Proposed Jury
Instructions for Crimes Against Children
NOTICE TO COUNSEL AND JUDGES: As provided in the Court's Order accepting the proposed jury instructions for a period of working review, the Court's provisional approval "is for the purpose of refining and testing the application and accuracy of the pattern instructions and does not ensure error-free trials, and their use does not carry a no-reversal guarantee. It is not intended that this provisional acceptance is a final approval of the content of any instruction and each judge may use or refuse any instruction as he or she sees fit[,]" according to law. