\_\_\_ of Instruction No.\_\_\_\_, the defendant claims danger
existed. You are to consider the danger or apparent danger \[of losing
property\] from the viewpoint of a reasonable person under the
circumstances which existed at that time.

It is not necessary that there was actual danger, but the defendant must
have acted in an honest and sincere belief that the danger actually
existed.

Apparent danger with knowledge that no real danger existed is no excuse
for using force.

# Authority

[State v. Crust]{.underline}, 228 N.W.2d 28 (Iowa 1975)

[State v. Jackson]{.underline}, 223 N.W.2d 229 (Iowa 1974)

[]{#a4009 .anchor}**400.9 Knowledge Of Forcible Felony Being
Committed.** Concerning element number 1 of Instruction No. \_\_\_\_,
whether the defendant knew (name of forcible felony) was being committed
by (name of victim) means \[he\] \[she\] had a conscious awareness of
it. This is to be determined from all of the facts and circumstances.

It is not necessary that (name of victim) was charge or convicted of
(name of forcible felony). It is only necessary that the defendant knew
that (name of victim) was committing it.

[]{#a40010 .anchor}**400.10 Alternate Course Of Action - Exceptions.**
Concerning element number \_\_\_\_\_ of Instruction No. \_\_\_\_\_, if a
defendant is confronted with the use of unlawful force against \[him\]
\[\]her\], \[he\] \[she\] is required to avoid the confrontation by
seeking an alternative course of action before \[he\] \[she\] is
justified in repelling the force used against \[him\] \[her\]. However,
there is an exception.

\*If the defendant was in \[his\] \[her\] \[own home\] \[office\]
\[place of business\] \[place of employment\] \[property\] which \[he\]
\[she\] was legally occupying and the alternative course of action was
such that \[he\] \[she\] reasonably believed \[he\] \[she\] had to
retreat or leave \[his\] \[her\] position to avoid the confrontation,
the \[he\] \[she\] was not required to do so and \[he\] \[she\] could
repel force with reasonable force (including deadly force).\*\*

\*If the alternative course of action involved a risk to \[his\] \[her\]
\[another\'s\] life or safety, and \[he\] \[she\] reasonably believed
that, then \[he\] \[she\] was not required to take or use the
alternative course of action to avoid the confrontation, and \[he\]
\[she\] could repel the force with reasonable force (including deadly
force).\*\*

# Authority

[Iowa Code]{.underline} section 704.1

[State v. Rupp]{.underline}, 282 N.W.2d 125 (Iowa 1979)

[State v. Jacoby]{.underline}, 260 N.W.2d 828 (Iowa 1977) assailant and
victim occupants of same residence)

[State v. Fischer]{.underline}, 246 N.W.2d 918 (Iowa 1976)

# Comment

Note: \*Use the alternative(s) supported by the evidence.

\*\*If deadly force is used, then Iowa Criminal Jury Instruction 400.16
(Deadly Force) must be used.

[]{#a40011 .anchor}**400.11 Words Of Provocation.** No matter how
insulting the words used by (name of victim), they will not in and of
themselves justify the use of force by the defendant.

However, words of a provocative and insulting nature may be considered,
together with all of the other evidence, to determine who started the
incident and whether the defendant\'s apprehension of danger was
reasonable.

[]{#a40012 .anchor}**400.12 Previous Threats Against Defendant.** If you
find that before the incident, (name of victim) made a threat(s) against
the defendant, and because of this the defendant had reasonable cause
for believing \[he\] \[she\] was in imminent danger of \[death or
injury\] \[losing (his) (her) property or having (his) (her) property
interfered with\]\*, you may consider the evidence of the threat in
determining whether the defendant acted reasonably when \[he\] \[she\]
(e.g., fired the shots in question).

# Comment

Note: \*Use alternative supported by the evidence.

[]{#a40013 .anchor}**400.13 Victim\'s Previous Bad Acts Or Character.**
Evidence has been received concerning (name of victim)\'s \[(acts of
violence)(threats)(bad treatment) against defendant\] \[character for
being (traits, e.g., quarrelsome, vicious)\] in an effort to show that
(name of victim) was a dangerous and violent person.

This evidence bears on whether (name of victim) was the aggressor at the
time the defendant (e.g., fired the shots) and also whether the
defendant acted under circumstances which would have caused a reasonable
person to be afraid of being injured or killed by (name of victim).

A deliberate and unprovoked use of force was not justified merely if
(name of victim) was a dangerous and violent person. If the defendant
used force in revenge or only to punish (name of victim), the
defendant\'s act was not justified.

# Authority

[State v. Pletka]{.underline}, 310 N.W.2d 525 (Iowa 1981)

[State v. Rupp]{.underline}, 282 N.W.2d 125 (Iowa 1979)

[State v. Jacoby]{.underline}, 260 N.W.2d 828 (Iowa 1977)

# Comment

Use only those portions supported by evidence.

[]{#a40014 .anchor}**400.14 Provocation - Disproportionate Force.**
Concerning element number \_\_\_\_ of Instruction No.\_\_\_\_\_, though
a person who provokes the sue of force against \[himself\] \[herself\]
is not justified, there is an exception.

If the defendant provoked the use of force, but (name of victim) used
force greatly disproportionate to the provocation and it was so great
that the defendant reasonably believed \[he\] \[she\] was in imminent
danger of death or injury, \[he\] \[she\] is not considered to have
provoked the incident and \[his\] \[her\] acts would be justified.

# Authority

[Iowa Code]{.underline} section 704.6(3)(a)

[]{#a40015 .anchor}**400.15 Provocation - Withdrawal From Combat.**
Concerning element number \_\_\_\_\_ of Instruction No.\_\_\_\_\_\_\_,
though a person who provokes the use of force against \[himself\]
\[herself\] is not justified, there is an exception.

If you find the defendant provoked the use of force by (name of victim),
but the defendant, in good faith, withdrew from physical contact with
(name of victim) and clearly indicated to (name of victim) that \[he\]
\[she\] desired to end the fight, but (name of victim) continued or
resumed the fight, then the defendant was justified.

# Authority

[Iowa Code]{.underline} section 704.6(3)(b)

[]{#a40016 .anchor}**400.16 Deadly Force - General Statement.** The term
\"deadly force\" means:

1\. Force used to cause \[a disabling mental illness\] \[a bodily injury
which creates a substantial risk of death\] \[a bodily injury which
causes serious permanent disfigurement\] \[a bodily injury which causes
protracted loss or impairment of the function of any bodily member or
organ\].

2\. Force the defendant knows or should reasonably know will create a
strong probability that (serious injury)\* will result.

3\. Discharging a firearm in the direction of someone, knowing they are
present, even though there is no intent to cause a serious injury.\*

4\. Discharging a firearm at a vehicle in which someone is known to be.

# Authority

[Iowa Code]{.underline} section 704.2

# Comment

Note: Use only those methods supported by the evidence

Note: \*Iowa Criminal Jury Instruction 200.22 (Serious Injury). Use only
those forms of injury supported by the evidence.

[]{#a40017 .anchor}**400.17 Defense Not Available To A Provocator.** A
person is not justified when \[he\] \[she\] provokes or causes force to
be used against \[him\] \[her\], intending to use it as an excuse to
injure another.

If you find the State has proved the defendant provoked the use of force
intending to use it as an excuse to injure (name of victim), \[he\]
\[she\] was not justified.

# Authority

[Iowa Code]{.underline} section 704.6(2)

[]{#a40018 .anchor}**400.18 Justification - Elements - Necessity in
Escaping From Place of Confinement.** A person is justified in escaping
from a place of confinement when it is the only choice available.

If the State has proved any one of the following elements, the defendant
was not justified.

1\. The defendant was not faced with a \[specific threat of death\]
\[forcible sexual attack\] \[ substantial bodily injury\] in the
immediate future.

2\. \[There was time for a complaint to the authorities\] \[There did
not exist a history of futile complaints which made complaints to the
authorities meaningless\].

3\. There was \[time\] \[opportunity\] to resort to the courts.

4\. There was \[force\] \[violence\] used toward prison personnel or
other innocent persons in the escape.

5\. The defendant did not immediately report to the proper authorities
when \[she\] \[he\] reached a position of safety from the immediate
threat.

# Authority

[State v. Beeson]{.underline}, 569 N.W.2d 107 (Iowa 1997)

[State v. Reese]{.underline}, 272 N.W.2d 863 (Iowa 1978)

**Comment**

Note: Necessity is a defense to the crime of Escape. The Committee takes
no position on whether necessity is a defense to any other crime. See
[State v. Ward]{.underline} 170 Iowa 185, 152 N.W. 501 (1915) (necessity
a defense to killing a deer); [State v. Walton]{.underline}, 311 N.W.2d
113 (Iowa 1981) (facts did not justify necessity defense to carrying
concealed weapon)

Note: Use only the bracketed phrases which the defendant has raised in
asserting the defense of necessity.

[]{#a40019 .anchor}**400.19 Justification - Elements - \[Citizen\'s\]
Arrest of Another for Felony.** A person is justified in using
reasonable force if \[he\]\[she\] reasonably believes the force is
necessary to make an arrest or to prevent serious injury to another.

If the State has proved any of the following elements, (defendant) was
not justified:

1\. A felony had not been committed by the person to be arrested.

2\. (defendant) did not have reasonable grounds to believe the person to
be arrested committed the felony.

3\. (defendant) did not reasonably believe the force used was necessary
to \[make the arrest\] \[prevent serious injury to another\].

# Authority

[Iowa Code]{.underline} sections 704.12, 804.8, 804.9, 804.10, 804.13

[State v Lawler]{.underline}, 571 N.W.2d 486 (Iowa 1997)

# Comment

Note: A citizen\'s arrest is a defense to charges of false imprisonment
and assault. [State v Lawler]{.underline}, 571 N.W.2d 486 (Iowa 1997)

Note: Iowa Criminal Jury Instruction 400.7 (Reasonable Belief) should be
used. If deadly force is used, Iowa Criminal Jury Instruction 400.21
(Use of Deadly Force in Making Arrest) should be given.

Note: Use of reasonable force is also authorized when arresting another
at a peace officer\'s request ([Iowa Code]{.underline} section 804.10,
804.17), when assisting a private person in making an arrest ([Iowa
Code]{.underline} section 804.13), and when preventing the escape of an
arrested person from custody ([Iowa Code]{.underline} section 804.13).
This instruction may be modified accordingly.

[]{#a40020 .anchor}**400.20 Justification - Elements - \[Citizen\'s\]
Arrest of Another Committing a Public Offense.** A person is justified
in using reasonable force if \[he\]\[she\] reasonably believes the force
is necessary to make an arrest of another who has committed or attempted
a public offense in the person\'s presence.

If the State has proved any of the following elements, the defendant was
not justified:

1\. A public offense had not been committed or attempted in the
defendant\'s presence.

2\. The defendant did not reasonably believe the force used was
necessary to \[make the arrest\]\[prevent serious injury to another\].

# Authority

[Iowa Code]{.underline} section 704.12, 804.8, 804.9, 804.10

[State v Lawler]{.underline}, 571 N.W.2d 486 (Iowa 1997)

# Comment

Note: A citizen\'s arrest is a defense to charges of false imprisonment
and assault. [State v Lawler,]{.underline} 571 N.W.2d 486 (Iowa 1997).

Note: Iowa Criminal Jury Instruction 400.7 (Reasonable Belief) should be
used. If deadly force is used, Iowa Criminal Jury Instruction 400.21
(Use of Deadly Force in Making Arrest) should be given.

[]{#a40021 .anchor}**400.21 Use of Deadly Force in Making Arrest.**
Deadly force is only justified in making an arrest when a person cannot
be captured in any other way and either (1) the person has used or
threatened to use deadly force in committing a felony or (2) the person
making the arrest reasonably believes the person would use deadly force
against another unless immediately apprehended.

# Authority

[Iowa Code]{.underline} section 804.8

# Comment

Note: Iowa Criminal Jury Instruction 400.16 (Deadly Force)

[]{#CH500 .anchor}CHAPTER 500

SOLICITATION

[500.1](#a5001) Solicitation - Elements

[500.2](#a5002) Solicitation - Definition

[500.3](#a5003) Solicitation - Corroboration Of Intent To Commit Offense

[500.4](#a5004) Solicitation - Defense Of Renunciation - Complete and
Voluntary

[]{#a5001 .anchor}**500.1 Solicitation - Elements.** The State must
prove all of the following elements of solicitation:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant solicited another to commit (name of crime).

2\. The defendant intended that the (name of crime) would be committed.

3\. The defendant\'s intent is corroborated by clear and convincing
evidence.

4\. The defendant did not renounce the solicitation as explained in
Instruction No.\_\_\_\_\_\_ (use only when this defense is raised and
supported by the evidence.

If the State has proved all of the elements, the defendant is guilty of
solicitation. If the State has failed to prove any one of the elements,
the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 705.1

[]{#a5002 .anchor}**500.2 Solicitation - Definition.** Concerning
element number 1 of Instruction No.\_\_\_\_\_, the term \"solicited\"
means to have commanded, begged, or to have otherwise attempted to
convince someone to do something.

[]{#a5003 .anchor}**500.3 Solicitation - Corroboration Of Intent To
Commit Offense.** Concerning elements numbered 2 and 3 of Instruction
No.\_\_\_\_\_\_, the \"intent\" must be corroborated by clear and
convincing evidence.

Corroboration is not proved by just the fact of the solicitation itself.
Other evidence must tend to show, strengthen, confirm or point out that
the defendant, when \[he\] \[she\] solicited (name of solicited person),
if \[he\] \[she\] did so, intended that the (name of crime) would be
committed.

[]{#a5004 .anchor}**500.4 Solicitation - Defense Of Renunciation -
Complete and Voluntary.** Concerning element number 4 of Instruction
No.\_\_\_\_\_\_, a renunciation occurred if the defendant persuaded
(name of solicited person) not to commit the (name of crime) or
prevented its commission.

The \"renunciation\" must be done under circumstances clearly indicating
the defendant did not want or intend that the (name of crime) would be
committed.

However, if the \"renunciation\" is motivated, in whole or part, by the
defendant\'s belief that the existing circumstances increased the
possibility of detection or apprehension, or the commission of the (name
of crime) would be more difficult, then the renunciation is not complete
and voluntary. This is also true if the \"renunciation\" was done only
to postpone the (name of crime) or substitute another crime or victim.

# Authority

[Iowa Code]{.underline} section 705.2

# **CHAPTER 600**

CONSPIRACY

[600.1](#a6001) Conspiracy - Elements

[600.2](#a6002) Conspiracy - Agreement

[600.3](#a6003) Conspiracy - Mere Association

[600.4](#a6004) Conspiracy - Overt Act

[600.5](#a6005) Membership In Conspiracy

[600.6](#a6006) Conspiracy - Conduct Or Statements Of Others

[600.7](#a6007) Conspiracy - Separate Offense

[600.8](#a6008) Conspiracy - Single Defendant On Trial

[]{#a6001 .anchor}**600.1 Conspiracy - Elements.** The State must prove
all the following elements of Conspiracy:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant agreed with (name(s) of co-conspirators)

a\. that one or more of them would commit the (offense), or solicit
another to commit the (offense); or

b\. attempt to commit the (offense).

2\. The defendant entered into the agreement with the intent to promote
or facilitate (name of felony or aggravated misdemeanor).

3\. The defendant, or (name(s) of alleged co-conspirator(s)) committed
an overt act.

4\. (Name(s) of alleged co-conspirator(s)) \[was\] \[were\] not \[a\]
law enforcement agent(s) investigating the (offense) or assisting law
enforcement agents in the investigation when the conspiracy began.

If the State has proved all of these elements, the defendant is guilty
of Conspiracy. If the State has failed to prove any one of the elements,
the defendant is not guilty.

## Authority

[Iowa Code]{.underline} section 706.1

[]{#a6002 .anchor}**600.2 Conspiracy - Agreement.** The State must prove
the defendant and (name(s) of alleged co-conspirator(s)) came to a
mutual understanding (offense) would be attempted or committed. The
agreement can be oral or written, informal or formal, and need not be
detailed. It may be proven by direct or circumstantial evidence of a
person\'s words, actions or gestures.

## Authority

[Countryman v. Mt. Pleasant Bank & Trust Co.]{.underline}, 357 N.W.2d
599 (Iowa 1984); Appeal after remand, 387 N.W.2d 771

[State v. Boyer]{.underline}, 342 N.W.2d 497 (Iowa 1984)

[State v. Blyth]{.underline}, 226 N.W.2d 250 (Iowa 1975)

[]{#a6003 .anchor}**600.3 Conspiracy - Mere Association.** Merely
because two or more persons associate with each other, or meet to
discuss common interests or goals does not, by itself, establish an
agreement or make one a member of a conspiracy.

## Authority

[Iowa Code]{.underline} section 706.1

[State v. Boyer]{.underline}, 342 N.W.2d 497 (Iowa 1984)

[State v. Phams]{.underline}, 342 N.W.2d 792 (Iowa 1983)

[]{#a6004 .anchor}**600.4 Conspiracy - Overt Act.** An \"overt act\" is
any act indicating a person\'s intent to accomplish (offense). The overt
act itself does not have to be a criminal act.

An overt act alone does not prove a conspiracy. A person who commits an
overt act cannot be found guilty of Conspiracy unless that person also
agreed and intended the (offense) would be committed.

## Authority

[Iowa Code]{.underline} section 706.1

[State v.]{.underline} Blackman, 346 N.W.2d 12 (Iowa 1984)

[State v. Paden]{.underline}, 202 N.W. 105 (Iowa 1925)

[]{#a6005 .anchor}**600.5 Membership In Conspiracy.** The State does not
have to prove the defendant knew all the details of the conspiracy nor
all the other persons who had agreed to commit (offense). However, the
State must prove the defendant knowingly participated in the agreement
at some time. If a person performs an act that promotes or facilitates
the purpose of the conspiracy without knowledge of the conspiracy,
\[he\] \[she\] is not a conspirator.

## Authority

[Nassif v. United States]{.underline}, 370 F.2d 147 (8th Cir. 1967)

[]{#a6006 .anchor}**600.6 Conspiracy - Conduct Or Statements Of
Others.** Whether a person is a conspirator depends upon \[his\] \[her\]
own conduct or statements. If, however, you find the defendant agreed
the (offense) would be committed, then the conduct or statements of the
others who agreed to commit (offense) may be considered as evidence
against \[him\] \[her\], providing the conduct or those statements
promoted or facilitated the purpose of the conspiracy and occurred
before the conspiracy ended. It is not necessary the conduct or
statement of the others occurred in the defendant\'s presence.

## Authority

[Iowa Code]{.underline} section 706.1

[State v. Beckett]{.underline}, 383 N.W.2d 66 (Iowa App. 1985)

[State v. Wedelstedt]{.underline}, 263 N.W.2d 894 (Iowa 1978) reh\'g
denied 265 N.W.2d 626, cert. denied 439 U.W. 954, 58 L.Ed.2d 345, 99
S.Ct. 352

[State v. Kidd]{.underline}, 239 N.W.2d 860 (Iowa 1976)

[State v. Keul]{.underline}, 5 N.W.2d 849, 852 (Iowa 1942)

[]{#a6007 .anchor}**600.7 Conspiracy - Separate Offense.** Conspiracy is
a crime separate from the (offense). The (offense) does not have to be
committed. Even if you find (offense) was committed, you cannot find the
defendant guilty of Conspiracy unless the State proves the defendant
conspired to commit (offense), and an overt act was performed.

## Authority

[Iowa Code]{.underline} section 706.4

[State v. Johnson]{.underline}, 222 N.W.2d 483 (Iowa 1974)

[]{#a6008 .anchor}**600.8 Conspiracy - Single Defendant On Trial.** A
conspiracy requires an agreement between at least two persons. A person
may be found guilty of Conspiracy even though the person(s) with whom
\[he\] \[she\] agreed \[has not\] \[have not\] been charged or tried.

## Authority

[State v. Podor]{.underline}, 135 N.W. 421 (Iowa 1912)

Printed 8/97

[]{#CH700 .anchor}**CHAPTER 700**

MURDER

[700.1](#a7001) Murder In The First Degree - Premeditation, Willfulness,
Deliberation - Elements

[700.2](#a7002) Murder In The First Degree - Participating In A Forcible
Felony - Elements

[700.3](#a7003) Murder In The First Degree - Escape From Lawful
Custody - Elements

[700.4](#a7004) Murder In The First Degree - Killing Of Peace Officer -
Elements

[700.5](#a7005) Murder In The First Degree - Definition Of Elements

[700.6](#a7006) Murder In The First Degree - Time For Deliberation and
Premeditation

[700.7](#a7007) Murder - Definition Of Malice Aforethought

[700.8](#a7008) Murder In The First Degree - Dangerous Weapon Inference

[700.9](#a7009) Murder - Forcible Felony Inference

[700.10](#a70010) Murder - Dangerous Weapon - Malice Inference

[700.11](#a70011) Murder - Cause Of Death

[700.12](#a70012) Murder - Unintended Victim

[700.13](#a70013) Murder In The Second Degree - Elements

[700.14](#a70014) Murder In The Second Degree - No Specific Intent
Requirement

[700.15](#a70015) Voluntary Manslaughter - Elements

[700.16](#a70016) Voluntary Manslaughter - Provocation - Definition

[700.17](#a70017) Involuntary Manslaughter - Public Offense - Elements

[700.18](#a70018) Involuntary Manslaughter - Conduct Likely To Cause
Death - Elements

[700.19](#a70019) Attempt To Commit Murder - Elements

[700.20](#a70020) Murder In The First Degree - Child
Endangerment/Assault - Elements

[710.1](#a7101) Homicide By Vehicle (Intoxication) - Elements

[710.2](#a7102) Homicide By Vehicle (recklessness) - Elements

[710.3](#a7103) Homicide By Vehicle (Drag Racing or Eluding) - Elements

[710.4](#a7104) Serious Injury by Vehicle - Elements

[710.5](#a7105) Drag Racing - Definition

[710.6](#a7106) Eluding - Definition

[]{#a7001 .anchor}**700.1 Murder In The First Degree - Premeditation,
Willfulness, Deliberation - Elements.** The State must prove all of the
following elements of Murder In The First Degree:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_\_,
the defendant \[shot\] \[struck\] \[appropriate word or phrase\]
(victim).

2\. (Victim) died as a result of being \[shot\] \[struck\] appropriate
word or phrase\].

3\. The defendant acted with malice aforethought.

4\. The defendant acted willfully, deliberately, premeditatedly and with
a specific intent to kill (victim).

If the State has proved all of the elements, the defendant is guilty of
Murder In The First Degree. If the State has failed to prove any one of
the elements, the defendant is not guilty of Murder In The First Degree
(and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ explained in Instruction No.
\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 707.2(1)

[State v. Gordon]{.underline}, 354 N.W.2d 783 (Iowa 1984)

[]{#a7002 .anchor}**700.2 Murder In The First Degree - Participating In
A Forcible Felony - Elements.** The State must prove all of the
following elements of Murder In The First Degree.

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_, 19\_\_, the
defendant \[shot\] \[struck\] \[appropriate word or phrase\] (victim).

2\. (Victim) died as a result of being \[shot\] \[struck\] appropriate
word or phrase\].

3\. The defendant acted with malice aforethought.

4\. The defendant was participating in the offense of (forcible felony).

If the State has proved all of the elements, the defendant is guilty of
Murder In The First Degree. If the State has failed to prove any one of
the elements, the defendant is not guilty of Murder In The First Degree
(and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ explained in Instruction No.
\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 707.2(2)

[Iowa Code]{.underline} section 702.11

# Comment

Note: Use Iowa Criminal Jury Instruction 200.6 (Participating In A
Public Offense - Definition). Appropriate instructions on the forcible
felony must be given.

[]{#a7003 .anchor}**700.3 Murder In The First Degree - Escape From
Lawful Custody - Elements.** The State must prove all of the following
elements of Murder In The First Degree:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_, the
defendant \[shot\] \[struck\] \[appropriate word or phrase\] (victim).

2\. (Victim) died as a result of being \[shot\] \[struck\] appropriate
word or phrase\].

3\. The defendant acted with malice aforethought.

4\. The defendant did so while \[escaping\] \[attempting to escape\]
from lawful custody.

If the State has proved all of the elements, the defendant is guilty of
Murder In The First Degree. If the State has failed to prove any one of
the elements, the defendant is not guilty of Murder In The First Degree
(and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ explained in Instruction No.
\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 707.2(3)

[]{#a7004 .anchor}**700.4 Murder In The First Degree - Killing Of A
Peace Officer - Elements.** The State must prove all of the following
elements of Murder In The First Degree:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_, 19\_\_\_, the
defendant intentionally\* \[shot\] \[struck\] \[appropriate word or
phrase\] (victim).

2\. (Victim) died as a result of being \[shot\] \[struck\] appropriate
word or phrase\].

3\. The defendant acted with malice aforethought.

4\. The defendant intentionally\* killed (victim).

5\. The defendant acted while imprisoned in a \[correctional
institution\] \[city jail\] \[county jail\].

6\. (Victim) was a \[peace officer\] \[correctional officer\] \[public
employee\] \[hostage\].

If the State has proved all of the elements, the defendant is guilty of
Murder In The First Degree. If the State has failed to prove any one of
the elements, the defendant is not guilty of Murder In The First Degree
(and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ explained in Instruction
No.\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 707.2(4)

# Comment

Note: \*The committee takes no position on the issue of whether Murder
in the First Degree - Killing of Peace Officer is a specific intent
crime.

[]{#a7005 .anchor}**700.5 Murder In The First Degree - Definitions Of
Elements.**

\"Willful\" means intentional or by fixed design or purpose and not
accidental.

\"To deliberate\" is to weigh in one\'s mind, to consider, to
contemplate, or to reflect.

\"Premeditate\" is to think or ponder upon a matter before acting.

# Authority

[State v. Gramenz]{.underline}, 126 N.W.2d 285 (Iowa 1964)

[State v. Hofer]{.underline}, 28 N.W.2d 475 (Iowa 1947)

[]{#a7006 .anchor}**700.6 Murder In The First Degree - Time For
Deliberation And Premeditation.** Deliberation and premeditation need
not exist for any particular length of time before the act.

# Authority

[State v. LeGear]{.underline}, 346 N.W.2d 21 (Iowa 1984)

[State v. Poyner]{.underline}, 306 N.W.2d 716 (Iowa 1981)

[]{#a7007 .anchor}**700.7 Murder - Definition Of Malice Aforethought.**
\"Malice\" is a state of mind which leads one to intentionally do a
wrongful act \[to the injury of another\] \[in disregard of the rights
of another\] out of actual hatred, or with an evil or unlawful purpose.
It may be established by evidence of actual hatred, or by proof of a
deliberate or fixed intent to do injury. It may be found from the acts
and conduct of the defendant, and the means used in doing the wrongful
and injurious act. Malice requires only such deliberation that would
make a person appreciate and understand the nature of the act and its
consequences, as distinguished from an act done in the heat of passion.

\"Malice aforethought\" is a fixed purpose or design to do some physical
harm to another which exists before the act is committed. It does not
have to exist for any particular length of time.

# Authority

[State v. Lee,]{.underline} 494 N.W.2d 706 (Iowa 1993)

[State v. Nunn]{.underline}, 356 N.W.2d 601, 603 (Iowa App. 1984)

[State v. Love]{.underline}, 302 N.W.2d 115 (Iowa 1981)

[]{#a7008 .anchor}**700.8 Murder In The First Degree - Dangerous Weapon
Inference.** If a person has the opportunity to deliberate and uses a
dangerous weapon against another resulting in death, you may, but are
not required to, infer that the weapon was used with malice,
premeditation and specific intent to kill.

# Authority

[Waterbury v. State]{.underline}, 387 N.W.2d 309 (Iowa 1986)

[State v. Blair]{.underline}, 347 N.W.2d 416 (Iowa 1984)

[]{#a7009 .anchor}**700.9 Murder - Forcible Felony Inference.** Malice
may be inferred from the commission of (felony) which results in death.

# Authority

[Schrier v. State]{.underline}, 347 N.W.2d 657 (Iowa 1984)

[State v. Oliver]{.underline}, 341 N.W.2d 744 (Iowa 1983)

[]{#a70010 .anchor}**700.10 Murder - Dangerous Weapon - Malice
Inference.** Malice aforethought may be inferred from the defendant\'s
use of a dangerous weapon.

# Authority

[State v. Smith]{.underline}, 242 N.W.2d 320 (Iowa 1976)

[State v. McCollom]{.underline}, 151 N.W.2d 519 (Iowa 1967)

[]{#a70011 .anchor}**700.11 Murder - Cause of Death.** Concerning
element number \_\_\_\_\_\_\_\_\_ of Instruction No.\_\_\_\_\_, the
\[wound inflicted\] \[wrongful act\] by the defendant resulted in death
of (victim), if it caused or directly contributed to (victim)\'s death.

# Authority

[State v. McClain]{.underline}, 256 Iowa 175, 125 N.W.2d 764 (1964)

# Comment

Note: Add the following paragraph when appropriate:

\"However, if you find that, in the treatment of the wounds, another was
negligent to the extent that such negligence was the sole cause of
death, then the act(s) of the defendant did not result in the death of
(victim).\"

[]{#a70012 .anchor}**700.12 Murder - Unintended Victim.** If you find
the \[dispute\] \[fight\] \[appropriate word or phrase\] involved (third
person), then the defendant\'s intent and state of mind are to be
determined by \[his\] \[her\] conduct toward (third person).
Defendant\'s guilt is to be determined upon the same basis as if (third
person) had been killed instead of (victim).

# Authority

[State v. Alford]{.underline}, 151 N.W.2d 573 (Iowa 1967)

[]{#a70013 .anchor}**700.13 Murder In The Second Degree - Elements.**
The State must prove all of the following elements of Murder In The
Second Degree:

1\. On or about \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant \[shot\] \[struck\] \[appropriate word or phrase\]
(victim).

2\. (Victim) died as a result of being \[shot\] \[struck\] \[appropriate
word or phrase.

3\. The defendant acted with malice aforethought.

If the State has proved all of the elements, the defendant is guilty of
Murder In The Second Degree. If the State has failed to prove any one of
the elements, the defendant is not guilty of Murder In The Second Degree
(and you will then consider the charge of \_\_\_\_\_\_\_\_\_\_\_\_\_\_,
explained in Instruction No. \_\_\_\_).

# Authority

[Iowa Code]{.underline} section 707.3

[State v. Smith]{.underline}, 242 N.W.2d 320, 326 (Iowa 1976)

[]{#a70014 .anchor}**700.14 Murder In The Second Degree - No Specific
Intent Requirement**. Murder In The Second Degree does not require a
specific intent to kill another person.

# Authority

[State v. Caldwell]{.underline}, 385 N.W.2d 553 (Iowa 1986)

[]{#a70015 .anchor}**700.15 Voluntary Manslaughter - Elements.** The
State must prove all of the following elements of Voluntary
Manslaughter:

1\. On or about \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant intentionally\* \[shot\] \[struck\] \[appropriate word or
phrase\] (victim).

2\. (Victim) died as a result of being \[shot\] \[struck\] \[appropriate
word or phrase\].

3\. The \[shooting\] \[striking\] \[appropriate word or phrase\] was
done solely by reason of sudden, violent and irresistible passion
resulting from serious provocation.

If the State has proved all of the elements, the defendant is guilty of
Voluntary Manslaughter. If the State has failed to prove any one of the
elements, the defendant is not guilty of Voluntary Manslaughter (and you
will then consider the charge of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
explained in Instruction No. \_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 707.4

[State v. Drosos]{.underline}, 253 Iowa 1152, 114 N.W.2d 526 (Iowa 1962)

# Comment

Note: \*The committee takes no position on the issue of whether
Voluntary Manslaughter is a specific intent crime. See [State v.
Hellwege]{.underline}, 294 N.W.2d 689 (Iowa 1980).

Note: The committee takes no position whether element number 3 should be
submitted in all cases. See [State v. Williams]{.underline}, 525 N.W.2d
847 (Iowa 1994); State v. Taylor, 452 N.W.2d 605 (Iowa 1990).

[]{#a70016 .anchor}**700.16 Voluntary Manslaughter - Provocation -
Definition.** Concerning element number \_\_\_\_\_\_\_\_ of Instruction
No.\_\_\_\_, a \"serious provocation\" is conduct that would cause a
reasonable person to have a sudden, violent and irresistible passion.

Passion is not sudden, violent, and irresistible if there is an interval
of time during which a reasonable person would, under the circumstances,
have time to reflect and bring \[his\] \[her\] passion under control and
suppress the impulse to kill.

Words alone, however abusive or insulting, cannot be serious
provocation.

# Authority

[State v. Inger]{.underline}, 292 N.W.2d 119 (Iowa 1980)

[State v. Rutledge]{.underline}, 243 Iowa 179, 47 N.W.2d 251 (1951),
reh\'g denied, 243 Iowa 201, 50 N.W.2d 801 (1952)

[]{#a70017 .anchor}**700.17 Involuntary Manslaughter - Public Offense -
Elements.** The State must prove both of the following elements of
Involuntary Manslaughter:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant recklessly committed the crime of \_\_\_\_\_\_\_\_\_\_\_.

2\. When the defendant committed the crime, the defendant
unintentionally caused the death of (victim).

If the State has proved both the elements, the defendant is guilty of
Involuntary Manslaughter. If the State has failed to prove either of the
elements, the defendant is not guilty of Involuntary Manslaughter (and
you will then consider the charge of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
explained in Instruction No. \_\_\_\_).

# Authority

[Iowa Code]{.underline} section 707.5(1)

[State v. Caldwell]{.underline}, 385 N.W.2d 553 (Iowa 1986)

[State v. Conner]{.underline}, 292 N.W.2d 682 (1980)

# Comment

Note: Use Iowa Criminal Jury Instruction 200.20 (Recklessness)

See Iowa Criminal Jury Instructions 710.1 - 710.3 for the Crime of
Homicide By Vehicle.

[]{#a70018 .anchor}**700.18 Involuntary Manslaughter - Conduct Likely To
Cause Death - Elements.** The State must prove all of the following
elements of Involuntary Manslaughter:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
defendant recklessly (describe the act alleged to have caused the
death).

2\. The defendant did the act in a manner likely to cause \[death\]
\[serious injury\].

3\. By doing the act, the defendant unintentionally caused the death of
(victim).

If the State has proved all of the elements, the defendant is guilty of
Involuntary Manslaughter. If the State has failed to prove any one of
the elements, the defendant is not guilty of Involuntary Manslaughter
(and you will then consider the charge of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
explained in Instruction No.\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 707.5(2)

[State v. Caldwell]{.underline}, 385 N.W.2d 553 (Iowa 1986)

[State v. Conner,]{.underline} 292 N.W.2d 682 (Iowa 1980)

# Comment

Note: Use Iowa Criminal Jury Instruction 200.20 (Recklessness)

[]{#a70019 .anchor}**700.19 Attempt To Commit Murder - Elements.** The
State must prove all the following elements of Attempt To Commit Murder:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 20 \_\_\_\_,
the defendant (set forth acts committed).

2\. By \[his\] \[her\] acts, the defendant expected to set in motion a
force or chain of events which would cause or result in the death of
(victim).

3\. When the defendant acted, \[he\] \[she\] specifically intended to
cause the death of (victim).

If the State has proved all of the elements, the defendant is guilty of
Attempt To Commit Murder. If the State has failed to prove any one of
the elements, the defendant is not guilty of Attempt To Commit Murder
(and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ explained in Instruction No.
\_\_\_\_\_).

# **Authority**

[Iowa Code]{.underline} section 707.11

[State v. Barney]{.underline}, 244 N.W.2d 316, 318 (Iowa 1976)

# **Comment**

Note: Assault with Intent to Inflict Serious Injury is the next lesser
included offense. See [State v. Luckett]{.underline}, 387 N.W.2d 298,
299 (Iowa 1986); [State v. Powers]{.underline}, 278 N.W.2d 26, 28 (Iowa
1979).

10/04

[]{#a70020 .anchor}**700.20 Murder In The First Degree - Child
Endangerment/Assault - Elements.** The State must prove all of the
following elements of Murder in the First Degree:

1\. On or about the \_\_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_,
20\_\_, the defendant \[shook\] \[struck\] \[appropriate word or
phrase\] (victim).

2\. (Victim) was then under the age of 14.

3\. (Victim) died as a result of being \[shaken\] \[struck\]
\[appropriate word or phrase\].

4\. The defendant acted with malice aforethought.

5\. The defendant was committing the offense of \[child endangerment\]
\[assault\].

6\. (Victim)\'s death occurred under circumstances showing an extreme
indifference to human life.

If the State has proved all of the elements, the defendant is guilty of
Murder in the First Degree. If the State has failed to prove any one of
the elements, the defendant is not guilty of Murder in the First Degree
(and you will then consider the charge of \_\_\_\_\_\_\_\_\_\_\_\_\_\_
explained in Instruction No.\_\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 707.2(5)

# Comment

Note: Appropriate instructions on Assault or Child Endangerment must be
given, as supported by the evidence.

Note: No definition of phrase \"extreme indifference to human life\" is
necessary. [State v Thompson]{.underline}, 570 N.W.2d 765, 768 (Iowa
1997).

[]{#a7101 .anchor}**710.1 Homicide By Vehicle (Intoxication) -
Elements.** The State must prove both of the following elements of
Homicide By Vehicle:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_,
20\_\_\_, the defendant:

a\. operated a motor vehicle while under the influence of alcohol or a
drug or a combination of such substances; or

b\. operated a motor vehicle while having an alcohol concentration of
.10 or more, or

c\. operated a motor vehicle while any amount of a controlled substance
was present, as

measured in the defendant\'s blood or urine.

2\. The defendant\'s act or acts set out in Element 1 unintentionally
caused the death of (victim).

If the State has proved both of the elements, the defendant is guilty of
Homicide by Vehicle. If the State has failed to prove either of the
elements, the defendant is not guilty of Homicide by Vehicle (and you
will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in
Instruction No.\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} sections 321J.2, 707.6A(1)

[State v. Marti]{.underline} 290 N.W.2d 570 (Iowa 1980)

[State v. Bratthauer]{.underline}, 354 N.W.2d 774 (Iowa 1984)

[State v. Conger]{.underline}, 434 N.W.2d 406, (Iowa App. 1988)

[State v. Hubka]{.underline}, 480 N.W.2d 867 (Iowa 1992)

[State v. Wieskamp]{.underline}, 490 N.W.2d 566 (Iowa App. 1992)

# Comment

Note: Use only the alternatives in Element 1 that are charged and are
supported by substantial evidence. For the minimum levels of a
controlled substance required for proof of a detectable or measured
amount, see 661 [I.A.C.7.9]{.underline} (321J).

[]{#a7102 .anchor}**710.2 Homicide By Vehicle (Recklessness) -
Elements.** The State must prove both of the following elements of
Homicide by Vehicle:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 20 \_\_\_,
the defendant drove a motor vehicle in a reckless manner.

2\. The defendant\'s recklessness unintentionally caused the death of
(victim).

If the State has proved both of the elements, the defendant is guilty of
Homicide by Vehicle. If the State has failed to prove either of the
elements, the defendant is not guilty of Homicide by Vehicle (and you
will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction
No. \_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 707.6A(2)(a)

[State v. Hubka]{.underline}, 480 N.W.2d 867 (Iowa 1992)

[State v. Wieskamp]{.underline}, 490 N.W.2d 566 (Iowa App. 1992)

[State v. Sutton]{.underline}, 636 N.W.2d 107 (Iowa 2001)

# Comment

Note: Use [Iowa Criminal Jury Instruction]{.underline} 200.20
(Recklessness)

[]{#a7103 .anchor}**710.3 Homicide By Vehicle (Drag Racing or Eluding) -
Elements**. The State must prove both of the following elements of
Homicide by Vehicle:

1\. On or about the \_\_\_\_\_day of \_\_\_\_\_\_\_, 20\_\_\_, the
defendant operated a motor vehicle by

\[drag racing\] \[eluding or attempting to elude\]

2\. The defendant\'s \[drag racing\] \[eluding or attempting to elude\]
unintentionally caused the death

of (victim).

If the State has proved both of the elements, the defendant is guilty of
Homicide by Vehicle. If the State has failed to prove either of the
elements, the defendant is not guilty of Homicide by Vehicle (and you
will then consider the charge of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as
explained in Instruction No. \_\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 707.6A (3)

[State v. Hubka]{.underline}, 480 N.W.2d 867 (Iowa 1992)

[State v. Wieskamp]{.underline}, 490 N.W.2d 566 (Iowa App. 1992)

# Comment

Use [Iowa Criminal Jury Instruction]{.underline} 710.5 (Drag Racing)
and/or [Iowa Criminal Jury Instruction]{.underline} 710.6 (Eluding).

Use only the alternatives in Element 1 that are charged and are
supported by substantial evidence. If both drag racing and eluding are
supported by substantial evidence, submit separate marshaling
instructions and separate verdict forms. See: [State v.
Conger]{.underline}, 434 N.W.2d 406 (Iowa App. 1988).

[]{#a7104 .anchor}**710.4 Serious Injury By Vehicle - Elements**. The
State must prove both of the following elements of Serious Injury by
Vehicle:

1\. On or about the \_\_\_\_\_day of \_\_\_\_\_\_\_, 20\_\_\_, the
defendant:

a\. operated a motor vehicle while under the influence of alcohol or a
drug or a combination of such substances; or

b\. operated a motor vehicle while having an alcohol concentration of
.10 or more; or

c\. operated a motor vehicle while any amount of a controlled substance
was present, as measured in the defendant\'s blood or urine.

d\. drove a motor vehicle in a reckless manner; or

e\. operated a motor vehicle by drag racing; or

f\. operated a motor vehicle by eluding a pursuing law enforcement
vehicle; or

g\. operated a motor vehicle by attempting to elude a pursing law
enforcement vehicle.

2\. The defendant\'s act or acts set out in Element 1 unintentionally
caused serious injury to (victim).

If the State has proved both of the elements, the defendant is guilty of
Serious Injury by Vehicle. If the State has failed to prove either of
the elements, the defendant is not guilty of Serious Injury by Vehicle.

# Authority

[Iowa Code]{.underline} section 707.6A(4)

[State v. Hubka]{.underline}, 480 N.W.2d 867 (Iowa 1992)

[State v. Marti]{.underline}, 290 N.W.2d 570 (Iowa 1980)

[State v. Wieskamp]{.underline}, 490 N.W.2d 566 (Iowa App. 1992)

[State v. Conger]{.underline}, 434 N.W.2d 406, (Iowa App. 1988)

# Comment

Note: Use only the alternatives in Element 1 that are charged and are
supported by substantial evidence.

Use [Iowa Criminal Jury Instruction]{.underline} 200.22, (Serious
Injury)

Use [Iowa Criminal Jury Instruction]{.underline} 200.20 (Recklessness)
if the reckless manner alternative is submitted under Element 1.

Use [Iowa Criminal Jury Instruction]{.underline} 710.5 if drag racing is
submitted and 710.6 if eluding is submitted.

[]{#a7105 .anchor}**710.5 Drag Racing - Definition**. Concerning element
number \_\_\_\_\_ of Instruction No. \_\_\_\_\_, \"drag racing\" is any
motor vehicle speed contest or speed exhibition on any street or highway
of this State. Motor vehicle speed contest or exhibition of speed are
defined as one or more persons competing in speed in excess of the
applicable speed limit in vehicles on the public streets or highways.

# Authority

[Iowa Code]{.underline} section 321.278

[]{#a7106 .anchor}**710.6 Eluding - Definition**. Concerning element
number \_\_\_\_\_ of Instruction No. \_\_\_\_, \"eluding\" or
\"attempting to elude\" is the driver failing to bring a motor vehicle
to a stop or otherwise eluding or attempting to elude a marked official
law enforcement vehicle driven by a uniformed peace officer after being
given a visual and audible signal to stop. The signal given by the peace
officer must be by flashing red light and siren.

# Authority

[Iowa Code]{.underline} section 321.279(1)

# CHAPTER 800

# ASSAULT

[800.1](#a8001) Assault - Elements

[800.2](#a8002) Assault Causing Bodily Injury or Mental Illness -
Elements

[800.2.1](#a80021) Assault Causing Serious Injury- Elements

[800.3](#a8003) Assault With Intent To Inflict Serious Injury - Elements

[800.4](#a8004) Assault With Intent To Inflict Serious Injury -
Elements - Use Of Firearm Or Dangerous Weapon

[800.5](#a8005) Assault - Intent And Display Of Firearm - Definition.

[800.6](#a8006) Apparent Ability - Definition

[800.7](#a8007) Assault While Participating In A Felony Causing Serious
Injury - Elements

[800.8](#a8008) Assault - Definition

[800.9](#a8009) Assault While Participating In A Felony - Definition Of
Felony And Participating

[800.10](#a80010) Assault - Exception

[800.11](#a80011) Willful Injury - Elements

[800.12](#a80012) Administering Harmful Substances - Elements - Causes
To Be Taken By Threat,

Deception, Or Without Consent

[800.13](#a80013) Intimidation With a Dangerous Weapon With Intent --
Elements

[800.13.1](#A800131) Intimidation With a Dangerous Weapon - Elements

[800.14](#a80014) Intimidation With a Dangerous Weapon With Intent -
Elements

[800.14.1](#a800141) Intimidation With a Dangerous Weapon - Elements -
Threatened Use Of Dangerous Weapon.

[800.14.2](#a800142) Intimidation - Within An Assembly Of People -
Definition

[800.15](#a80015) Going Armed With Intent - Elements

[800.16](#a80016) Going Armed With Intent - Definition - Armed

[800.17](#a80017) Aggravated Assault - Elements

[810.1](#a8101) Harassment In The First Degree - Elements

[810.2](#a8102) Harassment In The Second Degree - Elements

[810.3](#a8103) Harassment In The Third Degree - Elements

[820.1](#a8201) Stalking \[In Violation Of A Protective Order\] \[While
In Possession Of A Dangerous

Weapon\] \[Directed At A Person Under 18 Years Of Age\] - Elements

[820.2](#a8202) Course Of Conduct - Definition

[820.3](#a8203) Repeatedly - Definition

[820.4](#a8204) Immediate Family Member - Definition

[830.1](#a8301) Domestic Abuse Assault - Elements

[830.2](#a8302) Domestic Abuse Assault Causing Bodily Injury - Elements

[830.3](#a8303) Domestic Abuse Assault While Using or Displaying a
Dangerous Weapon - Elements

[830.4](#a8304) Domestic Abuse Assault With Intent To Inflict Serious
Injury - Elements

[830.5](#a8305) Definition - Family or Household Members

[]{#a8001 .anchor}**800.1 Assault -- Elements.** The State must prove
both of the following elements of the crime of Assault:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_, 20\_\_\_, the
defendant did an act which was intended to \[cause pain or injury\]
\[result in physical contact which was insulting or offensive \] \[place
(name of victim) in fear of an immediate physical contact which would
have been painful, injurious, insulting or offensive\] to (victim).

2\. The defendant had the apparent ability to do the act.

If the State has proved both of the elements, the defendant is guilty of
Assault. If the State has failed to prove either of the elements, the
defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 708.1

[Iowa Code]{.underline} section 708.2

[Bacon v. Bacon,]{.underline} 567 N.W. 2d 414, 417-18 (Iowa 1997)

# Comment

Assault is a general intent crime[, Bacon]{.underline}, 567 N.W.2d at
417-18, and therefore 1CrJI 200.1 should be given.

Lack if justification is not an element unless the defendant has
produced sufficient evidence to raise the defense. In that event the
State must prove lack of justification, [State v. Delay]{.underline},
320 N.W.2d 831 (Iowa 1982)

[]{#a8002 .anchor}**800.2 Assault Causing Bodily Injury or Mental
Illness - Elements.** The State must prove all of the following elements
of assault causing a \[bodily injury\] \[mental illness\]:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 20\_\_\_,
the defendant did an act which was intended to \[cause pain or injury\]
\[result in physical contact which was insulting or offensive\] \[place
(name of victim) in fear of an immediate physical contact which would
have been painful, injurious, insulting or offensive\] to \[him\]
\[her\].

2\. The defendant had the apparent ability to do the act.

3\. The defendant's act caused a \[bodily injury\] \[mental illness\] to
(name of victim) as defined in Instruction No. \_\_\_\_\_.

If the State has proved all of the elements, the defendant is guilty of
Assault Causing \[Bodily Injury\] \[Mental Illness\]. If the State has
proved only elements 1 and 2, the defendant is guilty of Assault. If the
State has failed to prove either element 1 or 2, the defendant is not
guilty.

# Authority

[Iowa Code]{.underline} section 708.1

[Iowa Code]{.underline} section 708.2

[State v. McKettrick]{.underline}, 480 N.W.2d 52 (Iowa 1992)

# Comment

Caveat: If the defendant is charged with both Assault with Intent to
Inflict Serious

Injury and Assault Causing Bodily Injury arising from the same assault,

the following element should be added:

"4. The defendant did the act without the intent to inflict serious
injury."

[State v. McKettrick]{.underline}, 480 N.W.2d 52 (Iowa 1992).

Note: It may be appropriate to give the jury a separate instruction
which

indicates the defendant cannot be convicted of [both]{.underline}
Assault With Intent to

Inflict Serious Injury and Assault Causing Bodily Injury if only a
single

assault is involved. [State v. McKettrick]{.underline}, 480 N.W.2d 52
(Iowa 1992).

[]{#a80021 .anchor}**800.2.1 Assault Causing Serious Injury -
Elements.** The State must prove all of the following elements of
Assault Causing a Serious Injury:

1\. On or about the \_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_,
20\_\_\_\_\_\_\_\_\_, the defendant did an act which was intended to
\[cause pain or injury\] \[result in physical contact which was
insulting or offensive\] \[place (name of victim) in fear of an
immediate physical contact which would have been painful, injurious,
insulting or offensive\] to \[him\] \[her\].

2\. The defendant had the apparent ability to do the act.

3\. The defendant's act caused a serious injury to (name of victim) as
defined in Instruction No. \_\_\_\_\_\_\_\_.

If the State has proved all of the elements, the defendant is guilty of
Assault Causing Serious Injury. If the State has failed to prove element
No. 3, the defendant is guilty of Assault. If the State has failed to
prove either element 1 or 2, the defendant guilty.

# Authority

[Iowa Code]{.underline} section 702.3A, as added by H. F. 501, Acts of
the 78^th^ General Assembly, 1999.

# Comment

Note: Use Iowa Criminal Jury Instruction 200.22 (Serious Injury).

[]{#a8003 .anchor}**800.3 Assault With Intent To Inflict Serious
Injury - Elements.** The State must prove all of the following elements
of Assault With Intent To Inflict Serious Injury:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_, 20\_\_\_, the
defendant did an act which was intended to \[cause pain or injury\]
\[result in physical contact which was insulting or offensive\] \[place
(name of victim) in fear of an immediate physical contact which would
have been painful, injurious, insulting or offensive\] to (victim).

2\. The defendant had the apparent ability to do the act.

3\. The act was done with the specific intent to cause a serious injury.

If the State has proved all of the elements, the defendant is guilty of
Assault With Intent To Inflict Serious Injury. If the State has proved
only elements 1 and 2, then the defendant is guilty of Assault. If the
State has failed to prove either element 1 or element 2, the defendant
is not guilty.

# Authority

[Iowa Code]{.underline} section 708.1

[Iowa Code]{.underline} section 708.2

[Iowa Code]{.underline} section 702.18

# Comment

Note: With this crime, Iowa Criminal Jury Instruction 200.22 (Serious
Injury) and 200.2 (Specific Intent) should be used.

[]{#a8004 .anchor}**800.4 Assault With Intent To Inflict Serious Injury
-- Elements.** Use of Firearm Or Dangerous Weapon. The State must prove
all of the following elements of Assault With Intent To Inflict Serious
Injury:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_,20\_\_\_,
the defendant intentionally \[pointed a firearm at\] \[displayed a
dangerous weapon in a threatening manner to \] (victim).

2\. This was done with the specific intent to cause a serious injury.

If the State has proved both elements, the defendant is guilty of
Assault With Intent To Inflict Serious Injury. If the State has proved
only element number 1, the defendant is guilty only of assault. If the
State has failed to prove both elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 708.2

[Iowa Code]{.underline} section 708.1

[Iowa Code]{.underline} section 702.18

# Comment

Note: Iowa Criminal Jury Instruction 200.2 (Specific Intent) will have
to be used with

this offense. Also, Iowa Criminal Jury Instruction 200.22 (Serious
Injury) will

have to be modified and used with this offense. When the offense charged
is

only Assault By Intentionally Pointing A Firearm, etc. this instruction
may be used

by striking element number 2 and modifying the instruction accordingly.

[]{#a8005 .anchor}**800.5 Assault - Intent And Display Of Firearm -
Definition.** Concerning element

number 1 of Instruction No. \_\_\_\_\_\_\_\_\_\_, the phrase:

a\. "Intentionally pointed a firearm" means to have done it consciously
and not accidentally or inadvertently; or

b\. "To display a dangerous weapon in a threatening manner" means to
show or make apparent to another person that a dangerous weapon existed
so as to intimidate the other person. A firearm is a dangerous weapon.

#  Authority

[Iowa Code]{.underline} section 708.1(3)

# Comment

Note: Use whichever definition is applicable to the charge and is
supported by the

evidence. Where a dangerous weapon is involved, Iowa Criminal Jury

Instruction 200.21 should be used.

[]{#a8006 .anchor}**800.6 Apparent Ability - Definition.** Concerning
element number 2 of Instruction No.\_\_\_\_\_, \"apparent ability\"
means a reasonable person in the defendant\'s position would expect the
act to be completed under the existing facts and circumstances.

#  Authority

[State v. Jackson]{.underline}, 305 N.W.2d 420, 423 (Iowa 1981)

[]{#a8007 .anchor}**800.7 Assault While Participating In A Felony
Causing Serious Injury - Elements.** The State must prove all of the
following elements of an Assault While Participating In A Felony Causing
Serious Injury:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant committed an assault on (name of victim) as defined in
Instruction No. \_\_\_\_.

2\. At the time of the assault, the defendant was participating in the
crime of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, as defined in
Instruction No. \_\_\_\_\_\_\_\_\_\_.

3\. The assault caused a serious injury. (Use only when charged and
supported by the evidence).

If the State has proved all of the elements, the defendant is guilty of
Assault While Participating In A Felony Causing Serious Injury. If the
State has proved only elements 1 and 2, the defendant is guilty of
Assault While Participating In A Felony. If the State has proved only
element 1 the defendant is guilty of Assault. If the State has failed to
prove element 1, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 708.3

[Iowa Code]{.underline} section 702.13

[Iowa Code]{.underline} section 702.18

# Comment

Note: Iowa Criminal Jury Instruction 200.22 (Serious Injury) should be
used when appropriate and Iowa

Criminal Jury Instruction 200.6 (Participating In A Public Offense).

[]{#a8008 .anchor}**800.8 Assault - Definition.** Concerning element
number 1 of Instruction No.\_\_\_\_\_, an Assault is committed when a
person does an act which is meant to \[cause pain or injury\] \[result
in physical contact which will be insulting or offensive\] \[place
another person in fear of immediate physical contact which will be
painful, injurious, insulting or offensive\] to another person, when
coupled with apparent ability to do the act; or a person intentionally
points a firearm toward another, or intentionally displays a dangerous
weapon in a threatening manner toward another.

# Authority

[Iowa Code]{.underline} section 708.1

# Comment

Note: Omit that portion of the statute which is not charged or supported
by the evidence.

[]{#a8009 .anchor}**800.9 Assault While Participating In A Felony -
Definition Of Felony And Participating.** Concerning element number 1 of
Instruction No.\_\_\_\_\_, the crime of (offense) is defined as:

(Set forth elements and definition of offense)

(Insert Iowa Criminal Jury Instruction 200.6 - Participating in a Public
Offense.)

# Authority

[State v. Mesch]{.underline}, 574 N.W.2d 10, 14 (Iowa 1998) (must
designate particular felony claimed and the elements of that felony)

[Iowa Code]{.underline} section 708.3

[Iowa Code]{.underline} section 702.13

[]{#a80010 .anchor}**800.10 Assault - Exception.** The defendant claims
\[he\] \[she\] and (victim) were voluntary participants in a \[sport\]
\[social activity\] \[other activity\] which was not in itself criminal.

The defendant is not guilty unless the State proves any one or more of
the following:

> 1\. The defendant and (victim) were not voluntary participants in the
> activity which (set forth facts giving rise to the assault).
>
> 2\. The (act constituting assault) was not a reasonably foreseeable
> incident of the activity.
>
> 3\. The act created \[an unreasonable risk of serious injury\] \[a
> breach of peace\].

If you find the State has proved any one of these elements, then you
should consider whether the defendant is guilty of the crime of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as set forth in Instruction
No. \_\_\_\_\_. If the State has failed to prove one or more of these
elements, then the defendant is not guilty.

# Authority

*[Iowa Code]{.underline} section 708.1* 6/00

[]{#a80011 .anchor}**800.11 Willful Injury - Elements.** The State must
prove all of the following elements of Willful Injury.

1.  On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 20\_\_, the
    defendant (set forth acts of assault).

2.  The defendant specifically intended to cause a serious injury to
    (victim).

3.  (Victim) sustained a \[serious\] \[bodily\] injury.

If you find the State has proved all of the elements, the defendant is
guilty of Willful Injury. If the State has proved only elements 1 and 3,
the defendant is guilty of Assault Causing \[Serious\] \[Bodily\]
Injury. If the State has proved only elements 1 and 2, the defendant is
guilty of Assault With Intent to Inflict \[Serious\] \[Bodily\] Injury.
If the State has failed to prove elements 2 and 3, the defendant is
guilty of Assault. If the State has failed to prove element 1, the
defendant is not guilty.

#### Authority

*[Iowa Code]{.underline} section 708.4*

*[Iowa Code]{.underline} section 702.18*

*[State v. Mikesell]{.underline}, 479 N.W. 2d 591 (Iowa 1991)*

*[State v. Blanks]{.underline}, 479 N.W. 2d 601 (Iowa App. 1991)*

#### Comment

Note: Iowa Criminal Jury Instruction 200.22 (Serious Injury) and Iowa
Criminal Jury Instruction 200.2 (Specific Intent) should be used.

Note: The Committee takes no position whether Assault Resulting in
Bodily Injury is a lesser included offense of Willful Injury under
Section 708.4(1).

6/01

[]{#a80012 .anchor}**800.12 Administering Harmful Substances -
Elements - Causes To Be Taken By Threat, Deception**, **Or Without
Consent**. The State must prove all of the following elements of
Administering Harmful Substances:

1.  On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 20\_\_\_,
    the defendant gave (substance) to (victim) or caused \[him\] \[her\]
    to take it.

2.  This was accomplished \[by threat of \_\_\_\_\_\_\_\_\_\_\_\_\] \[by
    deception explained in Instruction No.\_\_\_\_ without the consent
    of (victim)\].

3.  (Substance) was not given for medicinal purposes.

4.  (Substance) was (e.g., narcotic) substance as explained in
    Instruction No.\_\_\_\_\_\_\_.

5.  (Substance) was \[given\] \[caused to be taken\] in sufficient
    quantity to bring about (e.g., narcotic) effect.

If the State has proved each of these elements, the defendant is guilty
of Harassment In The Second Degree. If the State has failed to prove one
or more of these elements, the defendant is not guilty of Harassment In
The Second Degree (and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_).

# Authority

*[Iowa Code]{.underline} section 708.7(1) and (3)*

# Comment

> *Note: Omit that portion of the instruction which is not charged and
> supported by the evidence.*
>
> *Iowa Criminal Jury Instruction 200.2 (Specific Intent) and Iowa
> Criminal Jury Instruction 200.41 (Bodily Injury) should be given.*
>
> *If the defendant is charged as a previous offender, see Chapter 2200
> (Habitual Criminal).*

[]{#a80013 .anchor}**800.13 Intimidation With a Dangerous Weapon With
Intent - Elements - Use Of Dangerous Weapon.** The State must prove all
of the following elements of Intimidation With a Dangerous Weapon With
Intent:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_,
20\_\_\_, the defendant \[shot/threw/launched/discharged\] a (dangerous
weapon):

> a\. \[at/into/in\] \[a/an\] (e.g., vehicle), \[which was occupied by
> (victim)\]; or

b\. \[within an assembly of people\].

2\. (Dangerous weapon) was a dangerous weapon, as explained in
Instruction No. \_\_\_\_\_.

3\. (Victim) actually experienced fear of serious injury and \[his/her\]
fear was reasonable under the existing circumstances.

> 4\. The defendant \[shot/threw/launched/discharged\] the (dangerous
> weapon) with the specific intent to injure or cause fear or anger in
> (victim).

If the State has proved all four of these elements, the defendant is
guilty of Intimidation With a Dangerous Weapon With Intent. If the State
has proved elements 1, 2, and 3, but not element 4, the defendant is
guilty of the included offense of Intimidation With a Dangerous Weapon.
If the State has failed to prove any one or more of elements 1, 2, or 3,
the defendant is not guilty.

**Authority**

[Iowa Code]{.underline} section 708.6

[State v. White]{.underline}, 319 N.W.2d 213 (Iowa 1982)

**Comment**

Note: Iowa Criminal Jury Instructions 200.2 (Specific Intent), 200.21
(Dangerous Weapon) and 200.22 (Serious Injury) should be used.

Note: This instruction assumes the crime of Intimidation With a
Dangerous Weapon charged is the Class C Felony. If the Class D Felony is
charged, Instruction No. 800.13.1 (Intimidation With a Dangerous Weapon)
should be given. The term "With Intent" in Instruction No. 800.13 is
used to differentiate the Class C felony from the Class D felony even
though the term "With Intent" does not appear in the title of the
statute.

Rev. 9/03

[]{#A800131 .anchor}**800.13.1 Intimidation With a Dangerous Weapon -
Elements - Use Of Dangerous Weapon.** The State must prove all of the
following elements of Intimidation With a Dangerous Weapon:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_,
20\_\_\_, the defendant \[shot/threw/launched/discharged\] a (dangerous
weapon):

> a\. \[at/into/in\] \[a/an\] (e.g., vehicle), \[which was occupied by
> (victim)\]; or

b\. \[within an assembly of people\].

2\. (Dangerous weapon) was a dangerous weapon, as explained in
Instruction No. \_\_\_\_\_.

3\. (Victim) actually experienced fear of serious injury and \[his/her\]
fear was reasonable under the existing circumstances.

If the State has proved all three of these elements, the defendant is
guilty of Intimidation With a Dangerous Weapon. If the State has failed
to prove any one or more of these three elements the defendant is not
guilty.

**Authority**

[Iowa Code]{.underline} section 708.6

[State v. White]{.underline}, 319 N.W.2d 213 (Iowa 1982)

**Comment**

Note: Iowa Criminal Jury Instructions 200.21 (Dangerous Weapon) and
200.22 (Serious Injury) should be used.

Note: This instruction should be given if the class D felony is charged.

Rev. 9/03

[]{#a80014 .anchor}**800.14 Intimidation With a Dangerous Weapon With
Intent - Elements - Threatened Use Of Dangerous Weapon.** The State must
prove all of the following elements of Intimidation With a Dangerous
Weapon With Intent:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_,
20\_\_\_, the defendant threatened to \[shoot/throw/launch/discharge\] a
(dangerous weapon):

> a\. \[at/into/in\] \[a/an\] (e.g., vehicle), \[which was occupied by
> (victim)\]; or

b\. \[within an assembly of people\].

2\. (Dangerous weapon) was a dangerous weapon, as explained in
Instruction No. \_\_\_\_\_.

3\. The defendant made the threat under circumstances raising a
reasonable expectation that the threat would be carried out.

4\. The defendant threatened to (e.g., shoot) the (dangerous weapon)
with the specific intent to injure or cause fear or anger in (victim).

If the State has proved all four of these elements, the defendant is
guilty of Intimidation With a Dangerous Weapon With Intent. If the State
has proved elements 1, 2, and 3, but not element 4, the defendant is
guilty of the included offense of Intimidation With a Dangerous Weapon.
If the State has failed to prove any one or more of elements 1, 2, or 3,
the defendant is not guilty.

**Authority**

[Iowa Code]{.underline} section 708.6

Note: Iowa Criminal Jury Instructions 200.2 (Specific Intent), 200.21
(Dangerous Weapon) and 200.22 (Serious Injury) should be used.

Note: This instruction assumes the crime of Intimidation With a
Dangerous Weapon charged is the Class C felony. If the Class D felony is
charged, Instruction No. 800.14.1 (Intimidation With a Dangerous Weapon)
should be given. The term "With Intent" in Instruction No. 800.14 is
used to differentiate the Class C felony from the Class D felony even
though the term "With Intent" does not appear in the title of the
statute.

Rev.9/03

[]{#a800141 .anchor}**800.14.1 Intimidation With a Dangerous Weapon -
Elements - Threatened Use Of Dangerous Weapon.** The State must prove
all of the following elements of Intimidation With a Dangerous Weapon:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_,
20\_\_\_, the defendant threatened to \[shoot/throw/launch/discharge\] a
(dangerous weapon):

> a\. \[at/into/in\] \[a/an\] (e.g., vehicle), \[which was occupied by
> (victim)\]; or

b\. \[within an assembly of people\].

2\. (Dangerous weapon) was a dangerous weapon, as explained in
Instruction No. \_\_\_\_\_.

3\. The defendant made the threat under circumstances raising a
reasonable expectation that the threat would be carried out.

If the State has proved all three of these elements, the defendant is
guilty of Intimidation With a Dangerous Weapon. If the State has failed
to prove any one or more of the elements the defendant is not guilty.

**Authority**

[Iowa Code]{.underline} section 708.6

Note: Iowa Criminal Jury Instructions 200.21 (Dangerous Weapon) and
200.22 (Serious Injury) should be used.

Rev. 9/03

[]{#a800142 .anchor}**800.14.2 Intimidation - Within An Assembly Of
People - Definition.** Within an assembly of people means "into or
through two or more persons at the same place."

**Authority**

[State v. Bush]{.underline}, 518 N.W.2d 778 (Iowa 1994)

Rev. 9/03

[]{#a80015 .anchor}**800.15 Going Armed With Intent - Elements.** The
State must prove all of the following elements of Going Armed With
Intent:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 20\_\_\_,
the defendant was armed with (object or weapon).

2\. (Object or weapon) was a dangerous weapon as defined in Instruction
No.\_\_\_\_\_\_.

3\. The defendant was armed with the specific intent to use (object or
weapon) against another person.

If you find the State has proved all of the elements, the defendant is
guilty of Going Armed With Intent. If the State has failed to prove any
one of the elements, the defendant is not guilty (of Going Armed With
Intent).

# Authority

[Iowa Code]{.underline} section 708.8

# Comment

Note: The \"intent to use\" element requires proof of an intent to shoot
another person when a firearm is involved. [State v.
Slayton]{.underline}, 417 N.W.2d 432, 434 (Iowa 1987)

[]{#a80016 .anchor}**800.16 Going Armed With Intent - Definition -
Armed.** Concerning element number 1 of Instruction No.\_\_\_\_, the
term \"armed\" means a conscious and deliberate possession of a
(dangerous weapon) on or about one\'s person so it is available for
immediate use.

[]{#a80017 .anchor}**800.17 Aggravated Assault - Elements.** The State
must prove all of the following elements of Aggravated Assault:

1\. On or about the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_, 20\_\_\_, the
defendant committed an assault as defined in Instruction No.\_\_\_\_.

2\. At the time, the defendant \[used\] \[displayed\] a (weapon).

3\. (Weapon) was a dangerous weapon as defined in Instruction
No.\_\_\_\_.

If you find the State has proved all of the elements, the defendant is
guilty of Aggravated Assault. If the State has failed to prove any one
of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 708.2

# Comment

Note: This section does not apply if [Iowa Code]{.underline} section
708.6 or 708.8 applies.

[]{#a8101 .anchor}**810.1 Harassment In The First Degree - Elements.**
The State must prove all of the following elements of Harassment In The
First Degree:

1\. On or about the \_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
20\_\_\_\_\_, the defendant

a\. communicated with (name of victim) \[by telephone\] \[by telegraph\]
\[in writing\], without a legitimate purpose, in a manner likely to
cause \[him\] \[her\] annoyance or harm.

b\. placed a simulated \[explosive\] \[incendiary device\] in or near a
\[building\] \[vehicle\] \[airplane\] \[railroad engine or car\]
\[boat\] occupied by another person.

c\. ordered merchandise or services in the name of (name of victim), or
to be delivered to (name of victim), without \[his\] \[her\] consent or
knowledge.

d\. \[reported\] \[caused to be reported\] to a law enforcement
authority false information implicating (name of victim) in some
criminal activity, knowing the information was false.

e\. reported the alleged occurrence of a criminal act to a law
enforcement authority, knowing the act did not occur.

2\. The defendant communicated a threat to commit the crime of (forcible
felony), as defined in Instruction No.\_\_\_\_\_\_\_\_\_\_.

3\. The defendant did so with the specific intent to intimidate, annoy
or alarm (name of victim).

If the State has proved each of these elements, the defendant is guilty
of Harassment In The First Degree. If the State has failed to prove one
or more of these elements, the defendant is not guilty of Harassment In
The First Degree (and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction
No.\_\_\_\_\_\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 708.7(1) and (2)

# Comment

Note: Omit that portion of the instruction which is not charged and
supported by the evidence.

Iowa Criminal Jury Instruction 200.2 (Specific Intent) should be given.

If the defendant is charged as a previous offender, see Chapter 2200
(Habitual Criminal).

[]{#a8102 .anchor}**810.2 Harassment In The Second Degree - Elements.**
The State must prove all of the following elements of Harassment In The
Second Degree:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
20\_\_\_\_, the defendant

a\. communicated with (name of victim) \[by telephone\] \[by telegraph\]
\[in writing\], without a legitimate purpose, in a manner likely to
cause \[him\] \[her\] annoyance or harm.

b\. placed a simulated \[explosive\] \[incendiary device\] in or near a
\[building\] \[vehicle\] \[airplane\] \[railroad engine or car\]
\[boat\] occupied by another person.

c\. ordered merchandise or services in the name of (name of victim), or
to be delivered to (name of victim), without \[his\] \[her\] consent or
knowledge.

d\. \[reported\] \[caused to be reported\] to a law enforcement
authority false information implicating (name of victim) in some
criminal activity, knowing the information was false.

e\. reported the alleged occurrence of a criminal act to a law
enforcement authority, knowing the act did not occur.

2\. The defendant communicated a threat to commit bodily injury.

3\. The defendant did so with the specific intent to intimidate, annoy
or alarm (name of victim).

If the State has proved each of these elements, the defendant is guilty
of Harassment In The Second Degree. If the State has failed to prove one
or more of these elements, the defendant is not guilty of Harassment In
The Second Degree (and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 708.7(1) and (3)

# Comment

Note: Omit that portion of the instruction which is not charged and
supported by the evidence.

Iowa Criminal Jury Instruction 200.2 (Specific Intent) and Iowa Criminal
Jury Instruction 200.41 (Bodily Injury) should be given.

If the defendant is charged as a previous offender, see Chapter 2200
(Habitual Criminal).

[]{#a8103 .anchor}**810.3 Harassment In The Third Degree - Elements.**
The State must prove all of the following elements of Harassment In The
Third Degree.

1.  On or about the \_\_\_\_\_day of \_\_\_\_\_\_\_\_\_\_\_, 20\_\_\_\_,
    the defendant

    a.  communicated with (name of victim) \[by telephone\] \[by
        telegraph\] \[in writing\], without a legitimate purpose, in a
        manner likely to cause \[him\] \[her\] annoyance or harm.

    b.  placed a simulated \[explosive\] \[incendiary device\] in or
        near a \[building\] \[vehicle\] \[airplane\] \[railroad engine
        or car\] \[boat\] occupied by another person.

    c.  ordered merchandise or services in the name of (name of victim),
        or to be delivered to (name of victim), without \[his\] \[her\]
        consent or knowledge.

    d.  \[reported\] \[caused to be reported\] to a law enforcement
        authority false information implicating (name of victim) in some
        criminal activity, knowing the information was false.

    e.  reported the alleged occurrence of a criminal act to a law
        enforcement authority, knowing the act did not occur.

2\. The defendant did so with the specific intent to intimidate, annoy
or

alarm (name of victim).

If the State has proved each of these elements, the defendant is guilty
of Harassment In The Third Degree. If the State has failed to prove one
or more of these elements, the defendant is not guilty.

# Authority

*[Iowa Code]{.underline} section 708.7(1) and (4)*

# Comment

> *Note: Omit that portion of the instruction which is not charged and
> supported by the evidence.*

*Iowa Criminal Jury Instruction 200.2 (Specific Intent) should be
given.*

*If the defendant is charged as a previous offender, see Chapter 2200
(Habitual*

*Criminal).* 6/99

[]{#a8201 .anchor}**820.1 Stalking - Elements.** The State must prove
all of the following elements of Stalking:

1.  On or about the\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_, 20\_\_,
    the defendant purposefully engaged in a course of conduct directed
    at (name) that would cause a reasonable person to fear bodily injury
    to, or the death of (name).

2.  The defendant knew or should have known that (name) would be placed
    in reasonable fear of bodily injury or death to (name) or a member
    of \[his\] \[her\] immediate family.

3.  The defendant\'s course of conduct caused (name) to fear bodily
    injury or death to (name) or a member of \[his\] \[her\] immediate
    family.

> If the State has proved all of the elements, the defendant is guilty
> of Stalking. If the State has failed to prove any one or more of the
> elements, the defendant is not guilty.

# Authority

*[Iowa Code]{.underline} section 708.11(2)*

# Comment

*Note: Use Iowa Criminal Jury Instruction 200.41 (Bodily Injury).*

Note: Use Iowa Criminal Jury Instruction 200.3 (Knowledge).

> *Note: If a defendant is charged as a previous offender under
> [section]{.underline} 708.11(3)(a) or is charged as subject to
> sentence enhancement under*
>
> *[section]{.underline} 708.11(3)(b), see Chapter 2200 (Habitual
> Criminal).*
>
> *Caveat: The sentence-enhancing factors listed in [Iowa
> Code]{.underline} section*
>
> *708.11(3) do not define elements of the offense. [State v.
> Beecher,]{.underline}*
>
> *616 N.W.2d 532, 538 (Iowa 2000). But see [Apprendi v. New
> Jersey]{.underline},*
>
> *530 U.S. 466,120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).*

6/01

[]{#a8202 .anchor}**820.2 Course of Conduct - Definition.** Concerning
element number 1 of Instruction No.\_\_\_\_, \"course of conduct\" means
repeatedly maintaining a visual or physical proximity to a person
without legitimate purpose or repeatedly conveying oral or written
threats, threats implied by conduct, or a combination of the two,
directed at or toward a person.

# Authority

*[Iowa Code]{.underline} section 708.11(1)(b)*

[]{#a8203 .anchor}**820.3 Repeatedly - Definition.** The term
\"repeatedly\" used in Instruction No.\_\_\_\_ means on two or more
occasions.

# Authority

*[Iowa Code]{.underline} section 708.11(1)(d)*

[]{#a8204 .anchor}**820.4 Immediate Family Member - Definition.**
Concerning element number 1 of Instruction No.\_\_\_ the term
\"immediate family member\" means a spouse, parent, child, sibling, or
any other person who regularly resides in the household of (name of
victim), or who within the prior six months regularly resided in (name
of victim)\'s household.

# Authority

*[Iowa Code]{.underline} section 708.11(1)(c)*

> *"If your verdict is guilty, do you find that a \[firearm\]\[offensive
> weapon\] was in such close proximity to the defendant as to enable
> \[him\]\[her\] to claim immediate dominion over the firearm?*

###### 

###### Yes\_\_\_\_\_\_\_\_\_\_\_\_\_\_

No\_\_\_\_\_\_\_\_\_\_\_\_\_\_."

> **Authority**

[Iowa Code]{.underline} section 124.401 (1) (d), (e).

[State v. Eickelberg]{.underline}, 574 N.W. 2d 1 (Iowa 1997)

[Apprendi v. New Jersey]{.underline}, \_\_ U.S. \_\_, 120 S. Ct. 2348,
147 L.Ed. 2d 435 (2000)

> "*If your verdict is guilty, do you find that the defendant's acts
> occurred \[in or on, or within one thousand feet of the real property
> comprising a public or private elementary or secondary school\] \[in
> or on a public park, public swimming pool, public recreation
> center\]\[on a marked school bus\]* ?

*Yes\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_*

*No\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_."*

# Authority

*[Iowa Code]{.underline} section 124.401A*

*[State v. Ortiz]{.underline}, \_\_\_N.W. 2d (Iowa, Oct. 2000)*

> *[Apprendi v. New Jersey]{.underline}, \_\_\_\_U.S.\_\_\_, 120 S. Ct.
> 2348, 147 L.Ed. 2d 435 (2000)*
>
> "If your verdict is guilty, do you find that the defendant
> manufactured methamphetamine, its salts, isomers, or salts of its
> isomers when \[ a minor was physically present during the activity\]
> \[ the activity was conducted in the residence of a minor \] \[ the
> activity was conducted in a building where minors can reasonably be
> expected to be present\] \[the activity was conducted in a room
> offered to the public for overnight accommodation\] \[ the activity
> was conducted in any multiple-unit residential building \] ?

*Yes\_\_\_\_\_\_\_\_\_\_\_\_\_*

*No\_\_\_\_\_\_\_\_\_\_\_\_\_\_."*

# Authority

*[Iowa Code]{.underline} section 124.401C*

> *[Apprendi v. New Jersey]{.underline}, \_\_\_\_\_U.S. , 120 S. Ct.
> 2348, 147 L. Ed. 2d 435 (2000)*

#### Comment

*Note: Use Iowa Criminal Jury Instruction 2300.4 (Manufacture*).

12/00

[]{#a8301 .anchor}**830.1 Domestic Abuse Assault - Elements.** The State
must prove all of the following elements of the crime of Domestic Abuse
Assault:

1\. On or about the \_\_\_\_ day of\_\_\_\_\_\_,20\_\_\_ , the defendant
did an act which was meant to \[cause pain or injury\] \[result in
physical contact which was insulting or offensive\] \[place (name of
victim) in fear of immediate physical contact which would have been
painful, injurious, insulting or offensive\] to (victim).

2\. The defendant had the apparent ability to do the act.

3\. The act occurred between \[family or household members who resided
together at the time of the incident\] \[separated spouses or persons
divorced from each other and not residing together at the time of the
incident\] \[persons who are the parents of the same minor child\]
\[persons who have been family or household members residing together
within the past year but not residing together at the time of the
incident\].

If the State has proved all of these numbered elements, the defendant is
guilty of Domestic Abuse Assault. If the State has proved only elements
1 and 2, the defendant is guilty of Assault. If the State has failed to
prove either elements 1 or 2, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} sections 708.2A(1) and (2)

[]{#a8302 .anchor}**830.2 Domestic Abuse Assault Causing Bodily Injury -
Elements.** The State must prove all of the following elements of the
crime of Domestic Abuse Assault Causing Bodily Injury:

1\. On or about the\_\_\_\_\_day of\_\_\_\_\_, 20\_\_ , the defendant
either did an act which was meant to \[cause pain or injury\] \[result
in physical contact which was insulting or offensive\] \[place
[(]{.underline}name of victim) in fear of immediate physical contact
which would have been painful, injurious, insulting or offensive\] to
(victim).

2\. The defendant had the apparent ability to do the act.

3\. The defendant\'s act caused a \[bodily injury\] \[mental illness\]
to (name of victim) as defined in Instruction No.\_\_\_\_\_\_.

4\. The act occurred between \[family or household members who resided
together at the time of the incident\] \[separated spouses or persons
divorced from each other and not residing together at the time of the
incident\] \[persons who are the parents of the same minor child\]
\[persons who have been family or household members residing together
within the past year but not residing together at the time of the
incident\].

If the State has proved all of these numbered elements, the defendant is
guilty of Domestic Abuse Assault Causing Bodily Injury. If the State has
proved only elements 1, 2 and 3, then the defendant is guilty of Assault
Causing Bodily Injury. If the State has proved only elements 1, 2 and 4,
the defendant is guilty of Domestic Abuse Assault. If the State has
proved only elements 1 and 2, the defendant is guilty of Assault. If the
State has failed to prove either element 1 or 2, the defendant is not
guilty.

### Authority

[Iowa Code]{.underline} sections 708.2A(1) and (2)

[]{#a8303 .anchor}**830.3 Domestic Abuse Assault While Using Or
Displaying A Dangerous Weapon - Elements.** The State must prove all of
the following elements of the crime of Domestic Abuse Assault While
Using Or Displaying A Dangerous Weapon:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_, 20\_\_\_ , the
defendant either did an act which was meant to \[cause pain or injury\]
\[result in physical contact which was insulting or offensive\] \[place
(name of victim) in fear of immediate physical contact which would have
been painful, injurious, insulting or offensive\] to (victim), or
\[intentionally pointed a firearm toward (victim) \[displayed in a
threatening manner a dangerous weapon toward (victim)\].

2\. The defendant had the apparent ability to do the act.

3\. At that time the defendant used or displayed a dangerous weapon.

4\. The act occurred between \[family or household members who resided
together at the time of the incident\] \[separated spouses or persons
divorced from each other and not residing together at the time of the
incident\] \[persons who are the parents of the same minor child\]
\[persons who have been family or household members residing together
within the past year but not residing together at the time of the
incident\].

If the State has proved all of these numbered elements, the defendant is
guilty of Domestic Abuse Assault While Using Or Displaying A Dangerous
Weapon. If the State has proved only elements 1, 2 and 3, then the
defendant is guilty of Assault While Using Or Displaying A Dangerous
Weapon. If the State has proved only elements 1, 2 and 4, the defendant
is guilty of Domestic Abuse Assault. If the State has proved only
elements 1 and 2, the defendant is guilty of Assault. If the State has
failed to prove either element 1 or 2, the defendant is not guilty.

### Authority

[Iowa Code]{.underline} sections 708.2A(1) and (2)

[]{#a8304 .anchor}**830.4 Domestic Abuse Assault With Intent To Inflict
Serious Injury - Elements.** The State must prove all of the following
elements of the crime of Domestic Abuse Assault With Intent To Inflict
Serious Injury:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_, 20\_\_\_ , the
defendant did an act which was meant to \[cause pain or injury\]
\[result in physical contact which was insulting or offensive\] \[place
(name of victim) in fear of immediate physical contact which would have
been painful, injurious, insulting or offensive\] to (victim).

2\. The defendant had the apparent ability to do the act.

3\. At that time the defendant intended to cause a serious injury to
(victim).

4\. The act occurred between \[family or household members who resided
together at the time of the incident\] \[separated spouses or persons
divorced from each other and not residing together at the time of the
incident\] \[persons who are the parents of the same minor child\]
\[persons who have been family or household members residing together
within the past year but not residing together at the time of the
incident\].

If the State has proved all of these numbered elements, the defendant is
guilty of Domestic Abuse Assault With Intent To Inflict Serious Injury.
If the State has proved only elements 1, 2 and 3, then the defendant is
guilty of Assault With Intent To Inflict Serious Injury. If the State
has proved only elements 1, 2 and 4, the defendant is guilty of Domestic
Abuse Assault. If the State has proved only elements 1 and 2, the
defendant is guilty of Assault. If the State has failed to prove either
element 1 or 2, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} sections 708.2A(1) and (2)

*.*

[]{#a8305 .anchor}**830.5 Definition - Family Or Household Members.**
The law defines \"family or household members\" as persons cohabiting
with each other.

\"Cohabiting\" does not require a sexual relationship, but does require
more than dwelling or living together in the same place. To determine if
the defendant and (victim) were cohabiting at the time of the alleged
offense, you may consider whether they had sexual relations while
sharing the same living quarters; they shared income or expenses; they
jointly used or owned property together; they held themselves out as
husband and wife; the continuity and length of their relationship, and
any other facts shown by the evidence bearing on their relationship with
each other.

### Authority

[Iowa Code]{.underline} section 236.2(4)

[State v. Kellogg]{.underline}, 542 N.W.2d 514, 518 (Iowa 1996)

[]{#CH900 .anchor}**CHAPTER 900**

# SEXUAL ABUSE

[900.1](#a9001) Sexual Abuse In The First Degree - Elements

[900.2](#a9002) Sexual Abuse In The Second Degree - Elements

[900.3](#a9003) Sexual Abuse In The Third degree - Elements

[900.3.1](#a90031) Sexual Abuse In The Third Degree

[900.3.2](#a90032) Sexual Abuse In The Third Degree - Victim Under the
Influence

[900.3.3](#a90033) Sexual Abuse In The Third Degree - Victim
Incapacitated - Elements

[900.4](#a9004) Lascivious Acts - Elements

[900.5](#a9005) Indecent Exposure - Elements

[900.6](#a9006) Assault With Intent To Commit Sexual Abuse - Serious
Injury - Elements

[900.7](#a9007) Indecent Contact With A Child - Elements

[900.8](#a9008) Definition Of Sex Act

[900.9](#a9009) Knowledge Of Victim\'s Age

[900.10](#a90010) Sexual Abuse - Definition Of Force

[900.11](#a90011) Evidence Of Similar Acts

[900.12](#a90012) Incapacity - Mental - Physical - Definitions.

# Sexual Exploitation Of Minors

[910.1](#a9101) Sexual Exploitation Of Minors - Elements (Class C
Felony)

[910.2](#a9102) Sexual Exploitation Of Minors - Elements (Class D
Felony)

[910.3](#a9103) Sexual Exploitation Of Minors - Elements (Misdemeanor)

[910.4](#a9104) Knowingly - Definition

[910.5](#a9105) Promote - Elements

# Sexual Exploitation By Counselor Or Therapist

[920.1](#a9201) Pattern, Practice, Or Scheme Of Sexual Exploitation -
Elements (Felony)

[920.2](#a9202) Sexual Exploitation - Elements (Aggravated Misdemeanor)

[920.3](#a9203) Sexual Exploitation - Elements (Serious Misdemeanor)

[920.4](#a9204) Counselor Or Therapist - Definition

[920.5](#a9205) Mental Health Service - Definition

[920.6](#a9206) Emotionally Dependent - Definition

[920.7](#a9207) Former Patient Or Client - Definition

[920.8](#a9208) Patient Or Client - Definition

**Note: For Instruction on Civil Commitment of Sexually Violent
Predator, see Chapter 3700 of the Iowa Civil Jury Instruction 12/01**

[]{#a9001 .anchor}**900.1 Sexual Abuse In The First Degree - Elements.**
The State must prove all of the following elements of Sexual Abuse In
The First Degree:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
20\_\_\_ , the defendant performed a sex act with (victim).

2\. The defendant performed the sex act:

a\. by force or against the will of (victim); or

b\. with (victim)\'s consent or acquiescence gained by threats of
violence toward any person; or

c\. while (victim) was under the influence of a sleep-inducing drug; or

d\. while (victim) was unconscious; or

e\. while (victim) was suffering from a mental defect or incapacity
which prevented (victim) from giving consent; or

f\. while (victim) was under the age of 14 years.

3\. During the commission of sexual abuse, the defendant caused (victim)
a serious injury.

If the State has proved all of the elements, the defendant is guilty of
Sexual Abuse In The First Degree. If the State has failed to prove any
one of the elements, the defendant is not guilty of Sexual Abuse In The
First Degree (and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No. \_\_\_\_).

# Authority

[Iowa Code]{.underline} section 709.1

[Iowa Code]{.underline} section 709.2

# Comment

If there is an issue as to whether the injury occurred "during the
commission of sexual abuse," see [State v]{.underline}.
[Carter]{.underline}, 602 N.W.2d 818, 822 (Iowa 1999) (the serious
injury need not occur simultaneously with the commission of the sexual
abuse, but may precede or follow the sexual abuse if the injury and the
sexual abuse "occur as part of an unbroken chain of events or as part of
one continuous series of acts connected with one another.")

[]{#a9002 .anchor}**900.2 Sexual Abuse In The Second Degree -
Elements.** The State must prove all of the following elements of Sexual
Abuse In The Second Degree:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
20\_\_\_, the defendant performed a sex act with (victim).

2\. The defendant performed the sex act:

a\. By force or against the will of (victim); or

b\. With (victim)\'s consent or acquiescence gained by threats of
violence toward any person; or

c\. While (victim) was under the influence of a sleep-inducing drug; or

d\. While (victim) was unconscious; or

e\. While (victim) was suffering from a mental defect or incapacity
which prevented (victim) from giving consent; or

f\. While (victim) was under the age of 14 years.\*

3\. During the sex act, the defendant:

a\. Displayed a dangerous weapon in a threatening manner; or

b\. Used or threatened to use force creating a substantial risk of death
or serious injury to any person; or

c\. Was aided or abetted by one or more persons.

If the State has proved all of the elements, the defendant is guilty of
Sexual Abuse In The Second Degree. If the State has failed to prove any
one of the elements, the defendant is not guilty of Sexual Abuse In The
Second Degree \[and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No. \_\_\_\_.

# Authority

[Iowa Code]{.underline} section 709.3

# Comment

Note: \*A defendant\'s sex act with a person under the age of 12 years
is also Sexual Abuse In The Second Degree. When such a charge is made,
you should delete element no. 3 and substitute the age 12 for age 14 in
element no. 2 f.

Concerning element no. 3, the terms \"dangerous weapon\" and \"serious
injury\" are defined by Iowa Code sections 702.7 and 702.18
respectively. Use Iowa Criminal Jury Instructions 200.21 and 200.22

Note: If \"substantial risk of death or serious injury\" is an issue, an
instruction defining \"substantial risk\" as \"a real hazard or danger\"
may be used. See State v. Phams, 342 N.W.2d 792, 796 (Iowa 1983); State
v. Taylor 538 N.W.2d 314, 316 (Iowa App. 1995).

[]{#a9003 .anchor}**900.3 Sexual Abuse In The Third Degree - Elements.**
The State must prove all of the following elements of Sexual Abuse In
The Third Degree:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant performed a sex act with (victim).

2\. The defendant performed the sex act:

a\. By force or against the will of (victim); or

b\. While (victim) was suffering from a mental defect or incapacity
which prevented (victim) from giving consent; or

c\. While (victim) was under the age of 14 years; or

d\. While (victim) was 14 or 15 years old and \[a member of the same
household as the defendant\] \[while the defendant was in a position of
authority over (victim) and used that authority to coerce (victim) to
submit to the sex act\] \[the defendant was 4 or more years older\]
\[(victim) was the defendant\'s (describe relationship by marriage or
blood to the fourth degree)\].

3\. The defendant and (victim) were not then living together as husband
and wife.

If the State has proved all of the elements, the defendant is guilty of
Sexual Abuse In The Third Degree. If the State has failed to prove any
one of the elements, the defendant is not guilty of Sexual Abuse In The
Third Degree (and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction
No.\_\_\_\_\_\_\_).

**Authority**

[Iowa Code]{.underline} section 709.4, as amended by H.F. 661, Acts of
the 78^th^ General Assembly, 1999

[State v. Lampman]{.underline}, 345 N.W.2d 142 (Iowa 1984)

# Comment

Note: See State v. Allen, 304 N.W.2d 203 (Iowa 1981), for method of
determining the degree of one person\'s relationship to another.

[]{#a90031 .anchor}**900.3.1 Sexual Abuse In The Third Degree.** The
State must prove both of the following elements of Sexual Abuse In The
Third Degree:

1\. On or about the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_, the
defendant performed a sex act with (victim).

2\. The defendant performed the sex act by force or against the will of
(victim).

If the State has proved both of the elements, the defendant is guilty of
Sexual Abuse In The Third Degree. If the State has failed to prove
either one of the elements, the defendant is not guilty of Sexual Abuse
In The Third Degree (and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No. \_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 709.4(1)

[]{#a90032 .anchor}**900.3.2 Sexual Abuse In The Third Degree - Victim
Under the Influence - Elements.** The State must prove all of the
following elements of Sexual Abuse In The Third Degree:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, \_\_\_\_,
the defendant performed a sex act with (victim).

2\. The sex act was performed while (victim) was under the influence of
\[[name of controlled substance]{.underline}\], a controlled substance.

3\. The controlled substance prevented (victim) form consenting the act.

4\. The defendant knew or reasonably should have known that (victim) was
under the influence of the controlled substance.

If the State has proved all of elements, the defendant is guilty of
Sexual Abuse in the Third Degree. If the State has failed to prove all
of the elements, the defendant is not guilty of Sexual Abuse in the
Third Degree.

# Authority

[Iowa Code]{.underline} section 709.4(3), as amended by H.F. 661, Acts
of the 78^th^ General Assembly, 1999.

# Comment

Note: Use Iowa Criminal Jury Instruction 200.3 (Knowledge).

Note: Where the chemical name of the controlled substance is not
generally know or recognized, circumstantial evidence may be use to
prove the defendant's knowledge that the material was some kind of a
controlled substance. See State v. Parrish, 502 N.W.2d 1 (Iowa 1993).

[]{#a90033 .anchor}**900.3.3 Sexual Abuse In Third Degree - Victim
Incapacitated - Elements.** The State must prove all of the following
elements of Sexual Abuse In The Third Degree:

1\. On or about the \_\_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_,
\_\_\_\_\_\_, the defendant performed a sex act with (victim).

2\. The sex act was performed while (victim) was (mentally
incapacitated)(physically incapacitated)(physically helpless).

3\. The defendant knew or reasonably should have known that (victim) was
(mentally incapacitated)(physically incapacitated)(physically helpless).

If the State has proved all of the elements, the defendant is guilty of
Sexual Abuse in the Third Degree. If the State has failed to prove all
of the elements, the defendant is not guilty of Sexual Abuse in the
Third Degree.

# Authority

[Iowa Code]{.underline} section 709.4(4), as added by H.F. 661, Acts of
the 78^th^ General Assembly, 1999.

# Comment

Note: Use Iowa Criminal Jury Instruction 200.3 (Knowledge) and Iowa
Criminal Jury Instruction 900.12 (Definitions).

[]{#a9004 .anchor}**900.4 Lascivious Acts - Elements.** The State must
prove all of the following elements of Lascivious Acts With A Child:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant with or without (victim)\'s consent:

a\. fondled or touched the pubes or genitals of (victim); or

b\. Permitted or caused (victim) to fondle or touch the defendant\'s
genitals or pubes; or

c\. solicited (victim) to engage in a sex act; or

d\. inflicted pain or discomfort upon (victim); or

e\. permitted (victim) to inflict pain or discomfort on the defendant.

2\. The defendant did so with the specific intent to arouse or satisfy
the sexual desires of the defendant or (victim).

3\. The defendant was then 18 years of age or older.

4\. (Victim) was then under the age of 14 years.

5\. The defendant and (victim) were not then married to each other.\*

If the State has proved all of the elements, the defendant is guilty of
Lascivious Acts With A Child. If the State has failed to prove any one
of the elements, the defendant is not guilty of Lascivious Acts With A
Child (and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.
\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 709.8

# Comment

Note: \*Use this element only if the defendant raises the issue of
cohabitation as husband and wife as excusing the conduct and if a fact
issue exists.

Note: For discussion of what constitutes genitals, see [State v
Martens]{.underline}, 569 NW2d 482 (Iowa 1997)

6/98

[]{#a9005 .anchor}**900.5 Indecent Exposure - Elements.** The State must
prove all of the following elements of Indecent Exposure:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant:

a\. exposed \[her\] \[his\] genitals or pubes to (victim) who was not
then the defendant\'s spouse; or

b\. committed a sex act in the presence or view of (name of third
person).

2\. The defendant did so with the specific intent to arouse or satisfy
the sexual desire of the defendant or (victim).

3\. (Victim) was offended by the defendant\'s conduct.

4\. The defendant knew or reasonably should have known that the act was
offensive to (victim).

If the State has proved all of the elements, the defendant is guilty of
Indecent Exposure. If the State has failed to prove any one of the
elements, the defendant is not guilty of Indecent Exposure (and you will
then consider the charge of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as
explained in Instruction No.\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 709.9

[State v. Adams]{.underline}, 436 N.W.2d 49 (Iowa 1989)

# Comment

Note: Concerning element no. 4, you should decide whether a person may
be guilty if he or she only \"reasonably should have known that the act
was offensive\" to the victim. See [State v. Hutt]{.underline}, 330
N.W.2d 788 (Iowa 1983).

Note: For discussion of what constitutes genitals, see State v Martens,
569 NW2d 482 (Iowa 1997)

[]{#a9006 .anchor}**900.6 Assault With Intent To Commit Sexual Abuse -
Serious Injury - Elements.** The State must prove all of the following
elements of Assault With Intent To Commit Sexual Abuse resulting in
\[serious injury\] \[bodily injury\]:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant assaulted (name of victim).

2\. The defendant did so with the specific intent to commit a sex act by
force or against the will of (name of victim).

3\. The defendant\'s assault caused \[serious injury\] \[bodily injury\]
to (name of victim).

If the State has proved all of the elements, the defendant is guilty of
Assault With Intent To Commit Sexual Abuse resulting in \[serious
injury\] \[bodily injury\]. If the State has failed to prove any one of
the elements, the defendant is not guilty of Assault With Intent To
Commit Sexual Abuse (and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ explained in Instruction
No.\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 709.11

[State v. Beets]{.underline}, 528 N.W.2d 521 (Iowa 1995)

# Comment

Note: Iowa Code section 709.11 defines three assaults of varying
severity, i.e., assaults resulting in serious injury, bodily injury, or
no injury. Tailor this instruction to the charge and the facts of each
case.

Note: \"Assault\" is defined in Chapter 800 of these instructions. Iowa
Criminal Jury Instruction 200.22 defines serious injury. Iowa Criminal
Jury Instruction 200.41 defines bodily injury.

[]{#a9007 .anchor}**900.7 Indecent Contact With A Child - Elements.**
The State must prove all of the following elements of Indecent Contact
With A Child:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant with or without (victim)\'s consent:

a\. fondled or touched the inner thigh, groin, buttock, anus or breast
of (victim); or

b\. touched the clothing covering the immediate area of the inner thigh,
groin, buttock, anus, or breast of (victim); or

c\. solicited or permitted (victim) to fondle or touch the inner thigh,
groin, buttock, anus or breast of the defendant; or

d\. solicited (victim) to engage in (describe act prohibited by Iowa
Code sections 709.8(1), (2), or (4)).

2\. The defendant did so with the specific intent to arouse or satisfy
the sexual desires of the defendant or (victim).

3\. The defendant was then:

a\. 18 years of age or older; or

b\. 16 or 17 years of age.

4\. (Victim) was then:

a\. under the age of 14 years; or

b\. at least 5 years younger than the defendant.

5\. The defendant and (victim) were not then married to each other.

If the State has proved all of the elements, the defendant is guilty of
Indecent Contact With A Child. If the State has failed to prove any one
of the elements, the defendant is not guilty of Indecent Contact With A
Child (and you will then consider the charge of \_\_\_\_\_\_\_\_\_\_\_
explained in Instruction No. \_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 709.12

# Comment

Note: Elements 3a and 4a must be used together, as must Elements 3b and
4b.

[]{#a9008 .anchor}**900.8 Definition Of Sex Act.** Concerning element
number \_\_\_\_\_\_\_\_\_ of Instruction No.\_\_\_\_\_, \"sex act\"
means any sexual contact:

1\. By penetration of the penis into the vagina or anus.

2\. Between the mouth of one person and the genitals of another.

3\. Between the genitals of one person and the genitals or anus of
another.

4\. Between the finger or hand of one person and the genitals or anus of
another person.\*

5\. By a person\'s use of an artificial sex organ or a substitute for a
sexual organ in contact with the genitals or anus of another.

You may consider the type of contact and the circumstances surrounding
it in deciding whether the contact was sexual in nature.

# Authority

[Iowa Code]{.underline} section 702.17

[State v. Monk]{.underline}, 514 N.W.2d 448 (Iowa 1994) (contact must be
sexual in nature).

[State v. Pearson,]{.underline} 514 N.W.2d 452 (Iowa 1994) (skin-to-skin
contact not required to establish \"sex act\").

# Comment

Note: \*There is an exception for licensed persons which should be used
if raised by the evidence.

Note: For discussion of what constitutes genitals, see [State v
Martens]{.underline}, 569 NW2d 482 (Iowa 1997)

[]{#a9009 .anchor}**900.9 Knowledge Of Victim\'s Age.** Concerning
element number \_\_\_\_\_\_\_\_ of Instruction No. \_\_\_\_\_, the State
must prove that (victim) was (describe age requirement involved) at the
time of the defendant\'s act. The defendant\'s ignorance of (victim)\'s
age or a belief that (victim) was older is no defense to the crime
charged.

# Authority

[State v. Tague]{.underline}, 310 N.W.2d 209 (Iowa 1981)

[]{#a90010 .anchor}**900.10 Sexual Abuse - Definition Of Force.**
Concerning element number 2 of Instruction No. \_\_\_\_\_, the State
must prove that the defendant committed a sex act \"by force or against
the will\" of (victim). In order to do so, however, the State does not
have to prove that (victim) physically resisted the defendant\'s acts.
The force used by the defendant does not have to be physical. It may
consist of threats of violence against the victim or another person
which overcame the victim\'s will by fear.

You may consider all of the circumstances surrounding the defendant\'s
act in deciding whether the act was done by force or against the will of
(victim).

# Authority

[Iowa Code]{.underline} section 709.5

[State v. Bauer]{.underline}, 324 N.W.2d 320 (Iowa 1982)

[]{#a90011 .anchor}**900.11 Evidence Of Similar Acts.** You have heard
evidence that the defendant allegedly committed other acts with (victim)
\[before\] \[after\] (date of offense charged). If you decide the
defendant committed these other acts, you may consider those acts only
to determine whether the defendant has a sexual passion or desire for
(victim). You may not consider them as proving that the defendant
actually committed the act charged in this case.

# Authority

[State v. Munz]{.underline}, 355 N.W.2d 576 (Iowa 1984)

[State v. Spaulding]{.underline}, 313 N.W.2d 878, 880 (Iowa 1981)

# Comment

Note; You must also determine whether evidence of similar acts with
others is admissible for some other purpose under [I.R.Evid.
5.404(b),]{.underline} i.e., identity, intent, etc. See, [State v.
Cott]{.underline}, 283 N.W.2d 324 (Iowa 1979). This instruction does not
apply to evidence admitted under [I.R.Evid. 5.404(b).]{.underline}

[]{#a90012 .anchor}**900.12 Incapacity - Mental - Physical -
Definitions.** As used in Instruction No. \_\_\_\_,

a\. "Mentally Incapacitated" means that a person is temporarily
incapable of controlling the person's own conduct due to the influence
of a narcotic, anesthetic, or intoxicating substance.

b\. "Physically helpless" means that a person is unable to communicate
an unwillingness to act because the person is unconscious, asleep, or
otherwise physically limited.

c\. "Physically incapacitated" means that a person has a bodily
impairment or handicap that substantially limits the person's ability to
resist or flee.

# Authority

[Iowa Code]{.underline} section 709.1A, added by H. F. 661, Acts of the
78^th^ General Assembly, 1999.

[Iowa Code]{.underline} section 708.4, as amended by H.F. 501, Acts of
the 78^th^ General Assembly, 1999.

[Iowa Code]{.underline} section 702.18.

# Comment

Note: Use only that definition alleged and supported by the evidence.

Note: Iowa Criminal Jury Instruction 200.22 (Serious Injury) and Iowa
Criminal Jury Instruction 200.2 (Specific Intent) should be used. If
appropriate, use Iowa Criminal Jury Instruction 200.41 (Bodily Injury).

[]{#a9101 .anchor}**910.1 Sexual Exploitation Of Minors - Elements
(Class C. Felony).** The State must prove both of the following elements
of Sexual Exploitation of Minors:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant \[employed\] \[used\] \[persuaded\] \[induced\]
\[enticed\] \[coerced\] \[knowingly permitted\] \[caused\] a person
under the age of 18 years to:

a\. engage in (describe \"prohibited sexual act\" defined by [Iowa
Code]{.underline} section 728.1(8)).

b\. engage in the simulation of (describe \"prohibited sexual act\"
defined by [Iowa Code]{.underline} section 728.1(8)).

2\. The defendant \[knew\] \[had reason to know\] \[intended\] that the
act would be:

a\. photographed.

b\. filmed.

c\. preserved in a \[negative\] \[slide\] \[book\] \[magazine\] \[print
or visual medium\].

If the State has proved both of the elements, the defendant is guilty of
Sexual Exploitation of Minors. If the State has failed to prove either
of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 728.12(1)

[Iowa Code]{.underline} section 728.1(8)

[Iowa Code]{.underline} section 728.1(6)

[]{#a9102 .anchor}**910.2 Sexual Exploitation Of Minors - Elements
(Class D Felony).** The State must prove both of the following elements
of Sexual Exploitation Of Minors:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant knowingly promoted (describe material as defined by Iowa
Code section 728.1(2)).

2\. The material depicted a live performance of a person under the age
of 18 years:

a\. engaging in (describe \"prohibited sexual act\" defined by [Iowa
Code]{.underline} section 728.1(8)).

b\. engaged in the simulation of (describe \"prohibited\" sexual act\"
defined by [Iowa Code]{.underline} section 728.1(8)).

If the State has proved both of the elements, the defendant is guilty of
Sexual Exploitation Of Minors. If the State has failed to prove either
of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 728.12(2)

[Iowa Code]{.underline} section 728.1(2)

[Iowa Code]{.underline} section 728.1(8)

[Iowa Code]{.underline} section 728.1(4)

[Iowa Code]{.underline} section 728.1(9)

[Iowa Code]{.underline} section 728.1(6)

[]{#a9103 .anchor}**910.3 Sexual Exploitation Of Minors - Elements
(Misdemeanor).** The State must prove both of the following elements of
Sexual Exploitation of Minors:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant knowingly \[purchased\] \[possessed\] a \[negative\]
\[slide\] \[book\] \[magazine\] \[print or visual medium\].

2\. That material shows a person under the age of 18 years:

a\. engaging in (describe \"prohibited sexual act\" defined by Iowa Code
section 728.1(8)).

b\. engaged in the simulation of (describe \"prohibited sexual act\"
defined by [Iowa Code]{.underline} section 728.1(8)).

If the State has proved both of the elements, the defendant is guilty of
Sexual Exploitation Of Minors. If the State has failed to prove either
of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 728.12(3)

[Iowa Code]{.underline} section 728.1(4)

[Iowa Code]{.underline} section 728.1(8)

[Iowa Code]{.underline} section 728.1(6)

[]{#a9104 .anchor}**910.4 Knowingly - Definition.** Concerning element
number \_\_\_\_\_\_\_\_\_\_\_\_ of Instruction No \_\_\_\_\_\_,
\"knowingly\" means being aware of the character of the matter.

# Authority

[Iowa Code]{.underline} section 728.1(4)

[]{#a9105 .anchor}**910.5 Promote - Elements.** Concerning element
number \_\_\_\_\_\_\_ of Instruction No.\_\_\_\_, \"promote\" means to
procure, manufacture, issue, sell, give, provide, lend, mail, deliver,
transfer, transmute, transmit, publish, distribute, circulate,
disseminate, present, exhibit, or advertise. It also means to offer or
agree to do any of these acts.

# Authority

[Iowa Code]{.underline} section 728.1(9)

# Comment

Note: Use only those portions of the instruction supported by the
evidence.

[]{#a9201 .anchor}**920.1 Pattern, Practice, Or Scheme Of Sexual
Exploitation - Elements (Felony).** The State must prove all of the
following elements of Pattern, Practice, Or Scheme Of Sexual
Exploitation:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 20\_\_\_,
the defendant:

a\. Kissed (victim); or

b\. Touched the clothed or unclothed inner thigh, breast, groin,
buttock, anus, pubes, or genitals of (victim); or

c\. Performed a sex act with (victim); or

d\. Engaged in \[specify sexual conduct\] with (victim).\*

2\. The defendant engaged in this conduct as part of a pattern, practice
or scheme.

3\. The defendant did so with the specific intent to arouse or satisfy
the sexual desires of the defendant or (victim).

4\. The defendant was then a counselor or therapist.

5\. (Victim) was then:

a\. A patient, client or emotionally dependent former patient or client;
or

b\. A former patient or client, and the conduct occurred within one year
of the termination of the mental health services provided by the
defendant.

6\. The defendant\'s conduct was not part of a necessary examination or
treatment provided (victim) by the defendant while acting within the
scope of the practice or employment in which the defendant was
engaged.\*\*

If the State has proved all of the elements, the defendant is guilty of
Pattern, Practice, Or Scheme Of Sexual Exploitation. If the State has
failed to prove any one of the elements, the defendant is not guilty of
Pattern, Practice Or Scheme Of Sexual Exploitation, and you will then
consider the crime of Sexual Exploitation explained in Instruction No.
\_\_\_\_\_\_.

# Authority

[Iowa Code]{.underline} section 709.15(1)(f)(1)

# Comment

Note: \*Use only specifications supported by the evidence.

\*\*Use only when this statutory affirmative defense is raised by the
defendant and supported by the evidence.

Note: For discussion of what constitutes genitals, see [State v
Martens]{.underline}, 569 N.W.2d 482 (Iowa 1997)

Iowa Criminal Jury Instruction 200.2 (Specific Intent).

Iowa Criminal Jury Instruction 900.8 (Sex Act).

Iowa Criminal Jury Instruction 920.6 (Emotionally Dependent)

[]{#a9202 .anchor}**920.2 Sexual Exploitation Elements (Aggravated
Misdemeanor).** The State must prove all of the following elements of
Sexual Exploitation:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 20\_\_ ,
the defendant:

a\. Kissed (victim); or

b\. Touched the clothed or unclothed inner thigh, breast, groin,
buttock, anus, pubes, or genitals of (victim); or

c\. Performed a sex act with (victim); or

d\. Engaged in \[specify sexual conduct\] with (victim).\*

2\. The defendant did so with the specific intent to arouse of satisfy
the sexual desires of the defendant or (victim).

3\. The defendant was then a counselor or therapist.

4\. (Victim) was then an emotionally dependent patient or client or was
an emotionally dependent former patient or client.

5\. The defendant\'s conduct was not a part of a necessary examination
or treatment provided (victim) by the defendant while acting within the
scope of the practice or employment in which the defendant was
engaged.\*\*

If the State has proved all of the elements, the defendant is guilty of
Sexual Exploitation. If the State has failed to prove any one of the
elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 709.15(1)(f)(2)

# Comment

Note: \*Use only specifications supported by the evidence.

\*\*Use only when this statutory affirmative defense is raised by the
defendant and supported by the evidence.

Note: For discussion of what constitutes genitals, see [State v
Martens]{.underline}, 569 N.W.2d 482 (Iowa 1997

Iowa Criminal Jury Instruction 200.2 (Specific Intent)

Iowa Criminal Jury Instruction 900.8 (Sex Act)

Iowa Criminal Jury Instruction 920.6 (Emotionally Dependent)

[]{#a9203 .anchor}**920.3 Sexual Exploitation - Elements (Serious
Misdemeanor).** The State must prove all of the following elements of
Sexual Exploitation:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_,
20\_\_\_, the defendant:

a\. Kissed (victim); or

b\. Touched the clothed or unclothed inner thigh, breast, groin,
buttock, anus, pubes, or genitals of (victim); or

c\. Performed a sex act with (victim); or

d\. Engaged in \[specify sexual conduct\] with (victim).\*

2\. The defendant did so with the specific intent to arouse or satisfy
the sexual desires of the defendant or (victim).

3\. The defendant was then a counselor or therapist.

4\. (Victim) was:

a\. A patient or client; or

b\. A former patient or client, and the conduct occurred within one year
of the termination of the mental health services provided by the
defendant.

5\. The defendant\'s conduct was not part of a necessary examination or
treatment provided (victim) by the defendant while acting within the
scope of the practice or employment in which the defendant was
engaged.\*\*

If the State has proved all of the elements, the defendant is guilty of
Sexual Exploitation. If the State has failed to prove any one of the
elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 709.15(1)(f)(3)

# Comment

Note: \*Use only specifications supported by the evidence.

\*\*Use only when this statutory affirmative defense is raised by the
defendant and supported by the evidence.

Note: For discussion of what constitutes genitals, see [State v.
Martens]{.underline}, 569 N.W.2d 482 (Iowa 1997

Iowa Criminal Jury Instruction 200.2 ( Specific Intent)

Iowa Criminal Jury Instruction 900.8 (Sex Act)

Iowa Criminal Jury Instruction 920.6 (Emotionally Dependent)

[]{#a9204 .anchor}**920.4 Counselor Or Therapist - Definition.**
Concerning element number \_\_\_\_\_\_\_\_\_\_\_ of Instruction No.
\_\_\_\_\_, the State must prove that the defendant was a physician,
psychologist, nurse, professional counselor, social worker, marriage or
family therapist, alcohol or drug counselor, member of the clergy, or
any other person, whether or not licensed or registered by the State,
who provides or purports to provide mental health services.

**Authority**

[Iowa Code]{.underline} section 709.15(1)(a)

[]{#a9205 .anchor}**920.5 Mental Health Service - Definition.**
Concerning element number \_\_\_\_\_\_\_\_\_\_\_ of Instruction
No.\_\_\_\_\_, the State must prove that the defendant provided or
purported to provide treatment, assessment, or counseling of another
person for a cognitive, behavioral, emotional, mental or social
dysfunction, including an intrapersonal or interpersonal dysfunction.

# Authority

[Iowa Code]{.underline} section 709.15(1)(b)

[]{#a9206 .anchor}**920.6 Emotionally Dependent - Definition**.
Concerning element number \_\_\_\_\_\_\_\_\_\_\_ of Instruction
No.\_\_\_\_\_\_, the State must prove that (victim\'s) emotional
condition or the nature of the treatment provided by the defendant was
such that the defendant knew or had reason to know\* that (victim) was
significantly impaired in the ability to withhold consent to sexual
conduct by the defendant.

You may but are not required to conclude that a former patient or client
is dependent for one year following the termination of mental health
services.

# Authority

[Iowa Code]{.underline} section 709.15(1)(c)

# Comment

Note: Iowa Criminal Jury Instruction 200.3 (Knowledge).

Caveat: \*The Committee takes no position on whether [State v.
Hutt]{.underline}, 330 N.W.2d 788 (Iowa 1983) (proof of actual knowledge
required in prosecution for possession of stolen property) has any
application to this statute.

[]{#a9207 .anchor}**920.7 Former Patient Or Client - Definition.**
Concerning element number \_\_\_\_\_\_\_\_\_ of Instruction
No.\_\_\_\_\_\_, the State must prove that (victim) received mental
health services from the defendant.

# Authority

[Iowa Code]{.underline} section 709.15(1)(d)

[]{#a9208 .anchor}**920.8 Patient Or Client - Definition.** Concerning
element number \_\_\_\_\_\_\_\_ of Instruction No.\_\_\_\_\_, the State
must prove that (victim) was receiving mental health services from the
defendant.

# Authority

[Iowa Code]{.underline} section 709.15(1)(e)

[]{#CH1000 .anchor}**CHAPTER 1000**

KIDNAPPING AND RELATED OFFENSES

[1000.1](#a10001) Kidnapping In The First Degree - Elements

[1000.2](#a10002) Kidnapping In The Second Degree - Elements

[1000.3](#a10003) Kidnapping For Ransom - Definition

[1000.4](#a10004) Kidnapping In The Third Degree - Elements

[1000.5](#a10005) Kidnapping - Confinement, Removal (When Used With
Another Public Offense) Definition

[1000.6](#a10006) Kidnapping - Torture - Definition

[1000.7](#a10007) Kidnapping - Intent To Secretly Confine - Definition

[1000.8](#a10008) False Imprisonment - Elements

[1000.9](#a10009) Child Stealing - Elements

[1000.10](#a100010) Violating Custodial Order By Relative - Elements

[1000.11](#a100011) Harboring A Runaway Child - Elements

[]{#a10001 .anchor}**1000.1 Kidnapping In The First Degree - Elements.**
The State must prove all of the following elements of Kidnapping In The
First Degree:

1\. On or about the \_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_, the
defendant \[confined (victim)\] \[removed (victim) from (place)\].

2\. The defendant did so with the specific intent to:

a\. hold (victim) for ransom.

b\. use (victim) as a shield or hostage

c\. inflict serious injury upon (victim).

d\. subject (victim) to sexual abuse.

e\. secretly confine (victim).

f\. interfere with the performance of any government function.

(Omit those not charged or supported by the evidence.)

3\. The defendant knew \[he\] \[she\] did not have the \[consent\]
\[authority\] of the victim to do so.

4\. As a result of the \[confinement\] \[removal\] (victim) \[suffered a
serious injury\] \[was intentionally subjected to torture\] \[was
sexually abused\].

If the State has proved all of the elements, the defendant is guilty of
Kidnapping In The First Degree. If the State has failed to prove any one
of the elements, then the defendant is not guilty of Kidnapping In The
First Degree (and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_ explained in Instruction No.\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 710.2

[State v. Newman]{.underline}, 326 N.W.2d 788 (1982)

# Comment

Note: When the result of the kidnapping is a serious injury, Iowa
Criminal Jury Instruction 200.22 should be used. Where the result of
kidnapping is sexual abuse, Iowa Criminal Jury Instruction 200.1
(Intent) and Instruction 900.8, as well as the applicable definition of
Sexual Abuse under Chapter 900 of the Iowa Criminal Jury Instructions
should be used.

[]{#a10002 .anchor}**1000.2 Kidnapping In The Second Degree -
Elements.** The State must prove all of the following elements of
Kidnapping In The Second Degree:

1\. On or about the \_\_\_\_\_\_day of \_\_\_\_\_\_\_\_\_, 19\_\_\_, the
defendant \[confined (victim)\] \[removed (victim) from (place)\].

2\. The defendant did so with the specific intent to:

a\. hold (victim) for ransom.

b\. use (victim) as a shield or hostage.

c\. inflict serious injury upon (victim).

d\. subject (victim) to sexual abuse.

e\. secretly confine (victim).

f\. interfere with the performance of any government function.

(Omit those not charged or supported by the evidence.)

3\. The defendant knew \[he\] \[she\] did not have the \[consent\]
\[authority\] of the victim to do so.

4\. a. (Victim) was held for ransom.

b\. The defendant was armed with a dangerous weapon at the time \[he\]
\[she\] \[confined\] \[removed\] (victim).

(Use element 4a or 4b as may be charged and supported by the evidence.)

If the State has proved all of the elements, the defendant is guilty of
Kidnapping In The Second Degree. If the State has failed to prove any
one of the elements, then the defendant is not guilty of Kidnapping In
The Second Degree (and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_ explained in Instruction No.\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 710.3

[State v. Misner]{.underline}, 410 N.W.2d 216 (1987)

# Comment

Note: Where element 4b is used, then Iowa Criminal Jury Instruction
200.21 (Dangerous Weapon) should be used.

[]{#a10003 .anchor}**1000.3 Kidnapping For Ransom - Definition.** A
person commits Kidnapping For Ransom when \[he\] \[she\] holds someone
for the purpose of obtaining money or other valuable things as the price
of release. It makes no difference if the victim is actually released
without payment.

# Authority

[State v. Goff]{.underline}, 342 N.W.2d 830 (1983)

[Knutson v. Brewer]{.underline}, 619 F.2d 747 (8th Cir. 1980)

[]{#a10004 .anchor}**1000.4 Kidnapping In The Third Degree - Elements.**
The State must prove all of the following elements of Kidnapping In The
Third Degree:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant \[confined (victim)\] \[removed (victim) from
(place)\].

2\. The defendant did so with the specific intent to:

a\. hold (victim) for ransom.

b\. use (victim) as a shield or hostage.

c\. inflict serious injury upon (victim).

d\. subject (victim) to sexual abuse.

e\. secretly confine (victim).

f\. interfere with the performance of any government function.

(Omit those not charged or supported by the evidence.)

3\. The defendant knew \[he\] \[she\] did not have the \[consent\]
\[authority\] of the victim to do so.

If the State has proved all of the elements, the defendant is guilty. If
the State has failed to prove any one of the elements, then the
defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 710.4

[]{#a10005 .anchor}**1000.5 Kidnapping - Confinement, Removal (When Used
With Another Public Offense) -** **Definition.** Concerning element
number \_\_\_\_ of Instruction No.\_\_\_\_\_, \[confinement\]
\[removal\] requires more than what is included in the commission of the
crime of (insert underlying offense).

A person is \"confined\" when \[his\] \[her\] freedom to move about is
substantially restricted by force, threat or deception. The person may
be confined either in the place where the restriction began or in a
place to which \[he\] \[she\] has been removed.

No minimum time of confinement or distance of removal is required. It
must be more than slight. The \[confinement\] \[removal\] must have
significance apart from the (insert underlying offense).

In determining whether \[confinement\] \[removal\] exists, you may
consider whether:

1\. The risk of harm to (victim) was increased.

2\. The risk of detection was reduced.

3\. Escape was made easier.

# Authority

[State v. Hatter]{.underline}, 414 N.W.2d 333 (Iowa 1987)

[State v. Misner]{.underline}, 410 N.W.2d 216 (Iowa 1987)

[State v. Mead]{.underline}, 316 N.W.2d 440 (Iowa 1982)

[State v. Marr]{.underline}, 316 N.W.2d 176 (Iowa 1982)

[State v. Rich]{.underline}, 305 N.W.2d 739 (Iowa 1981)

# Comment

Caveat: See, [State v. Misner]{.underline}, supra, for discussion of
whether this instruction is applicable to cases where the underlying
offense is not sexual abuse.

[]{#a10006 .anchor}**1000.6 Kidnapping - Torture - Definition.**
Concerning element number \_\_\_\_\_\_ of Instruction No.\_\_\_\_,
\"torture\" means the intentional infliction of severe physical or
mental pain.

# Authority

[Iowa Code]{.underline} section 710.2

[State v. Cross]{.underline}, 308 N.W.2d 25 (Iowa 1981)

[]{#a10007 .anchor}**1000.7 Kidnapping - Intent To Secretly Confine -
Definition.** Concerning element number of Instruction No.\_\_\_\_, an
intent to secretly confine means more than restricting the movement of
(victim). It means an intent to conceal or hide (victim) or prevent
\[his\] \[her\] discovery.

Comment

Note: See [Iowa Code]{.underline} section 710.1(4)

Iowa Criminal Jury Instruction 200.2 (Specific Intent)

[]{#a10008 .anchor}**1000.8 False Imprisonment - Elements.** The State
must prove all of the following elements of the crime of False
Imprisonment:

1\. On or about the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_, the
defendant intentionally confined (victim).

2\. (Victim) was confined against \[his\] \[her\] will.

3\. The defendant did not have a reasonable belief that \[he\] \[she\]
had a right or authority to confine (victim).

If the State has proved all of the elements, then the defendant is
guilty. If the State has failed to prove any one of the elements, then
the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 710.7

# Comment

Note: Iowa Criminal Jury Instruction 1000.5 (Confinement).

[]{#a10009 .anchor}**1000.9 Child Stealing - Elements.** The State must
prove all of the following elements of Child Stealing:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19 \_\_\_,
the defendant \[forcibly\] \[fraudulently\] \[took\] \[decoyed\]
\[enticed\] (child) away from (custodian).

2\. At the time, the defendant knew \[he\] \[she\] had no authority to
take the child.

3\. (Child) was under the age of fourteen years.

4\. The defendant did so with the intent to detain or conceal (child)
from (custodian).

5\. a. The defendant was not a relative of (child) and \[he\]
\[she\]took the child for the sole purpose of assuming custody.

b\. The defendant was a relative of (child) but did not take the child
for the sole purpose of assuming custody.

(Use element 5a or 5b as charged and supported by the evidence.)

6\. (Custodian) had lawful custody of (child).\*

If the State has proved all of the elements, then the defendant is
guilty. If the State has failed to prove any one of the elements, then
the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 710.5

# Comment

Note: With this offense, Iowa Criminal Jury Instruction 200.1 (Intent)
should be used.

Note: \*This element may not be appropriate where the custodian is a
guardian or parent.

[]{#a100010 .anchor}**1000.10 Violating Custodial Order By Relative -
Elements.** The State must prove all of the following elements of
Violating a Custodial Order:

1\. On or about the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
(custodian) had \[custody\] \[physical care\] of (child) by court order.

2\. Defendant was a relative of the child.

3\. The defendant took and concealed the (child) from (custodian) in
violation of a court order.

4\. At the time, (child) was under the age of fourteen.

If the State has proved all of the elements, the defendant is guilty. If
the State has failed to prove any one of the elements, the defendant is
not guilty.

# Authority

[Iowa Code]{.underline} section 710.6

[]{#a100011 .anchor}**1000.11 Harboring A Runaway Child - Elements.**
The State must prove all of the following elements for Harboring A
Runaway Child:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
defendant \[provided aid to\] \[supported\] \[sheltered\] (child).

2\. Defendant intended to \[commit a criminal act involving (child)\]
\[force\] \[entice\] (child) to commit a criminal act.\]

3\. (Child) was under eighteen years of age.

4\. (Child) was voluntarily absent from \[his\] \[her\] home, without
the consent of \[his\] \[her\] \[parent\] \[guardian\] \[custodian\].

If the State has proved all of the elements, then the defendant is
guilty. If the State has failed to prove any one of the elements, the
defendant is not guilty.

**Authority**

[Iowa Code]{.underline} section 710.8

[]{#CH1100 .anchor}**CHAPTER 1100**

# ROBBERY AND EXTORTION

# Robbery

[1100.1](#a11001) Robbery In The First Degree - Elements

[1100.2](#a11002) Robbery In The Second Degree - Elements

# Extortion

[1110.1](#a11101) Extortion - Elements

[1110.2](#a11102) Extortion - Defense

[]{#a11001 .anchor}**1100.1 Robbery In The First Degree - Elements.**
The State must prove all of the following elements of Robbery in the
First Degree:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant had the specific intent to commit a theft.

2\. To carry out \[his\] \[her\] intention or to assist \[him\] \[her\]
in escaping from the scene, with or without the stolen property, the
defendant:

a\. Committed an assault on (victim).

b\. Threatened (victim) with, or purposely put (victim) in fear of
immediate serious injury.

c\. Threatened to immediately commit (name of forcible felony).

(Use element 2a, b or c as may be charged and supported by the
evidence.)

3\. The defendant:

a\. Purposely inflicted or attempted to inflict a serious injury on
(victim).

b\. Was armed with a dangerous weapon.

(Use element 3a or b as may be charged and supported by the evidence.)

If the State has proved all of the elements, the defendant is guilty of
Robbery In The First Degree. If the State has failed to prove any one of
the elements, the defendant is not guilty of Robbery In The First Degree
(and you will then consider the charge of Robbery In The Second Degree
explained In Instruction No.\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 711.1

[Iowa Code]{.underline} section 711.2

# Comment

Note: The terms \"assist\" and \"escaping\" are to be given their
ordinary meanings. [State v. Terry]{.underline}, 544 N.W.2d 449 (Iowa
1996) (fact-finder required to focus on defendant\'s actions, not
reasonableness of pursuer\'s conduct).

[]{#a11002 .anchor}**1100.2 Robbery In The Second Degree - Elements.**
The State must prove all of the following elements of Robbery In The
Second Degree:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant had the specific intent to commit a theft.

2\. In carrying out \[his\] \[her\] intention or to assist \[him\]
\[her\] in escaping from the scene, with or without the stolen property,
the defendant:

a\. Committed an assault on (victim).

b\. Threatened (victim) with or purposely put (victim) in fear of
immediate serious injury.

c\. Threatened to immediately commit (name of forcible felony).

(Use element 2a, b or c as may be charged and supported by the
evidence.)

If the State has proved all of the elements, the defendant is guilty of
Robbery In The Second Degree. If the State has failed to prove any one
of the elements, the defendant is not guilty of Robbery In The Second
Degree (and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction No.\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 711.1

[Iowa Code]{.underline} section 711.3

[]{#a11101 .anchor}**1110.1 Extortion - Elements.** The State must prove
all of the following elements of Extortion:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant threatened to (set forth the manner of the offense as
charged and supported by the evidence).

2\. The defendant intended to communicate the threat towards (name of
person threatened).

3\. The threat was made for the purpose of obtaining something of value
for the defendant or another person.

4\. The defendant did not reasonably believe that \[he\] \[she\] had a
right to make threats in order to \[recover property\] \[be paid for
property or services\] \[recover a debt to which \[he\] \[she\] had a
good faith claim\].

If the State has proved all of the elements, the defendant is guilty of
Extortion. If the State has failed to prove any one of the elements, the
defendant is not guilty of Extortion.

# Authority

[Iowa Code]{.underline} section 711.4

[State v. Jackson]{.underline}, 305 N.W.2d 420 (Iowa 1981)

# Comment

Note: Use element number 4 only when it has been raised by the
defendant. However, element number 4 cannot be used if the threat is to
commit a public offense.

[]{#a11102 .anchor}**1110.2 Extortion - Defense.** With regard to
element number 4 of Instruction No. \_\_\_\_\_, whether the defendant
reasonably believed that \[he\] \[she\] had a right to make threats
depends on the facts and circumstances existing at the time of the
threat.

If the defendant believes \[he\] \[she\] had a right to make the threat
and you find that a reasonable person under the circumstances would
believe they had a right to make the threat, then the defendant would
not be guilty of Extortion.

# Authority

[Iowa Code]{.underline} section 711.4

[]{#CH1200 .anchor}**CHAPTER 1200**

# ARSON

[1200.1](#a12001) Arson In The First Degree - Elements

[1200.2](#a12002) Arson In The First Degree - Reasonable Anticipation Of
Presence Of Person

[1200.3](#a12003) Arson In The Second Degree - Elements

[1200.4](#a12004) Arson In The Third Degree - Elements

[1200.5](#a12005) Arson - Defense - Insurer Fraudulently Exposed To Risk

[1200.6](#a12006) Arson - Actual Destruction Or Damage Of Property - No
Defense

[1200.7](#a12007) Reckless Use Of Fire Or Explosives - Elements

[1200.8](#a12008) Possession Of Explosive Or Incendiary Materials Or
Devices - Elements

[1200.9](#a12009) Possession Of Explosive Or Incendiary Materials Or
Devices - Public Offense - Definition

[1200 10](#a120010) Threats Or Attempts - Elements

[1200.11](#a120011) False Reports - Elements

[]{#a12001 .anchor}**1200.1 Arson In The First Degree - Elements.** The
State must prove all of the following elements of Arson In The First
Degree:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant \[caused a fire or explosion\] \[placed a
burning, combustible, incendiary or explosive device or material\] in or
near property.

2\. (Name of device or material) was an \[incendiary or explosive
device\] \[combustible, incendiary or explosive material\]. (Use this
paragraph only if supported by the evidence).

3\. The defendant intended to destroy or damage the property or knew the
property would probably be destroyed or damaged.

4\. \[The presence of a person in the property could have been
reasonably anticipated.\] \[The fire resulted in the death of a
firefighter.\]

5\. The defendant did not have the consent of the owner, or an insurer
was exposed fraudulently to risk of loss, or the acts were done in such
a way that the \[property\] \[life\] of another was unreasonably
endangered. (Use this paragraph only if the affirmative defense of
consent is raised by the defendant and supported by the evidence).

If the State has proved all of the elements, the defendant is guilty of
Arson In The First Degree. If the State has failed to prove any one of
the elements, the defendant is not guilty of Arson In The First Degree
(and you will then consider the charge of \_\_\_\_\_\_\_\_\_\_\_\_
explained in Instruction No.\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 712.1

[Iowa Code]{.underline} section 712.2

[Iowa Code]{.underline} section 712.3

[Iowa Code]{.underline} section 712.4

# Comment

Note: The committee takes no position on the issue of whether arson is a
specific intent or general intent crime. See. [Veverka v.
Cash]{.underline}, 318 N.W.2d 447, 450, N.3, 4 (Iowa 1982).

[]{#a12002 .anchor}**1200.2 Arson In The First Degree - Reasonable
Anticipation Of Presence Of Person.** Concerning element number 4 of
Instruction No.\_\_\_\_\_, the State must prove that a reasonable person
in defendant\'s position would have anticipated someone would be in or
on the property. The possibility of the presence of a person is not
sufficient.

[]{#a12003 .anchor}**1200.3 Arson In The Second Degree - Elements.** The
State must prove the following elements of crime of Arson In The Second
Degree:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant \[caused a fire or explosion\] \[placed a burning,
combustible, incendiary or explosive material or device\] in or near
property.

2\. The (name of material or device) was a combustible, incendiary or
explosive material or device. (Use this paragraph only if supported by
the evidence.)

3\. The defendant intended to destroy or damage the property or knew the
property would probably be destroyed or damaged.

4\. The property was \[a building\] \[a structure\] \[real property\]
\[standing crops\] \[personal property\].

5\. The value of the personal property exceeded \$500. (Use this
paragraph only if personal property is involved.)

6\. The defendant did not have the consent of the owner, or an insurer
was exposed fraudulently to risk of loss, or the acts were done in such
a way that the property of another was unreasonably endangered. (Use
this paragraph only if affirmative defense of consent is raised by the
defendant and supported by the evidence.)

If the State has proved all of the elements, the defendant is guilty of
Arson In The Second Degree. If the State has failed to prove any one of
the elements, the defendant is not guilty of Arson In the Second Degree
(and you will then consider the charge of \_\_\_\_\_\_\_\_\_\_\_\_\_
explained in Instruction No.\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 712.1

[Iowa Code]{.underline} section 712.3

# Comment

Note: The committee takes no position on the issue of whether arson is
specific intent or general intent crime. See, [Veverka v.
Cash]{.underline}, 318 N.W.2d 447, 450, N. 3, 4 (Iowa 1982).

[]{#a12004 .anchor}**1200.4 Arson In The Third Degree - Elements.** The
State must prove the following elements of the crime of Arson In The
Third Degree:

1\. On or about the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant \[caused a fire or explosion\] \[placed a burning,
combustible, incendiary or explosive material or device\] in or near
property.

2\. The (name of material or device) was a combustible, incendiary or
explosive material or device. (Use this paragraph only if supported by
the evidence.)

3\. The defendant \[intended to destroy or damage the property\] \[knew
the property would probably be destroyed or damaged\].

4\. The property was personal property having a value of \$500 or less.

5\. The defendant did not have the consent of the owner, or an insurer
was exposed fraudulently to risk of loss, or the acts were done in such
a way that the property of another was unreasonably endangered. (Use
this paragraph only if the affirmative defense of consent is raised by
the defendant and supported by the evidence.)

# Authority

[Iowa Code]{.underline} section 712.1

[Iowa Code]{.underline} section 712.4

# Comment

Note: The committee takes no position on the issue of whether arson is a
specific intent or general intent crime. See, [Ververka v.
Cash]{.underline}, 318 N.W.2d 447, 450, N. 3, 4 (Iowa 1982).

[]{#a12005 .anchor}**1200.5 Arson - Defense - Insurer Fraudulently
Exposed To Risk.** Concerning element number 5 of Instruction
No.\_\_\_\_\_\_, the State must prove an insurer was fraudulently
exposed to risk. The fact the property was insured is not enough to
prove the insurer was fraudulently exposed to risk. The State must
produce other evidence proving the defendant damaged or destroyed the
property for the purpose of collecting insurance proceeds.

[]{#a12006 .anchor}**1200.6 Arson - Actual Destruction Or Damage Of
Property - No Defense.** The State does not have to prove the property
was actually destroyed or damaged to prove the defendant guilty.

[]{#a12007 .anchor}**1200.7 Reckless Use Of Fire Or Explosives -
Elements.** The State must prove all of the following elements of
Reckless Use Of Fire Or Explosives:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant used\[fire\] \[name of device or material\].

2\. (Name of device or material) was an explosive or incendiary device
or material. (Omit this paragraph if fire was used.)

3\. The defendant used the \[fire\] \[name of device or material\] in a
reckless manner.

4\. The use of the \[fire\] \[name of device or material\] endangered
the property or safety of another.

If the State has proved all of the elements, the defendant is guilty of
Reckless Use Of Fire Or Explosives. If the State has failed to prove any
one of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 712.5

# Comment

Note: With this offense, also use Iowa Criminal Jury Instruction 200.20
defining recklessness.

[]{#a12008 .anchor}**1200.8 Possession Of Explosive Or Incendiary
Materials Or Devices - Elements.** The State must prove all of the
following elements of Possession Of Explosive Or Incendiary Materials Or
Devices:

1 On or about the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant possessed (name of device or material).

2\. (Name of device or material) was an \[explosive\] \[incendiary\]
device or material.

3\. Defendant possessed (name of device or material) with intent to use
it to commit the crime of (crime).

If the State has proved all of the elements, the defendant is guilty of
Possession Of Explosive Or Incendiary Materials Or Devices. If the State
has failed to prove any one of the elements, the defendant is not
guilty.

# Authority

[Iowa Code]{.underline} section 712.6

[]{#a12009 .anchor}**1200.9 Possession Of Explosive Or Incendiary
Materials Or Devices - Public Offense - Definition.** Concerning element
number \_\_\_\_ of Instruction No. 3, the crime of (crime) is defined as
follows:

(Set forth terms of appropriate statute.)

[]{#a120010 .anchor}**1200.10 Threats Or Attempts - Elements.** The
State must prove the following elements of \[Threats\] \[Attempts\] To
Place \[Explosive\] \[Incendiary\] \[Destructive\] Materials Or Devices:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant \[threatened\] \[attempted\] to place an \[explosive\]
\[incendiary\] \[destructive\] device or material in an area.

2\. Defendant \[threatened\] \[attempted\] to place it in an area where
\[person\] \[property\] would be endangered.

If the State has proved both of the elements, the defendant is guilty.
If the State has failed to prove either of the elements, the defendant
is not guilty.

# Authority

[Iowa Code]{.underline} section 712.8

[]{#a120011 .anchor}**1200.11 False Reports - Elements.** The State must
prove all of the following elements of False Reports:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
20\_\_\_, the defendant \[conveyed\] \[caused to be conveyed\]
information concerning the placement of an incendiary or explosive
device or material or other destructive substance or device.

2\. The defendant \[conveyed\] \[caused to be conveyed\] information
that the \[device\] \[material\] \[substance\] was in a place where
\[persons\] \[property\] would be endangered.

3\. When conveying the information, the defendent knew the information
was false.

If the State has proved all of the elements, the defendant is guilty of
False Reports. If the State has failed to prove any one or more of the
elements, the defendant is not guilty of False Reports.

# Authority

[Iowa Code]{.underline} section 712.7

# Comment

## If the report concerns an incendiary device or incendiary material, use Iowa Criminal [Jury Instruction]{.underline} 200.49 (Incendiary Device or Material).

[]{#CH1300 .anchor}**CHAPTER 1300**

# BURGLARY AND RELATED OFFENSES

[1300.1](#a13001) Burglary In The First Degree - Elements - Breaks
Structure

[1300.2](#a13002) Burglary In The Second Degree - Elements - Breaks
Structure

[1300.3](#a13003) Burglary In The Third Degree - Elements - Breaks
Structure

[1300.4](#a13004) Burglary In The First Degree - Elements - Enters
Structure

[1300.5](#a13005) Burglary In the Second Degree - Elements - Enters
Structure

[1300.6](#a13006) Burglary In The Third Degree - Elements - Enters
Structure

[1300.7](#a13007) Burglary In The First Degree - Elements - Remains In
Structure

[1300.8](#a13008) Burglary In The Second Degree - Elements - Remains In
Structure

[1300.9](#a13009) Burglary In The Third Degree - Elements - Remains In
Structure

[1300.10](#a130010) Attempted Burglary - Guide

[1300.11](#a130011) Burglary - Breaking - Definition

[1300.12](#a130012) Burglary - Enter - Definition

[1300.13](#a130013) Burglary - Occupied Structure - Definition

[1300.14](#a130014) Burglary - Permission Or Authority - Definition

[1300.15](#a130015) Possession Of Burglar\'s Tools - Elements

[1300.16](#a130016) Definition Of Burglar\'s Tools

[1300.17](#a130017) Possession Of Burglar\'s Tools - Intent to Commit
Burglary

[1300.18](#a130018) Possession Of Burglar\'s Tools - Burglary Defined

[]{#a13001 .anchor}**1300.1 Burglary In The First Degree - Elements -
Breaks Structure.** The State must prove all of the following elements
of Burglary In The First Degree.

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant broke into (describe place).

2\. The (describe place) was an occupied structure as defined in
Instruction No.\_\_\_\_\_\_\_.

3\. Persons were present in the occupied structure.

4\. The defendant did not have permission or authority to break into
(describe place).

5\. The defendant did so with the specific intent to commit a \[felony
of (describe felony)\] \[theft\] \[assault\].

6\. a. During the incident the defendant possessed \[an explosive or
incendiary device or material\] \[a dangerous weapon\].

b\. During the burglary, \[he\] \[she\] \[intentionally\] \[recklessly\]
inflicted bodily injury on (name of victim).

(Use element 6a or b as may be charged and supported by the evidence.)

If the State has proved all of the elements the defendant is guilty of
Burglary In The First Degree. If the State has failed to prove any one
of the elements, the defendant is not guilty of Burglary In The First
Degree (and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ explained in Instruction
No.\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 713.1

[Iowa Code]{.underline} section 713.3

[State v. Olsen]{.underline}, 482 N.W.2d 452 (Iowa App. 1992)

# Comment

If the specific intent charged is to commit a felony, in addition to
designating the particular felony, an instruction including the elements
of that felony must be given. [State v. Mesch]{.underline}, 574 NW2d 10,
14 (Iowa 1998)

6/98

[]{#a13002 .anchor}1300.2 Burglary In The Second Degree - Elements -
Breaks Structure. The State must prove all of the following elements of
Burglary In The Second Degree:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant broke into (describe place).

2\. The (describe place) was an occupied structure as defined in
Instruction No.\_\_\_\_\_.

3\. The defendant did not have permission or authority to break into
(describe place).

4\. The defendant did so with the specific intent to commit a \[felony
of (describe felony)\] \[theft\] \[assault\].

5\. a. During the incident \[the defendant had possession of an
explosive or incendiary device or material\] \[the defendant had
possession of a dangerous weapon\] \[a bodily injury resulted to any
person\].

b\. Persons were present in or upon the occupied structure.

\[Use elements 5(a) or (b) as may be charged and supported by the
evidence.\]

If the State has proved all of the elements, the defendant is guilty of
Burglary In The Second Degree. If the State has failed to prove any one
of the elements, the defendant is not guilty of Burglary In The Second
Degree (and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ explained in Instruction No.
\_\_\_\_\_\_).

**Authority**

[Iowa Code]{.underline} section 713.1

[Iowa Code]{.underline} section 713.3

[Iowa Code]{.underline} section 713.5

[State v. Spurgeon]{.underline}, 533 N.W.2d 216 (Iowa 1995)

[State v. Olsen]{.underline}, 482 N.W.2d 452 (Iowa App. 1992)

# Comment

Note: Second Degree Burglary, which includes bodily injury to \"any
person\" would apply to situations where a person is injured during the
burglary but not in or upon the occupied structure. Otherwise, it would
be First Degree Burglary. Another possible scenario would be if the
\"person\" injured in the occupied structure was a defendant.

Note: If the specific intent charged is to commit a felony, in addition
to designating the particular felony, an instruction including the
elements of that felony must be given. [State v. Mesch]{.underline}, 574
NW2d 10, 14 (Iowa 1998)

6/98

[]{#a13003 .anchor}**1300.3 Burglary In The Third Degree - Elements -
Breaks Structure.** The State must prove all of the following elements
of Burglary In The Third Degree:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant

broke into (describe place).

2\. The (describe place) was an occupied structure as defined in
Instruction No. .

3\. The defendant did not have permission or authority to enter
(describe place).

4\. The defendant did so with the specific intent to commit a \[felony
of (describe felony)\] \[theft\] \[assault\].

If the State has proved all of the elements, the defendant is guilty of
Burglary In The Third Degree. If the State has failed to prove any one
of the elements, the defendant is not guilty of Burglary In The Third
Degree and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ explained in Instruction No.
\_\_\_\_\_\_.

# Authority

[Iowa Code]{.underline} section 713.1

[Iowa Code]{.underline} section 713.3

[Iowa Code]{.underline} section 713.5

[Iowa Code]{.underline} section 713.6A

# Comment

If the specific intent charged is to commit a felony, in addition to
designating the particular felony, an instruction including the elements
of that felony must be given. [State v. Mesch,]{.underline} 574 NW2d 10,
14 (Iowa 1998)

6/98

[]{#a13004 .anchor}**1300.4 Burglary In The First Degree - Elements -
Enters Structure.** The State must prove all of the following elements
of Burglary In The First Degree:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant entered (describe place).

2\. The (describe place) was an occupied structure as defined in
Instruction No.\_\_\_\_\_\_.

3\. Persons were present in the occupied structure.

4\. The defendant did not have permission or authority to enter
(describe place).

5\. The defendant did so with the specific intent to commit a \[felony
of (describe felony)\] \[theft\] \[assault\].

6\. a. During the incident the defendant possessed \[an explosive or
incendiary device or material\] \[a dangerous weapon\].

b\. During the burglary, \[he\] \[she\] \[intentionally\] \[recklessly\]
inflicted bodily injury on (name of victim).

(Use element 6a or b as may be charged and supported by the evidence.)

If the State has proved all of the elements, the defendant is guilty of
Burglary In The First Degree. If the State has failed to prove any one
of the elements, the defendant is not guilty of Burglary In The First
Degree and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ explained in Instruction No.
\_\_\_\_\_.

# Authority

[Iowa Code]{.underline} section 713.1

[Iowa Code]{.underline} section 713.3

[Iowa Code]{.underline} section 713.5

[State v. Franklin]{.underline}, 368 N.W.2d 716 (Iowa 1985)

[State v. Olsen]{.underline}, 482 N.W.2d 452 (Iowa App. 1992)

# Comment

If the specific intent charged is to commit a felony, in addition to
designating the particular felony, an instruction including the elements
of that felony must be given. [State v. Mesch]{.underline}, 574 NW2d 10,
14 (Iowa 1998)

6/98

[]{#a13005 .anchor}**1300.5 Burglary In The Second Degree - Elements -
Enters Structure.** The State must prove all of the following elements
of Burglary In The Second Degree:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant entered into (describe place).

2\. The (describe place) was an occupied structure as defined in
Instruction No. \_\_\_\_\_.

3\. The defendant did not have permission or authority to break into
(describe place).

4\. The defendant did so with the specific intent to commit a \[felony
of (describe felony)\] \[theft\] \[assault\].

5\. a. During the incident \[the defendant had possession of an
explosive or incendiary device or material\] \[the defendant had
possession of a dangerous weapon\] \[a bodily injury resulted to any
person\].

b\. Persons were present in or upon the occupied structure.

\[Use elements 5(a) or (b) as may be charged and supported by the
evidence.\]

If the State has proved all of the elements, the defendant is guilty of
Burglary In The Second Degree. If the State has failed to prove any one
of the elements, the defendant is not guilty of Burglary In The Second
Degree and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction
No.\_\_\_\_\_.

# Authority

[Iowa Code]{.underline} section 713.1

[Iowa Code]{.underline} section 713.3

[Iowa Code]{.underline} section 713.5

[State v. Spurgeon]{.underline}, 533 N.W.2d 216 (Iowa 1995)

# Comment

Note: Second Degree Burglary, which includes bodily injury to \"any
person\" would apply to situations where a person is injured during the
burglary but not in or upon the occupied structure. Otherwise, it would
be First Degree Burglary. Another possible scenario would be if the
\"person\" injured in the occupied structure was a defendant.

Note: If the specific intent charged is to commit a felony, in addition
to designating the particular felony, an instruction including the
elements of that felony must be given. [State v. Mesch]{.underline}, 574
NW2d 10, 14 (Iowa 1998)

6/98

[]{#a13006 .anchor}**1300.6 Burglary In The Third Degree - Elements -
Enters Structure.** The State must prove all of the following elements
of Burglary In The Third Degree:

1\. On or about the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant entered (describe place).

2\. The (describe place) was an occupied structure as defined in
Instruction No.\_\_\_\_\_\_.

3\. The defendant did not have permission or authority to enter
(described place).

4\. The (describe place) was not open to the public.

5\. The defendant did so with the specific intent to commit a \[felony
of (describe felony)\] \[theft\] \[assault\].

If the State has proved all of the elements, the defendant is guilty of
Burglary In The Third Degree. If the State has failed to prove any one
of the elements, the defendant is not guilty of Burglary In The Third
Degree and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ explained in Instruction No.\_\_\_\_\_.

# Authority

[Iowa Code]{.underline} section 713.1

[Iowa Code]{.underline} section 713.3

[Iowa Code]{.underline} section 713.5

[Iowa Code]{.underline} section 713.6A

# Comment

If the specific intent charged is to commit a felony, in addition to
designating the particular felony, an instruction including the elements
of that felony must be given. [State v. Mesch]{.underline}, 574 NW2d 10,
14 (Iowa 1998)

6/98

[]{#a13007 .anchor}**1300.7 Burglary In The First Degree - Elements -
Remains In Structure.** The State must prove all of the following
elements of Burglary In The First Degree:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_, 19\_\_, the
defendant remained in (describe place).

2\. The (describe place) was an occupied structure as defined in
Instruction No.\_\_\_\_\_.

3\. a. The defendant did not have permission or authority to remain in
(describe place).

b\. The defendant\'s permission or authority to remain in (describe
place) had expired.

(Use element 3a or b as may be charged and supported by the evidence.)

4\. The defendant did so with the specific intent to commit a \[felony
of (describe felony)\] \[theft\] \[assault\].

5\. a. During the incident the defendant possessed \[an explosive or
incendiary device or material\] \[a dangerous weapon\].

b\. After the defendant remained \[he\] \[she\] \[intentionally\]
\[recklessly\] inflicted bodily injury on (name of victim).

(Use element 5a or b as may be charged and supported by the evidence.)

If the State has proved all of the elements, the defendant is guilty of
Burglary In The First Degree. If the State has failed to prove any one
of the elements, the defendant is not guilty of Burglary In The First
Degree (and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ explained in Instruction No.
\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 713.1

[Iowa Code]{.underline} section 713.3

[Iowa Code]{.underline} section 713.5

[State v. Franklin]{.underline}, 368 N.W.2d 716 (Iowa 1985)

[State v. Olsen]{.underline}, 482 N.W.2d 452 (Iowa App. 1992)

# Comment

If the specific intent charged is to commit a felony, in addition to
designating the particular felony, an instruction including the elements
of that felony must be given. [State v. Mesch]{.underline}, 574 NW2d 10,
14 (Iowa 1998)

6/98

[]{#a13008 .anchor}**1300.8 Burglary In The Second Degree - Elements -
Remains In Structure.** The State must prove all of the following
elements of Burglary In The Second Degree:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant remained in (describe place).

2\. The (describe place) was an occupied structure as defined in
Instruction No. \_\_\_\_.

3\. The defendant did not have permission or authority to break into
(describe place).

4\. The defendant did so with the specific intent to commit a \[felony
of (describe felony)\] \[theft\] \[assault\].

5\. a. During the incident \[the defendant had possession of an
explosive or incendiary device or material\] \[the defendant had
possession of a dangerous weapon\] \[a bodily injury resulted to any
person\].

b\. Persons were present in or upon the occupied structure.

\[Use elements 5(a) or (b) as may be charged and supported by the
evidence.\]

If the State has proved all of the elements, the defendant is guilty of
Burglary In The Second Degree. If the State has failed to prove any one
of the elements, the defendant is not guilty of Burglary In The Second
Degree and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction
No.\_\_\_\_\_\_.

# Authority

[Iowa Code]{.underline} section 713.1

[Iowa Code]{.underline} section 713.3

[Iowa Code]{.underline} section 713.5

[State v. Spurgeon]{.underline}, 533 N.W.2d 216 (Iowa 1995)

# Comment

Note: Second Degree Burglary, which includes bodily injury to \"any
person,\" would apply to situations where a person is injured during the
burglary but not in or upon the occupied structure. Otherwise, it would
be First Degree Burglary. Another possible scenario would be if the
\"person\" injured in the occupied structure was a defendant.

Note: If the specific intent charged is to commit a felony, in addition
to designating the particular felony, an instruction including the
elements of that felony must be given. [State v. Mesch,]{.underline} 574
NW2d 10, 14 (Iowa 1998)

6/98

[]{#a13009 .anchor}**1300.9 Burglary In The Third Degree - Elements -
Remains In Structure.** The State must prove all of the following
elements of Burglary In The Second Degree:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant remained in (describe place).

2\. The (describe place) was an occupied structure as defined in
Instruction No. \_\_\_\_\_.

3\. The defendant did not have permission or authority to remain in
(describe place).

4\. The (describe place) was not open to the public.

5\. The defendant did so with the specific intent to commit a \[felony
of (describe felony)\] \[theft\] \[assault\].

If the State has proved all of the elements, the defendant is guilty of
Burglary In The Third Degree. If the State has failed to prove any one
of the elements, the defendant is not guilty of Burglary In The Third
Degree (and you will then consider the charge of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ as explained in Instruction
No.\_\_\_\_\_\_)

# Authority

[Iowa Code]{.underline} section 713.1

[Iowa Code]{.underline} section 713.3

[Iowa Code]{.underline} section 713.5

# Comment

If the specific intent charged is to commit a felony, in addition to
designating the particular felony, an instruction including the elements
of that felony must be given. [State v. Mesch]{.underline}, 574 NW2d 10,
14 (Iowa 1998)

6/98

[]{#a130010 .anchor}**1300.10 Attempted Burglary - Guide.** If the
charge is Attempted Burglary, use the marshaling instructions for the
applicable burglary (breaks, enters, remains) and insert the word
\"attempt\" or \"attempted\" wherever applicable, coupled with
Instruction No. 200.18.

# Authority

[Iowa Code]{.underline} section 713.2

[Iowa Code]{.underline} section 713.4

[Iowa Code]{.underline} section 713.6

[Iowa Code]{.underline} section 7.316(b)

[State v. Erving]{.underline}, 346 N.W.2d 833 (Iowa 1984)

[State v. Blanton]{.underline}, 454 N.W.2d 901 (Iowa App. 1990)

[]{#a130011 .anchor}**1300.11 Burglary - Breaking - Definition.** The
term \"breaks\" or \"broke\" means removing or putting aside any
obstruction to enter a structure. No damage need result to the property.
For example, the pushing open of an unlatched or partially-opened door
to gain entry would be \"breaking\" within the meaning of the law.

# Authority

[State v. Hougland]{.underline}, 197 N.W.2d 364 (Iowa 1972)

[State v. Murray]{.underline}, 222 Iowa 925, 270 N.W. 355 (1936)

[]{#a130012 .anchor}**1300.12 Burglary - Enter - Definition.** \"To
enter\' means entering a structure with any part of the body, or with an
instrument intended to be used to commit a felony, assault or theft.

[]{#a130013 .anchor}**1300.13 Burglary - Occupied Structure -
Definition.** A \[structure\] \[vehicle\] is an \"occupied structure\"
if it:

1\. Is adapted for overnight accommodation of persons; or

2\. Is occupied by persons for the purpose of carrying on business or
activity; or

3\. Is used for the storage or safekeeping of anything of value unless
it is too small or not designed to allow a person to physically
\[enter\] \[occupy\] it.

A \[structure\] \[vehicle\] is an \"occupied structure\" whether or not
a person is actually present.

# Authority

[Iowa Code]{.underline} section 702.12

[State v. Williams]{.underline}, 409 N.W.2d 187 (Iowa 1987)

[State v. Sylvester]{.underline}, 331 N.W.2d 130 (Iowa 1983)

[State v. Buss]{.underline}, 325 N.W.2d 384 (Iowa 1982)

**Comment**

Note: Omit that portion of the instruction which is not charged and
supported by the evidence.

Note: If an appurtenance to a building is an issue, this instruction
must be modified. See [State v.]{.underline} [Baker]{.underline}, 560
N.W.2d 10 (Iowa 1997).

[]{#a130014 .anchor}**1300.14 Burglary - Permission Or Authority -
Definition.** A person has permission or authority to enter or remain in
an occupied structure which is open to the public. However, a person
does not have permission or authority to enter or remain in an occupied
structure open to the public if:

1\. The person defies a lawful order not to enter.

2\. The person defies a lawful order to leave the occupied structure.

3\. The person, without permission or authority, enters or remains in a
part of the occupied structure not open to the public.

4\. The person enters or remains in the occupied structure without
permission or authority after it is closed to the public.

# Authority

[State v. Franklin]{.underline}, 368 N.W.2d 716 (Iowa 1985)

[State v. King]{.underline}, 344 N.W.2d 562 (Iowa Ct. App 1983)

# Comment

Note: Omit that portion of instruction which is not charged and
supported by the evidence.

[]{#a130015 .anchor}**1300.15 Possession Of Burglar\'s Tools -
Elements.** The State must prove both of the following elements of
Possession of Burglar\'s Tools:

1\. On or about the \_\_\_\_\_\_day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant had in \[his\] \[her\] possession (describe the
implement).

2\. The defendant intended to use (describe the implement) to commit a
burglary.

If the State has proved both of the elements, the defendant is guilty of
Possession of Burglar\'s Tools. If the State has failed to prove either
element, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 713.7

# Comment

Note: See Iowa Criminal Jury Instruction 200.47 (Possession).

[]{#a130016 .anchor}**1300.16 Definition Of Burglar\'s Tools.** The term
\"burglar\'s tools\" means a key or such tools, instruments, devices or
explosives as are commonly used by burglars; or tools, instruments,
devices or explosives which are capable of being used to commit the
crime of burglary. It is not necessary that the implements be designed
or made specifically for unlawful use. If tools, keys, instruments,
devices or explosives are suitable to use in committing a burglary, it
is immaterial that they were designed and adapted for honest and lawful
use. A single tool, by itself, might not be adapted for use in a
burglary unless used in combination with other tools, and the presence
of other tools in combination may indicate their suitability for use in
a burglary.

# Authority

[State v. Knudtson]{.underline}, 195 N.W.2d 698 (Iowa 1972)

[State v. Van Voltenburg]{.underline}, 147 N.W.2d 869 (Iowa 1967)

[]{#a130017 .anchor}**1300.17 Possession Of Burglar\'s Tools - Intent To
Commit Burglary.** The State must prove the defendant intended to commit
burglary. The intent must be in the mind of the defendant at the time
\[he \] \[she\] possessed burglar\'s tools. However, it is not necessary
for the State to prove an intent to commit a specific burglary at any
particular time or place, but only an intent to commit the crime of
burglary on some occasion of \[his\] \[her\] choice.

# Authority

[State v. Hobbs]{.underline}, 107 N.W.2d 238 (Iowa 1961)

[]{#a130018 .anchor}**1300.18 Possession Of Burglar\'s Tools - Burglary
Defined.** Burglary may be committed in several different ways. Any
person who has the intent to commit a felony, assault or theft and
without permission or authority (1) enters an occupied structure not
open to the public, or (2) remains inside after it is closed to the
public or after \[his \] \[her\] permission or authority to be there has
expired, or (3) breaks an occupied structure, commits burglary.

# Authority

[Iowa Code]{.underline} section 713.1

[]{#CH1400 .anchor}**CHAPTER 1400**

# THEFT

[1400.1](#a14001) Theft - Taking - Elements

[1400.2](#a14002) Theft - Taking - Intention To Deprive - Definition

[1400.3](#a14003) Theft - Taking - Concealment Of Unpurchased Goods -
Evidence Of Intent

[1400.4](#a14004) Theft - Elements - Misappropriation

[1400.5](#a14005) Theft - Definition - Trust

[1400.6](#a14006) Theft - Definition - Misappropriation

[1400.7](#a14007) Theft - Evidence Of Misappropriation

[1400.8](#a14008) Elements - Conceals Or Appropriates Found Property

[1400.9](#a14009) Theft - Definition - Appropriates

[1400.10](#a140010) Theft - Elements - Obtaining Property By Deception

[1400.11](#a140011) Theft - Deception - Inserting Unauthorized Token

[1400.12](#a140012) Inference Of Deception

[1400.13](#a140013) Theft - Elements - Exercising Control Over Stolen
Property

[1400.14](#a140014) Theft - Exercising Control Over Stolen Property - No
Obligation of State To Prove

Conviction For Theft

[1400.15](#a140015) Theft - Inference Of Knowledge Property Was Stolen

[1400.16](#a140016) Theft - Elements - Secured Property

[1400.17](#a140017) Theft - Definition - False Check

[1400.18](#a140018) Theft - Prima Facie Evidence Of Knowledge Check
Would Not Be Good When Presented

[1400.19](#a140019) Theft - Defense - Claim Of Right

[1400.20](#a140020) Theft - Definition - Property

[1400.21](#a140021) Theft Or Fraudulent Practices - Definition - Value

[1400.22](#a140022) Theft Or Fraudulent Practices - Definition - Single
Theft Or Fraudulent Practice

[1400.23](#a140023) Theft - Taking Of A Motor Vehicle - Elements

[1400.24](#a140024) Theft - Elements - Operating Without Owner\'s
Consent

[1400.25](#a140025) Fraudulent Practices - Elements

[1400.26](#a140026) Fraudulent Practices - Definition - Value

[1400.27](#a140027) Degrees Of Theft - Definition And Interrogatory

[1400.28](#a140028) Value Of Motor Vehicle - Interrogatory

[]{#a14001 .anchor}**1400.1 Theft - Taking - Elements.** The State must
prove all of the following elements of Theft:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant took possession or control of (property).

2\. The defendant did so with the intent to deprive (victim) of the
(property).

3\. The property, at the time of the taking, \[belonged to\] \[was in
the possession of\] (victim).

If the State has proved all of the elements, the defendant is guilty.
You must then determine the degree of Theft, as explained to you in
Instruction No.\_\_\_\_\_. If the State has failed to prove any one of
the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 714.1(1)

# Comment

Note: Iowa Criminal Jury Instruction 200.2 (Specific Intent)

Iowa Criminal Jury Instruction 1400.19 (Claim Of Right) if raised by the
defendant, should be used.

[]{#a14002 .anchor}**1400.2 Theft - Taking - Intention To Deprive -
Definition**. "Possession or control" as used in element 1 of
Instruction number \_\_\_\_ means to secure dominion or exert control
over an object, or to use an object in a manner beyond the person's
authority to do so.

## Authority

*[State v. Donaldson]{.underline}, 663 N.W.2d 882 (Iowa 2003)*

######## Comment

*If the object of the theft is a motor vehicle, the Court may consider
modifying this instruction to be more specific. See State v. Donaldson,
663 N.W.2d 882,887-88 (Iowa 2003).* *Under certain factual situations,
the Court may consider instructing on joint or constructive possession.
See State v. Horrell, 260 Iowa 945, 954-56, 151 N.W.2d
526,532-34(1967).*

[]{#a14003 .anchor}**1400.3 Theft - Taking - Concealment Of Unpurchased
Goods - Evidence Of Intent.** If the State has proved the defendant
concealed unpurchased merchandise on \[his\] \[her\] person or
belongings, this conduct may be considered as evidence of the
defendant\'s intent to commit a theft.

# Authority

[Iowa Code]{.underline} section 714.5

[]{#a14004 .anchor}**1400.4 Theft - Elements - Misappropriation.** The
State must prove both of the following elements of Theft:

1\. a. The defendant had possession of (property) by reason of a trust,
as explained in Instruction No.\_\_\_\_\_\_\_\_.

b\. The defendant had possession or control of (property), which was
owned by (name).

(Use element 1a or 1b as may be charged and supported by the evidence).

2\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant intentionally misappropriated the property by
\[using it\] \[disposing of it\] in a manner which was \[inconsistent
with or a denial of the trust\] \[inconsistent with the owner\'s
rights\].

If the State has proved both of the elements, the defendant is guilty.
You must then determine the degree of Theft, as explained to you in
Instruction No.\_\_\_\_\_\_. If the State has failed to prove either of
the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 714.1(2)

[Eggman v. Scurr]{.underline}, 311 N.W.2d 77 (Iowa 1981)

# Comment

Note: Iowa Criminal Jury Instruction 200.1 (General Intent); Iowa
Criminal Jury Instruction 200.47 (Possession); and Iowa Criminal Jury
Instruction 1400.19 (Claim Of Right), if raised by the defendant, should
be used.

[]{#a14005 .anchor}**1400.5 Theft - Definition - Trust.** Concerning
element number 1a of Instruction No. \_\_\_\_\_, a person has property
in \[his\] \[her\] \"trust\" when it is given to \[him\] \[her\] by the
owner or a third person to be held in safekeeping. This creates a
special relationship with respect to the property, and the person who
receives the property is known as a \"trustee\".

In this case, it is alleged the duties of the defendant were: (set forth
the terms of the trust) and the defendant violated those duties by
\[misappropriating the property\] \[using or disposing of the property
in a manner which was a denial of the trust\].

[]{#a14006 .anchor}**1400.6 Theft - Definition - Misappropriation.**
Concerning element number 2 of Instruction No.\_\_\_\_,
\"misappropriate\" means that a person, knowing \[he\] \[she\] had no
right or permission to do so, exercises control over property or aids a
third person in exercising control, so that the benefit or value of the
property is lost to the owner. Misappropriation may also occur when a
person knowingly disposes of the property for \[his\] \[her\] own
benefit or for the benefit of a third person.

# Comment

Note: Use Iowa Criminal Jury Instruction 200.3 (Knowledge)

[]{#a14007 .anchor}**1400.7 Theft - Evidence Of Misappropriation.**
Concerning element number \_\_\_\_\_\_\_ of Instruction No. \_\_\_\_\_,
if a \[renter\] \[lessee\] \[bailee\] fails to return personal property
within 72 hours after a time specified in a written agreement, you may
conclude the defendant intended to misappropriate it.

# Authority

[Iowa Code]{.underline} section 714.1(2)

[]{#a14008 .anchor}**1400.8 Elements - Conceals Or Appropriates Found
Property.** The State must prove all of the following elements of Theft:

1\. That (property) belonging to (owner of property) had been lost.

2\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant possessed the property.

3\. The defendant knew (owner of property) was the owner of the
property.

4\. \[He\] \[She\] intentionally \[concealed it\] \[appropriated it to
\[his\] \[her\] own use\].

If the State has proved all of the elements, the defendant is guilty.
You must then determine the degree of Theft, as explained to you in
Instruction No.\_\_\_\_\_\_. If the State has failed to prove any one of
the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 714.1(2)

[Eggman v. Scurr]{.underline}, 311 N.W.2d 77 (Iowa 1981)

# Comment

Note: Iowa Criminal Jury Instruction 200.1 (General Intent); Iowa
Criminal Jury Instruction 200.3 (Knowledge) and Iowa Criminal Jury
Instruction 1400.19 (Claim Of Right), is raised by the defendant, should
be used.

[]{#a14009 .anchor}**1400.9 Theft - Definition - Appropriates.**
Concerning element number 3 of Instruction No. \_\_\_\_\_\_,
\"appropriate\" means to exercise control over the property, or to aid a
third person to exercise control over it so as to acquire its value or
benefit, or to dispose of the property for one\'s own benefit or use.

[]{#a140010 .anchor}**1400.10 Theft - Elements - Obtaining Property By
Deception.** The State must prove all of the following elements of
Theft:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 20\_\_\_,
the defendant did (set forth acts of deception - words, conduct, or
representation) to (victim).

2\. The defendant knowingly deceived (victim) in one or more of the
following

ways: (add the appropriate subsections of 702.9 of the Code).

3\. The defendant obtained \[labor or services\] \[transfer of
possession\] \[control or ownership\] \[the beneficial use of property\]
from (victim) by the deception.

If the State has proved all of the elements, the defendant is guilty.
You must then determine the degree of Theft, as explained to you in
Instruction No.\_\_\_\_\_\_. If the State has failed to prove any of the
elements, the defendant is not guilty.

# **Authority**

[Iowa Code]{.underline} section 714.1(3)

[State v. Williams]{.underline}, 674 N.W.2d 69 (Iowa 2004)

[State v. Hogrefe]{.underline}, 557 N.W.2d 871 (Iowa 1996) (theft by
deception based on postdated check).

10/4

[]{#a140011 .anchor}**1400.11 Theft - Deception - Inserting Unauthorized
Token.** Concerning element number \_\_\_\_\_\_ of Instruction
No.\_\_\_\_\_, \"deception\' means \"knowingly inserting anything other
than lawful money or authorized token into the money slot of any machine
which dispenses goods or services.\"

[]{#a140012 .anchor}**1400.12 Inference Of Deception.** You may conclude
goods and/or services were obtained by deception where payment for goods
and/or services is ordinarily paid immediately upon receiving them, and
the defendant \[refused to pay\] \[left the premises without paying or
offering to pay\] \[left without obtaining the owner/operator\'s
permission to pay later\].

# Authority

[Iowa Code]{.underline} section 714.1(3)

[]{#a140013 .anchor}**1400.13 Theft - Elements - Exercising Control Over
Stolen Property.** The State must prove all of the following elements of
Theft:

1\. (Describe property) was stolen.

2\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant exercised control over the property.

3\. At the time, the defendant knew the property had been stolen.

4\. The defendant did not intend to promptly return it to the owner or
to deliver it to an appropriate public officer. (Use only when
appropriate and supported by the evidence.)

If the State has proved all of the elements, the defendant is guilty.
You must then determine the degree of Theft, as explained to you in
Instruction No.\_\_\_\_\_\_. If the State has failed to prove any one of
the elements, the defendant is not guilty.

# Authority

[State v. Hutt]{.underline}, 330 N.W.2d 788 (Iowa 1983) (actual
knowledge required)

[State v. Ogle]{.underline}, 367 N.W.2d 289 (Iowa App. 1985) (actual
knowledge required)

[State v. McCormack]{.underline}, 293 N.W.2d 209 (Iowa 1980)

[Eggman v. Scurr]{.underline}, 311 N.W.2d 77 (Iowa 1981)

**Comment**

Note: Iowa Criminal Jury Instruction 200.47 (Possession)

Iowa Criminal Jury Instruction 200.3 (Knowledge)

[]{#a140014 .anchor}**1400.14 Theft - Exercising Control Over Stolen
Property - No Obligation Of State To Prove Conviction For Theft.** In
considering whether or not the (description of property) was previously
stolen, the State does not need to prove that the person(s) who stole
the property has been convicted of the crime.

[]{#a140015 .anchor}**1400.15 Theft - Inference Of Knowledge Property
Was Stolen.** If the State has proved each of the following facts, then
you may conclude the defendant knew or believed the property had been
stolen:

1\. The property found in the defendant\'s possession was stolen
property.

2\. \[The property was previously stolen from two or more persons at
different times.\] \[The defendant was a \[dealer\] \[person\] familiar
with the value of such property and had acquired it for a price far
below its reasonable value.\]

# Authority

[Iowa Code]{.underline} section 714.1(4)

[]{#a140016 .anchor}**1400.16 Theft - Elements - Secured Property.** The
State must prove all of the following elements of Theft:

1\. The defendant gave (victim) a (describe type of instrument) which
was a security interest for (property).

2\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant owed a balance under the terms of the (type of instrument)
to (victim).

3\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant willfully \[destroyed\] \[hid\] \[took\] \[disposed of\]
the property.

4\. The defendant did so with the specific intent to defraud (victim).

If the State has proved all of the elements, the defendant is guilty.
You must then determine the degree of Theft, as explained to you in
Instruction No. \_\_\_\_\_\_. If the State has failed to prove any one
of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 714.1(5)

# Comment

Note: Iowa Criminal Jury Instruction 200.2 (Specific Intent)

Where the defendant is given custody of the property in one county and
disposes of the property in another county, see [State v.
Dykes]{.underline}, 261 Iowa 1363, 158 N.W.2d 154 (1968)

[]{#a140017 .anchor}**1400.17 Theft - Definition - False Check.** The
State must prove all of the following elements of Theft:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant did \[make\] \[utter\] \[draw\] \[deliver\]
\[give\] to (victim) a \[check\] \[draft\] \[written order\] in the
amount of \$\_\_\_\_\_\_\_\_\_.

2\. The \[check\] \[draft\] \[written order\] was drawn on (e.g., bank).

3\. The defendant received \[property\] \[services\] \[money\] in
exchange

for the \[check\] \[draft\] \[written order\].

4\. The defendant knew at the time \[he\] \[she\] gave the \[check\]
\[draft\] \[written order\] to (victim) it would not be paid by the
\[bank\] \[other institution\] because (state facts shown by evidence,
e.g., insufficient funds, closed account, no account).

If the State has proved all of the elements, the defendant is guilty.
You must then determine the degree of Theft, as explained to you in
Instruction No.\_\_\_\_\_\_. If the State has failed to prove any one of
the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 714.1(6)

[State v. Smith]{.underline}, 300 N.W.2d 90 (Iowa 1981)

# Comment

Note: Iowa Criminal Jury Instruction 200.3 (Knowledge)

Note: Criminal liability may be based on a postdated check. [State v.
Hogrefe]{.underline}, 557 N.W.2d 871 (Iowa 1996) (overruling prior theft
by check cases that held otherwise).

Caveat: If supported by the evidence, the following element should be
included in the above instruction:

\"That (victim) exchanged the property or services for a \[check\]
\[draft\], \[written order\] which \[he\] \[she\] believed would be
honored when presented\".

[State v. James]{.underline}, 310 N.W.2d 197 (Iowa 1981)

[]{#a140018 .anchor}**1400.18 Theft - Prima Facie Evidence Of Knowledge
Check Would Not Be Good When Presented.** Concerning element number
\_\_\_\_\_\_\_\_\_ of Instruction No.\_\_\_\_\_\_, if the defendant
received written notice by certified mail (or notice in the manner of
serving an original notice) that the \[check\] \[draft\] \[written
order\] had not been paid by the bank and \[he\] \[she\] did not pay the
amount within ten days after that, you may conclude the defendant knew
the check would not be paid when presented.

# Authority

[Iowa Code]{.underline} section 714.1(6)

[]{#a140019 .anchor}**1400.19 Theft - Defense - Claim Of Right.** A
person who \[takes\] \[obtains\] \[disposes of\] \[uses\] \[acquires\]
property is not guilty of Theft if \[he\] \[she\] reasonably believes
\[he\] \[she\] has a right, privilege, or permission to do so, or if
\[he\] \[she\] does in fact have such right, privilege or permission.

# Authority

[Iowa Code]{.underline} section 714.4

[]{#a140020 .anchor}**1400.20 Theft - Definition - Property.** Property
is anything of value, whether publicly or privately owned. The term
includes both tangible and intangible property, labor or services. The
term includes \"real property\" and \"personal property\".

**Authority**

[Iowa Code]{.underline} section 702.14

[]{#a140021 .anchor}**1400.21 Theft Or Fraudulent Practices -
Definition - Value.** The \"value\" of \[property\] \[services\] means
its highest value by any reasonable standard at the time of the theft.
Reasonable standard includes, but is not limited to, the property\'s
actual value, its replacement value, or its market value within the
community.

# Authority

[Iowa Code]{.underline} section 714.3

[Iowa Code]{.underline} section 714.4

[]{#a140022 .anchor}**1400.22 Theft Or Fraudulent Practices -
Definition - Single Theft Or Fraudulent Practice.** If \[money\]
\[property\] \[services\] is stolen by two or more acts from the same
person or location, or from different persons by two or more acts which
occur in approximately the same location or time period so that the
\[thefts\] \[fraudulent practices\] are attributable to a single scheme,
plan or conspiracy, these acts may be considered a single \[theft\]
\[fraudulent practice\] and the value may be the total value of all the
\[money\] \[property\] \[services\] involved.

# Authority

[Iowa Code]{.underline} section 714.3

[Iowa Code]{.underline} section 714.14

[]{#a140023 .anchor}**1400.23 Theft - Taking Of A Motor Vehicle -
Elements.** The State must prove all of the following elements of Theft:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant knowingly took possession or control of an
automobile.

2\. The defendant did so with the specific intent to deprive (victim) of
the automobile.

3\. At the time of the taking, the automobile \[belonged to\] \[was in
the possession of\] (victim).

If the State has proved all of the elements, the defendant is guilty.
You must then determine the degree of Theft, as explained to you in
Instruction No.\_\_\_\_\_. If the State has failed to prove any one of
the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 714.1(1)

[Iowa Code]{.underline} section 714.2(2)

# Comment

Note: Iowa Criminal Jury Instruction 200.2 (Specific Intent) should be
used with this offense. If the defendant raises the defense of \"claim
of right,\" see Iowa Criminal Jury Instruction 1400.19. Also, Iowa Code
section 714.7 (Operating Without Owner\'s Consent) may, under
appropriate circumstances, be a lesser included offense, and if so,
refer to Iowa Criminal Jury Instruction 1400.24.

Iowa Criminal Jury Instruction 1400.2 (Definition of Deprive).

[]{#a140024 .anchor}**1400.24 Theft - Elements - Operating Without
Owner\'s Consent.** The State must prove both of the following elements
of Operating Without Owner\'s Consent:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant intentionally took possession or control of an
automobile belonging to (victim).

2\. The possession or control was without consent of (victim).

If the State has proved both of the elements, the defendant is guilty.
If the State has failed to prove either of the elements, the defendant
is not guilty.

# Authority

[Iowa Code]{.underline} section 714.7

[State v. McCormack]{.underline}, 293 N.W.2d 209 (Iowa 1980)

# Comment

Note: Iowa Criminal Jury Instruction 200.1 (General Intent) should be
used.

Iowa Criminal Jury Instruction 200.47 (Possession)

[]{#a140025 .anchor}**1400.25 Fraudulent Practices - Elements.** The
State must prove both of the following elements:

> 1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_,
> 19\_\_\_, the defendant did (set forth facts alleged to be a
> fraudulent practice as set out in one or more subsections of 714.8 of
> the Iowa Code).

2\. a. \[He\] \[She\] did the acts knowing them to be false.

> b\. \[He\] \[She\] did the acts \[with the intent to defraud\] \[with
> knowledge that \_\_\_\_\_\_\_\_\_\_\_ represented by
> \_\_\_\_\_\_\_\_\_\_\_\_\_ does not exist\] \[knowing them to be
> false\].

If the State has proved both of the elements, the defendant is guilty.
You must then determine the degree of Fraudulent Practice, as explained
to you in Instruction No. \_\_\_\_\_\_. If the State has failed to prove
either of the elements, the defendant is not guilty.

**Authority**

*[State v. McSorley]{.underline}, 549 N.W.2d 807 (Iowa 1996)*

*Note: Element number 2 will be defined by the specific language of the
relevant subsection of section 714.8. However, where \"knowledge\" is an
element, Iowa Criminal Jury Instruction 200.3 should be given. Where
there is a \"Specific Intent\" element, Iowa Criminal Jury Instruction
200.2 should be given*.

[]{#a140026 .anchor}1400.26 Fraudulent Practices - Definition - Value.
The value of the \[property\] \[services\] is its normal market value or
exchange value within the community at the time the fraudulent practice
is committed.

**Authority**

*[Iowa Code]{.underline} section 714.14*

[]{#a140027 .anchor}**1400.27 Degrees Of Theft, Fraudulent Practices -
Definition And Interrogatory.** If you find the defendant guilty of
\[Theft\] \[Fraudulent Practice\], you should then determine the degree
of \[Theft\] \[Fraudulent Practice\]. I have attached a question which
must be answered, and by so doing, you will determine the degree of
\[Theft\] \[Fraudulent Practice\].

In answering the question, the State must prove the value of the
property \[taken\] \[implicated\] \[affected\]. You will check the blank
next to the appropriate value on the verdict form.

The following are the different degrees of \[Theft\] \[Fraudulent
Practice\]:

1\. Property valued \$200 or less is Fifth Degree \[Theft\] \[Fraudulent
Practice\].

2\. Property valued more than \$200 but not more than \$500 is Fourth
Degree \[Theft\] \[Fraudulent Practice\].

3\. Property valued more than \$500 but not more than \$1,000 is Third
Degree \[Theft\] \[Fraudulent Practice\].

4\. Property valued more than \$1,000 but not more than \$10,000 is
Second Degree \[Theft\] \[Fraudulent Practice\].

5\. Property valued more than \$10,000 is First Degree \[Theft\]
\[Fraudulent Practice\].

# Comment

Caveat: This instruction should only be used when the degree of theft or
fraudulent practice involves the value of property taken, implicated or
affected. It is not appropriate to those thefts or fraudulent practices
in which value is immaterial. Only the definitions of the degrees of
theft or fraudulent practices and the corresponding interrogatories
which are charged and supported by the evidence should be given.

Note: The following would appear on the verdict forms:

\"We, the jury, find the value of the property taken by the defendant to
be:

1\. Not more than \$100 dollars.\" \_\_\_\_\_\_

2\. More than \$100 but not more than \$500.\" \_\_\_\_\_\_

3\. More than \$500 but not more than \$1,000.\" \_\_\_\_\_\_

4\. More than \$1,000 dollars but not more than \$10,000.\" \_\_\_\_\_\_

5\. More than \$10,000.\" \_\_\_\_\_\_

[]{#a140028 .anchor}**1400.28 Value Of Motor Vehicle - Interrogatory.**
If you find the defendant guilty of theft, you will then answer the
question which is attached to the verdict form.

# Comment

Note: The following would appear on the verdict form:

\"Does the value of the motor vehicle exceed \$5,000?\"

Yes\_\_\_\_\_\_\_ No\_\_\_\_\_\_\_

(Check the appropriate blank)

[]{#CH1500 .anchor}**CHAPTER 1500**

# FORGERY

[1500.1](#a15001) Forgery - 715A.2(1)(a)

[1500.2](#a15002) Forgery - 715A.2(1)(b)

[1500.3](#a15003) Uttering A Forged Instrument - 715A.2(1)(c) and
715.2(1)(a)

[1500.4](#a15004) Uttering A Forged Instrument - 715A.2(1)(c) and
715.2(1)(b)

[1500.5](#a15005) Forgery - Credit Card

[1500.6](#a15006) Credit Card - Defense

[1500.7](#a15007) Credit Card - Degree Of Forgery

[1500.8](#a15008) Uttering A Forged Instrument - Definition Of Utter

[1500.9](#a15009) Identity Theft - Elements

[1500.10](#a150010) Identification Information - Definition

[1500.11](#a150011) Identity Theft - Definition - Value

[1500.12](#a150012) Identity Theft - Definition - Single or Multiple
Theft

[]{#a15001 .anchor}**1500.1 Forgery - 715A.2(1)(a).** The State must
prove both of the following elements:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant altered (insert type of \"writing\") without the
permission of (name).

2\. a. The defendant specifically intended to defraud or injure (name).

b\. The defendant knew the alteration would facilitate a fraud or
injury.

If the State has proved both of these elements, the defendant is guilty
of Forgery. If the State has failed to prove either of these elements,
the defendant is not guilty.

# Authority

**Iowa Code** section 715.A2(1)(a)

# Comment

Note: Use 2a or 2b depending upon the charge.

The term \"alter\" means to change or modify an existing document.
[State v. White]{.underline}, 563 N.W. 2d 615 (Iowa 1997). If alteration
is an issue, an instuction defining that term may be given.

10/97

[]{#a15002 .anchor}**1500.2 Forgery - 715A.2(1)(b).** The State must
prove all of the following elements of Forgery:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant (insert statutory term)\* a (type of \"writing\").

2\. a. Without (name)\'s authority the defendant made the (type of
\"writing\") appear to be the act of (name).

b\. The defendant\'s act made the (type of \"writing\") appear to have
been done \[at a time\] \[at a place\] \[in a numbered sequence\] other
than as it was actually done.

c\. The defendant\'s act made the (type of \"writing\") appear to be a
copy of an original when no original existed.

3\. a. The defendant specifically intended to defraud or injure (name of
person injured or defrauded).

b\. The defendant knew the act would facilitate a fraud or injury.

If the State has proved all of these elements, the defendant is guilty
of Forgery. If the State has failed to prove any one of these elements,
the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 715A.2(1)(b)

# Comment

Note: \*From 715A.2(1)(b)

Use that portion of elements 2 or 3 required by the charge.

[]{#a15003 .anchor}**1500.3 Uttering A Forged Instrument - 715A.2(1)(c)
And 715A.2(1)(a).** The State must prove both of the following elements
of Forgery:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant uttered a (type of \"writing\") that the
defendant knew had been altered without the permission of (name).

2\. a. The defendant specifically intended to defraud or injure (name of
person injured or defrauded).

b\. The defendant knew \[he\] \[she\] was helping to accomplish a fraud

or injury.

If the State has proved both of the elements, the defendant is guilty of
Forgery. If the State has failed to prove either of these elements, the
defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 715A.2(1)(c)

[Iowa Code]{.underline} section 715A.2(1)(a)

# Comment

Note: Use 2a or 2b depending upon the charge.

[]{#a15004 .anchor}**1500.4 Uttering A Forged Instrument - 715A.2(1)(c)
And 715A.2(1)(b).** The State must prove all of the following elements:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant uttered a (type of \"writing\") that the
defendant knew had been (statutory term)\* by another.

2\. a. The defendant knew the (type of writing) had been (statutory
term)\* so it would appear to be the act of one who did not authorize
the act.

b\. The defendant knew the (type of writing) had been (statutory term)\*
so it would appear to have been done \[at a time\] \[at a place\] \[in a
numbered sequence\] other than it really was.

c\. The defendant knew the (type of writing) had been (statutory term)\*
so it would appear to be a copy of an original when no original existed.

3\. a. The defendant specifically intended to defraud or injure (name of
person injured or defrauded).

b\. The defendant knew \[he\] \[she\] was helping to accomplish a fraud
or injury.

If the State has proved all of these elements, the defendant is guilty
of Forgery. If the State has failed to prove any of these elements, the
defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 715A.2(1)(c)

[Iowa Code]{.underline} section 715A.2(1)(b)

# Comment

Note: \*From 715A.2(1)(b)

Use only those portions of elements 2 or 3 required by the charge.

[]{#a15005 .anchor}**1500.5 Forgery - Credit Card.** The State must
prove both of the following elements of Forgery:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant used a credit card for the purpose of obtaining (name of
property or service).

2\. a. The defendant knew the credit card was \[stolen\] \[forged\]
\[revoked\] \[cancelled\].

b\. The defendant knew \[he\] \[she\] was not authorized to use the
credit card.

If the State has proved both of these elements, the defendant is guilty
of Forgery and you must then determine the degree of the Forgery as
explained to you in Instruction No.\_\_\_\_\_\_\_. If the State has
failed to prove either of these elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 715A.6

# Comment

Note: Use 2a or 2b depending upon the charge.

Note: In the event the defendant claims the defense of Iowa Criminal
Jury Instruction 1500.6, use the following paragraph in lieu of the last
paragraph of this instruction:

\"If the State has proved both of these elements, you will then
determine if the defendant has proved \[his\] \[her\] defense according
to Instruction No.\_\_\_\_\_\_\_. If the defendant has failed to prove
\[his\] \[her\] defense according to this instruction, the defendant is
guilty of Forgery. You must then determine the degree of the Forgery, as
explained to you in Instruction No.\_\_\_\_\_\_\_. If the defendant has
proved \[his\] \[her\] defense, or the State has failed to prove either
of the elements, the defendant is not guilty.\"

[]{#a15006 .anchor}1500.6 Credit Card - Defense. The Defendant claims,
as a defense to the charge, that \[he\] \[she\] had the intent and
ability to meet all of the obligations of the credit card. \[He\]
\[she\] must prove this by a preponderance of the evidence.

# Authority

[Iowa Code]{.underline} section 715JA.6

# Comment

Note: Use Iowa Criminal Jury Instruction 100.12

[]{#a15007 .anchor}**1500.7 Credit Card - Degree Of Forgery - Definition
And Interrogatory.** If you find the defendant guilty of Forgery, you
must then determine the degree of the Forgery by Credit Card. I have
attached a question which must be answered, and by so doing, you will
determine the degree of the Forgery.

In answering the question, the State must prove the value of the
property or services which the defendant obtained or sought to obtain.
You will check the blank next to the appropriate value on the verdict
form.

The following are the two degrees of Forgery by Credit Card:

1\. Property or services valued at \$500 or less.

2\. Property or services valued more than \$500.

Note: The following would appear on the verdict form:

We, the jury, find the value of the property or services obtained or
sought to be obtained to be:

1\. \$500 or less.

2\. More than \$500.

[]{#a15008 .anchor}**1500.8 Uttering A Forged Instrument - Definition Of
Utter.** A person utters a writing when \[he\] \[she\] offers it to
another and represents it is genuine.

# Authority

[State v. Weaver]{.underline}, 149 Iowa 403, 128 N.W. 559 (1910)

[]{#a15009 .anchor}**1500.9 Identity Theft - Elements.** The State must
prove both of the following elements of Identity Theft:

1\. On or about the \_\_\_\_, of \_\_\_\_\_\_, \_\_\_\_\_, the defendant
obtained identification information of (victim).

2\. At that time the defendant intended to obtain a benefit by
defrauding someone.

3\. The defendant (used) (attempted to use) that identification
information to obtain \[credit\]\[property\]\[services\] without the
authorization of (victim).

If the State has proved all of these elements, the defendant is guilty
of Identity Theft. If the State has failed to prove any one of these
elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 718A.8, added by H. F. 659, Acts of the
78th General Assembly, 1999.

# Comment

Note: Use Iowa Criminal Jury Instruction 200.2 (Specific Intent).

[]{#a150010 .anchor}**1500.10 Identification Information - Definition.**
As used in Instruction No. \_\_\_\_\_, \"identification information\"
means one or more of any of the following pieces of information about or
related to a person: name, address, date of birth, telephone number,
driver\'s license number, nonoperator\'s identification number, social
security number, place of employment, employee identification number,
parent\'s legal surname prior to marriage, demand deposit account
number, savings or checking account number, or credit card number.

# Authority

[Iowa Code]{.underline} section 715A.8(1), as added by H. F. 659, Acts
of the 78th General Assembly, 1999.

[]{#a150011 .anchor}**1500.11 Identity Theft - Definition - Value.** The
value of the \[credit\]\[property\]\[services\] is its highest value by
any reasonable standard at the time the identity theft is committed.
\"Reasonable standard\" included but is not limited to market value
within the community, actual value, or replacement value.

# Authority

[Iowa Code]{.underline} section 715A.9, added by H.F. 659, Acts of the
78^th^ General Assembly, 1999.

[]{#a150012 .anchor}**1500.12 Identity Theft - Definition - Single or
Multiple Theft.** If \[credit\]\[property\]\[services\] is obtained by
two or more acts from the same person or location, or from different
persons by two or more acts which occur in approximately the same
location or time period so that the identity thefts are attributable to
a single scheme, plan or conspiracy, these acts may be considered a
single identity theft and the value may be the total value of all the
\[credit\]\[property\]\[services\] involved.

# Authority

[Iowa Code]{.underline} section 715A.9, added by H. F. 659, Acts of the
78^th^ General Assembly, 1999.

[]{#CH1600 .anchor}**CHAPTER 1600**

CRIMINAL MISCHIEF AND CRIMINAL TRESPASS

# Criminal Mischief

[1600.1](#a16001) Criminal Mischief - Damage, Destroy, Etc. - Elements

[1600.2](#a16002) Degrees Of Criminal Mischief - Definitions And
Interrogatory

[1600.3](#a16003) Criminal Mischief In The First Degree - Substantial
Interruption, Etc. - Elements

[1600.4](#a16004) Criminal Mischief In The Third Degree - Legal
Instrument - Elements

[1600.5](#a16005) Criminal Mischief In The Third Degree - Safety Devices

[1600.6](#a16006) Criminal Mischief In The Third Degree - Disinterment

# Criminal Trespass

[1610.1](#a16101) Criminal Trespass - With Intent - Elements

[1610.2](#a16102) Criminal Trespass - Refusal To Leave - Elements

[1610.3](#a16103) Criminal Trespass - Interference With Use - Elements

[1610.4](#a16104) Criminal Trespass - Wrongful Use, Etc. - Elements

[1610.5](#a16105) Criminal Trespass - Property - Definition

[1610.6](#a16106) Criminal Trespass - Defense - Elements

[]{#a16001 .anchor}**1600.1 Criminal Mischief - Damage, Destroy, Etc. -
Elements.** The State must prove all the following elements of Criminal
Mischief:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant \[damaged\] \[altered\] \[defaced\] \[destroyed\]
(describe property) belonging to (name of victim).

2\. The defendant acted with the specific intent to \[damage\]
\[deface\] \[alter\] \[destroy\] the property.

3\. When the defendant \[damaged\] \[defaced\] \[altered\] \[destroyed\]
the property, \[he\] \[she\] did not have the right to do so.

If the State has proved all of the elements, the defendant is guilty and
you must then determine the degree of Criminal Mischief, as explained to
you in Instruction No. \_\_\_\_\_\_. If the State has failed to prove
any one of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 716.1

[State v. Chang]{.underline}, 587 N.W.2d 459 (Iowa 1998)

# Comment

Note: Use this instruction only when the property is damaged, etc. Where
the Criminal Mischief is the

\"substantial interruption or impairment,\" then Iowa Criminal Jury
Instruction 1600.3 should be used.

Iowa Criminal Jury Instruction 200.2 (Specific Intent)

[]{#a16002 .anchor}**1600.2 Degrees Of Criminal Mischief - Definitions
And Interrogatory.** If you find the defendant guilty of Criminal
Mischief, you must then determine the degree of Criminal Mischief. I
have attached a question which must be answered, and by so doing, you
will determine the degree of Criminal Mischief.

In answering the question, the State must prove the cost of \[repair\]
\[replacement\] of the property \[destroyed\] \[damaged\] \[defaced\]
\[altered\]. You will check the blank next to the appropriate value.

The following are the different degrees of Criminal Mischief:

1\. Criminal Mischief in the Fifth Degree occurs when cost of
\[replacing\] \[repairing\] the property is \$200 or less.

2\. Criminal Mischief in the Fourth Degree occurs when the cost of
\[replacing\] \[repairing\] the property is more than \$200 but not more
than \$500.

3\. Criminal Mischief in the Third Degree occurs when the cost of
\[replacing\] \[repairing\] the property is more than \$500 but not more
than \$1,000.

4\. Criminal Mischief in the Second Degree occurs when the cost of
\[replacing\] \[repairing\] the property is more than \$1,000 but not
more than \$10,000.

5\. Criminal Mischief in the First Degree occurs when the cost of
\[replacing\] \[repairing\] the property is more than \$10,000.

# Comment

Caveat: This instruction should be used only when the degree of Criminal
Mischief involves the

cost of repair or replacement. Only the definitions of the degree of
Criminal Mischief

supported by the evidence should be given.

Note: The following would appear on the verdict form.

1\. The cost of \[repair\] \[replacement\] is not more than \$200.

2\. The cost of \[repair\] \[replacement\] is more than \$200 but no
more than \$500.

3\. The cost of \[repair\] \[replacement\] is more than \$500 but not
more than \$1,000.

4\. The cost of \[repair\] \[replacement\] is more than \$1,000 but not
more than \$10,000.

5\. The cost of \[repair\] \[replacement\] is more than \$10,000.

[]{#a16003 .anchor}**1600.3 Criminal Mischief In The First Degree -
Substantial Interruption, Etc. - Elements.** The State must prove all of
the following elements of Criminal Mischief In The First Degree:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant \[damaged\] \[defaced\] \[altered\] \[destroyed\]
(describe the property) belonging to (name of entity).

2\. (Name of entity) was a \[corporation\] \[common carrier\]
\[municipal public utility\] providing service of (e.g., electricity) to
the public.

3\. The \[damage\] \[defacing\] \[alteration\] \[destruction\] of the
property \[caused\] \[was intended to cause\] a substantial interruption
or impairment of service provided by (name of entity).

4\. The defendant acted with the specific intent to \[damage\]
\[deface\] \[alter\] \[destroy\] the property.

5\. When the defendant \[damaged\] \[defaced\] \[destroyed\] \[altered\]
the property, \[she\] \[he\] did not have the right to do so.

If the State has proved all of the elements, the defendant is guilty of
Criminal Mischief in the First Degree. If the State has failed to prove
any one of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 716.3

[State v. Chang]{.underline} 587 N.W.2d 459 (Iowa 1998)

**Comment**

Note: Iowa Criminal Jury Instruction 200.2 (Specific Intent)

[]{#a16004 .anchor}**1600.4 Criminal Mischief In The Third Degree -
Legal Instrument - Elements.** The State must prove all of the following
elements of Criminal Mischief In The Third Degree:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant \[damaged\] \[defaced\] \[altered\]
\[destroyed\] (describe property) belonging to (name of victim).

2\. The property was a \[deed\] \[will\] \[commercial paper\] \[civil
process\] \[criminal process\] \[instrument having legal effect\].

3\. The defendant acted with the specific intent to \[damage\]
\[deface\] \[alter\] \[destroy\] the (describe property).

4\. When the defendant \[damaged\] \[destroyed\] \[altered\] \[defaced\]
the property, \[she\] \[he\] did not have the right to do so.

If the State has proved all of the elements, the defendant is guilty of
Criminal Mischief in the Third Degree. If the State has failed to prove
any one of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 716.5

[State v. Chang]{.underline}, 587 N.W.2d 459 (Iowa 1998)

**Comment**

Note: Iowa Criminal Jury Instruction 200.2 (Specific Intent)

[]{#a16005 .anchor}**1600.5 Criminal Mischief In The Third Degree -
Safety Devices.** The State must prove all of the following elements of
Criminal Mischief In The Third Degree:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant \[damaged\] \[defaced\] \[altered\]
\[destroyed\] (describe property).

2\. The property was a \[light\] \[signal\] \[obstruction\]
\[barricade\] \[guard\] which had been placed or erected to \[enclose\]
\[an unsafe or dangerous place\] \[alert persons to an unsafe or
dangerous condition\].

3\. The defendant acted with the specific intent to \[damage\]
\[deface\] \[alter\] \[destroy\] the (describe property).

4\. The act of the defendant caused the (describe property) to be
substantially less effective than it was before.

5\. When the defendant \[damaged\] \[defaced\] \[altered\] \[destroyed\]
the (describe property), \[she\] \[he\] did not have the right to do so.

If the State has proved all of the elements, the defendant is guilty of
Criminal Mischief In The Third Degree. If the State has failed to prove
any one of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 716.5

[State v. Chang]{.underline}, 587 N.W.2d 459 (Iowa 1998)

# Comment

Note: Iowa Criminal Jury Instruction 200.2 (Specific Intent)

[]{#a16006 .anchor}**1600.6 Criminal Mischief In The Third Degree -
Disinterment.** The State must prove all of the following elements of
Criminal Mischief In The Third Degree:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_, the defendant disinterred human remains \[from a burial site\]\*
\[that have state and national significance from a historical or
scientific standpoint for the inspiration and benefit of the United
States\].\*\* (Select alternative as charged and supported by the
evidence.)

2\. The defendant acted with the specific intent to disinter human
remains.

3\. The defendant did so \[without authority\]\* \[without the
permission of the state archaeologist\].\*\* (Select alternative as
charged and supported by the evidence.)

If the State has proved all of the elements, the defendant is guilty of
Criminal Mischief In The Third Degree. If the State has failed to prove
any one of the elements, the defendant is not guilty.

# Authority

\*Iowa Code section 716.5(1)

\*\*Iowa Code section 716.5(2)

[State v. Chang]{.underline}, N.W.2d 459 (Iowa 1998)

# Comment

Note: Iowa Criminal Jury Instruction 200.2 (Specific Intent)

[]{#a16101 .anchor}**1610.1 Criminal Trespass - With Intent -
Elements.** The State must prove all of the following elements of
Criminal Trespass:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant entered \[upon\] \[in\] the property of another.

2\. The defendant did not have the express permission of (statutory
term).

3\. When the defendant entered, \[he\] \[she\] had the specific intent
to \[commit the crime of (crime)\] \[use\] \[remove\] \[alter\]
\[damage\] \[harass\] \[place\] any object on or in the property\]\]
\[hunt, fish or trap on the property\].

4\. The defendant \[injured (name of victim)\] \[caused damage of more
than \$100\].

If the State has proved all of the elements, the defendant is guilty of
Criminal Trespass. If the State has failed to prove any one of the
elements, the defendant is not guilty.

## Authority

[Iowa Code]{.underline} section 716.7(2)(a)

[Iowa Code]{.underline} section 716.8

# Comment

Note: For definition of \"Specific Intent\", see Iowa Criminal Jury
Instruction 200.2

If the defendant asserts the statutory exception of 716.7(2)(a), an
additional element requiring the State to negate the exception should be
added.

There are no degrees of Criminal Trespass. Criminal Trespass that does
not cause personal injury or property damage of more than \$100 is a
simple misdemeanor. This is a lesser included offense. The instructions
and verdict forms should be drafted accordingly.

[]{#a16102 .anchor}**1610.2 Criminal Trespass - Refusal To Leave -
Elements.** The State must prove all of the following elements of
Criminal Trespass:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant\[entered\] \[remained on\] the property of
another.

2\. The defendant acted after being \[notified\] \[requested\] \[not to
enter\] \[to leave\].

3\. (Statutory term) \[notified\] \[requested\] defendant to \[leave\]
\[not enter\].

4\. While acting, the defendant \[injured (name of victim)\] \[caused
damage of more than \$100\].

If the State has proved all of the elements, the defendant is guilty of
Criminal Trespass. If the State has failed to prove any of the elements,
the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 716.7(2)(b)

[Iowa Code]{.underline} section 716.8

# Comment

Note: There are no degrees of Criminal Trespass. Criminal Trespass that
does not cause personal injury or property damage of more than \$100 is
a simple misdemeanor. This is a lesser included offense. The
instructions and verdict forms should be drafted accordingly.

[]{#a16103 .anchor}**1610.3 Criminal Trespass - Interference With Use -
Elements.** The State must prove all of the following elements of
Criminal Trespass:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant entered the property of another.

2\. The defendant entered \[for the purpose\] \[with the effect\] of
unduly interfering with the lawful use of property of others.

3\. The defendant \[injured (name of victim)\] \[caused damage of more
than \$100\].

If the State has proved all of the elements, the defendant is guilty of
Criminal Trespass. If the State has failed to prove any one of the
elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 716.7(2)(c)

[Iowa Code]{.underline} section 716.8

# Comment

Note: There are no degrees of Criminal Trespass. Criminal Trespass that
does not cause personal injury or property damage of more than \$100 is
a simple misdemeanor. This offense is a lesser included offense. The
instruction and verdict forms should be drafted accordingly.

[]{#a16104 .anchor}**1610.4 Criminal Trespass - Wrongful Use, Etc. -
Elements.** The State must prove all of the following elements of
Criminal Trespass:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant was \[upon\] \[in\] the property of another.

2\. That while \[upon\] \[in\] the property, the defendant wrongfully
\[used\] \[removed\] \[altered\] \[damaged\] (property) \[harassed (name
of victim)\] \[placed (describe object) on the property\].

3\. The defendant did not have the actual or implied permission of
(statutory term).

4\. The defendant \[injured (name of victim)\] \[caused damage of more
than \$100\].

If the State has proved all of the elements, the defendant is guilty of
Criminal Trespass. If the State has failed to prove any one of the
elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 716.7(2)(d)

[Iowa Code]{.underline} section 716.8

# Comment

Note: There are no degrees of Criminal Trespass. Criminal Trespass that
does not cause personal injury or property damage of more than \$100 is
a simple misdemeanor. This is a lesser included offense. The instruction
and verdict forms should be drafted accordingly.

[]{#a16105 .anchor}**1610.5 Criminal Trespass - Property - Definition.**
\"Property\" means any land, dwelling, building, conveyance, vehicle, or
other temporary or permanent structure, whether publicly or privately
owned.

# Authority

[Iowa Code]{.underline} section 716.7(1)

[]{#a16106 .anchor}**1610.6 Criminal Trespass - Defense - Elements.**
The defendant claims \[he\] \[she\] entered the property only to
retrieve personal property.

You must find the defendant not guilty unless the State proves any of
the following:

1\. The defendant entered the property for a purpose other than
retrieving personal property which had accidentally or inadvertently
\[been thrown\] \[fallen\] \[strayed\] \[blown\] onto the property.

2\. The defendant did not take the most direct and accessible route to
and from the retrieved personal property.

3\. The defendant did not leave the property as quickly as possible.

4\. The defendant unduly interfered with the lawful use of the property.

# Authority

[Iowa Code]{.underline} section 716.7(3)

[]{#CH1700 .anchor}**CHAPTER 1700**

# COMPUTER CRIME

[1700.1](#a17001) Computer Damage - Elements

[1700.2](#a17002) Computer Theft - Elements

[1700.3](#a17003) Definitions

[1700.4](#a17004) Degrees of Computer Damage and Theft - Definitions

[1700.5](#a17005) Degrees of Computer Damage and Theft - Interrogatory

[]{#a17001 .anchor}**1700.1 Computer Damage - Elements.** The State must
prove all of the following elements of Computer Damage:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant \[damaged\] \[destroyed\] \[altered\] (describe
the computer property) belonging to (victim).

2\. The defendant did so knowingly.

3\. At the time the defendant \[damaged\] \[destroyed\] \[altered\] the
property, \[he\] \[she\] had no authority to do so.

4\. The defendant altered the property with the specific intent to
injure or defraud (victim).\*

If the State has proved all of the elements, the defendant is guilty of
Computer Damage. You must then determine the degree of Computer Damage,
as explained in Instruction No.\_\_\_\_\_. If the State has failed to
prove any one of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 716A.3

# Comment

Note: \*Use element 4 only if the defendant is charged with \"altering\"
computer property under [Iowa Code]{.underline} section 716A.3

Note: Use Iowa Criminal Jury Instruction 200.3 (Knowledge). If element 4
is used, Iowa Criminal Jury Instruction 200.2 (Specific Intent) should
also be given.

[]{#a17002 .anchor}**1700.2 Computer Theft - Elements.** The State must
prove all of the following elements of Computer Theft:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant \[accessed\] \[caused to be accessed\] \[took\]
\[transferred\] \[concealed\] \[retained possession of\] (describe
computer property).

2\. The defendant did so knowingly.

3\. a. The defendant did so for the purpose of obtaining \[services\]
\[information\] \[property\] from (victim).\*

b\. The defendant did so with the specific intent to permanently deprive
(victim) of possession of the property.\*

4\. At the time the defendant \[accessed\] \[caused to be accessed\]
\[took\] \[transferred\] \[concealed\] \[retained possession of\] the
property, \[he\] \[she\] had no authority to do so.

If the State has proved all of the elements, the defendant is guilty of
Computer Theft. You must then determine the degree of Computer Theft, as
explained in Instruction No.\_\_\_\_\_. If the State has failed to prove
any one of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 716A.9

# Comment

Note: \*Use element 3A if an illegal \"accessing\" is charged under
[Iowa Code]{.underline} section 716A.9. Otherwise, use element 3b.

Note: Use Iowa Criminal Jury Instruction 200.3 (Knowledge). If element
3b is used, Iowa Criminal Jury Instruction 200.2 (Specific Intent)
should also be given.

[]{#a17003 .anchor}**1700.3 Definitions.** \"Access\" means to instruct,
communicate with, store data in, or retrieve data from a computer,
computer system or computer network.

\"Computer\" means an electronic device which performs logical,
arithmetical and memory functions by manipulations of electronic or
magnetic impulses, and includes all input, output, processing, storage,
computer software, and communication facilities which are connected or
related to the computer in a computer system or computer network.

\"Computer system\" means related, connected or unconnected computers or
peripheral equipment.

\"Computer network\" means a set of related, remotely connected services
and communication facilities including two or more computers with
capability to transmit data among them through communication facilities.

\"Computer program\" means an ordered set of instructions or statements
that, when executed by a computer, causes the computer to process data.

\"Data\" means a representation of information, knowledge, facts,
concepts, or instructions that has been prepared or is being prepared in
a formalized manner and has been processed, or is intended to be
processed in a computer. Data may be in any form including, but not
limited to, printouts, magnetic storage media, punched cards, and as
stored in the memory of a computer.

\"Services\" means the use of a computer, computer system, or computer
network and includes, but is not limited to, computer time, data
processing, and storage functions.

\"Property\" means anything of value whether publicly or privately owned
and includes both tangible and intangible property as well as
\[computers\] \[computer data\] \[computer information\] \[computer
software\] \[computer programs\].

\"Loss of property\" means the greater of either the retail value of the
property involved or the reasonable \[replacement\] \[repair\] cost.\*

\"Loss of services\" means the reasonable value of the damage created by
the unavailability or lack of usefulness of the property or services
involved until \[repair\] \[replacement\] can be made.

# Authority

[Iowa Code]{.underline} section 716A.1

**Commen**[t]{.underline}

Note: Use only those definitions which are charged and supported by the
evidence.

Note: \*When evidence of both reasonable replacement cost and repair
cost is offered, the Court should instruct on only the lesser of the two
costs. [Iowa Code]{.underline} section 716A.1(10)(b).

[]{#a17004 .anchor}**1700.4 Degrees Of Computer Damage And Theft -
Definitions.** If you find the defendant guilty of Computer \[Damage\]
\[Theft\], you must then determine the degree of Computer \[Damage\]
\[Theft\]. I have attached a question which must be answered, and by so
doing, you will determine the degree of computer \[damage\] \[theft\].

The State must prove the value of any loss of property or services. To
answer the attached question, you will check the blank next to the
appropriate value.

The following are the degrees of Computer \[Damage\] \[Theft\]:

1 Computer \[Damage\] \[Theft\] in the 5th degree occurs when the loss
of \[property\] \[services\] is not more than \$50.

2\. Computer \[Damage\] \[Theft\] in the 4th degree occurs when the loss
of \[property\] \[services\] is more than \$50 but not more than \$100.

3\. Computer \[Damage\] \[Theft\] in the 3rd degree occurs when the loss
of \[property\] \[services\] is more than \$100 but not more than \$500.

4\. Computer \[Damage\] \[Theft\] in the 2nd degree occurs when the loss
of \[property\] \[services\] is more than \$500 but not more than
\$5,000.

5\. Computer \[Damage\] \[Theft\] in the 1st degree occurs when the loss
of \[property\] \[services\] is more than \$5,000.

# Authority

[Iowa Code]{.underline} sections 716A.4 to 716A.8

[Iowa Code]{.underline} sections 716A.10 to 716A.14

# Comment

Note: Use only those portions of the instruction charged and supported
by the evidence.

[]{#a17005 .anchor}**1700.5 Degrees Of Computer Damage And Theft -
Interrogatory.** We, the jury, find the loss of \[property\]
\[services\] caused by the defendant to be:

1\. Not more than \$50.

2\. More than \$50, but not more than \$100.

3\. More than \$100, but not more than \$500.

4\. More than \$500, but not more than \$5,000.

5\. More than \$5,000.

**Comment**

Note: This question should appear on the guilty verdict form. Use only
those portions of the question charged and supported by the evidence.

[]{#CH1800 .anchor}**CHAPTER 1800**

# OFFENSES AGAINST THE GOVERNMENT AND BRIBERY

[1800.1](#a18001) Insurrection - Elements

[1800.2](#a18002) Impersonating A Public Official - Elements

[1800.3](#a18003) Falsifying Public Documents - Elements

# Official Misconduct

[1810.1](#a18101) Felonious Misconduct In Office - Elements

# Bribery and Corruption

[1820.1](#a18201) Bribery - Elements

[1820.2](#a18202) Accepting A Bribe - Elements

# Commercial Bribery

[1830.1](#a18301) Commercial Bribery - Donor

[1830.2](#a18302) Commercial Bribery - Donee

[1830.3](#a18303) Definition - Employer

[1830.4](#a18304) Definition - Gratuity

[]{#a18001 .anchor}**1800.1 Insurrection - Elements.** The State must
prove both of the following elements of Insurrection:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant and at least two other persons acted together and used
physical violence against \[other people\] \[property\].

2\. The defendant and these other persons did so for the purpose of:

a\. \[Interfering with\] \[disrupting\] \[destroying\] the government of
(describe governmental subdivision).

b\. preventing any (describe executive, judicial, or legislative body or
officer) from performing \[his\] \[her\] \[their\] lawful function.

If the State has proved both of the elements, the defendant is guilty of
Insurrection. If the State has failed to prove either of the elements,
the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 718.1

[]{#a18002 .anchor}**1800.2 Impersonating A Public Official -
Elements.** The State must prove both of the following elements of
Impersonating a Public Official:

1\. On or about the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_, the
defendant falsely \[claimed to be\] \[assumed to act as\] (describe
public office).

2\. The defendant had no authority to do so.

If the State has proved both of the elements, the defendant is guilty of
Impersonating a Public Official. If the State has failed to prove either
of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 718.2

[]{#a18003 .anchor}**1800.3 Falsifying Public Documents - Elements.**
The State must prove both of the following elements of Falsifying Public
Documents:

1\. On or about the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant:

a\. \[made\] \[altered\] \[a public document\] \[an instrument which
appeared to be a public document\].

b\. possessed \[a seal\] \[a counterfeit seal\] of (describe the
governmental subdivision, agency, or officer).

2\. The defendant had no right or authority to do so.

If the State has proved both of the elements, the defendant is guilty of
Falsifying A Public Document. If the State has failed to prove either of
the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 718.5

# Comment

Note: See [State v. Ortega]{.underline}, 418 N.W.2d 57 (Iowa 1988), for
the definition of \"public document\".

[]{#a18101 .anchor}**1810.1 Felonious Misconduct In Office - Elements**.
The State must prove both of the following elements of Misconduct In
Office:

1\. On or about the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant was a public \[officer\] \[employee\].

2\. On that date the defendant knowingly:

a\. made or gave a false \[entry\] \[return\] \[certificate\]
\[receipt\].

b\. \[falsified a public record\] \[issued a document falsely appearing
to be a public document\].

If the State has proved both of the elements, the defendant is guilty of
Misconduct in Office. If the State has failed to prove either of the
elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 721.1

# Comment

Note: This instruction relates only to \"felonious\" Misconduct In
Office. See, Iowa Code section 721.2 for a definition of
\"nonfelonious\" Misconduct In Office.

[]{#a18201 .anchor}**1820.1 Bribery - Elements.** The State must prove
all of the following elements of Bribery:

1\. On or about the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, (name of recipient):

a\. was serving as a (describe public capacity).

b\. had been \[elected\] \[selected\] \[appointed\] \[employed\]
\[engaged\] as (describe public capacity).

c\. was a witness in a \[judicial hearing\] \[arbitration hearing\]
\[official inquiry\].

d\. was a member of a board of arbitration.

2\. The defendant then \[offered\] \[promised\] \[gave\] a \[thing of
value\] \[benefit\] to (name of recipient).

3\. The defendant did so with \[an agreement or arrangement\] \[the
understanding\] that the \[promise\] \[thing of value\] \[benefit\]
would influence the \[act\] \[vote\] \[opinion\] \[judgment\]
\[decision\] \[exercise of discretion\] of (name of recipient) as
(describe recipient\'s official capacity).

If the State has proved all of the elements, the defendant is guilty of
Bribery. If the State has failed to prove any one of the elements, the
defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 722.1

[]{#a18202 .anchor}**1820.2 Accepting A Bribe - Elements.** The State
must prove all of the following elements of Accepting a Bribe:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant:

a\. was serving as a (describe public capacity).

b\. had been \[elected\] \[selected\] \[appointed\] \[employed\]
\[engaged\] to serve as a (describe public capacity).

c\. was a witness in a \[judicial hearing\] \[arbitration hearing\]
\[official inquiry\].

d\. was a member of a board of arbitration.

2\. The defendant then \[solicited\] \[knowingly accepted\] \[knowingly
received\] a \[promise\] \[thing of value\] \[benefit\].

3\. The defendant did so with an understanding or arrangement that the
\[promise\] \[thing of value\] \[benefit\] would influence \[his\]
\[her\] \[act\] \[vote\] \[opinion\] \[judgment\] \[decision\]
\[exercise of discretion\] as (describe the defendant\'s official
capacity).

If the State has proved all of the elements, the defendant is guilty of
Accepting a Bribe. If the State has failed to prove any one of the
elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 722.2

[]{#a18301 .anchor}**1830.1 Commercial Bribery - Donor.** The State must
prove all of the following elements of Commercial Bribery:

1\. On or about \_\_\_\_\_\_\_\_\_\_, the defendant engaged in a
business transaction, or series of transactions, with (name of the
recipient or intended recipient of the gratuity).

2\. At that time, (name of the recipient or intended recipient of the
gratuity) was an \[employee\] \[officer\] \[agent\] \[representative\]
of (name of employer or principal), acting on behalf of \[his\] \[her\]
\[employer\] \[principal\].

3\. At that time, defendant \[offered\] \[delivered\], directly or
indirectly to (name of intended recipient) a gratuity as defined in
Instruction No.\_\_\_\_\_\_\_.

4\. The gratuity was \[offered\] \[delivered\] by the defendant in
consideration for (name of intended recipient) doing an act, or not
doing an act, which conduct the defendant had reason to know was in
conflict with (name of intended recipient\'s) employment relation and
duties to (name of the employer or principal).

If the State has proved all of the elements, the defendant is guilty of
Commercial Bribery. If the state has failed to prove any one of the
elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} Section 722.10(2)

[]{#a18302 .anchor}**1830.2 Commercial Bribery - Donee.** The State must
prove all of the following elements of Commercial Bribery:

1\. On or about \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, defendant was an
\[employee\] \[officer\] \[agent\] \[representative\] of (name of
employer or principal).

2\. At the time, defendant acted in a business transaction or series of
transactions with (person who delivered the gratuity).

3\. At that time, the defendant \[solicited\] \[received\] from (person
who delivered the gratuity) a gratuity as defined in Instruction
No.\_\_\_\_\_\_\_.

4\. The gratuity was received for the benefit, directly or indirectly,
of the defendant.

5\. The gratuity was \[solicited\] \[received\] by the defendant in
consideration for the defendant doing an act, or not doing an act, which
conduct defendant had reason to know was in conflict with \[his\]
\[her\] employment relation and duties to (the employer) (the
principal).

If the State has proved all of the elements, the defendant is guilty of
Commercial Bribery. If the State has failed to prove any one of the
elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} Section 722.10(2)

[]{#a18303 .anchor}**1830.3 Definition - Employer.** As used in
Instruction No.\_\_\_\_\_\_\_, \"employer\" includes any sole
proprietor, partnership, corporation, association, or other entity or
organization.

# Authority

[Iowa Code]{.underline} Section 722.10(1)(a)

[]{#a18304 .anchor}**1830.4 Definition - Gratuity.** As used in
Instruction No. \_\_\_\_\_\_\_, the term \"gratuity\" means
consideration in any form, including but not limited to a gift,
commission, discount and bonus.

# Authority

[Iowa Code]{.underline} Section 722.10(1)(c)

[]{#CH1900 .anchor}**CHAPTER 1900**

INTERFERENCE WITH OFFICIAL ACTS AND ESCAPE

# Escape

[1900.1](#a19001) Escape - Elements

[1900.2](#a19002) Escape - Elements - Voluntary Absence From Facility

[1900.3](#a19003) Permitting Prisoner To Escape - Elements

[1900.4](#a19004) Assisting Prisoner To Escape - Elements - Intent To
Aid Escape

[1900.5](#a19005) Furnishing Intoxicant To An Inmate - Elements

[1900.6](#a19006) Furnishing Controlled Substance To An Inmate -
Elements

# Interference With An Official Act

[1910.1](#a19101) Interference With An Official Act - Elements

[1910.2](#a19102) Interference With Official Acts - Definition -
Resistance Or Obstructions

[1910.3](#a19103) Preventing Apprehension Or Obstructing Prosecution Or
Defense - Elements

[1920.1](#a19201) Eluding a Peace Officer - Elements

[1930.1](#a19301) Disarming a Peace Officer With Discharge of a Weapon -
Elements

[1930.2](#a19302) Definition of a Peace Officer

[]{#a19001 .anchor}**1900.1 Escape - Elements.** The State must prove
all of the following elements of Escape:

1\. The defendant had previously been \[convicted of\] \[charged with\]
\[arrested for\] a \[felony\] \[misdemeanor\].

2\. a. By reason of the \[conviction\] \[charge\] \[arrest\], the
defendant had been placed in the custody of (name), who was a \[public
officer\]\[public employee\].

3\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_, while in
custody, the defendant intentionally \[escaped from the custody of
(name)\] \[left (name of place)\],\[attempted to escape from the custody
of (name)\] {attempted to leave 9nake of Place)\], consent or authority
of the custodian.

If the State has proved all of the elements, the defendant is guilty of
Escape. If the State has failed to prove any one of the elements, the
defendant is not guilty.

**Authority**

[Iowa Code]{.underline} section 719.4(1)(2)

[State v. Burtlow]{.underline}, 299 N.W.2d 665 (Iowa 1980)

# Comment

If an attempt to escape is alleged, use Iowa Criminal Jury Instruction
200.18(Attempt).

[]{#a19002 .anchor}**1900.2 Voluntary Absence From A Facility -
Elements.** The State must prove all of the following elements of the
crime of Voluntary Absence From A Facility:

1\. The defendant had previously been committed to (place where the
defendant was required to be).

2\. (Place where the defendant was required to be) was \[an institution
under the control of the Iowa Department of Corrections\] \[a jail\] \[a
correctional institution\].

3\. While in custody, the defendant was required to be at (place where
the defendant was required to be).

4\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant knowingly and voluntarily left the place \[he\] \[she\]
was required to be.

If the State has proved all of the elements, the defendant is guilty of
Voluntary Absence From A Facility. If the State has failed to prove any
one of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 719.4(3)

[State v. Burtlow]{.underline}, 299 N.W.2d 665 (Iowa 1980)

[]{#a19003 .anchor}**1900.3 Permitting Prisoner To Escape - Elements.**
The State must prove all of the following elements of the crime of
Permitting A Prisoner To Escape:

1\. On or about the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
(name of prisoner) was in custody by reason of a \[conviction for\]
\[charge of\] a crime.

2\. The defendant was a \[jailer\] \[public officer\] \[public
employee\].

3\. (Name of prisoner) \[attempted an escape\] \[escaped\] from custody.

4\. The defendant knowingly and voluntarily \[permitted\] \[aided or
abetted\] (name of prisoner) to \[attempt an escape\] \[escape\].

If the State has proved all of the elements, the defendant is guilty of
Permitting A Prisoner To Escape. If the State has failed to prove any
one of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 719.5

[]{#a19004 .anchor}**1900.4 Assisting A Prisoner To Escape - Elements -
Intent To Aid Escape.** The State must prove all of the following
elements of Assisting A Prisoner To Escape:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, (name of prisoner) was confined in (name of place) by reason
of a conviction of (describe conviction).

2\. The defendant brought into (name of place) a (describe instrument

or device).

3\. The defendant did so with specific intent to aid (name of
prisoner)in escaping from (name of place).

If the State has proved all of the elements, the defendant is guilty of
Assisting A Prisoner To Escape. If the State has failed to prove any one
of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 719.6

[]{#a19005 .anchor}**1900.5 Furnishing Intoxicant To An Inmate -
Elements.** The State must prove all of the following elements of
\[Furnishing An Intoxicating Beverage To An Inmate\] \[Introducing An
Intoxicating Beverage\]:

1\. (Name of inmate) was confined in (name of facility).

2\. (Name of facility) was a \[detention facility\] \[correctional
institution\] \[institution under the management of the Iowa Department
of Corrections\].

3\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant \[furnished or knowingly made available
(intoxicating beverage) at that place\] \[introduced (intoxicating
beverage) into that place\].

4\. (Intoxicating beverage) was an intoxicating beverage.

If the State has proved all of the elements the defendant is guilty of
\[Furnishing An Intoxicating Beverage To An Inmate\] \[Introducing An
Intoxicating Beverage\]. If the State has failed to prove any one of the
elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 719.7

# Comment

Note: Element number 1 should be omitted if the defendant is charged
with introducing an intoxicating beverage into the premises.

[]{#a19006 .anchor}**1900.6 Furnishing A Controlled Substance To An
Inmate - Elements.** The State must prove all of the following elements
of \[Furnishing A Controlled Substance To An Inmate\] \[Introducing A
Controlled Substance\]:

1\. (Name of inmate) was confined in (name of facility).

2\. (Name of facility) was a \[detention facility\] \[correctional
institution\] \[institution under the management of the Iowa Department
of Corrections\].

3\. On or about the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_, the
defendant \[furnished or knowingly made available (controlled substance)
to (name of inmate) at that place\] \[introduced (controlled substance)
into that place\].

4\. (Controlled substance) was a controlled substance.

If the State has proved all of the elements, the defendant is guilty of
\[Furnishing A Controlled Substance To An Inmate\] \[Introducing A
Controlled Substance\]. If the State has failed to prove any one of the
elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 719.8

# Comment

Note: Element number 1 should be omitted if the defendant is charged
with Introducing A Controlled Substance into the premises.

[]{#a19101 .anchor}**1910.1 Interference With An Official Act -
Elements.** The State must prove all of the following elements of
Interference With An Official Act:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant:

a\. knew (name) was a \[peace officer\] \[fire fighter\] who was
(describe official act).

b\. knew (name) was serving or executing \[civil or criminal process\]
\[an order of a court\].

2\. The defendant knowingly resisted or obstructed (name) in (describe
official act).

3\. The defendant \[inflicted a \[serious injury\] \[bodily injury\]\]
\[attempted to inflict serious injury\] \[displayed a dangerous weapon\]
\[was armed with a firearm\].

If you find the State has proved all of the elements, the defendant is
guilty of Interference With An Official Act. If the State has failed to
prove any one of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 719.1

[State v. Thomas]{.underline}, 262 N.W.2d 607 (Iowa 1978)

# Comment

Note: The crime of interference with official acts is a general intent
crime. [State v. Buchanan]{.underline}, 549

N.W.2d 291 (Iowa 1996).

[]{#a19102 .anchor}**1910.2 Interference With Official Acts -
Definition - Resistance or Obstruction.** \"Resist\" means to oppose
intentionally, interfere with or withstand. \"Obstruct\" means to hinder
intentionally, retard or delay.

Verbal harassment is not resistance or obstruction unless it is a verbal
threat made with the ability and apparent intention to carry out the
threat.\*

# Authority

[Iowa Code]{.underline} section 719.1

[State v. Donner]{.underline}, 243 N.W.2d 850 (Iowa 1976)

# Comment

Note: \*This statement should be included if verbal harassment is the
means of resistance or obstruction.

[]{#a19103 .anchor}**1910.3 Preventing Apprehension Or Obstructing
Prosecution Or Defense - Elements.** The State must prove both of the
following elements of \[Preventing Apprehension\] \[Obstructing a
Prosecution\] \[Obstructing a Defense\]:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant:

a\. \[destroyed\] \[altered\] \[concealed\] \[disguised\] (evidence)
which would have been evidence in the trial of (name) for (name of
crime).

b\. \[made available false evidence\] \[furnished false information\]
with intent that it be used in the trial of (name) for (name of crime).

c\. induced (name of witness), a witness with knowledge material to the
trial of (name) for (name of crime) to \[leave the state\] \[conceal
\[himself\] \[herself\] \[fail to appear when subpoenaed\].

2\. The defendant\'s act was done with specific intent to \[prevent the
apprehension of (name)\] \[obstruct the \[prosecution\] \[defense\] of
(name)\].

If the State has proved both of the elements, the defendant is guilty of
\[Preventing Apprehension\] \[Obstructing a Prosecution\] \[Obstructing
a Defense\]. If the State has failed to prove either of the elements,
the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 719.3

[]{#a19201 .anchor}**1920.1 Eluding a Peace Officer - Elements**. The
State must prove all of the following elements of Eluding:

1\. On or about the \_\_ day of \_\_\_\_, \_\_\_\_, the defendant was
driving a motor vehicle.

2\. The defendant willfully \[failed to bring the motor vehicle to a
stop or otherwise eluded\] \[attempted to elude\] a marked official law
enforcement vehicle driven by a uniformed peace officer after being
given a visual and audible signal to stop.

3\. In doing so the defendant exceeded the speed limit by twenty-five
miles per hour or more.

4\. At the time, the defendant \[was participating in the public offense
of (a felony)\] \[was operating the motor vehicle while under the
influence of alcohol or drugs or a combination thereof\] \[was in
violation of section 124.401 of the Code\] \['s acts resulted in a
bodily injury to another person\].

If the State proved all of these numbered elements, the defendant is
guilty of Eluding in the First Degree. If the State has failed to prove
Element number 4, the defendant is guilty of Eluding in the Second
Degree. If the State has failed to prove elements numbered 3 and 4, the
defendant is guilty of Eluding in the Third Degree. If the State has
failed to prove either Element 1 or 2, the defendant is not guilty.

# Authority

Iowa Code section 321.279, as amended by HF 209, Acts of the 78^th^
General Assembly, 1999.

# Comment

If appropriate, Iowa Criminal Instruction No. 200.18 (Attempt), Iowa
Criminal Instruction No. 200.6 (Participating in a Public Defense) or
Iowa Criminal Instruction No. 200.41 (Bodily Injury) should be used. If
the alternative of Participating in a felony offense is charged, the
definition of the offense should be given in a separate instruction. If
the alternative of violation of Section 124.401 of the Code is charged,
the definition of the offense should be given in a separate instruction.
See, e.g., [State v. Mesch,]{.underline} 574 N.W.2d 10, 14 (Iowa
1998)(must designate particular felony claimed and the elements of that
felony in instruction of Assault While Participating in a Felony).

[]{#a19301 .anchor}**1930.1 Disarming a Peace Officer With Discharge of
a Weapon - Elements.** The State must prove all of the following
elements of Disarming a Peace Officer With Discharge of a Weapon:

1\. On or about the \_\_\_ day of \_\_\_\_\_\_\_\_\_, \_\_\_\_\_\_\_\_,
the defendant knowingly or intentionally \[removed\] \[attempted to
remove\] a dangerous weapon from the possession of
\_\_\_\_\_\_\_\_\_\_\_\_\_, a peace officer as defined in Instruction
No. \_\_\_\_\_.

2\. At that time \_\_\_\_\_\_\_\_\_\_\_\_ was performing an act within
the scope of his/her lawful duty or authority as a peace officer.

3\. Defendant knew or should have known that \_\_\_\_\_\_\_\_\_\_ was a
peace officer.

4\. Defendant discharged the weapon while \[removing\]\[attempting to
remove\] it from possession of \_\_\_\_\_\_\_\_\_.

If the State has proved all of the above elements, the defendant is
guilty of Disarming a Peace Officer With discharge of a weapon. If the
State has failed to prove element No. 4 the defendant is guilty of
Disarming a Peace Officer. If the State has failed to prove elements 1,
2, or 3, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 708.13

# Comment

Use Iowa Criminal Instructions No. 200.21 (Dangerous Weapon), 200.3
(Knowledge), and 200.18 (Attempt).

[]{#a19302 .anchor}**1930.2 Definition of a Peace Officer.** As used in
Instruction No. \_\_\_\_\_, a "peace officer" included (a Sheriff and
regular deputies who are subject to mandated law enforcement training)
(marshals and police officers of cities) (peace officer members of the
department of public safety) (parole officers while performing their
duties as parole officers) (probation officers while performing their
duties as prescribed by the judicial district department of correctional
services) (special security officers employed by board of regents
institutions) (conservation officers appointed full time by the director
of the Iowa Department of Natural Resources) (such employees of the Iowa
Department of Transportation as are designated peace officer under law)
(such employees of an aviation authority as are designated peace
officers under law) (reserve peace officers as qualify under law).

# Authority

[Iowa Code]{.underline} section 708.13, 801.4(11), 906.2, 907.2, 456.13
and 724.2A.

[]{#CH2000 .anchor}**CHAPTER 2000**

PERJURY

[2000.1](#a20001) Perjury - Elements

[2000.2](#a20002) Perjury - Contradictory Statements - Elements

[2000 3](#a20003) Perjury - Corroboration Of False Statement

[2000.4](#a20004) Perjury - Definition Of Material Fact - Knowledge -
Intent

[2000.5](#a20005) Suborning Perjury - Intent To Make False Statements

[2000.6](#a20006) Suborning Perjury - Concealment Of Material Facts

[2000.7](#a20007) Suborning Perjury - Definition - Procure - Induce

[]{#a20001 .anchor}**2000.1 Perjury - Elements.** The State must prove
all of the following elements of Perjury:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant was under \[oath\] \[affirmation\].

2\. The \[oath\] \[affirmation\] was made in (describe proceeding or
matter in which statements under oath/affirmation are required or
authorized by law).

3\. a. The defendant made a statement of material fact: (statement(s)).

b\. The defendant denied knowledge of certain material fact:
(denial(s)).

4\. a. The statement was false when it was made.

b\. The denial of the facts was false when it was made.

5\. Defendant knew the \[statement\] \[denial\] was false.

If the State has proved all of the elements, the defendant is guilty of
Perjury. If the State has failed to prove any one of the elements, the
defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 720.2

[State v. Fisher]{.underline}, 282 N.W.2d 684 (Iowa 1979)

[State v. Deets]{.underline}, 195 N.W.2d 118 (Iowa 1972)

# Comment

Note: See Iowa Criminal Jury Instructions 200.3 and 200.2

Note: The question of whether \"the defendant was required to be under
oath or affirmation\" is a question of law for the determination of the
court. The question of materiality was also formerly considered a matter
of law; it is now a fact issue to be submitted to the jury. State v.
Walker, 574 NW2d 280, 283 (Iowa 1998). Also, elements 3a and 4a, or 3b
and 4b should be selected and used as supported by the charge and the
evidence. When the court submits more than one statement alleged to be
false, an interrogatory should be submitted for the jury to find which
statements, if any, were false.

6/98

[]{#a20002 .anchor}**2000.2 Perjury - Contradictory Statements -
Element.** The State must prove all of the following elements of
Perjury:

1\. On or about the \_\_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant was under \[oath\] \[affirmation\].

2\. The \[oath\] \[affirmation\] was made in (describe proceeding or
matter in which statements under oath/affirmation are required or
authorized by law).

3\. a. The defendant made a statement of fact: (statement(s).

b\. The defendant denied knowledge of certain material facts:

(denial(s)).

4\. \[At another time\] \[During the same proceeding\] while under
\[oath\] \[affirmation\], the defendant made a contradictory statement
of material fact: (statement).

5\. a. One of the statements was false

b\. The denial was false.

6\. The defendant knew such \[statement\] \[denial\] was false.

If the State has proved all of the elements, the defendant is guilty of
Perjury. If the State has failed to prove any one of the elements, the
defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 720.2

[State v. Fisher]{.underline}, 282 N.W.2d 684 (Iowa 1979)

[State v. Deets]{.underline}, 195 N.W.2d 118 (Iowa 1972)

**Comment**

Note: See Iowa Criminal Jury Instructions 200.3 and 200.2.

Note: The question of whether \"the defendant was required to be under
oath or affirmation\" is a question of law for the determination of the
court. The question of materiality was also formerly considered a matter
of law; it is now a fact issue to be submitted to the jury. [State v.
Walker]{.underline}, 574 NW2d 280, 283 (Iowa 1998). Also, elements 3a
and 4a, or 3b and 4b should be selected and used as supported by the
charge and the evidence. When the court submits more than one statement
alleged to be false, an interrogatory should be submitted for the jury
to find which statements, if any, were false.

6/98

[]{#a20003 .anchor}**2000.3 Perjury - Corroboration Of False
Statement.** Evidence that the defendant made contradictory statements
has been received. The defendant\'s contradictory statements alone do
not mean one statement is false. The falsity of a statement must be
shown by the testimony of other witnesses or by other facts and
circumstances in addition to the testimony of one witness.

# Authority

[State v. Fisher]{.underline}, 282 N.W.2d 684 (Iowa 1979)

[State v. Thompson]{.underline}, 254 Iowa 331, 117 N.W.2d 514 (1962)

[State v. Mutch]{.underline}, 218 Iowa 1176, 255 N.W. 643 (1934)

[]{#a20004 .anchor}**2000.4 Perjury - Definition Of Material Fact -
Knowledge - Intent.** A fact is material if it:

1\. Supports or attacks the credibility of a witness.

2\. Has a tendency to prove or disprove some relevant fact (not
necessarily the main fact at issue).

3\. Is capable of influencing the \[court\] \[officer\] on any issue.

# Authority

[State v. Fisher]{.underline}, 282 N.W.2d 684 (Iowa 1979)

Iowa Criminal Jury Instruction 200.3 (Knowledge)

Iowa Criminal Jury Instruction 200.2 (Specific Intent)

# Comment

Note: Whether the statement is material is a fact issue for the jury.
[State v. Walker]{.underline}, 574 NW2d 280, 283 (Iowa 1998).

6/98

[]{#a20005 .anchor}**2000.5 Suborning Perjury - Intent To Make False
Statements.** The State must prove all of the following elements of
Suborning Perjury:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant \[procured\] \[offered an inducement to\]
(second person) to make a statement of fact (statement).

2\. The statement of fact was to be made under \[oath\] \[affirmation\].

3\. The statement was false.

4\. The defendant knew the statement was false when \[he\] \[she\]
\[procured\] \[induced\] (second person) to make it.

5\. The \[procurement\] \[inducement\] was made to (second person) by
the defendant with the intent that (second person) would make the false
statement.

If the State has proved all of the elements, then the defendant is
guilty of Suborning Perjury. If the State has failed to prove any one of
the elements the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 720.3

[]{#a20006 .anchor}**2000.6 Suborning Perjury - Concealment Of Material
Facts.** The State must prove both of the following elements of
Suborning Perjury:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant reasonably believed that (second person) would be placed
under \[oath\] \[affirmation\] to make a statement of fact that
(statement).

2\. The defendant \[procured\] \[offered an inducement to\] (second
person) to conceal material facts known to \[him\] \[her\].

If the State has proved both of the elements, the defendant is guilty of
Suborning Perjury. If the State has failed to prove either of the
elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 720.3

[]{#a20007 .anchor}**2000.7 Suborning Perjury - Definition - Procure -
Induce.** \"Procure\" means to initiate or bring about an event; to
cause something to be done; to contrive or acquire.

\"Induce\" means to offer something of benefit or value or a reason
which would influence, persuade, coax, encourage or invite a person to
act.

# Authority

[State v. Halleck]{.underline}, 398 N.W.2d 56 (Iowa 1982) - (Bribe)

[State v. Bartilson]{.underline}, 382 N.W.2d 479 (Iowa App. 1985)
(Intent)

[]{#CH2100 .anchor}**CHAPTER 2100**

# VICE

[2100.1](#a21001) Prostitution - Element

[2100.2](#a21002) Prostitution - Offer To Sell Or Purchase - Definition

[2100.3](#a21003) Pimping - Elements - Soliciting Patron Or Sharing In
Earnings

[2100.4](#a21004) Pimping - Elements - Furnishing Room For Purpose Of
Prostitution

[2100.5](#a21005) Pimping - Knowledge - Definition

[2100.6](#a21006) Pimping - Prostitute - Definition

[]{#a21001 .anchor}**2100.1 Prostitution - Element.** The State must
prove the following element of Prostitution:

1\. The defendant:

a\. \[sold\] \[offered for sale\] services as a partner in a sex act.

b\. \[purchased\] \[offered to purchase\] the services as a partner in a
sex act.

If the State has proved the element, the defendant is guilty of
Prostitution. If the State has failed to prove the element, the
defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 725.1

# Comment

Note: Select 1a or b which accords with the manner in which the sex act
was executed or proffered.

Note: The court should give Iowa Criminal Jury Instruction 900.8
defining sex act when considering this offense.

[]{#a21002 .anchor}**2100.2 Prostitution - Offer To Sell Or Purchase -
Definition.** Concerning the element in Instruction No.\_\_\_\_\_, the
phrase (\"offered for sale\") (\"offered to purchase\") refers to any
verbal statement, act, or conduct which invites a person to be a partner
in a sex act for money or other thing of value, regardless of whether a
sex act occurred or a person made an actual payment of any kind to
either person.

The request, solicitation, or acceptance does not have to be in any
particular form of words. It can arise from a gesture or other
expression which indicates a sex act was to occur.

[]{#a21003 .anchor}**2100.3 Pimping - Elements - Soliciting Patron Or
Sharing In Earnings.** The State must prove both of the following
elements of Pimping:

1\. The defendant:

a\. solicited another to engage in a sex act with (name of prostitute).

b\. knowingly \[took\] \[shared\] in the earnings of (name of
prostitute).

2\. At the time (name of prostitute) was a prostitute.

If the State has proved both of the elements, the defendant is guilty of
Pimping. If the State has failed to prove either of the elements, the
defendant is not guilty.

**Authority**

[Iowa Code]{.underline} section 725.2

**Comment**

Note: Select 1a or b which accords with the manner in which the sex act
was executed or proffered.

Note: The court should give Iowa Criminal Jury Instruction 900.8
defining sex act when considering this offense.

[]{#a21004 .anchor}**2100.4 Pimping - Elements - Furnishing Room For
Purpose Of Prostitution.** The State must prove all of the following
elements of Pimping:

1\. The defendant furnished a room or place to (name of prostitute).

2\. The defendant knew (name of prostitute) was to use it for a sex act.

3\. The defendant knew (name) \[had sold or offered to sell services\]
\[had purchased or offered to purchase the services of another\] as a
partner in a sex act.

If the State has proved all of the elements, the defendant is guilty of
Pimping. If the State has failed to prove any one of the elements, the
defendant is not guilty.

**Authority**

[Iowa Code]{.underline} section 725.2

[]{#a21005 .anchor}**2100.5 Pimping - Knowledge - Definition**.
Concerning element number \_\_\_\_\_\_\_ of Instruction No.\_\_\_\_\_\_,
the phrase:

a\. \"knowingly \[took\] \[shared\] in the earnings\"

b\. \"knew that such person was to use such room or place for a sex
act\"

c\. \"knew that \[(name of prostitute) had sold or offered to sell
\[his\] \[her\] services\] \[(name) had purchased or offered to purchase
the services of another\] as a partner in a sex act\"

refers to the knowledge which the defendant possessed at that time.

For the defendant to \[know\] \[have knowledge of\] something means
\[he\] \[she had a conscious awareness that (element requiring
knowledge).

[]{#a21006 .anchor}**2100.6 Pimping - Prostitute - Definition.**
Concerning element number\_\_\_\_\_\_\_\_ of Instruction No.\_\_\_\_\_,
the term \"prostitute\" refers to a person who sells or offers for sale
services in order to participate in a sex act.

# Authority

[Iowa Code]{.underline} section 702.15

## CHAPTER 2200

# HABITUAL CRIMINAL

[2200.1](#a22001) Habitual Criminal - Elements

[2200.2](#a22002) Habitual Criminal - Form of Verdict

[]{#a22001 .anchor}**2200.1 Habitual Criminal - Elements.** (Defendant)
was earlier found guilty of (name crime). The State has charged that the
defendant is the same person who was convicted of (name crimes and
dates). If the defendant has been convicted of these crimes, it will
affect the defendant\'s sentence on the (name crime) charge.

The defendant denies \[he\] \[she\] is the person who was convicted of
the other crimes. Therefore, the State must prove the following:

1\. The defendant was convicted of (name crime) on the \_\_\_\_ day
of\_\_\_\_\_\_\_\_\_\_, 19\_\_\_, in the Court of
\_\_\_\_\_\_\_\_\_\_\_\_.

(Set forth each separate conviction as charged and supported by the
evidence.)

At the end of these instructions, I have attached a verdict form which
requires you to find if the defendant has been convicted of the earlier
crimes. Remember, the State must prove the defendant is the same person
who was convicted of each earlier crime by evidence beyond a reasonable
doubt. Your verdict as to each earlier conviction must be unanimous.

**Authority**

[I.R.Crim.P. 2.6(5)]{.underline} - Rules of Criminal Procedure -
Allegation Of Prior Conviction

[I.R.Crim.P. 2.19(9)]{.underline} - Rules of Criminal Procedure - Trials
Involving Prior Convictions

## [Iowa Code]{.underline} section 902.8 - Habitual Criminal Sentence

[Iowa Code]{.underline} section 714.2(3) - Twice Previously Convicted of
Theft

[Iowa Code]{.underline} section 714.10(2) - Twice Previously Convicted
of Fraudulent Practice

[Iowa Code]{.underline} section 321J.2(2) (b)(c) - Operating a Motor
Vehicle While Under The Influence, Second or Subsequent Offense

[State v. Spoonmore]{.underline}, 323 N.W.2d 202 (Iowa 1982) - Court
determines if crime is a \"felony\".

[State v. Hanna]{.underline}, 277 N.W.2d 605 (Iowa 1979) - Proof of
Prior Convictions

[State v. Mason]{.underline}, 203 N.W.2d 292 (Iowa 1972) -
Identification of Defendant

**Comment**

Note: If the defendant claims absence of counsel in prior convictions,
burden shifts to the State to prove legal representation or voluntary
waiver of representation only after defendant first introduces evidence
that \[he\] \[she\] was not represented.

[State v. Nelson]{.underline}, 234 N.W.2d 368 (Iowa 1975)

[State v. Cameron]{.underline}, 167 N.W.2d 689 (Iowa 1969)

[]{#a22002 .anchor}**2200.2 Habitual Criminal - Form Of Verdict.** Do
you find the defendant is the person who was convicted of the crime of
(name crime) on the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_, 19\_\_\_, in
the \_\_\_\_\_\_\_\_\_\_\_\_\_ Court of \_\_\_\_\_\_\_\_\_\_\_?

Yes \_\_\_\_\_\_\_ No \_\_\_\_\_\_\_

(Foreman/Forewoman)

# Comment

Note: Set forth a separate interrogatory for each conviction charged and
supported by the evidence.

[]{#CH2300 .anchor}**CHAPTER 2300**

# CONTROLLED SUBSTANCES

[2300.1](#a23001) Manufacturing Or Delivering Controlled Substance -
Elements

[2300.2](#a23002) Possession Of Controlled Substance With Intent To
Deliver Or Manufacture - Elements

[2300.3](#a23003) Possession - Elements

[2300.4](#a23004) Controlled Substance - Deliver - Manufacture -
Definitions

[2300.5](#a23005) Amount of Marijuana

[2300.6](#a23006) Distribution To Persons Under 18 - Elements

[2300.7](#a23007) Degrees Of Crime - Definition And Interrogatory

[2300.8](#a23008) Manufacturing Methamphetamine for Delivery to a
Minor - Elements

[2300.9](#a23009) Distribution or Possession With Intent to Distribute
Methamphetamine To a Minor - Elements

[2300.10](#a230010) Keeping A Place For Using Or Selling Controlled
Substances - Elements

[2300.11](#a230011) Definition of On-Going Use

[2300.12](#a230012) Sentence Enhancements Based on Fact Finding

# DRUG STAMP TAX VIOLATIONS

[2310.1](#a23101) Drug Stamp Tax Violation - Elements

[2310.2](#a23102) Taxable substance - Definition

[2310.3](#a23103) Dosage Unit -- Definition

####### Sponsoring, Promoting, Aiding A Gathering

[2320.1](#A23201) Sponsoring A Gathering For Use Of A Controlled

Substance - Elements

[2320.2](#A23202) Sponsoring, Promoting, or Aiding A Gathering -
Definition

#### Drug Paraphernalia

[2330.1](#A23301) Possession Of Drug Paraphernalia - Elements

# [2330.2](#A23302) **Drug Paraphernalia - Definition 12/01**

[]{#a23001 .anchor}**2300.1 Manufacturing Or Delivering Controlled
Substance - Elements.** The State must prove both of the following
elements of \[Manufacturing\] \[Delivering\] A Controlled Substance:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 20\_\_\_,
the defendant \[manufactured\] \[delivered\] (name of controlled
substance).

2\. The defendant knew that the substance \[he\] \[she\]
\[manufactured\] \[delivered\] was (name of controlled substance).

If the State has proved both of these elements, the defendant is guilty
of \[Manufacturing\] \[Delivering\] a Controlled Substance. You must
then determine the amount of controlled substance, as explained in
Instruction No.\_\_\_\_\_\_. If the State has failed to prove either of
the elements, the defendant is not guilty of \[Manufacturing\]
\[Delivering\] a Controlled Substance (and you will then consider the
charge of \_\_\_\_\_\_\_\_\_\_\_ explained in Instruction
No.\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 124.401(1)

[State v. Osmundson]{.underline}, 241 N.W.2d 892 (Iowa 1976)

# Comment

Note: If the defendant is charged with delivering or manufacturing
marijuana, you may use Iowa Criminal Jury Instruction 2300.5 with this
instruction.

Note: Use Iowa Criminal Jury Instruction 200.3 (Knowledge).

Note: Where the chemical name of the controlled substance is not
generally known or recognized, circumstantial evidence may be used to
prove defendant knew the nature of the material as some kind of a
controlled substance. [State v. Parrish]{.underline}, 502 N.W.2d 1 (Iowa
1993); [State v. Reeves]{.underline}, 209 N.W.2d 18 (Iowa 1973).

[]{#a23002 .anchor}**2300.2 Possession Of Controlled Substance With
Intent To Deliver Or Manufacture - Elements.** The State must prove all
of the following elements of Possession Of A Controlled Substance With
Intent To \[Deliver\] \[Manufacture\]:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
20\_\_\_, the defendant knowingly possessed (name of controlled
substance) (a controlled substance).

2\. The defendant knew that the substance \[he\] \[she\] possessed was
\[name of controlled substance\] \[a controlled substance\].

3\. The defendant possessed the substance with the intent to \[deliver\]
\[manufacture\] a controlled substance.

If the State has proved all of these elements, the defendant is guilty
of Possession of a Controlled Substance with Intent To \[Deliver\]
\[Manufacture\]. If the State has failed to prove any one of the
elements, the defendant is not guilty of Possession of a Controlled
Substance with Intent to \[Deliver\] \[Manufacture\] (and you will then
consider the charge of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, explained
in Instruction No. \_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 124.401(1)

[State v. Reeves]{.underline}, 209 N.W.2d 18 (Iowa 1973)

**Comment**

Note: If the defendant is charged with possession of marijuana with
intent to deliver, you may use Iowa Criminal Jury Instruction 2300.5
with this instruction.

Use Iowa Criminal Jury Instruction 200.3 (Knowledge).

Use Iowa Criminal Jury Instruction 200.47 (Possession).

Use Iowa Criminal Jury Instruction 200.2 (Specific Intent).

Note: Where the chemical name of the controlled substance is not
generally known or recognized, circumstantial evidence may be used to
prove defendant knew the nature of the material as some kind of a
controlled substance. [State v. Parrish]{.underline}, 502 N.W.2d 1 (Iowa
1993); [State v. Reeves]{.underline}, 209 N.W.2d 18 (Iowa 1973).

[]{#a23003 .anchor}**2300.3 Possession - Elements.** The State must
prove both of the following elements of Possession of a Controlled
Substance:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 20\_\_\_,
the defendant knowingly or intentionally possessed \[name of controlled
substance\] \[a controlled substance\].

2\. The defendant knew that the substance \[he\] \[she\] possessed was
\[name of controlled substance\] \[a controlled substance\].

If the State has proved both of these elements, the defendant is guilty
of possession of a controlled substance. If the State has failed to
prove either of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 124.401(3)

[State v. Reeves]{.underline}, 209 N.W.2d 18 (Iowa 1973)

# Comment

Note: Use Iowa Criminal Jury Instruction 200.3 (Knowledge).

Use Iowa Criminal Jury Instruction 200.47 (Possession).

Note: Where the chemical name of the controlled substance is not
generally known or recognized, circumstantial evidence may be used to
prove defendant knew the nature of the material as some kind of a
controlled substance. [State v. Parrish]{.underline}, 502 N.W.2d 1 (Iowa
1993); [State v. Reeves,]{.underline} 209 N.W.2d 18 (Iowa 1973).

[]{#a23004 .anchor}**2300.4 Controlled Substance - Deliver -
Manufacture - Definitions.** (Name of controlled substance) is a
controlled substance.

\"Deliver\" or \"delivery\" means the actual, constructive, or attempted
transfer of a substance from one person to another.

\"Manufacture\" means the production, preparation, growing, or
processing of a controlled substance, either directly or by extraction
from natural substances, or independently by means of chemical process,
or both. It includes any packaging or repacking of the substance, or
labeling or re-labeling of its container.

**[Authority]{.underline}**

[Iowa Code]{.underline} section 124.101(7)

[Iowa Code]{.underline} section 124.101(16)

[]{#a23005 .anchor}**2300.5 Amount of Marijuana.** If you find the
defendant guilty of \[delivering a controlled substance\] \[possessing
with intent to deliver a controlled substance\], you must then decide
whether the amount of marijuana which the defendant \[delivered\]
\[possessed with intent to deliver\] was (a) more than one ounce, or (b)
one ounce or less. The State has the burden of proving the amount beyond
a reasonable doubt. You will report your decision about the amount of
marijuana by answering the question attached to these instructions. Your
answer to that question must be unanimous.

# Authority

[Iowa Code]{.underline} section 124.410

[State v. Monroe]{.underline}, 236 N.W.2d 24 (Iowa 1975)

**Comment**

Note: The following should appear on the appropriate verdict form:

1\. More than one ounce \_\_\_\_\_.

2\. One ounce or less \_\_\_\_\_.

[]{#a23006 .anchor}**2300.6 Distribution To Persons Under 18 -
Elements.** The State must prove all of the following elements of
distribution Of A Controlled Substance to Persons Under Age 18:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant delivered (name of controlled substance) to
(name of recipient).

2\. The defendant was 18 years or older at the time \[he\] \[she\]
delivered the (name of controlled substance).

3\. (Name of recipient) was under 18 years old at the time the defendant
delivered (name of controlled substance) \[and was at least three years
younger than the defendant\].\*

If the State has proved all of the elements, the defendant is guilty of
Distribution Of A Controlled Substance To Persons Under Age 18. If the
State has failed to prove any one of the elements, the defendant is not
guilty of Distribution Of A Controlled Substance To Persons Under Age 18
(and you will then consider the charge of \_\_\_\_\_\_\_\_\_ explained
in Instruction No.\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 124.406

# Comment

Note: \*If the controlled substance is other than a narcotic or cocaine
listed in Schedule I, II, III, then the additional element that the
recipient must be at least three years younger than the defendant must
be added. Likewise, this is true if the charge involves a controlled
substance in Schedule IV or V.

If there is evidence that a narcotic or cocaine listed in Schedule I or
II was distributed in or on or within 1000 feet of a public or private
elementary or secondary school, or in or on real property comprising a
public park, you should add the following to the appropriate verdict
form: \"If your verdict is guilty, do you find the State proved the
defendant distributed the (name of controlled substance) in or on \[or
within 1000 feet of a public or private elementary or secondary school
ground\] \[real property comprising a public park\]?

Yes \_\_\_\_\_.

No \_\_\_\_\_.

[]{#a23007 .anchor}**2300.7 Degrees of Crime - Definition And
Interrogatory.** If you find the defendant guilty of \[Delivering\]
\[Manufacturing\] \[Conspiring To Deliver\] \[Conspiring To
Manufacture\] \[Possession With Intent To Manufacture\] (name of
controlled substance), you must then determine the amount of the mixture
or substance containing a detectable amount of the (name of controlled
substance). I have attached a question which must be answered, and by so
doing, you will determine the degree or seriousness of the crime. In
answering the question, the State must prove the amount of mixture or
substance containing a detectable amount of (name of controlled
substance). You will check the blank next to the appropriate amount on
the verdict form.

**Comment**

Caveat: The list of possible answers on the interrogatory should conform
to the evidence so that the jury does not have an option of checking a
blank which has no basis in the record.

Note: The following would appear on the verdict form:

\"We, the jury, find the amount of mixture or substance containing a
detectable amount of (name of controlled substance) to be:

1\. More than (set out appropriate quantity of controlled substance in
issue containing a detectable amount) of (name of controlled
substance).\"

2\. More than (set out appropriate quantity of controlled substance in
issue containing a detectable amount) of (name of controlled substance)
but not more than (set out appropriate quantity of controlled substance
in issue containing a detectable amount) of (name of controlled
substance).\"

3\. (Set out appropriate quantity of controlled substance in issue
containing a detectable amount) of (name of controlled substance) or
less.\"

# Authority

[Iowa Code]{.underline} section 124.401

[]{#a23008 .anchor}**2300.8 Manufacturing Methamphetamine for Delivery
to a Minor - Elements.** The State must prove the following elements of
Manufacturing Methamphetamine For Delivery to a Minor:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_,
\_\_\_\_\_\_\_\_, the defendant manufactured a material, compound,
mixture, preparation, or substance that contained any detectable amount
of methamphetamine for delivery to (name of recipient).

2\. The defendant knew that the substance\[he\]\[she\] manufactured
contained a detectable amount of methamphetamine.

3\. The defendant was 18 years of older at the time \[he\]\[she\]
manufactured the material, compound, mixture, preparation, or substance
that contained any detectable amount of methamphetamine.

4\. (Name of Recipient) was under 18 years old at the time.

If the State has proved all of these elements, the defendant is guilty
of Manufacturing Methamphetamine For Delivery to a Minor. If the State
has failed to prove any one of the elements, the defendant is not guilty
of Manufacturing Methamphetamine For Delivery to a Minor ( and you will
then consider the charge of \_\_\_\_\_\_\_\_

explained in Instruction No. \_\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 124.401D(1), added by H.F. 573, Acts of
the 78^th^ General Assembly, 1999.

**Comment**

Note: Use Iowa Criminal Jury Instruction 200.3 (Knowledge).

[]{#a23009 .anchor}**2300.9 Distribution or Possession With Intent to
Distribute Methamphetamine To a Minor - Elements.** The State must prove
all of the following elements of \[Distribution\]\[Possession With
Intent to Distribute\] Methamphetamine to a Person Under Age 18:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_,
\_\_\_\_\_\_\_, the defendant \[delivered\]\[possessed with the intent
to deliver\] a material, compound, mixture, preparation, or substance
that contained any detectable amount of methamphetamine to (name of
recipient).

2\. The defendant was 18 years or older at the time \[he\] \[she\]
\[delivered\]\[ possessed with the intent to deliver\] the material,
compound, mixture, preparation, or substance.

3\. (Name of recipient) was under 18 years old at the time the defendant
delivered the material, compound, mixture, preparation, or substance.

If the State has proved all of the elements, the defendant if guilty of
\[Distribution\] \[Possession With Intent to Distribute\]
Methamphetamine to a Person Under Age 18. If the State has failed to
prove any of the elements, the defendant is not guilty of
\[Distribution\] \[Possession With Intent to Distribute\]
Methamphetamine to a Person Under Age 18 (and you will then consider the
charge of \_\_\_\_\_\_\_\_\_\_ explained in Instruction No. \_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 124.401D(2), added by H.F. 573, Acts of
the 78^th^ General Assembly, 1999.

# Comment

Note: Use Iowa Criminal Jury Instruction 200.3 (Knowledge); 200.47
(Possession); and/or 200.2 (Specific Intent).

[]{#a230010 .anchor}**2300.10 Keeping a Place for Using or Selling
Controlled Substances - Elements.** The State must prove the following
elements of Keeping a Place for Using or Selling Controlled Substances:

1\. On or about \_\_\_\_\_\_\_\_\_\_\_\_\_\_, 20\_\_\_\_. The defendant
knowingly kept or permitted another

to keep or maintain a \[premises\] \[store\] \[shop\] \[warehouse\]
\[dwelling\] \[temporary or permanent building\] \[vehicle\] \[boat\]
\[aircraft\] \[temporary or permanent structure or place\].

2\. The defendant knew a substantial purpose for the keeping or
maintaining of such place was for the

on-going storage, possession, use or sale of one or more controlled
substances.

If the State has proved each of these elements, the defendant is guilty
of Keeping a Place for Using or Selling Controlled Substances. If the
State has failed to prove any of the elements, the defendant is not
guilty.

# Authority

[Iowa Code]{.underline} section 124.402(1)(e)

[State v. Westeen]{.underline}, 591 N.W.2d 203 (Iowa 1999)

# Comment

If joint criminal conduct, aiding and abetting or conspiracy are alleged
by the State, include the appropriate language in the elements.

[]{#a230011 .anchor}**2300.11 Definition Of On-Going Use.** Under
element 2 of Instruction No. \_\_\_\_, the State must prove that a
substantial purpose of the property's users was for the on-going
storage, possession, use or sale of controlled substances. Such use of
the property must be continuous to some degree; however, the State need
not prove the place was used exclusively for the purpose of on-going
storage, possession, use or sale of controlled substances. Incidental
use of the place for controlled substance related activity, or a single,
isolated occurrence of controlled substance related activity is not
sufficient.

If there is other evidence of continuity of the prohibited use, then the
State is not required to prove more than a single specific incident of
storage, possession, use or sale of controlled substances in or from the
property.

# Authority

[State v. Westeem]{.underline}, 591 N.W.2d 203, 209 (Iowa 1999)

[]{#a230012 .anchor}**2300.12 Sentence Enhancements Based on Fact
Finding.** If you find the defendant guilty of
\[Delivering\]\[Manufacturing\]\[Conspiring to Deliver\]\[conspiring to
Manufacture\] ([name of controlled substance]{.underline}) , you must
then determine whether \[the defendant had a firearm in \[his\]\[her\]
immediate possession or control\] \[the defendant's acts occurred upon
certain real estate\]\[the defendant manufactured methamphetamine in the
presence of a minor\]. Attached is a question which must be answered. In
answering the question, the State must prove \[the presence of a
weapon/offensive weapon in the immediate possession or control of the
defendant\]\[the defendant's acts occurred upon certain real
estate\]\[the defendant manufactured methamphetamine in the presence of
a minor\].

## Comment

The following should appear on the verdict form. Use the alternative
charged and supported by the evidence.

"If your verdict is guilty, do you find that a \[firearm\]\[offensive
weapon\] was in such close proximity to the defendant as to enable
\[him\]\[her\] to claim immediate dominion over the firearm?

Yes\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

No\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_."

# Authority

[Iowa Code]{.underline} section 124.401(1) (d), (e)

[State v. Eickelberg]{.underline}, 574 N.W. 2d 1 (Iowa 1997)

[Apprendi v. New Jersey]{.underline}, \_\_\_\_U.S. \_\_\_\_\_, 120 S.
Ct. 2348, 147

L. Ed. 2d 435 (2000)

"If your verdict is guilty, do you find that the defendant's acts
occurred \[in or on, or within one thousand feet of the real property
comprising a public or private elementary or secondary school\] \[in or
on a public park, public swimming pool, public recreation center\]\[on a
marked school bus\] ?

Yes\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

No\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_."

# Authority 

[Iowa Code]{.underline} section 124.401A

[State v. Ortiz]{.underline}, \_\_\_N.W. 2d (Iowa, Oct. 2000)

[Apprendi v. New Jersey]{.underline}, \_\_\_\_U.S.\_\_\_, 120 S. Ct.
2348, 147 L.Ed. 2d 435 (2000)

"If your verdict is guilty, do you find that the defendant manufactured
methamphetamine, its salts, isomers, or salts of its isomers when \[ a
minor was physically present during the activity\] \[ the activity was
conducted in the residence of a minor \] \[ the activity was conducted
in a building where minors can reasonably be expected to be present\]
\[the activity was conducted in a room offered to the public for
overnight accommodation\] \[ the activity was conducted in any
multiple-unit residential building \] ?

Yes\_\_\_\_\_\_\_\_\_\_\_\_\_

No\_\_\_\_\_\_\_\_\_\_\_\_\_\_."

# Authority

[Iowa Code]{.underline} section 124.401C

[Apprendi v. New Jersey]{.underline}, \_\_\_\_\_U.S. , 120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000)

**Comment**

Note: Use Iowa Criminal Jury Instruction 2300.4 (Manufacture).

[]{#a23101 .anchor}**2310.1** **Drug Stamp Tax Violation - Elements.**
The State must prove each of the following elements of Drug Stamp Tax
Violation:

1.  On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_,
    20\_\_\_\_, the defendant knowingly \[possessed\] \[distributed\]
    \[offered to sell\] a taxable substance as defined in Instruction
    No. \_\_\_\_.

2.  Defendant \[\[shipped\] \[transported\] \[imported\] into this
    State\]\] \[\[acquired\] \[purchased\] \[possessed\]
    \[manufactured\] \[produced\] in this State\]\]:

> a\. Seven or more grams of \[a taxable substance, (name of
>
> substance)\]; \[a mixture of marijuana and other taxable
>
> substance(s), (name(s) of substance(s)\].
>
> b\. Forty-two and one-half grams or more of a substance consisting
>
> of or containing marijuana.

c\. One or more unprocessed marijuana plants.

> d\. Ten or more dosage units of a taxable substance not sold by
>
> weight.

3\. The taxable substance that defendant \[possessed\] \[distributed\]

\[offered to sell\] did not have permanently affixed to it a stamp,
label

or other official indication of payment of the state tax imposed on the

substance.

If the State has proved each of these elements, the defendant is guilty
of violating the Iowa Drug Stamp Tax law. If the State has failed to
prove one or more of the elements, the defendant is not guilty (and you
will then consider the charge of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, as
explained in Instruction No. \_\_\_\_).

# Authority

*[Iowa Code]{.underline} section 453B.12*

*[Iowa Code]{.underline} section 453B.1(3)*

#### 

####  

#### Comment

*Note: Use Iowa Criminal Jury Instruction 200.3 (Knowledge)*

*Use Iowa Criminal Jury Instruction 200.47 (Possession).*

> *Note: Under Element 2, use only one of alternatives (a), (b), (c), or
> (d) as supported by the evidence. If (d) is used, use Iowa Criminal
> Jury Instruction 2310.3.*
>
> *Note: Possession of a Controlled Substance, Delivery of a Controlled
> Substance, or Manufacture of a Controlled Substance may be included
> offenses. See [State v. Gallup]{.underline}, 500 N.W.2d 437 (Iowa
> 1993); [State v. Franzen]{.underline}, 495 N.W.2d 714 (Iowa 1993);
> [State v. Lange]{.underline}, 495 N.W.2d 105 (Iowa 1992); Iowa
> Criminal Jury Instructions 2300.1, 2300.3.*

6/01

[]{#a23102 .anchor}**2310.2 Taxable Substance - Definition.** \"Taxable
Substance\" means a controlled substance, a counterfeit substance, a
simulated controlled substance, or marijuana, or a mixture of materials
that contains a controlled substance, counterfeit substance, simulated
controlled substance or marijuana.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ is a \[counterfeit\]
\[simulated\] controlled substance.

# Authority

*[Iowa Code]{.underline} section 453B.1(9)*

# Comment

*If there is a fact issue whether the substance involved is a controlled
substance, simulated controlled substance or marijuana, the appropriate
definition in [Iowa Code]{.underline} Section 124.401 should be used in
place of the second paragraph.*

[]{#a23103 .anchor}2310.3 Dosage Unit - Definition. As used in element
number 2 of Instruction No.\_\_\_\_\_, \"dosage unit\" means the unit of
measurement in which a substance is dispensed to the ultimate user. It
includes, but is not limited to a pill, capsule or microdot.

# Authority

*[Iowa Code]{.underline} section 453B.1(6)*

##### Sponsoring, Promoting, or Aiding a Gathering

[]{#A23201 .anchor}**2320.1 Sponsoring A Gathering For Use Of A
Controlled Substance - Elements.** The State must prove the following
elements of Sponsoring A Gathering For Use Of A Controlled Substance:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_ 20 \_\_\_\_\_,
the defendant sponsored, aided or promoted a gathering of two or more
persons, as explained in Instruction No. \_\_\_\_\_\_\_\_; and

2\. The defendant did so with the knowledge or intent that a controlled
substance would be distributed, used or possessed at the gathering.

If the State has proved both elements, the defendant is guilty of
Sponsoring A Gathering For Use Of A Controlled Substance. If the State
has failed to prove either of the elements, then the defendant is not
guilty of Sponsoring A Gathering For The Use Of A Controlled Substance.

######### Authority

> *[Iowa Code]{.underline} section 124.407*
>
> *[State v. Carter]{.underline}, 582 N.W.2d 164 (Iowa 1998)*
>
> *[State v. Cartee]{.underline}, 577 N.W.2d 649 (Iowa 1998)*
>
> *[State v. Bush,]{.underline} 518 N.W.2d 778 (Iowa 1994)*

[]{#A23202 .anchor}**2320.2 Sponsoring, Promoting, Or Aiding A
Gathering - Definition**. A \"gathering\" is a coming together of two or
more persons in one place, usually for a common purpose.

To \"sponsor, aid or promote\" a gathering means to actively assist,
arrange, support, or take responsibility for it.

######### Authority

> *[Iowa Code]{.underline} section 124.414(2), (3)*
>
> *[State v. Cartee]{.underline}, 577 N.W.2d 649 (Iowa 1998)*
>
> *[State v. Bush,]{.underline} 518 N.W.2d 778 (Iowa 1994)*

##### Drug Paraphernalia

[]{#A23301 .anchor}**2330.1 Possession Of Drug Paraphernalia -
Elements**. The State must prove the following element of Possession Of
Drug Paraphernalia:

1\. On or about the \_\_\_\_\_\_\_day of
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ 20\_\_\_, defendant knowingly or
intentionally \[manufactured\] \[delivered\] \[sold\] \[possessed\] drug
paraphernalia as defined in Instruction No. \_\_\_\_\_.

If the State has proved this element, the defendant is guilty of
Possession Of Drug Paraphernalia. If the State has failed to prove this
element, the defendant is not guilty of Possession Of Drug
Paraphernalia.

####### Authority

[Iowa Code]{.underline} section 124.414 (2)

####### Comment

Note: Iowa Criminal Instruction 200.2 (Specific Intent) will have to be
used as will Iowa Criminal Jury Instruction 200.3 (Knowledge).

[]{#A23302 .anchor}**2330.2 Drug Paraphernalia - Definition**. \"Drug
paraphernalia\" is equipment or materials that one intends to use, or
knows is intended to be used, primarily for any of the following
purposes:

1\. To manufacture a controlled substance;

2\. To inject, ingest, inhale, or otherwise introduce into the human
body a

controlled substance;

3\. To test the strength, effectiveness, or purity of a controlled
substance;

4\. To enhance the effect of a controlled substance.

However, drug paraphernalia does not include any equipment or material
used in combination with the lawful use of a controlled substance, or
the otherwise lawful use of that equipment or material.

#### Authority

*[Iowa Code]{.underline} sections 124.414(1)(a), 124.414(1)(b)*

**Comment**

Note: Iowa Criminal Instruction 200.2 (Specific Intent) will have to be
used as will Iowa Criminal Jury Instruction 200.3 (Knowledge). 12/01

[]{#CH2400 .anchor}**CHAPTER 2400**

WEAPONS

[2400.1](#a24001) Possession Of Offensive Weapon - Elements

[2400.2](#a24002) Offensive Weapon - Definition

[2400.3](#a24003) Going Armed With A Concealed Weapon - Elements

[2400.4](#a24004) Going Armed With A Pistol/Revolver/Loaded Firearm
Within City Limits - Elements

[2400.5](#a24005) Going Armed - Definition

[2400.6](#a24006) Carrying Pistol/Revolver In Vehicle - Elements

[2400.7](#a24007) Receipt, Transportation Or Possession Of Firearm Or
Offensive Weapon By A

Felon

[2400.8](#a24008) Firearm - Definition

[2400.9](#a24009) Dominion And Control - Definition

[2400.10](#a240010) Giving False Information When Acquiring A Weapon

[2400.11](#a240011) Trafficking In Stolen Weapons Used In Commission Of
A Public Offense - Elements

[]{#a24001 .anchor}**2400.1 Possession Of Offensive Weapon - Elements.**
The State must prove the following elements of Possession Of An
Offensive Weapon:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant possessed (weapon).

2\. The defendant knew \[he\] \[she\] possessed (weapon).

3\. (Weapon) was an offensive weapon.

If the State has proved all of the elements, the defendant is guilty of
Possession Of An Offensive Weapon. If the State has failed to prove any
one of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 724.3

**Comment**

Note: Use Iowa Criminal Jury Instruction 200.3 (Knowledge)

Use Iowa Criminal Jury Instruction 200.47 (Possession)

Note: The term \"knowingly\" in the statute merely requires that the
defendant had knowledge that \[he\] \[she\] possessed the weapon within
the general meaning of such term. The State does not have to prove that
\[he\] \[she\] knew that the weapon was \"offensive\" as statutorily
defined.

[State v. Leisinger]{.underline}, 364 N.W.2d 200 (Iowa 1985)

[State v. Winders]{.underline}, 366 N.W.2d 193 (Iowa 1985)

[]{#a24002 .anchor}2400.2 Offensive Weapon - Definition. An offensive
weapon is (set forth applicable statutory definition in Section 724.1).

# Authority

[Iowa Code]{.underline} section 724.1

[]{#a24003 .anchor}**2400.3 Going Armed With A Concealed Weapon -
Elements.** The State must prove the following elements of Going Armed
With A Concealed Weapon:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant was armed with a (weapon).

2\. The (weapon) was concealed on or about the defendant\'s person.

3\. The (weapon) was a dangerous weapon.

If the State has proved all of the elements, the defendant is guilty of
Going Armed With A Concealed Weapon. If the State has failed to prove
any one of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 724.4

# Comment

Note: Use Iowa Criminal Jury Instruction 200.21 (Dangerous Weapon)

Use Iowa Criminal Jury Instruction 2400.5 (Going Armed)

Note: If the defendant asserts one of the statutory exceptions set forth
in Iowa Code section 724.4, add the appropriate element. [State
v.Erickson]{.underline}, 362 N.W.2d 528 (Iowa 1985).

Note: A weapon is concealed if it is not \"discernible by ordinary
observation\". Concealment does not depend on a defendant\'s subjective
intent. [State v. Newsom]{.underline}, 563 N.W. 2d 618 (Iowa 1997). If
concealment is an issue, an instruction defining the term may be given.

10/97

[]{#a24004 .anchor}**2400.4 Going Armed With A Pistol/Revolver/Loaded
Firearm Within City Limits - Elements.** The State must prove both of
the following elements of Going Armed With A \[Pistol\] \[Revolver\]
\[Loaded Firearm\]:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant was armed with a \[pistol\] \[revolver\]
\[loaded firearm\].

2\. The defendant was within the city limits of (city).

If the State has proved both of the elements, the defendant is guilty of
Going Armed With A \[Pistol\] \[Revolver\] \[Loaded Firearm\] Within
City Limits. If the State has failed to prove either of the elements,
the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 724.4

[State v. Erickson]{.underline}, 362 N.W.2d 528 (Iowa 1985)

# Comment

Note: Use Iowa Criminal Jury Instruction 2400.5 (Going Armed)

If the defendant asserts one of the statutory exceptions set forth in
Iowa Code section 724.4, add the appropriate element[. State v.
Erickson]{.underline}, 362 N.W.2d 528 (Iowa 1985).

[]{#a24005 .anchor}**2400.5 Going Armed - Definition.** To \"go armed\"
means the defendant was aware of the weapon and it was in a place where
it was readily accessible to the defendant.

**Authority**

[Iowa Code]{.underline} section 724.4

[State v. Erickson]{.underline}, 362 N.W.2d 528 (Iowa 1985)

[]{#a24006 .anchor}**2400.6 Carrying Pistol/Revolver In Vehicle -
Elements.** The State must prove both of the following elements of
Carrying \[Pistol\] \[Revolver\] In Vehicle:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant knowingly \[carried\] \[transported\] a
\[pistol\] \[revolver\] in a vehicle.

2\. The \[pistol\] \[revolver\] was:

a\. loaded; or

b\. unloaded and not inside a \[closed and fastened container\]
\[securely wrapped package\] which is too large to be concealed on the
person; or

c\. unloaded and not inside a \[closed and fastened container\]
\[securely wrapped package\] which is too large to be concealed \[on the
person\] \[inside a cargo or luggage compartment\] where the \[pistol\]
\[revolver\] will not be readily accessible to any person riding in the
\[vehicle\] \[common carrier\].

If the State has proved both of the elements, the defendant is guilty of
Carrying A \[Pistol\] \[Revolver\] In Vehicle. If the State has failed
to prove either of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 724.4

[State v. Krana]{.underline}, 246 N.W.2d 293 (Iowa 1976)

# Comment

Note: Use Iowa Criminal Jury Instruction 2400.6 (Knowledge)

If the defendant asserts one of the statutory exceptions set forth in
Iowa Code section 724.4, add the appropriate element. [State
v.Erickson]{.underline}, 362 N.W.2d 528 (Iowa 1985).

[]{#a24007 .anchor}**2400.7 Receipt, Transportation Or Dominion And
Control Of Firearm Or Offensive Weapon By A Felon.** The State must
prove both of the following elements of \[Receipt\] \[Transportation\]
\[Dominion And Control\] Of \[Firearm\] \[Offensive Weapon\] By A Felon:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant knowingly \[received\] \[transported\] \[caused to be
transported\] \[had under \[his\] \[her\] dominion and control\] a
\[firearm\] \[offensive weapon\].

2\. The defendant was previously convicted of (name of felony).

If the State proved both of the elements, the defendant is guilty of
\[Receipt\] \[Transportation\] \[Dominion And Control\] Of \[Firearm\]
\[Offensive Weapon\] By A Felon. If the State has failed to prove either
of the elements, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 724.26

# Comment

Note: The judge determines whether or not the offense was a felony as a
matter of law under [Iowa Code]{.underline} section 724.25(1)

If the defendant asserts one of the statutory exceptions set forth in
[Iowa Code]{.underline} section 724.27, add the appropriate element.

[]{#a24008 .anchor}**2400.8 Firearm - Definition.** A \"firearm\" is any
instrument which \[will\] \[is designed to\] discharge a \[shot\]
\[shell\] \[projectile\]\[bullet\] by the force of a chemical explosive
such as gunpowder.

A firearm is a dangerous weapon.

# Authority

[State v. Pinckney]{.underline}, 306 N.W.2d 726 (Iowa 1981)

[]{#a24009 .anchor}**2400.9 Dominion And Control -- Definition.**
\"Dominion and control\" means ownership or right to the \[firearm\] \[
offensive weapon\] and the power or authority to manage, regulate or
oversee its use.

[]{#a240010 .anchor}**2400.10 Giving False Information When Acquiring A
Weapon.** The State must prove both of the following elements of Giving
False Information When Acquiring A Weapon:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant sought to acquire a \[pistol\] \[revolver\] from
(name).

2\. In seeking to acquire the \[pistol\] \[revolver\], the defendant
knowingly:

a\. Gave a false name.

b\. Presented false identification.

c\. Gave false material information.

If the State has proved both of the elements, the defendant is guilty of
Giving False Information When Acquiring A Weapon. If the State has
failed to prove either of the elements, the defendant is not guilty.

**Authority**

[Iowa Code]{.underline} section 724.21

[]{#a240011 .anchor}**2400.11 Trafficking In Stolen Weapons Used In
Commission Of A Public Offense - Elements.** The State must prove all of
the following elements of trafficking in stolen weapons in commission of
a public offense:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant knowingly \[transferred\] \[acquired possession of\]
\[facilitated the transfer of\] a firearm.

2\. The firearm was stolen.

3\. The firearm was used in the commission of (name of public offense).

If the State has proved all of the elements, the defendant is guilty of
Trafficking in Stolen Weapons Used in Commission of a Public Offense. If
the State has failed to prove only element number 3, the defendant is
guilty of Trafficking in Stolen Weapons. If the State has failed to
prove either element 1 or element 2, the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 724.16A

### CHAPTER 2500

OWI

[2500.1](#a25001) OWI - Elements - Under The Influence, Concentration

Of .10 And Controlled Substance

[2500.2](#a25002) OWI - Elements - No Test

[2500.3](#a25003) OWI - Elements - Test Only

[2500.4](#a25004) OWI - Presumption From Chemical Test

[2500.5](#a25005) OWI - Definition - Under The Influence

[2500.6](#a25006) OWI - Operator - Definition

[2500.7](#a25007) OWI - Refusal To Take Test

[2500.8](#a25008) OWI - Method Of Operation

[2510.1](#a25101) Operating a Motorboat or Sailboat While Intoxicated --
Elements.

[2510.2](#a25102) Operating a Motorboat or Sailboat While Intoxicated
and Causing Serious Injury Elements.

[2510.3](#a25103) Operating a Motorboat or Sailboat While Intoxicated
and Resulting in Death -- Elements.

[2510.4](#a25104) Operating a Boat While Intoxicated -- Definition --
Navigable waters.

[2510.5](#a25105) Operating a Boat While Intoxicated -- Definition --
Motorboat.

[2510.6](#a25106) Operating a Boat While Intoxicated -- Definition --
Sailboat.

[2510.7](#a25107) Operating a Boat While Intoxicated -- Definition --
Vessel.

[2510.8](#a25108) Operating a Boat While Intoxicated -- Definition --
Watercraft.

[2510.9](#a25109) Operating a Boat While Intoxicated -- Definition --
Operate.

[2510.10](#a251010) Operating a Boat While Intoxicated -- Definition --
Use.

[2510.11](#a251011) Operating a Boat While Intoxicated -- Definition --
Operator.

[2510.12](#a251012) Operating a Boat While Intoxicated -- Cause of Death
or Serious Injury.

[2510.13](#a251013) Operating a Boat While Intoxicated -- Prescription
Drug Affirmative Defense.

[]{#a25001 .anchor}**2500.1 OWI - Elements - Under the Influence,
Concentration Of .10 And Controlled Substance.** The crime of Operating
While Intoxicated can be committed in three ways: (1) by operating a
motor vehicle while under the influence of \[alcohol\] \[drugs\]
\[combination of alcohol and drugs\], (2) by operating a motor vehicle
while having an alcohol concentration of .10 or more, and/or (3) by
operating a motor vehicle while having a measurable amount of a
controlled substance in the person.

The State must prove both of the following elements of Operating While
Intoxicated:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_,
20\_\_\_, the defendant operated a motor

vehicle.

2\. A that time, the defendant either: (a) was under the influence of
\[alcohol\] \[drugs\] \[a combination of alcohol and drugs\], or (b) had
an alcohol concentration of .10 or more, or (c) had any amount of a
controlled substance present, as measured in the defendant\'s blood or
urine.

(It is not necessary for all jurors to agree to just (a), (b), or (c).
It is only necessary that all jurors agree to at least one of these
three alternatives.)

If the State has proved both of the elements, the defendant is guilty.
If the State has failed to prove either of the elements, the defendant
is not guilty.

## Authority

*[Iowa Code]{.underline} section 321J2(1)(a)(b)*

*[State v. Bratthauer]{.underline}, 354 N.W.2d 774 (Iowa 1984)*

#### Comment

###  Note: For the minimum levels of a controlled substance required for proof of a detectable 

or measured amount, see 661 I.A.C. 7.9 (321J).

[]{#a25002 .anchor}**2500.2 OWI - Elements - No Test.** The State must
prove both of the following elements of Operating While Intoxicated:

1.  On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_,
    20\_\_\_, the defendant operated a motor vehicle.

2.  At that time, the defendant was under the influence of \[alcohol\]
    \[drugs\] \[combination of alcohol and drugs\].

If the State has proved both of the elements, the defendant is guilty.
If the State has failed to prove either of the elements, the defendant
is not guilty.

## Authority

*[Iowa Code]{.underline} section 321J.2(1)(a)*

6/88

[]{#a25003 .anchor}**2500.3 OWI - Elements - Test Only.** The State must
prove both of the following elements of Operating while Intoxicated:

1.  On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
    20\_\_\_, the defendant operated a motor vehicle.

2.  At that time, the defendant had an alcohol concentration of .10 or
    more.

If the State has proved both of the elements, the defendant is guilty.
If the State has failed to prove either of the elements, the defendant
is not guilty.

## Authority

*[Iowa Code]{.underline} section 321J.2(1)(b)*

[]{#a25004 .anchor}**2500.4 OWI - Presumption From Chemical Test**. The
alcohol concentration established by an analysis of a sample of a
person\'s \[blood\] \[breath\] \[urine\] withdrawn within two hours
after the person operated a motor vehicle is presumed to be the alcohol
concentration at the time \[he\] \[she\] operated the motor vehicle.

If you find the defendant was operating a motor vehicle and a sample of
\[his\] \[her\] \[blood\] \[breath\] \[urine\] was withdrawn within two
hours after that operation, you may, but are not required to, conclude
that the alcohol concentration established by the analysis of the sample
was the alcohol concentration at the time \[he\] \[she\] operated the
motor vehicle.

## Authority

*[Iowa Code]{.underline} section 321J.2(7)*

[]{#a25005 .anchor}**2500.5 OWI - Definition - Under The Influence.** A
person is \"under the influence\" when, by drinking liquor and/or beer,
one or more of the following is true:

1.  \[His\] \[Her\] reason or mental ability has been affected.

2.  \[His\] \[Her\] judgment is impaired.

3.  \[His\] \[Her\] emotions are visibly excited.

4.  \[He\] \[She\] has, to any extent, lost control of bodily actions or
    motions.

## Authority

*[State v. Berch]{.underline}, 222 N.W.2d 741, 747 (Iowa 1974)*

*[State v. Stout]{.underline}, 247 Iowa 453, 457, 74 N.W.2d 208 (1956)*

[]{#a25006 .anchor}**2500.6 OWI - Operator - Definition.** The term
\"operate\" means the immediate, actual physical control over a motor
vehicle that is in motion and/or has its engine running.

##### Authority

*[State v. Weaver]{.underline}, 405 N.W.2d 852 (Iowa 1987)*

*[State v. Hopkins]{.underline}, 576 N.W.2d 274 (Iowa 1998)*

12/98

[]{#a25007 .anchor}**2500.7 OWI - Refusal To Take Test.** The defendant
was asked to give a \[breath\] \[blood\] \[urine\] sample so it could be
analyzed to determine the percent of alcohol in \[his\] \[her\] blood.
\[The defendant refused.\] \[It is alleged the defendant refused.\]

A person is not required to give a sample of any bodily substance;
however, you may consider a refusal in reaching your verdict.

## Authority

*[Iowa Code]{.underline} section 321J.16*

[]{#a25008 .anchor}**2500.8 OWI - Method Of Operation.** The State does
not need to prove how the defendant was driving. However, you may
consider \[his\] \[her\] manner of driving in deciding if \[he\] \[she\]
was under the influence of alcohol.

## Authority

*[State v. Langlet]{.underline}, 283 N.W.2d 330 (Iowa 1979)*

*[State v. Hepburn]{.underline}, 270 N.W.2d 629 (Iowa 1978)*

[]{#a25101 .anchor}**2510.1 Operating a Motorboat or Sailboat While
Intoxicated -- Elements.**

The State must prove the following elements of Operating a \[Motorboat\]
\[Sailboat\] While Intoxicated:

1.  On or about the \_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
    20\_\_\_\_\_, the defendant operated a \[motorboat\] \[sailboat\].

2.  The defendant operated the \[motorboat\] \[sailboat\] on navigable
    waters.

3.  At the time, defendant was (a) under the influence of \[alcohol\]
    \[drugs\] \[combination of alcohol and drugs\]; or (b) had an
    alcohol concentration of .10 or more; or (c) had a controlled
    substance present in \[his\] \[her\] person as measured in \[his\]
    \[her\] blood or urine. It is only necessary that all jurors agree
    to at least one of these three alternatives.

If the State has proved all of the above elements, the defendant is
guilty of operating a \[motorboat\] \[sailboat\] while intoxicated. If
the State has failed to prove elements 1, 2 or 3, then the defendant is
not guilty.

**Authority**

*[Iowa Code]{.underline} section 462A.14(1)*

**Comment**

> Modify paragraph three of the instruction to fit the facts. For
> example, if no test was administered, then use only (a).

*Note: Use Instruction 2500.4 Presumption from a chemical test.*

*Note: Use Instruction 2500.5 Definition of under the influence.*

*Note: Use Instruction 2500.7 Refusal to take a test.*

6/01

[]{#a25102 .anchor}**2510.2 Operating a Motorboat or Sailboat While
Intoxicated and Causing Serious Injury -- Elements.** The State must
prove the following elements of Operating a \[Motorboat\] \[Sailboat\]
While Intoxicated Resulting in Serious Injury:

1.  On or about the \_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
    20\_\_\_\_\_, the defendant operated a \[motorboat\] \[sailboat\].

2.  The defendant operated the \[motorboat\] \[sailboat\] on navigable
    waters.

3.  At the time, defendant was (a) under the influence of \[alcohol\]
    \[drugs\] \[a combination of alcohol and drugs\]; or (b) had an
    alcohol concentration of .10 or more; or (c) had a controlled
    substance present in \[his\] \[her\] person as measured in \[his\]
    \[her\] blood or urine. It is only necessary that all jurors agree
    to at least one of these three alternatives.

4.  Defendant caused the serious injury of another person other than
    \[himself\] \[herself\].

If the State has proved all of these elements, the defendant is guilty
of operating a \[motorboat\] \[sailboat\] while intoxicated resulting in
the serious injury of another. If the State has failed to prove element
number 4, the defendant is not guilty of the offense of operating a
\[motorboat\] \[sailboat\] while intoxicated resulting in the serious
injury of another and you shall consider the offense of operating a
\[motorboat\] \[sailboat\] while intoxicated as explained in Instruction
No. \_\_\_\_\_\_\_\_\_\_\_. If the State has failed to prove elements 1,
2 or 3, then the defendant is not guilty.

**Authority**

*[Iowa Code]{.underline} section 462A.14(2)(d)*

**Comment**

> *Modify paragraph three of the instruction to fit the facts. For
> example, if no test was administered, then use only (a).*

*Note: Use Instruction 2500.4 Presumption from a chemical test.*

*Note: Use Instruction 2500.5 Definition of under the influence.*

*Note: Use Instruction 2500.7 Refusal to take a test.*

*Note: Use Instruction 200.22 Serious injury.*

6/01

[]{#a25103 .anchor}**2510.3 Operating a Motorboat or Sailboat While
Intoxicated and Resulting in Death -- Elements.**

The State must prove the following elements of Operating a \[Motorboat\]
\[Sailboat\] While Intoxicated and Resulting in Death:

1.  On or about the \_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
    20\_\_\_\_, the defendant operated a \[motorboat\] \[sailboat\].

2.  The defendant operated the \[motorboat\] \[sailboat\] on navigable
    waters.

3.  At the time, defendant was (a) under the influence of \[alcohol\]
    \[drugs\] \[combination of alcohol and drugs\]; or (b) had an
    alcohol concentration of .10 or more; or (c) had a controlled
    substance present in \[his\] \[her\] person as measured in \[his\]
    \[her\] blood or urine. It is only necessary that all jurors agree
    to at least one of these three alternatives.

4.  Defendant caused the death of another person other than \[himself\]
    \[herself\].

If the State has proved all of the above elements, the defendant is
guilty of operating a \[motorboat\] \[sailboat\] while intoxicated
resulting in the death of another. If the State has failed to prove
element number 4, the defendant is not guilty of the offense of
operating a \[motorboat\] \[sailboat\] while intoxicated resulting in
the death of another and you shall consider the offense of operating a
\[motorboat\] \[sailboat\] while intoxicated as explained in Instruction
No. \_\_\_\_\_\_\_\_\_\_\_. If the State has failed to prove elements 1,
2 or 3, then the defendant is not guilty.

# Authority

*[Iowa Code]{.underline} section 462A.14(2)(e)*

**Comment**

> *Modify paragraph three of the instruction to fit the facts. For
> example, if no test was administered, then use only (a).*

*Note: Use Instruction 2500.4 Presumption from a chemical test.*

*Note: Use Instruction 2500.5 Definition of under the influence.*

*Note: Use Instruction 2500.7 Refusal to take a test.*

6/01

[]{#a25104 .anchor}**2510.4 Operating a Boat While Intoxicated --
Definition -- Navigable Waters.**

"Navigable waters" means all lakes, rivers, and streams, which can
support a vessel capable of carrying one or more persons during a total
of six months in one of every ten years.

# Authority

*[Iowa Code]{.underline} section 462A.2(20)*

6/01

[]{#a25105 .anchor}**2510.5 Operating a Boat While Intoxicated --
Definition -- Motorboat.**

"Motorboat" means any vessel propelled by an inboard, inboard-outdrive,
or outboard engine, whether or not such engine is the principal source
of propulsion.

**Authority**

*[Iowa Code]{.underline} section 462A.2(19)*

6/01

[]{#a25106 .anchor}

**2510.6 Operating a Boat While Intoxicated -- Definition -- Sailboat.**

"Sailboat" means any watercraft operated with a sail.

# Authority

*[Iowa Code]{.underline} section 462A.2(31)*

6/01

[]{#a25107 .anchor}**2510.7 Operating a Boat While Intoxicated --
Definition -- Vessel.**

"Vessel" means every description of watercraft, other than a seaplane,
used or capable of being used as a means of transportation on water or
ice.

**Authority**

*[Iowa Code]{.underline} section 462A.2(37)*

6/01

[]{#a25108 .anchor}**2510.8 Operating a Boat While Intoxicated --
Definition -- Watercraft.**

"Watercraft" means any vessel which floats upon water and is capable of
carrying one or more persons. Ice boats are watercraft.

# Authority

*[Iowa Code]{.underline} section 462A.2(40)*

6/01

[]{#a25109 .anchor}**2510.9 Operating a Boat While Intoxicated --
Definition -- Operate.**

"Operate" means to navigate or otherwise use a vessel or motorboat.

# Authority

*[Iowa Code]{.underline} section 462A.2(22)* 6/01

[]{#a251010 .anchor}**2510.10 Operating a Boat While Intoxicated --
Definition -- Use.**

"Use" means to operate, navigate, or employ a vessel. A vessel is in use
whenever it is upon the water.

**Authority**

*[Iowa Code]{.underline} section 462A.2(36)*

6/01

[]{#a251011 .anchor}**2510.11 Operating a Boat While Intoxicated --
Definition -- Operator.**

"Operator" means a person who operates or is in actual physical control
of a vessel.

# Authority

*[Iowa Code]{.underline} section 462A.2(23)*

6/01

[]{#a251012 .anchor}**2510.12 Operating a Boat While Intoxicated --
Cause of Death or Serious Injury.**

Concerning element number \_\_\_ of Instruction No. \_\_\_\_\_, the
defendant caused the \[death of\] \[serious injury to\]
([victim]{.underline}), if the defendant's act(s) caused or directly
contributed to ([victim's]{.underline}) \[death\] \[serious injury\].

**Authority**

*[Iowa Code]{.underline} section 462A.14(d), (e)*

**Comment**

> The instruction is patterned after Instruction 700.11 (cause of death)
> in the homicide context.

*Note: Add the following paragraph when appropriate:*

> *"However, if you find that, in the treatment of the wounds, another
> was negligent to the extent that such negligence was the sole cause of
> death, then the act(s) of the defendant did not result in the death of
> ([victim]{.underline}).*

6/01

[]{#a251013 .anchor}**2510.13 Operating a Boat While Intoxicated --
Prescription Drug Affirmative Defense.**

The defendant claims that the \[drug\] that was present in \[\[his\]
\[her\]\] \[blood\] \[urine\] was legally \[prescribed\] \[dispensed\]
and was legally taken. The defendant has the burden to prove by a
preponderance of the evidence that:

1\. the \[drug\] was \[prescribed\] \[dispensed\] for the defendant

and

2\. was taken in accordance with the directions of a

\[physician\] \[dentist\] \[podiatric physician\] \[person licensed

or registered to distribute or dispense a prescription drug

or device in the course of professional practice in \[his\]

\[her\] state\] \[person licensed by another state in a health

field who is legally authorized to prescribe drugs\].

**Authority**

*[Iowa Code]{.underline} section 462A.14(7)(b)*

*[Iowa Code]{.underline} section 155A.3(11)*

[Iowa Code]{.underline} section 155A.3(28)

# Comment

> *Use this instruction if the intoxication results only from the
> presence of a controlled substance in the person's blood or urine.*

*Note: Instruction 100.12 Preponderance of the evidence -- defenses.*

##### CHAPTER 2600

INCEST AND CHILD ENDANGERMENT

# Incest

[2600.1](#a26001) Incest - Elements

# Child Endangerment

[2610.1](#a26101) Child Endangerment - Substantial Risk - Serious Injury

[2610.2](#a26102) Child Endangerment - Use of Unreasonable Force,
Cruelty, Torture - Serious Injury

[2610.3](#a26103) Child Endangerment - Evidencing Unreasonable Force,
Torture, Cruelty, Serious Injury

[2610.4](#a26104) Child Endangerment - Deprivation Of Food, Clothing,
Shelter, Health Care, Supervision

[2610.5](#a26105) Child Endangerment - Deprivation Of Health Care

[2610.6](#a26106) Child Endangerment - Permitting Abuse

[2610.7](#a26107) Child Endangerment - Abandonment

[2610.8](#a26108) Child Endangerment - Unreasonable Force -- Definition

[2620.1](#a26201) Neglect or Abandonment of a Dependent Person -
Elements.

[2620.2](#a26202) Wanton Neglect of a Resident of a Health Care Facility
Causing Serious Injury.

[2620.3](#a26203) Nonsupport of a Dependant Adult.

[2620.4](#a26203) Health Care Facility -- Definition.

[2620.5](#a26205) Dependant Adult -- Definition.

[2620.6](#a26206) Nonsupport - Elements.

[2620.7](#a26207) Support - Definition.

[]{#a26001 .anchor}**2600.1 Incest - Elements.** The State must prove
all of the following elements of Incest:

1.  On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
    20\_\_\_, the defendant performed a sex act with (name).

2.  At the time of the sex act, the defendant and (name) were related to
    ach other as (statutory term).

3.  At such time, defendant knew \[he\] \[she\] and (name) were so
    related.

If the State has proved all of the above elements, the defendant is
guilty of Incest. If the State has failed to prove all of the above
elements, the defendant is not guilty of Incest. If the State has failed
to prove any one of the elements, the defendant is not guilty.

# Authority

*[Iowa Code]{.underline} section 726.2*

# Comment

*Note: For definition of \"sex act\" see Iowa Criminal Jury Instruction
900.8.*

*For definition of \"knowledge\" see Iowa Criminal Jury Instruction
200.3.*

6/88

[]{#a26101 .anchor}**2610.1 Child Endangerment - Substantial Risk -
Serious Injury.** The State must prove all of the following elements of
Child Endangerment:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant was the \[parent\] \[guardian\] \[person having
custody or control\] of (name).

2\. (Name) was \[under the age of fourteen years\] \[a mentally or
physically handicapped minor under the age of eighteen\].

3\. The defendant knowingly acted in a manner creating a substantial
risk to (name)\'s \[physical\] \[mental\] \[emotional\] health or
safety.

4\. The defendant\'s act resulted in serious injury to (name).\*

If the State has proved all of the elements, the defendant is guilty of
Child Endangerment. If the State has failed to prove any one of the
elements, the defendant is not guilty of Child Endangerment (and you
will then consider the crime of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ explained
in Instruction No.\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 726.6(1)(a)

[Iowa Code]{.underline} section 726.6(2)

# Comment

Note: \*Delete if felony child endangerment is not charged and supported
by the evidence.

[]{#a26102 .anchor}**2610.2 Child Endangerment - Use Of Unreasonable
Force, Cruelty, Torture - Serious Injury.** The State must prove all of
the following elements of Child Endangerment:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant was the \[parent\] \[guardian\] \[person having
custody or control\] of (name)

2\. (Name) was \[under the age of fourteen years\] \[a mentally or
physically handicapped minor under the age of eighteen\].

3\. a. The defendant intentionally \[committed an act\] \[committed a
series of acts\] \[used unreasonable force, torture or cruelty\] that
resulted in physical injury to (name); or

b\. The defendant intentionally \[committed an act\] \[committed a
series of acts\] \[used unreasonable force, torture or cruelty\] with
the specific intent to cause serious injury to (name).

4\. The defendant\'s act resulted in serious injury to (name).\*

If the State has proved all of the elements, the defendant is guilty of
Child Endangerment. If the State has failed to prove any one of the
elements, the defendant is not guilty of Child Endangerment (and you
will then consider the crime of \_\_\_\_\_\_\_\_\_\_\_\_\_\_ as
explained in Instruction No.\_\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 726.6(1)(b)

[Iowa Code]{.underline} section 726.6(2)

[State v. Heacock]{.underline}, 521 N.W.2d 707, 709 (Iowa 1994)

# Comment

Note: \*Delete if felony child endangerment is not charged and supported
by the evidence.

In [State v. Heacock]{.underline}, 521 N.W.2d 707, 709 (Iowa 1994), the
court held that [Iowa Code]{.underline} section 726.6(1)(b) divides
itself into two separate alternative offenses. The first offense is a
general intent crime and the second offense is a specific offense crime.
If the specific intent alternative is submitted, Iowa Criminal Jury
Instruction 200.2 (Specific Intent) should be used.

Assault causing bodily injury and aggravated assault are not included
offenses to child endangerment. [State v. Heacock]{.underline}, 521
N.W.2d 707, 709 (Iowa 1994).

[]{#a26103 .anchor}**2610.3 Child Endangerment - Evidencing Unreasonable
Force, Torture, Cruelty - Serious Injury.** The State must prove the
following elements of Child Endangerment:

1\. On the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_, the
defendant was the \[parent\] \[guardian\] \[person having custody or
control\] of (name).

2\. (Name) was \[under the age of fourteen years\] \[a mentally or
physically handicapped minor under the age of eighteen\].

3\. The defendant intentionally threatened (name) with \[unreasonable
force\] \[torture\] \[cruelty\].

4\. The defendant\'s threats caused substantial mental or emotional harm
to (name).

5\. The harm to (name) was a serious injury.\*

If the State has proved all of the elements, the defendant is guilty of
Child Endangerment. If the State has failed to prove any one of the
elements, the defendant is not guilty of Child Endangerment (and you
will then consider the crime of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
explained in Instruction No.\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 726.6(1)(c)

[Iowa Code]{.underline} section 726.6(2)

# Comment

Note: \*Delete if felony child endangerment is not charged and supported
by the evidence.

[]{#a26104 .anchor}**2610.4 Child endangerment - Deprivation Of Food,
Clothing, Shelter, Health Care, Supervision.** The State must prove the
following elements of Child Endangerment:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_,
19\_\_\_, the defendant was the \[parent\] \[guardian\] \[person having
custody or control\] of (name).

2\. (Name) was \[under the age of fourteen years\] \[a mentally or
physically handicapped minor under the age of eighteen\].

3\. The defendant intentionally deprived (name) of necessary \[food\]
\[clothing\] \[shelter\] \[health care\] \[supervision\] appropriate to
(name)\'s age\].

4\. The defendant was reasonably able to provide it.

5\. As a result, (name) suffered substantial \[physical\] \[mental\]
\[emotional\] harm.

6\. The harm to (name) was a serious injury.\*

If the State has proved all of the elements, the defendant is guilty of
Child Endangerment. If the State has failed to prove any one of the
elements, the defendant is not guilty of Child Endangerment (and you
will then consider the crime of \_\_\_\_\_\_\_\_\_\_\_\_\_ explained in
Instruction No.\_\_\_\_\_\_\_).

# Authority

[Iowa Code]{.underline} section 726.6(1)(d)

**Comment**

Note: \*Delete if felony child endangerment is not charged and supported
by the evidence.

[]{#a26105 .anchor}

**2610.5 Child Endangerment - Deprivation Of Health Care.** The
defendant claims (a) \[he\] \[she\] was a \[member\] \[believer\] of
(name of recognized religious denomination) and (b) the medical
treatment was in conflict with the principles and practice of that
religion. If the defendant proves both of these propositions by a
preponderance of the evidence, \[he\] \[she\] is not guilty.

**Authority**

[Iowa Code]{.underline} section 726.6(1)(d)

# Comment

Caveat: There are no Iowa appellate court decisions deciding whether
[Iowa Code]{.underline} section 726.6(1) (d) is (a) an affirmative
defense provable by the defendant or (b) an issue to be raised by the
defendant and disproved by the State.

[]{#a26106 .anchor}**2610.6 Child Endangerment - Permitting Abuse.** The
State must prove the following elements of Child Endangerment:

1\. On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_,
the defendant was the \[parent\] \[guardian\] \[person having custody or
control\] of (name).

2\. (Name) was \[under the age of fourteen\] \[a mentally or physically
handicapped minor under the age of eighteen\].

3\. The defendant knowingly permitted the continuing \[physical\]
\[sexual\] abuse of (name).

4\. Defendant\'s act resulted in serious injury to (name).\*

5\. The defendant\'s fear that any action to stop the continuing abuse
would result in substantial bodily harm to \[himself\] \[herself\] or
(name) was unreasonable.\*\*

If the State has proved all of the elements, the defendant is guilty of
Child Endangerment. If the State has failed to prove any one of the
elements, the defendant is not guilty of Child Endangerment (and you
will then consider the crime of \_\_\_\_\_\_\_\_\_\_\_\_\_\_ explained
in Instruction No.\_\_\_\_\_\_\_).

**Authority**

[Iowa Code]{.underline} section 726.6(1)(e)

# Comment

Note: \*Delete if felony endangerment is not charged and supported by
the evidence.

Note: \*\*Use only when statutory affirmative defense is raised by the
defendant and supported by the evidence.

Caveat: There are no Iowa appellate court decisions deciding whether
[Iowa Code]{.underline} section 726.6(1)(e) is (a) an affirmative
defense provable by the defendant or (b) an issue to be raised by the
defendant and disproved by the State.

[]{#a26107 .anchor}**2610.7 Child Endangerment - Abandonment.** The
State must prove all of the following elements of Child Endangerment:

1.  On the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_, 20\_\_\_, the
    defendant was the \[parent\] \[guardian\] \[person having custody or
    control\] of (name).

2.  (Name) was \[under the age of fourteen\] \[a mentally or physically
    handicapped minor under the age of eighteen\].

3.  The defendant abandoned (name) to fend for \[himself\] \[herself\].

4.  The defendant knew (name) was unable to fend for \[himself\]
    \[herself\].

5.  The defendant\'s act resulted in serious injury to (name).\*

If the State has proved all of the elements, the defendant is guilty of
Child Endangerment. If the State has failed to prove any one of the
elements, the defendant is not guilty of Child Endangerment (and you
will then consider the crime of \_\_\_\_\_\_\_\_\_\_\_ explained in
Instruction No.\_\_\_\_\_\_).

# Authority

*[Iowa Code]{.underline} section 726.6(1)(f)*

# Comment

> *Note: \*Delete if felony child endangerment is not charged and
> supported by the evidence.*

7/88

[]{#a26108 .anchor}**2610.8 Unreasonable Force - Definition.** A parent,
guardian or person having control of a \[child under the age of 14\]
\[handicapped minor under the age of 18\] may use reasonable and timely
physical punishment to discipline the \[child\] \[handicapped minor\].

In determining the reasonableness of the force used, you may consider
the age, physical condition and other characteristics of the \[child\]
\[handicapped minor\]; the gravity of the misconduct; the amount and
means of the force used; and whether the punishment was corrective
rather than to satisfy the anger of the person inflicting it.

# Authority

*[State v. Arnold]{.underline}, 543 N.W.2d 600 (Iowa 1996)*

12/96

[]{#a26201 .anchor}**2620.1** **Neglect or Abandonment of a Dependent
Person - Elements.** The State must prove all of the following elements
of Neglect or Abandonment of a Dependent Person:

> 1\. On the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_,
> 20\_\_\_, the defendant was the \[father\] \[mother\] \[person having
> custody\] of ([name]{.underline}).
>
> 2\. ([Name]{.underline}) was a \[person under the age of fourteen
> years\] \[person who by reason of mental or physical disability was
> not able to care for (himself) (herself)\].
>
> 3\. a. The defendant knowingly or recklessly exposed
> ([name]{.underline})
>
> to a hazard or danger against which ([name]{.underline}) could not
>
> reasonably be expected to protect \[himself\] \[herself\].

Or

> b\. The defendant \[deserted\] \[abandoned\] ([name]{.underline})
> knowing
>
> or having reason to believe that [(name]{.underline}) would be
>
> exposed to a hazard or danger.

If the State has proved all of the elements, the defendant is guilty of
Neglect or Abandonment of a Dependent Person. If the State has failed to
prove any one or more of the elements, the defendant is not guilty.

# Authority

*[Iowa Code]{.underline} section 726.3*

# Comment

> *Note: If the defendant is charged in the alternative, use the
> alternative(s) charged and supported by the evidence.*
>
> *Note: "Person having custody" is not limited to persons having legal
> custody. "Custody" is used in the ordinary sense of care and control.
> See [State v.]{.underline} [Johnson,]{.underline} 528 N.W.2d 638, 642
> (Iowa 1995).*

*Note: Use Iowa Criminal Jury Instruction 200.3 (Knowledge).*

*Note: Use Iowa Criminal Jury Instruction 200.20 (Recklessness).*

6/01

.

[]{#a26202 .anchor}**2620.2 Wanton Neglect of a Resident of a Health
Care Facility Causing Serious Injury.** The State must prove all of the
following elements of Wanton Neglect of a Resident of a Health Care
Facility Causing Serious Injury:

1.  On the\_\_\_\_\_day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_,
    20\_\_\_, the defendant knowingly acted in a manner likely to cause
    injury to the \[physical\] \[mental\] welfare of
    [(name]{.underline}).

2.  ([Name]{.underline}) was a resident of a health care facility.
    "Health care facility" is defined in Instruction No.\_\_\_\_\_\_.

3.  The defendant's act(s) resulted in serious injury to
    [(name]{.underline}). "Serious injury" is defined in Instruction
    No.\_\_\_\_\_\_.

If the State has proved all of the elements, the defendant is guilty of
Wanton Neglect of a Resident of a Health Care Facility Causing Serious
Injury. If the State has proved elements 1 and 2 but has failed to prove
element 3, the defendant is guilty of Wanton Neglect of a Resident of a
Health Care Facility Causing Serious Injury. If the State has failed to
prove element 1 or if the State has failed to prove element 2, the
defendant is not guilty.

### Authority

> [Iowa Code]{.underline} section 726.7

### Comment 

> Note: Use the alternative(s) charged and supported by the evidence.
>
> Note: Use Iowa Criminal Jury Instruction 200.3 (Knowledge).
>
> Note: Use Iowa Criminal Jury Instruction 2620.4 (Health Care
> Facility).
>
> Note: Use Iowa Criminal Jury Instruction 200.22 (Serious Injury).

[]{#a26203 .anchor}**2620.3 Nonsupport of a Dependant Adult**. The State
must prove all of the following elements of Nonsupport of a Dependant
Adult.

1.  On the \_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_, 20\_\_\_, the
    defendant was legally responsible through (contract) (court order)
    for support of ([name]{.underline}).

2.  ([Name]{.underline}) was a dependant adult. "Dependant Adult" is
    defined in Instruction No.\_\_\_\_\_.

3.  The defendant failed or refused to provide support to
    [(name]{.underline}).

> If the State has proved all of the elements, the defendant is guilty
> of Nonsupport of a Dependant Adult. If the State has failed to prove
> any one or more of the elements, the defendant is not guilty.

### Authority

> [Iowa Code]{.underline} section 726.8(2)

## Comment 

> Note: Use the alternative(s) charged and supported by the evidence.
>
> Note: Use Iowa Criminal Jury Instruction 2620.5 (Dependant Adult).

**2620.4 Health Care Facility -- Definition**. "Health care facility"
means a residential care facility , a nursing facility, or an
intermediate care facility for persons with mental illness or mental
retardation.

### Authority

> [Iowa Code]{.underline} section 135C.1(6)

[]{#a26205 .anchor}**2620.5 Dependant Adult -- Definition.** "Dependant
adult" means a person eighteen years of age or older who is unable to
protect the person's own interests or to provide adequately for, or
obtain services necessary to meet, essential human needs because of a
physical or mental condition which requires that the person receive
assistance from another person.

#### Authority

> [Iowa Code]{.underline} section 235B.2(4)

[]{#a26206 .anchor}**2620.6 Nonsupport - Elements.** The State must
prove all of the following elements of Nonsupport:

> 1\. On the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_,
> 20\_\_\_, (Name) was the \[child\] \[ward\] of the defendant.

2\. ([Name]{.underline}) was under the age of eighteen years.

> 3\. The defendant failed or refused to provide support for
> ([Name]{.underline}).

4\. The defendant was able to provide support for ([Name]{.underline}).

> 5\. (Name) had not left the home of the \[child's parent\] \[person
> having legal custody of the child or ward\] without the consent of the
> \[parent\] \[person having legal custody\].

If the State has proved all of the elements, the defendant is guilty of
Nonsupport. If the State has failed to prove any one or more of the
elements, the defendant is not guilty.

# Authority

*[Iowa Code]{.underline} section 726.5*

# Comment

> *Note: Consider whether element 5 should be treated as an affirmative
> defense. See [State v. Lawler]{.underline}, 571 N.W.2d 486 (Iowa
> 1997).*

*Note: Use Iowa Criminal Jury Instruction 2620.7 (Support).*

6/01

[]{#a26207 .anchor}**2620.7 Support - Definition.** "Support" means any
support which has been fixed by court order or, if there is no court
order for support, the minimal requirements of food, clothing or
shelter.

# 

# Authority

*[Iowa Code]{.underline} section 726.5*

6/01

# Authority

> [State V. Mensch]{.underline}, 574 N.W. 2d 10.14 ( Iowa 1998) (must
> designate particular felony claimed and the elements of that felony)

[Iowa Code]{.underline} section 708.3

[Iowa Code]{.underline} section 702.13

[]{#CH2700 .anchor}**CHAPTER 2700**

WIRETAPPING

[2700.1](#a27001) Wiretapping - Intercepting Communication - Elements

[2700.2](#a27002) Wiretapping - Use Of Interception Device - Elements

[2700.3](#a27003) Wiretapping - Disclosing Or Using Intercepted
Communications - Elements

[2700.4](#a27004) Wiretapping - Disclosing Or Using Communications
Obtained By Device - Elements

[2700.5](#a27005) Wiretapping - Disclosure By Communications Workers -
Elements

[2700.6](#a27006) Wiretapping - Definition Of Elements - Willful

[2700.7](#a27007) Wiretapping - Definition Of Elements - Electronic,
Mechanical Or Other Device

[2700.8](#a27008) Wiretapping - Definition Of Elements - Intercept

[2700.9](#a27009) Wiretapping - Definition Of Elements - Oral
Communication

[2700.10](#a270010) Wiretapping - Definition Of Elements - Wire
Communication

[2700.11](#a270011) Wiretapping - Definition Of Elements - Know Or
Should Know

[2700.12](#a270012) Wiretapping - Definition Of Elements - Contents

[]{#a27001 .anchor}**2700.1 Wiretapping - Intercepting Communication -
Elements.** The State must prove the following elements of Wiretapping:

1\. The defendant willfully \[intercepted\] \[attempted to intercept\] a
\[wire\] \[oral\] communication.

2\. The defendant willfully \[induced another person to intercept\]
\[induced another person to attempt to intercept\] a \[wire\] \[oral\]
communication.

If the State has proved both of the elements the defendant is guilty of
Wiretapping. If the State has failed to prove either of the elements the
defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 808B.2(1)(a)

# Comment

Note: Certain persons are excepted from the operation of this statute
under certain circumstances. [Iowa Code]{.underline} sections
808B.2(2)(a), (b), (c). If there is evidence the defendant is within one
of the exceptions, an additional element(s) will be required.

[]{#a27002 .anchor}**2700.2 Wiretapping - Use Of Interception Device -
Elements.** The State must prove both of the following elements of
Wiretapping:

1\. The defendant willfully \[used\] \[attempted to use\] \[induced
another person to use\] \[induced another person to attempt to use\] an
electronic, mechanical or other device to intercept an oral
communication.

2\. a. The device \[was attached to\] \[transmitted a signal through\] a
wire, cable or like connection used in wire communication.

b\. The device \[transmitted communications by radio\] \[interfered with
the transmission of radio communication\].

If the State has proved both of the elements, the defendant is guilty of
Wiretapping. If the State has failed to prove either of the elements,
the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 808.B2(1)(b)

# Comment

Note: Certain persons are excepted from the operation of this statute
under certain circumstances. [Iowa Code]{.underline} sections
808B.2(2)(a), (b), (c). If there is evidence the defendant is within one
of the exceptions, an additional element(s) will be required.

[]{#a27003 .anchor}**2700.3 Wiretapping - Disclosing Or Using
Intercepted Communications Elements.** The State must prove both of the
following elements of Wiretapping:

1\. a. The defendant willfully \[disclosed\] \[attempted to disclose\]
the contents of \[a wire\] \[an oral\] communication to another person.

b\. The defendant willfully \[used\] \[attempted to use\] the contents
of \[a wire\] \[an oral\] communication.

2\. The defendant knew or had reason to know\* this information was
obtained by a person who willfully \[intercepted\] \[attempted to
intercept\] \[induced another person to intercept\] \[induced another
person to attempt to intercept\] \[a wire\] \[an oral\] communication.

If the State has proved both of the elements the defendant is guilty of
Wiretapping. If the State has failed to prove either of the elements the
defendant is not guilty.

# Authority

[Iowa Code]{.underline} sections 808B.2(1)(c), (d)

# Comment

Note: Certain persons are excepted from the operation of this statute
under certain circumstances. [Iowa Code]{.underline} sections
808B.2(2)(a), (b), (c). If there is evidence the defendant is within one
of the exceptions, an additional element(s) will be required.

Caveat: \*In [State v. Hutt]{.underline}, 330 N.W.2d 778 (Iowa 1985) and
[State v. Ogle]{.underline}, 367 N.W.2d 289 (Iowa App. 1985) the
appellate court rejected the reasonable man standard of [Iowa
Code]{.underline} section 714.1(4) (1981). [Iowa Code]{.underline}
section 808B.2(1)(c), (d) (1989) may be subject to the same infirmity.

[]{#a27004 .anchor}**2700.4 Wiretapping - Disclosing Or Using
Communication Obtained By Device - Elements.** The State must prove all
of the following elements of Wiretapping:

1\. a. The defendant willfully \[disclosed\] \[attempted to disclose\]
the contents of \[a wire\] \[an oral\] communication to another person.

b\. The defendant willfully \[used\] \[attempted to use\] the contents
of \[a wire\] \[an oral\] communication.

2\. The defendant knew or had reason to know\* this information was
obtained by a person who willfully \[used\] \[attempted to use\]
\[induced another person to use\] \[induced another person to attempt to
use\] an electronic, mechanical or other device to intercept an oral
communication.

3\. a. The device \[was attached to\] \[transmitted a signal through\] a
wire, cable or like connection used in wire communications.

b\. The device \[transmitted communications by radio\] \[interfered with
the transmission of radio communication\].

If the State has proved all of the elements the defendant is guilty of
Wiretapping. If the State has failed to prove any one of the elements
the defendant is not guilty.

# Authority

[Iowa Code]{.underline} sections 808B.2(1)(c), (d)

## Comment

Note: Certain persons are excepted from the operation of this statute
under certain circumstances. [Iowa Code]{.underline} sections
808B.2(2)(a), (b), (c). If there is evidence the defendant is within one
of the exceptions, an additional element(s) will be required.

Caveat: \*See Caveat under 2700.3.

[]{#a27005 .anchor}**2700.5 Wiretapping - Disclosure By Communications
Workers - Elements.** The State must prove all of the following elements
of Wiretapping:

1\. The defendant was \[an operator of a switchboard\] \[an officer,
employee or agent of a communication common carrier\].

2\. The \[switchboard\] \[carrier\] facilities were used in the
transmission or interception of wire or oral communications.

3\. The defendant disclosed the existence of \[a transmission or
interception\] \[a device used to accomplish a transmission or
interception\] which was subject to a court order.

If the State has proved all of the elements the defendant is guilty of
Wiretapping. If the State has failed to prove any one of the elements
the defendant is not guilty.

# Authority

[Iowa Code]{.underline} section 808B.2(3)

# Comment

Note: There is an exception for disclosures required by legal process or
court orders. If the evidence suggests the exception is applicable an
additional element will be required.

[]{#a27006 .anchor}**2700.6 Wiretapping - Definition Of Elements -
Willful.** \"Willful\" means intentional or by fixed design or purpose
and not accidental.

# Authority

[State v. Hofer]{.underline}, 238 Iowa 820, 28 N.W.2d 475 (1947)

[]{#a27007 .anchor}**2700.7 Wiretapping - Definition Of Elements -
Electronic, Mechanical Or Other Device.** \"Electronic, mechanical, or
other device\" means a device or apparatus which can be used to
intercept a wire communication or oral communication.

Such a device does not include: (insert 1 or 2 below as appropriate).

1\. A telephone or telegraph instrument, equipment, or facility, or any
component of it, which is (insert a. b, or c below as appropriate).

a\. Furnished to the subscriber or user by a communications common
carrier in the ordinary course of its business and being used by the
subscriber or user in the ordinary course of the subscriber\'s or
user\'s business.

b\. Being used by a communications common carrier in the ordinary course
of its business.

c\. Being used by an investigative or law enforcement officer in the
ordinary course of the officer\'s duties.

2\. A hearing aid or similar device being used to correct subnormal
hearing to not better than normal hearing.

# Authority

[Iowa Code]{.underline} section 808B.1(4)

[]{#a27008 .anchor}**2700.8 Wiretapping - Definition Of Elements -
Intercept.** \"Intercept\" or \"interception\" means to hear the
contents of a wire communication or oral communication through the use
of an electronic, mechanical or other device.

# Authority

[Iowa Code]{.underline} section 808B.1(5)

[]{#a27009 .anchor}**2700.9 Wiretapping - Definition Of Elements - Oral
Communication.** \"Oral communication\" means a spoken communication by
a person who reasonably expected that the communication would not be
intercepted.

**Authority**

[Iowa Code]{.underline} section 808B.1(7)

[]{#a270010 .anchor}**2700.10 Wiretapping - Definition Of Elements -
Wire Communication.** \"Wire communication\" means a communication made
in whole or in part through the use of facilities for the transmission
of communications by the aid of wire, cable, or other like connection
between the point of origin and the point of reception, furnished or
operated by a person engaged as a common carrier in providing or
operating the facilities for the transmission of communications.

# Authority

[Iowa Code]{.underline} section 808B.1(9)

[]{#a270011 .anchor}**2700.11 Wiretapping - Definition Of Elements -
Know Or Should Know.** In connection with element number 2 of
Instruction No.\_\_\_\_\_, to know or have reason to know something
requires more than suspicion, speculation or conjecture.

For the defendant to know something means \[he\] \[she\] has a conscious
awareness of it.

For the defendant to have reason to know something means a reasonable
person, under the facts and circumstances which existed at that time,
would know it.

Knowledge refers to a state of mind which is seldom capable of direct
proof. It must be determined from all of the facts and circumstances.

[]{#a270012 .anchor}**2700.12 Wiretapping - Definition Of Elements -
Contents.** \"Contents,\" when used with respect to a wire communication
or oral communication, includes any information concerning the identity
of the parties to the communication or the existence, substance,
purpose, or meaning of that communication.

# Authority

[Iowa Code]{.underline} section 808B.1(2)

[]{#CH2800 .anchor}**CHAPTER 2800**

CRIMINAL STREET GANGS

[2800.1](#a28001) Criminal Street Gang Participation - Elements

[2800.2](#a28002) Criminal Street Gang - Definition

[2800.3](#a28003) Willfully - Definition

[2800.4](#a28004) Criminal Acts - Definition

[2800.5](#a28005) Pattern Of Criminal Gang Activity - Definition

[2800.6](#a28006) Criminal Gang Recruitment - Elements

[]{#a28001 .anchor}**2800.1 Criminal Street Gang Participation -
Elements.** The State must prove all of the following elements of
Criminal Gang Participation:

1\. On or about the \_\_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_\_,
19\_\_\_\_, the defendant actively participated in or was a member of a
criminal street gang as defined in Instruction No.\_\_\_\_.

2\. On that date, the defendant willfully aided and abetted a criminal
act, that is, (name of crime alleged).

3\. The criminal act was committed \[at the direction of\] \[for the
benefit of\] \[in association with\] the criminal street gang.

If the State has proved each of these elements, the defendant is guilty
of Criminal Gang Participation. If the State has failed to prove any one
of the elements, the defendant is not guilty of Criminal Gang
Participation.

# Authority

[Iowa Code]{.underline} section 723A.2

[State v. Lewis]{.underline}, 525 N.W.2d 63 (Iowa 1994)

# Comment

Note: In Element 3, omit that portion of the instruction which is not
charged and supported by the evidence.

Iowa Criminal Jury Instruction 200.8 (Aiding and Abetting)

[]{#a28002 .anchor}**2800.2 Criminal Street Gang - Definition**. \"A
criminal street gang\" is any ongoing organization, association or group
of three or more persons, whether formal or informal, having as one of
its primary activities the commission of one or more criminal acts,
which has an identifiable name or identifying sign or symbol, and whose
members individually or collectively engage in or have engaged in a
pattern of criminal gang activity, as defined in Instruction
No.\_\_\_\_\_.

# Authority

[Iowa Code]{.underline} section 723A.1(2)

[State v. Lewis]{.underline}, 524 N.W.2d 63 (Iowa 1994)

[]{#a28003 .anchor}**2800.3 Willfully - Definition.** \"Willfully\"
means intentionally or by fixed design or purpose and not accidentally.

# Authority

[State v. Hofer]{.underline}, 28 N.W.2d 475 (Iowa 1947)

[]{#a28004 .anchor}**2800.4 Criminal Acts - Definition.** \"Criminal
acts\" are defined as any single or combination of offenses.

a\. constituting (specify violation of Section 124.401 of the Code
involving a controlled substance, a counterfeit substance, or a
simulated controlled substance), as defined in Instruction
No.\_\_\_\_\_.

b\. constituting (specify violation of Chapter 711 of the Code involving
robbery or extortion), as defined in Instruction No.\_\_\_\_\_\_.

c\. constituting (specify violation of Section 708.6 of the Code
involving an act of terrorism), as defined in Instruction No.\_\_\_\_.

d\. constituting (specify violation of Section 708.8 of the Code
involving going armed with intent), as defined in Instruction
No.\_\_\_\_\_.

e\. constituting (specify violation of Section 720.4 involving tampering
with witnesses or jurors), as defined in Instruction No.\_\_\_\_\_.

f\. constituting (specify forcible felony as defined in Section 702.11
of the Code), as defined in Instruction No.\_\_\_\_\_.

# Authority

[Iowa Code]{.underline} section 723.A.1(1)

[State v. Lewis]{.underline}, 524 N.W.2d 63 (Iowa 1994)

# Comment

Note: Use those acts that are charged and supported by the evidence.
Appropriate instructions defining each offense must be given.

[]{#a28005 .anchor}**2800.5 Pattern Of Criminal Gang Activity -
Definition.** \"Pattern of criminal gang activity\" means the
\[commission of\] \[attempt to commit\] \[conspiring to commit\]
\[soliciting the commission of\] two or more criminal acts as defined in
Instruction No.\_\_\_\_. The criminal acts must have been committed
either on separate dates or by two or more persons who are members of or
belong to the same criminal street gang.

# Authority

[Iowa Code]{.underline} section 723A.1(3)

[State v. Lewis]{.underline}, 524 N.W.2d 63 (Iowa 1994)

[]{#a28006 .anchor}**2800.6 Criminal Gang Recruitment - Elements.** The
State must prove all of the following elements of Gang Recruitment:

1\. On or about \_\_\_\_\_\_\_\_\_\_\_, 19\_\_\_, the defendant
\[solicited\] \[recruited\] \[enticed\] \[intimidated\] (name of minor)
to join (name of criminal street gang).

2\. At that time (name of minor) was under the age of eighteen.

3\. At that time (name of criminal street gang) was a criminal street
gang as defined in Instruction No. \_\_\_\_\_.

If the State has proved each of these elements, the defendant is guilty
of Criminal Gang Recruitment. If the State has failed to prove any one
of the elements, the defendant is not guilty of Criminal Gang
Recruitment.

# Authority

[Iowa Code]{.underline} section 732A.3(1) (added by H.F. 528, Acts of
the 76th G.A., Section 52).

# Comment

Note: If a conspiracy is alleged under Section 723A.3(2), see Chapter
600, Conspiracy. Iowa Criminal Jury Instruction 2800.2 (Criminal Street
Gang - Definition).

[]{#CH2900 .anchor}CHAPTER 2900

## HATE CRIMES

[2900.1](#A29001) Hate Crime - Definition And Interrogatory

[]{#A29001 .anchor}**2900.1 Hate Crime - Definition And Interrogatory.**
If you find the defendant guilty of (name of Crime) \[or the lesser
included offense of (name of crime)\], you must then determine whether
the offense was a hate crime.

A \"hate crime\" is an offense committed against a person or a person\'s
property because of the person\'s race, color, religion, ancestry,
national origin, political affiliation, sex, sexual orientation, age or
disability, or because of the person\'s association with a person of a
certain race, color, religion, ancestry, national origin, political
affiliation, sex, sexual orientation, age or disability.

I have attached a question which must be answered, and by answering it,
you will determine whether the defendant committed a hate crime. You
will check the blank next to the appropriate answer. Your answer must be
unanimous.

## Authority

[Iowa Code]{.underline} section 729A.32

## Comment

Note: The following would appear on the verdict form: \"Did the State
prove beyond a reasonable doubt that the defendant committed the offense
against \[(name of victim)\] \[(name of victim)\'s property\] because of
(name of victim)\'s \[association with a person of a certain\] (specify
characteristic)?

\_\_\_\_\_\_\_ Yes

\_\_\_\_\_\_\_ No

(Check the appropriate blank)

Note: Use only the victim characteristic charged and supported by the
evidence.

### CHAPTER 3000

######## ANIMAL TORTURE STATUTE

**[3000.1](#A30001) Animal Torture -- Elements.**

[**3000.2**](#a30002) **Definition -- Wild Animal.**

[]{#A30001 .anchor}**3000.1 Animal Torture -- Elements.** The State must
prove the following elements of Animal Torture:

1.  On or about the \_\_\_\_\_ day of \_\_\_\_\_\_\_\_\_, 20\_\_\_, the
    defendant inflicted severe physical pain on an animal.

2.  The defendant did so with depraved or sadistic intent to cause the
    animal prolonged suffering or death.

3.  The defendant was not \[acting to carry out an order issued by a
    court\]\[a licensed veterinarian practicing veterinary
    medicine\]\[carrying out a practice that was consistent with animal
    husbandry practices\]\[acting in order to carry out another
    provision of law that allows such practice, specifically
    \_\_\_\_\_\_\_\_\_\_\]\[taking, hunting, trapping or fishing for
    wild game\]\[acting to protect \[his\] \[her\] property from a wild
    animal\]\[acting to protect a person from injury or death caused by
    a wild animal\]\[reasonably acting to protect \[his\] \[her\]
    property from damage caused by an unconfined animal\]\[reasonably
    acting to protect a person from injury or death caused by an
    unconfined animal\]\[a local authority reasonably acting to destroy
    an animal permanently distressed by disease or injury to a degree
    that would result in severe and prolonged suffering and abandoned or
    ignored by its owner\]\[an institution or research facility
    performing functions within the scope of accepted practices and
    disciplines associated with the institution or research facility\].
    (Use this paragraph only if the affirmative defense is raised by the
    defendant and supported by the evidence.)

> If the State has proved all of the elements, the defendant is guilty
> of Animal Torture. If the State has failed to prove any one of the
> elements, the defendant is not guilty.

# Authority

*[Iowa Code]{.underline} section 717B.3A*

> 6/01

[]{#a30002 .anchor}**3000.2 Definition -- Wild Animal.** **Wild
Animal.** As used in these instructions, a "wild animal" is any wild
mammal, bird, fish, amphibian reptile, or other wildlife found in this
state, whether game or nongame, migratory or nonmigratory, the ownership
and title to which is claimed by this state.

# Authority

*[Iowa Code]{.underline} sections 481A.1(34) and 717B.3A(f) and (g)*

6/01

[]{#MODEL .anchor}MODEL JURY INSTRUCTIONS

Facts

On May 1, 1988, Jane Doe parked her 1980 Chevrolet automobile outside
her place of employment. At the end of the workday, she discovered the
car missing. Several hours later police officers found John Smith
driving Ms. Doe\'s car and arrested him. The 1980 Chevrolet was worth
\$2,500 on May 1, 1988.

The State has charged Mr. Smith with Theft in the Second Degree, in
violation of Iowa Code sections 714.1(1) and 714.2(2). This includes the
lesser crime of Operating Without the Owner\'s Consent, in violation of
section 714.7. The defendant has pled not guilty.

MODEL INSTRUCTION NO. 1

The Trial Information charges the defendant, John Smith, with the crime
of Theft in the Second Degree.

The Trial Information includes the lesser crime of Operating Without the
Owner\'s Consent.

(Iowa Criminal Jury Instruction 100.1)

MODEL INSTRUCTION NO. 2

The Trial Information is the document that formally charges the
defendant with a crime. It is merely the method by which the defendant
is brought into court for trial. It is not evidence.

(Iowa Criminal Jury Instruction 100.3)

MODEL INSTRUCTION NO. 3

The defendant has entered a plea of not guilty. The pleas of not guilty
is a complete denial of the charge and places the burden on the State to
prove guilt beyond a reasonable doubt. Whenever I instruct you the State
must prove something, it must be by evidence beyond a reasonable doubt.
If the State does not prove the defendant guilty beyond a reasonable
doubt, your verdict must be not guilty.

(Iowa Criminal Jury Instruction 100.2)

MODEL INSTRUCTION NO. 4

The defendant is presumed innocent and not guilty. This presumption of
innocence requires you to put aside all suspicion which might arise from
the arrest, charge or the present situation of the defendant. The
presumption of innocence remains with the defendant throughout the trial
unless the evidence establishes guilt beyond a reasonable doubt.

(Iowa Criminal Jury Instruction 100.4)

MODEL INSTRUCTION NO. 5

You must determine the defendant\'s guilt or innocence from the evidence
and the law in these instructions.

You must consider all the instructions together. No one instruction
includes all of the applicable law.

(Iowa Criminal Jury Instruction 100.8)

MODEL INSTRUCTION NO. 6

The duty of the jury is to determine if the defendant is guilty or not
guilty.

In the event of a guilty verdict, you have nothing to do with
punishment.

(Iowa Criminal Jury Instruction 100.13)

MODEL INSTRUCTION NO. 7

Nothing I have said or done during the trial was intended to give any
opinion as to the facts, proof, or what your verdict should be.

(Iowa Criminal Jury Instruction 100.9)

MODEL INSTRUCTION NO. 8

The burden is on the State to prove the defendant guilty beyond a
reasonable doubt.

A reasonable doubt is one that fairly and naturally arises from the
evidence or lack of evidence produced by the State.

If, after a full and fair consideration of all the evidence, you are
firmly convinced of the defendant\'s guilt, then you have no reasonable
doubt and you should find the defendant guilty.

But if, after a full and fair consideration of all the evidence or lack
of evidence produced by the State, you are not firmly convinced of the
defendant\'s guilt, then you have a reasonable doubt and you should find
the defendant not guilty.

(Iowa Criminal Jury Instruction 100.10)

MODEL INSTRUCTION NO. 9

If there is a reasonable doubt as to any crime, the defendant shall only
be convicted of the crime for which there is no reasonable doubt.

(Iowa Criminal Jury Instruction 100.11)

MODEL INSTRUCTION NO. 10

You must base your verdict only upon the evidence and these
instructions.

Evidence is:

1\. Testimony in person or by deposition.

2\. Exhibits received by the Court. You may examine the exhibits
closely, but be careful not to alter or destroy them.

3\. Stipulations, which are agreements between the attorneys.

Facts may be proved by direct evidence, circumstantial evidence, or a
combination of both.

The following are not evidence:

1\. Statements, arguments, questions and comments by the lawyers.

2\. Objections and rulings on objections.

3\. Testimony I told you to disregard.

4\. Anything you saw or heard about this case outside the courtroom.

(Iowa Criminal Jury Instruction 100.5)

MODEL INSTRUCTION NO. 11

In deciding the facts, consider the evidence using your observations,
common sense and experience. You must try to reconcile any conflicts in
the evidence; but if you cannot, you will accept the evidence you find
more believable.

In determining the facts, you may have to decide what testimony you
believe. You may believe all, part or none of any witness\'s testimony.

There are many factors which you may consider in deciding what testimony
to believe. For example:

1\. Whether the testimony is reasonable and consistent with other
evidence you believe;

2\. Whether a witness has made inconsistent statements;

3\. The witness\'s appearance, conduct, age, intelligence, memory and
knowledge of the facts; and

4\. The witness\'s interest in the trial, their motive, candor, bias and
prejudice.

(Iowa Criminal Jury Instruction 100.7)

MODEL INSTRUCTION NO. 12

In considering the evidence, you may make deductions and reach
conclusions which reason and common sense lead you to make. You should
not be concerned about whether the evidence is direct or circumstantial.
\"Direct evidence\" is the testimony of one who claims actual knowledge
of a fact, such as an eyewitness. \"Circumstantial evidence\" is proof
of a chain of facts and circumstances indicating that the defendant is
either guilty or not guilty. The law makes no distinctions between the
weight you may give

to either direct or circumstantial evidence.

(Iowa Criminal Jury Instruction 100.6)

MODEL INSTRUCTION NO. 13

The State must prove all of the following elements of Theft in the
Second Degree:

1\. On or about the 1st day of May, 1988, the defendant took possession
or control of a 1980 Chevrolet automobile.

2\. The defendant did so with the specific intent to deprive Jane Doe of
the automobile.

3\. At the time of the taking, the automobile belonged to Jane Doe.

If the State has proved all of the elements, the defendant is guilty of
Theft in the Second Degree. If the State has failed to prove any one of
the elements, the defendant is not guilty of that charge and you will
then consider the charge of Operating Without the Owner\'s Consent
explained in Instruction No. 15.

(Iowa Criminal Jury Instruction 1400.23)

MODEL INSTRUCTION NO. 14

Concerning element no. 2 of Instruction No. 13, \"specific intent\"
means not only being aware of doing an act and doing it voluntarily, but
in addition, doing it with a specific purpose in mind.

Because determining the defendant\'s specific intent requires you to
decide what he or she was thinking when an act was done, it is seldom
capable of direct proof. Therefore, you should consider the facts and
circumstances surrounding the act to determine the defendant\'s specific
intent. You may, but are not required to, conclude a person intends the
natural results of his or her acts.

(Iowa Criminal Jury Instruction 200.2)

MODEL INSTRUCTION NO. 15

The State must prove both of the following elements of Operating Without
the Owner\'s Consent:

1\. On or about the 1st day of May, 1988, the defendant intentionally
took possession or control of a 1980 Chevrolet automobile belonging to
Jane Doe.

2\. The possession or control was without the consent of Jane Doe.

If the State has proved both of the elements, the defendant is guilty of
Operating Without the Owner\'s Consent. If the State has failed to prove
either of the elements, the defendant is not guilty.

(Iowa Criminal Jury Instruction 1400.24)

MODEL INSTRUCTION NO. 16

Concerning element no. 1 of Instruction No. 15, to commit a crime a
person must intend to do an act which is against the law. While it is
not necessary that a person knows that act is against the law, it is
necessary that the person was aware he or she was doing the act and he
or she did it voluntarily, not by mistake or accident. You may, but are
not required to, conclude a person intends the natural results of his or
her acts.

(Iowa Criminal Jury Instruction 200.1)

MODEL INSTRUCTION NO. 17

Concerning element no. 1 of Instructions Nos. 13 and 15, a person who
has direct physical control of something is in possession of it.

(Iowa Criminal Jury Instruction 200.47 as modified to fit the facts of
the case.)

MODEL INSTRUCTION NO. 18

During the trial you have been allowed to take notes. You may take these
with you to the jury room to use in your deliberations. Remember, these
are notes and not evidence. Generally, they reflect the recollection or
impressions of the evidence as viewed by the person taking them and may
be inaccurate or incomplete.

Upon reaching a verdict, leave the notes in the jury room and they will
be destroyed.

(Iowa Criminal Jury Instruction 100.17)

MODEL INSTRUCTION NO. 19

When you begin your deliberations, you should select a foreman or
forewoman. He or she shall see that your deliberations are carried on in
an orderly manner, that the issues are fully and freely discussed, and
that every juror is given an opportunity to express their views.

In order to return a verdict, each juror must agree to it. Your verdict
must be unanimous.

It is your duty as jurors to consult with one another and reach an
agreement, if you can do so without compromising your individual
judgment. Each of you must decide the case for yourself, but do so only
after an impartial consideration of the evidence with the other jurors.

During the deliberations, do not hesitate to re-examine your view and
change your opinion if convinced it is wrong. But do not change your
opinion as to the weight or effect of the evidence just because it is
the opinion of the other jurors, or for the mere purpose of returning a
verdict.

Remember, you are the judges of facts. Your sole duty is to find the
truth and do justice.

(Iowa Criminal Jury Instruction 100.18)

MODEL INSTRUCTION NO 20

I am giving you three verdict forms. You will use only one of them.

When you have agreed upon a verdict and the foreman or forewoman has
signed the verdict form, please notify the Court Attendant.

Dated this 15th day of July, 1988.

Judge of the Iowa District Court

IN THE IOWA DISTRICT COURT FOR POLK COUNTY

STATE OF IOWA, :

Plaintiff, : Case No. 1100

vs. : FORMS OF VERDICT

JOHN SMITH, :

Defendant. :

FORM OF VERDICT NO. 1

We find the defendant guilty of Theft in the Second Degree.

FOREMAN or FOREWOMAN

FORM OF VERDICT NO. 2

We find the defendant guilty of Operating Without the Owner\'s Consent.

FOREMAN or FOREWOMAN

FORM OF VERDICT NO. 3

We find the defendant not guilty.

[]{#CROSS .anchor}FOREMAN or FOREWOMAN

# CROSS REFERENCE TABLE

**IOWA CRIMINAL JURY INSTRUCTIONS**

Users - Please Note: \*\*\*Indicates No Comparable Instruction

Iowa Criminal Jury Iowa Uniform Criminal

Instruction No. Jury Instruction No.

Chapter 100 - General Instructions

100.1 101

100.2 102

100.3 103

100.4 104

100.5 116

100.6 110

100.7 105

100.8 106

100.9 107

100.10 108

100.11 109

100.12 -

100.13 111

100.14 112

100.15 113

100.16 -

100.17 114

100.18 115

Chapter 200 - Criminal Law - Special Issues

200.1 215A

200.2 215

200.3 230

200.4 201

200.5 202

200.6 203

200.7 204

200.8 205

200.9 -

200.10 206

200.11 -

200.12 208

200.13 209

200.14 210

200.15 211

200.16 212

200.17 213

200.18 -

200.19 216

200.20 217

200.21 218

200.22 219

200.23 220

200.24 221

200.25 222

200.26 223

200.27 224

200.28 225

200.29 226

200.30 227

200.31 228

200.32 229

200.33 231

200.34 232

200.35 233

200.36 234

200.37 235

200.38 236

200.39 237

200.40 238

200.41 239

200.42 240

200.43 241

200.44 242

200.45 243

200.46 -

200.47 -

\*\*\* 207

\*\*\* 214

Chapter 300 - Accessory After the Fact

300.1 301

300.2 305

300.3 303

300.4 304

300.5 302

Chapter 400 - Justification

400.1 401,402

400.2 403

400.3 404

400.4 405

400.5 405

400.6 406

400.7 407

400.8 408

400.9 409

400.10 409

400.11 411

400.12 412

400.13 413

400.14 413

400.15 414

400.16 415

400.17 416

400.18 417

400.19 418

400.20 419

400.21 420

400.22 -

400.23 422

400.24 423

400.25 424

400.26 421

\*\*\* 410

Chapter 500 - Solicitation

500.1 502

500.2 501

500.3 503

500.4 504,505

\*\*\* 506

Chapter 600 - Conspiracy

600.1 602

600.2 605

600.3 606

600.4 607

600.5 603

600.6 608

600.7 604

600.8 610

\*\*\* 601

\*\*\* 609

\*\*\* 611

\*\*\* 612

Chapter 700 - Murder

700.1 708

700.2 709

700.3 710

700.4 712

700.5 702

700.6 705

700.7 216,702

700.8 706

700.9 -

700.10 704

700.11 714

700.12 707

700.13 713

700.14 -

700.15 716

700.16 717

700.17 719

700.18 721

700.19 -

700.20 -

700.21 730

\*\*\* 701

\*\*\* 703

\*\*\* 711

\*\*\* 715

\*\*\* 718

\*\*\* 720

\*\*\* 722

\*\*\* 723

\*\*\* 724

\*\*\* 725

\*\*\* 726

\*\*\* 727

\*\*\* 728

\*\*\* 729

Chapter 800 - Assault

800.1 803

800.2 802

800.3 804

800.4 803A

800.5 803B

800.6 803C

800.7 805

800.8 801

800.9 806

800.10 808

800.11 809

800.12 811

800.13 813

800.14 813A

800.15 820

800.16 821

800.17 -

\*\*\* 807

\*\*\* 810

\*\*\* 812

\*\*\* 814

\*\*\* 815

\*\*\* 816

\*\*\* 817

\*\*\* 818

\*\*\* 819

Chapter 900 - Sexual Abuse

900.1 904

900.2 906

900.3 908

900.4 914

900.5 918

900.6 920

900.7 924

900.8 902

900.9 912

900.10 911

900.11 -

\*\*\* 901

\*\*\* 903

\*\*\* 905

\*\*\* 907

\*\*\* 909

\*\*\* 910

\*\*\* 913

\*\*\* 915

\*\*\* 916

\*\*\* 917

\*\*\* 919

\*\*\* 921

\*\*\* 922

\*\*\* 923

Sexual Exploitation of Children

910.1 -

910.2 -

910.3 -

910.4 -

910.5 -

Chapter 1000 - Kidnapping and Related Offenses

1000.1 1003

1000.2 1004

1000.3 1005

1000.4 1006

1000.5 1007

1000.6 1007A

1000.7 1008

1000.8 1011

1000.9 1014

1000.10 1017

1000.11 -

\*\*\* 1001

\*\*\* 1002

\*\*\* 1009

\*\*\* 1010

\*\*\* 1012

\*\*\* 1013

\*\*\* 1015

\*\*\* 1016

Chapter 1100 - Robbery and Extortion

Robbery

1100.1 1102

1100.2 1103

\*\*\* 1101

\*\*\* 1104

\*\*\* 1105

\*\*\* 1106

Extortion

1100.1 1108

1110.2 1109

\*\*\* 1107

Chapter 1200 - Arson

1200.1 1204

1200.2 1208

1200.3 1205

1200.4 1206

1200.5 1210

1200.6 1211

1200.7 1212

1200.8 1215

1200.9 1216

1200.10 1220

1200.11 1218

1200.12 1213

\*\*\* 1201

\*\*\* 1202

\*\*\* 1203

\*\*\* 1207

\*\*\* 1209

\*\*\* 1214

\*\*\* 1217

\*\*\* 1219

\*\*\* 1221

\*\*\* 1222

Chapter 1300 - Burglary and Related Offenses

1300.1 1305

1300.2 -

1300.3 1302

1300.4 -

1300.5 1308

1300.6 -

1300.7 1320,1321,1322,1323

1300.8 1306

1300.9 1303

1300.10 1312,1313

1300.11 1309

1300.12 1316

1300.13 1315

1300.14 1319

1300.15 1317

\*\*\* 1301

\*\*\* 1304

\*\*\* 1307

\*\*\* 1310

\*\*\* 1311

\*\*\* 1314

\*\*\* 1318

\*\*\* 1324

Chapter 1400 - Theft

1400.1 1402

1400.2 1403

1400.3 1404

1400.4 1406

1400.5 1407

1400.6 1408

1400.7 1439

1400.8 1411

1400.9 1412

1400.10 1415

1400.11 1421

1400.12 1422

1400.13 1424

1400.14 1428

1400.15 1430

1400.16 1432

1400.17 1436

1400.18 1438

1400.19 1440

1400.20 1441

1400.21 1442

1400.22 1449A

1400.23 1444

1400.24 1446

1400.25 1448

1400.26 1449

1400.27 1451

1400.28 1452

\*\*\* 1401

\*\*\* 1405

\*\*\* 1409

\*\*\* 1410

\*\*\* 1413

\*\*\* 1414

\*\*\* 1416

\*\*\* 1417

\*\*\* 1418

\*\*\* 1419

\*\*\* 1420

\*\*\* 1423

\*\*\* 1425

\*\*\* 1426

\*\*\* 1427

\*\*\* 1429

\*\*\* 1431

\*\*\* 1433

\*\*\* 1434

\*\*\* 1435

\*\*\* 1437

\*\*\* 1443

\*\*\* 1445

\*\*\* 1447

\*\*\* 1450

Chapter 1500 - Forgery

1500.1 -

1500.2 -

1500.3 -

1500.4 -

1500.5 -

1500.6 -

Chapter 1600 - Criminal Mischief and Criminal Trespass

Criminal Mischief

1600.1 1603

1600.2 1606

1600.3 1604

1600.4 1605

1600.5 1605

1600.6 -

\*\*\* 1601

\*\*\* 1602

Criminal Trespass

1610.1 1609

1610.2 1610

1610.3 1611

1610.4 1612

1610.5 -

1610.6 1613

\*\*\* 1607

\*\*\* 1608

Chapter 1700 - Computer Crime

1700.1 -

1700.2 -

1700.3 -

1700.4 -

1700.5 -

Chapter 1800 - Offenses Against the Government

1800.1 -

1800.2 -

1800.3 -

Official Misconduct

1810.1 -

Bribery and Corruption

1820.1 -

1820.2 -

Chapter 1900 - Interference With Official Acts and Escape

Escape

1900.1 1907

1900.2 1909

1900.3 1912

1900.4 1914

1900.5 1919

1900.6 1917

\*\*\* 1906

\*\*\* 1908

\*\*\* 1910

\*\*\* 1911

\*\*\* 1913

\*\*\* 1915

\*\*\* 1916

\*\*\* 1918

Interference with Official Acts

1910.1 1902

1910.2 1903

1910.3 1905

\*\*\* 1901

\*\*\* 1904

Chapter 2000 - Perjury

2000.1 2002

2000.2 2003

2000.3 2005

2000.4 -

2000.5 2007

2000.6 2008

2000.7 2009

\*\*\* 2001

\*\*\* 2004

\*\*\* 2006

Chapter 2100 - Vice

2100.1 2502

2100.2 2503

2100.3 2505

2100.4 2506

2100.5 2507

2100.6 2508

\*\*\* 2501

\*\*\* 2504

Chapter 2200 - Habitual Criminal

2200.1 2901

2200.2 2903

\*\*\* 2900

\*\*\* 2902

Chapter 2300 - Controlled Substances

2300.1 3002,3003

2300.2 3002,3004A

2300.3 3012

2300.4 3005

2300.5 3010

\*\*\* 3001

\*\*\* 3004

\*\*\* 3006

\*\*\* 3007

\*\*\* 3008

\*\*\* 3009

\*\*\* 3010

\*\*\* 3012

Chapter 2400 - Weapons

2400.1 2402

2400.2 2403

2400.3 2407

2400.4 2409

2400.5 -

2400.6 2408

2400.7 2411

2400.8 2413

\*\*\* 2401

\*\*\* 2404

\*\*\* 2405

\*\*\* 2406

\*\*\* 2410

\*\*\* 2412

Chapter 2500 - OWI

2500.1 -

2500.2 3102

2500.3 -

2500.4 3106

2500.5 3103

2500.6 3104

2500.7 3105

2500.8 3107

\*\*\* 3101

Chapter 2600 - Incest and Child Endangerment

Incest

2600.1 2608

\*\*\* 2601

\*\*\* 2602

\*\*\* 2603

\*\*\* 2604

\*\*\* 2605

\*\*\* 2606

\*\*\* 2607

\*\*\* 2609

\*\*\* 2610

\*\*\* 2611

\*\*\* 2612

\*\*\* 2613

\*\*\* 2614

\*\*\* 2615

\*\*\* 2616

\*\*\* 2617

\*\*\* 2618

\*\*\* 2619

\*\*\* 2620

\*\*\* 2621

\*\*\* 2622

Child Endangerment

2610.1 -

2610.2 -

2610.3 -

2610.4 -

2610.5 -

2610.6 -

2610.7 -

Riot

\*\*\* 2301

\*\*\* 2302

\*\*\* 2303

[]{#ALPHA .anchor}ALPHABETICAL INDEX

Instruction No.

Accessory After The Fact

Accessory After The Fact - Elements 300.1

Accessory After The Fact - Felony, Misdemeanor - Defined 300.2

Accessory After The Fact - Knowledge 300.3

Accessory After The Fact - Intent To Prevent Apprehension 300.4

Accessory After The Fact - Definition - Harbor, Aid, Conceal 300.5

Arson

Arson In the First Degree - Elements 1200.1

Arson In The First Degree - Reasonable Anticipation

Of Presence Of Person 1200.2

Arson In The Second Degree - Elements 1200.3

Arson In The Third Degree - Elements 1200.4

Arson - Defense - Insurer Fraudulently Exposed To Risk 1200.5

Arson - Actual Destruction Or Damage Of Property -

No Defense 1200.6

Reckless Use Of Fire Or Explosives - Elements 1200.7

Possession Of Explosive Or Incendiary Materials Or

Devices - Elements 1200.8

Possession Of Explosive Or Incendiary Materials Or

Devices - Public Offense - Definition 1200.9

Threats Or Attempts - Elements 1200.10

False Reports - Elements 1200.11

Explosive Or Incendiary Device Or Material - Combustible

Materials - Definitions 1200.12

Assault

Assault With Intent To Inflict Serious Injury - Elements 800.1

Assault With Intent To Inflict Serious Injury - Elements -

Use Of Firearm Or Dangerous Weapon 800.2

Assault - Intent And Display Of Firearm - Definition 800.3

Assault Causing Bodily Injury - Elements 800.4

Assault - Elements 800.5

Apparent Ability - Definition 800.6

Assault While Participating In A Felony Causing

Serious Injury - Elements 800.7

Assault - Definition 800.8

Printed 1/98

IOWA CRIMINAL JURY INSTRUCTIONS

Instruction No.

Assault (Continued)

Assault While Participating In A Felony -

Definition Of Felony And Participating 800.9

Willful Injury - Elements 800.10

Assault - Exception 800.11

Administering Harmful Substances - Elements -

Causes To Be Taken By Threat, Deception, Or

Without Consent 800.12

Terrorism With Intent - Elements - Use Of Dangerous

Weapon 800.13

Terrorism With Intent - Elements - Threatened Use Of

Dangerous Weapon 800.14

Going Armed With Intent - Elements 800.15

Going Armed With Intent - Definition - Armed 800.16

Aggravated Assault - Elements 800.17

Burglary and Related Offenses

Burglary In The First Degree - Elements - Breaks Structure 1300.1

Burglary In The Second Degree - Elements - Breaks Structure 1300.2

Burglary In The Third Degree - Elements - Breaks Structure 1300.3

Burglary In The First Degree - Elements - Enters Structure 1300.4

Burglary In The Second Degree - Elements - Enters Structure 1300.5

Burglary In The Third Degree - Elements - Enters Structure 1300.6

Burglary In The First Degree - Elements - Remains in Structure 1300.7

Burglary In The Second Degree - Elements -

Remains In Structure 1300.8

Burglary In The Third Degree - Elements - Remains

In Structure 1300.9

Attempted Burglary - Guide 1300.10

Burglary - Breaking - Definition 1300.11

Burglary - Enter - Definition 1300.12

Burglary - Occupied Structure - Definition 1300.13

Burglary - Permission Or Authority - Definition 1300.14

Possession Of Burglar\'s Tools - Elements 1300.15

Definition Of Burglar\'s Tools 1300.16

Possession Of Burglar\'s Tools - Intent To Commit Burglary 1300.17

Possession Of Burglar\'s Tools - Burglary Defined 1300.18

Printed 1/98

IOWA CRIMINAL JURY INSTRUCTIONS

Instruction No.

Commercial Bribery

Commercial Bribery - Donor 1830.1

Commercial Bribery - Doneee 1830.2

Definition - Employer 1830.3

Definition - Gratuity 1830.4

Computer Crime

Computer Damage - Elements 1700.1

Computer Theft - Elements 1700.2

Definitions 1700.3

Degrees Of Computer Damage And Theft - Definitions 1700.4

Degrees Of Computer Damage And Theft - Interrogatory 1700.5

Conspiracy

Conspiracy - Elements 600.1

Conspiracy - Agreement 600.2

Conspiracy - Mere Association 600.3

Conspiracy - Overt Act 600.4

Membership In Conspiracy 600.5

Conspiracy - Conduct Or Statements Of Others 600.6

Conspiracy - Separate Offense 600.7

Conspiracy - Single Defendant On Trial 600.8

Controlled Substances

Manufacturing Or Delivering Controlled Substance -

Elements 2300.1

Possession Of Controlled Substance With Intent To

Deliver Or Manufacture - Elements 2300.2

Possession - Elements 2300.3

Controlled Substance - Deliver - Manufacture - Definitions 2300.4

Amount Of Marijuana 2300.5

Distribution To Persons Under 18 - Elements 2300.6

Degrees Of Crime - Definition And Interrogatory 2300.7

Drug Stamp Tax Violations

Drug Stamp Tax Violation - Elements 2310.1

Taxable Substance - Definition 2310.2

Printed 1/98

IOWA CRIMINAL JURY INSTRUCTIONS

Instruction No.

Controlled Substances (Continued)

Dosage Unit - Definition 2310.3

Criminal Law

General Criminal Intent - Definition And Proof 200.1

Special Intent - Definition And Proof 200.2

Knowledge - Definition 200.3

Corroboration Of Accomplice 200.4

Corroboration Of Solicited Person - Crime Actually

Committed 200.5

Participating In A Public Offense - Definition 200.6

Joint Criminal Conduct - Definition 200.7

Aiding And Abetting 200.8

Insanity Defense - Consideration 200.9

Sanity At The Time Of Commission Of The Offense 200.10

Insanity - Elements - Defendant Not Guilty By

Reason Of Insanity 200.11

Diminished Responsibility - First Degree Murder 200.12

Diminished Responsibility - Other Specific Intent

Crimes - Total Defense 200.13

Intoxication As A Defense 200.14

Alibi 200.15

Confessions 200.16

Entrapment 200.17

Attempt 200.18

Malice 200.19

Recklessness 200.20

Dangerous Weapon - Definition 200.21

Serious Injury 200.22

Displaying A Firearm - Armed With A Firearm 200.23

Displaying A Firearm - Displayed Firearm 200.24

Displaying A Firearm - Representation Of Firearm 200.25

Responsibility Of Employers And Others - Directed

Employee To Commit Offense 200.26

Responsibility Of Employers And Others - Knowingly

Permits Employee To Commit Offense 200.27

Responsibility Of Employers 200.28

Liability Of Corporations, Partnerships And Voluntary

Associations 200.29

High Managerial Agent - Definition 200.30

Printed 1/98

IOWA CRIMINAL JURY INSTRUCTIONS

Instruction No.

Criminal Law (Continued)

Liability Of Corporations, Partnerships And Voluntary

Associations - Omissions 200.31

Liability Of Corporation, Partnerships And Voluntary

Associations - Agent And Scope Of Authority - Definition 200.32

Continuous Transactions - Cautionary Instruction 200.33

Similar Crimes 200.34

Compulsion 200.35

Impeachment - Public Offense 200.36

Expert Witness 200.37

Character And Reputation Evidence 200.38

Ignorance Or Mistake Of Fact - Defense 200.39

Defendant\'s Failure To Testify 200.40

Bodily Injury 200.41

Contradictory Statements - Non-Party - Witness Not

Under Oath 200.42

Contradictory Statements - Non-Party - Witness

Under Oath 200.43

Admissions Of A Party - Opponent 200.44

Eyewitness Identification 200.45

Destruction Of Evidence - Permissible Inference 200.46

Possession 200.47

Criminal Mischief and Criminal Trespass

Criminal Mischief

Criminal Mischief - Damage, Destroy, Etc. - Elements 1600.1

Degrees Of Criminal Mischief - Definitions And

Interrogatory 1600.2

Criminal Mischief In The First Degree - Substantial

Interruption, Etc. - Elements 1600.3

Criminal Mischief In The Third Degree - Legal Instrument -

Elements 1600.4

Criminal Mischief In The Third Degree - Safety Devices 1600.5

Criminal Mischief In The Third Degree - Disinterment 1600.6

Criminal Trespass

Criminal Trespass - With Intent - Elements 1610.1

Criminal Trespass - Refuse To Leave - Elements 1610.2

Printed 1/98

IOWA CRIMINAL JURY INSTRUCTIONS

Instruction No.

Criminal Mischief And Criminal Trespass (Continued)

Criminal Trespass - Interference With Use - Elements 1610.3

Criminal Trespass - Wrongful Use, Etc. - Elements 1610.4

Criminal Trespass - Property - Definition 1610.5

Criminal Trespass - Defense - Elements 1610.6

Forgery

Forgery - 715A.2(1)(a) 1500.1

Forgery - 715A.2(1)(b) 1500.2

Uttering A Forged Instrument - 715A.2(1)(c) And 715A.2(1)(a) 1500.3

Uttering A Forged Instrument - 715A.2(1)(c) And 715A.2(1)(b) 1500.4

Forgery - Credit Card 1500.5

Credit Card - Defense 1500.6

Criminal Street Gangs

Criminal Street Gang Participation - Elements 2800.1

Criminal Street Gang Participation - Definition 2800.2

Willfully - Definition 2800.3

Criminal Acts - Definition 2800.4

Pattern Of Criminal Gang Activity - Definition 2800.5

General Instructions

Statement Of Charge 100.1

Plea 100.2

Indictment Or Information Not Evidence 100.3

Presumption Of Innocence 100.4

Evidence 100.5

Direct/Circumstantial Evidence 100.6

Credibility Of Witnesses 100.7

Consideration Of Instructions 100.8

Cautionary Instruction 100.9

Reasonable Doubt 100.10

Reasonable Doubt - Re Included Offenses 100.11

Preponderance Of Evidence - Defenses 100.12

Punishment Not For Jury 100.13

Cautionary Instruction - Joint Trials 100.14

Cautionary Instruction - Multiple Counts 100.15

Multi-Theories 100.16

Printed 1/98

IOWA CRIMINAL JURY INSTRUCTIONS

Instruction No.

General Instructions (Continued)

Cautionary Instruction - Juror\'s Notes 100.17

Duties Of Jurors - Selection Of Foreman/Forewoman 100.18

Habitual Criminal

Habitual Criminal - Elements 2200.1

Habitual Criminal - Form Of Verdict 2200.2

Harassment

Harassment In The First Degree - Elements 810.1

Harassment In The Second Degree - Elements 810.2

Harassment In The Third Degree - Elements 810.3

Hate Crimes

Hate Crime - Definition and Interrogatory 2900.1

Incest And Child Endangerment

Incest

Incest - Elements 2600.1

Child Endangerment

Child Endangerment - Substantial Risk - Serious Injury 2610.1

Child Endangerment - Use Of Unreasonable Force,

Cruelty, Torture - Serious Injury 2610.2

Child Endangerment - Evidencing Unreasonable

Force, Torture, Cruelty - Serious Injury 2610.3

Child Endangerment - Deprivation Of Food, Clothing,

Shelter, Health Care, Supervision 2610.4

Child Endangerment - Deprivation Of Health Care 2610.5

Child Endangerment - Permitting Abuse 2610.6

Child Endangerment - Abandonment 2610.7

Unreasonable Force - Definition 2610.8

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IOWA CRIMINAL JURY INSTRUCTIONS

Instruction No.

Interference With Official Acts And Escape

Escape

Escape - Elements 1900.1

Interference With Official Acts And Escape (Continued)

Voluntary Absence From Facility - Elements 1900.2

Permitting Prisoner To Escape - Elements 1900.3

Assisting Prisoner To Escape - Elements - Intent To

Aid Escape 1900.4

Furnishing Intoxicant To An Inmate - Elements 1900.5

Furnishing Controlled Substance To An Inmate - Elements 1900.6

Interference With An Official Act

Interference With An Official Act - Elements 1910.1

Interference With Official Acts - Definition - Resistance Or

Obstruction 1910.2

Preventing Apprehension Or Obstructing Prosecution Or Defense -

Elements 1910.3

Justification

Justification - Definition - Burden Of Proof 400.1

Justification - Elements - Self-Defense Of Person 400.2

Justification - Elements - Defense Of Third Person 400.3

Justification - Real Or Apparent Danger - Defense Of Person 400.4

Justification - Real Or Apparent Danger - Reasonable Belief -

Defense Of Person 400.5

Justification - Reasonable Force In Defense Of Person 400.6

Justification - Elements - Defense Of Property 400.7

Justification - Elements - Aiding Another In Defense

Of Property 400.8

Justification - Real Or Apparent Danger - Defense Of Property 400.9

Justification - Reasonable Belief - Defense Of Property 400.10

Justification - Elements - Resisting A Forcible Felony 400.11

Knowledge Of Forcible Felony Being Committed 400.12

Justification - Reasonable Force To Prevent Completion Of

Forcible Felony 400.13

Justification - Reasonable Grounds For Belief Of Force To Prevent

Completion Of Felony 400.14

Justification - Reasonable Force - Definition 400.15

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IOWA CRIMINAL JURY INSTRUCTIONS

Instruction No.

Justification (Continued)

Justification - Alternate Course Of Action - Exception - Defendant

Is In Own Home Or On Own Property 400.16

Justification - Alternate Course Of Action - Definition 400.17

Justification - Words Of Provocation 400.18

Justification - Previous Threats Against Defendant - Defense

Of Person 400.19

Justification - Previous Threats Against Defendant - Defense

Of Property 400.20

Justification - Previous Threats, Violence And Bad Treatment

By Victim 400.21

Justification - Character Of Victim 400.22

Justification - Provocation - Disproportionate Force 400.23

Justification - Provocation - Withdrawal From Combat 400.24

Justification - Deadly Force - General Statement 400.25

Justification - Defense Not Available To Provocator 400.26

Kidnapping And Related Offenses

Kidnapping In The First Degree - Elements 1000.1

Kidnapping In The Second Degree - Elements 1000.2

Kidnapping For Ransom - Definition 1000.3

Kidnapping In The Third Degree - Elements 1000.4

Kidnapping - Confinement, Removal (When Used With Another

Public Offense) - Definition 1000.5

Kidnapping - Torture - Definition 1000.6

Kidnapping - Intent To Secretly Confine - Definition 1000.7

False Imprisonment - Elements 1000.8

Child Stealing - Elements 1000.9

Violating Custodial Order By Relative - Elements 1000.10

Harboring A Runaway Child - Elements 1000.11

Murder

Murder In The First Degree - Premeditation, Willfulness,

Deliberation - Elements 700.1

Murder In The First Degree - Participating In A Forcible Felony -

Elements 700.2

Murder In The First Degree - Escape From Lawful Custody - Elements 700.3

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IOWA CRIMINAL JURY INSTRUCTIONS

Instruction No.

Murder (Continued)

Murder In The First Degree - Killing Of Peace Officer -

Elements 700.4

Murder In The First Degree - Definition Of Elements 700.5

Murder In The First Degree - Time For Deliberation And

Premeditation 700.6

Murder - Definition Of Malice Aforethought 700.7

Murder In The First Degree - Dangerous Weapon Inference 700.8

Murder - Forcible Felony Inference 700.9

Murder - Dangerous Weapon - Malice Inference 700.10

Murder - Cause Of Death 700.11

Murder - Unintended Victim 700.12

Murder In The Second Degree - Elements 700.13

Murder In The Second Degree - No Specific

Intent Requirement 700.14

Voluntary Manslaughter - Elements 700.15

Voluntary Manslaughter - Provocation - Definition 700.16

Involuntary Manslaughter - Public Offense - Elements 700.17

Involuntary Manslaughter - Conduct Likely To Cause

Death - Elements 700.18

Homicide By Vehicle (Felony) - Elements 700.19

Homicide By Vehicle (Misdemeanor) - Elements 700.20

Attempt To Commit Murder - Elements 700.21

Offenses Against the Government

Insurrection - Elements 1800.1

Impersonating A Public Official - Elements 1800.2

Falsifying Public Documents - Elements 1800.3

Official Misconduct

Felonious Misconduct In Office - Elements 1810.1

Bribery And Corruption

Bribery - Elements 1820.1

Accepting A Bribe - Elements 1820.2

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IOWA CRIMINAL JURY INSTRUCTIONS

Instruction No.

OWI

OWI - Elements - Both Under The Influence And .10 2500.1

OWI - Elements - No Test 2500.2

OWI - Elements - Test Only 2500.3

OWI - Presumption From Chemical Test 2500.4

OWI - Definition - Under The Influence 2500.5

OWI - Operator - Definition 2500.6

OWI - Refusal To Take Test 2500.7

OWI - Method Of Operation 2500.8

Perjury

Perjury - Elements 2000.1

Perjury - Contradictory Statement - Elements 2000.2

Perjury - Corroboration Of False Statement 2000.3

Perjury - Definition Of Material Fact - Knowledge - Intent 2000.4

Suborning Perjury - Intent To Make False Statements - 2000.5

Suborning Perjury - Concealment Of Material Facts 2000.6

Suborning Perjury - Definition - Procure - Induce 2000.7

Robbery and Extortion

Robbery

Robbery In The First Degree - Elements 1100.1

Robbery In The Second Degree - Elements 1100.2

Extortion

Extortion - Elements 1110.1

Extortion - Defense 1110.2

Sexual Abuse

Sexual Abuse In The First Degree - Elements 900.1

Sexual Abuse In The Second Degree - Elements 900.2

Sexual Abuse In The Third Degree - Elements 900.3

Sexual Abuse In The Third Degree 900.3.1

Lascivious Acts - Elements 900.4

Indecent Exposure - Elements 900.5

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IOWA CRIMINAL JURY INSTRUCTIONS

Instruction No.

Sexual Abuse (Continued)

Assault With Intent To Commit Sexual Abuse - Serious Injury -

Elements 900.6

Indecent Contact With A Child - Elements 900.7

Definition Of Sex Act 900.8

Knowledge Of Victim\'s Age 900.9

Sexual Abuse - Definition Of Force 900.10

Evidence Of Similar Acts 900.11

Sexual Exploitation Of Minors

Sexual Exploitation Of Minors - Elements (Class C Felony) 910.1

Sexual Exploitation Of Minors - Elements (Class D Felony) 910.2

Sexual Exploitation Of Minors - Elements (Misdemeanor) 910.3

Knowingly - Definition 910.4

Promote - Elements 910.5

Sexual Exploitation By Counselor Or Therapist

Pattern, Practice, Or Scheme Of Sexual Exploitation -

Elements (Felony) 920.1

Sexual Exploitation - Elements (Aggravated Misdemeanor) 920.2

Sexual exploitation - Elements (Serious Misdemeanor) 920.3

Counselor Or Therapist - Definition 920.4

Mental Health Service - Definition 920.5

Emotionally Dependent - Definition 920.6

Former Patient Or Client - Definition 920.7

Patient Or Client - Definition 920.8

Solicitation

Solicitation - Elements 500.1

Solicitation - Definition 500.2

Solicitation - Corroboration Of Intent To Commit Offense 500.3

Solicitation - Defense Of Renunciation - Complete And

Voluntary 500.4

Theft

Theft - Taking - Elements 1400.1

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IOWA CRIMINAL JURY INSTRUCTIONS

Instruction No.

Theft (Continued)

Theft - Taking - Intention To Deprive - Definition 1400.2

Theft - Taking - Concealment Of Unpurchased Goods -

Evidence Of Intent 1400.3

Theft - Elements - Misappropriation 1400.4

Theft - Definition - Trust 1400.5

Theft - Definition - Misappropriation 1400.6

Theft - Evidence Of Misappropriation 1400.7

Elements - Conceals Or Appropriates Found Property 1400.8

Theft - Definition - Appropriates 1400.9

Theft - Elements - Obtaining Property By Deception 1400.10

Theft - Deception - Inserting Unauthorized Token 1400.11

Inference Of Deception 1400.12

Theft - Elements - Exercising Control Over Stolen Property 1400.13

Theft - Exercising Control Over Stolen Property -

No Obligation Of State To Prove Conviction For Theft 1400.14

Theft - Inference Of Knowledge Property Was Stolen 1400.15

Theft - Elements - Secured Property 1400.16

Theft - Definition - False Check 1400.17

Theft - Prima Facie Evidence Of Knowledge Check Would

Not Be Good When Presented 1400.18

Theft - Defense - Claim Of Right 1400.19

Theft - Definition - Property 1400.20

Theft Or Fraudulent Practices - Definition - Value 1400.21

Theft Or Fraudulent Practices - Definition - Single Theft Or

Fraudulent Practice 1400.22

Theft - Taking Of A Motor Vehicle - Elements 1400.23

Theft - Elements - Operating Without Owner\'s Consent 1400.24

Fraudulent Practices - Elements 1400.25

Fraudulent Practices - Definition - Value 1400.26

Degrees Of Theft - Definition And Interrogatory 1400.27

Value Of Motor Vehicle - Interrogatory 1400.28

Vice

Prostitution - Element 2100.1

Prostitution - Offer To Sell Or Purchase - Definition 2100.2

Pimping - Elements - Soliciting Patron Or Sharing In Earnings 2100.3

Pimping - Elements - Furnishing Room For Purpose Of

Prostitution 2100.4

Pimping - Knowledge - Definition 2100.5

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IOWA CRIMINAL JURY INSTRUCTIONS

Instruction No.

Pimping (Continued)

Pimping - Prostitute - Definition 2100.6

Weapons

Possession Of Offensive Weapon - Elements 2400.1

Offensive Weapon - Definition 2400.2

Going Armed With A Concealed Weapon - Elements 2400.3

Going Armed With A Pistol/Revolver/Loaded Firearm

Within City Limits - Elements 2400.4

Going Armed - Definition 2400.5

Carrying Pistol/Revolver In Vehicle - Elements 2400.6

Receipt, Transportation Or Dominion And Control Of

Firearm Or Offensive Weapon By A Felon 2400.7

Firearm - Definition 2400.8

Dominion And Control - Definition 2400.9

Giving False Information When Acquiring A Weapon 2400.10

Wiretapping

Wiretapping - Intercepting Communication - Elements 2700.1

Wiretapping - Use Of Interception Device - Elements 2700.2

Wiretapping - Disclosing Or Using Intercepted Communications -

Elements 2700.3

Wiretapping - Disclosing Or Using Communication Obtained By

Device - Elements 2700.4

Wiretapping - Disclosure by Communications Workers -

Elements 2700.5

Wiretapping - Definition Of Elements - Willful 2700.6

Wiretapping - Definition Of Elements - Electronic,

Mechanical Or Other Device 2700.7

Wiretapping - Definition Of Elements - Intercept 2700.8

Wiretapping - Definition Of Elements - Oral Communication 2700.9

Wiretapping - Definition Of Elements - Wire Communication

2700.10

Wiretapping - Definition Of Elements - Know Or Should

Know 2700.11

Wiretapping - Definition Of Elements - Contents 2700.12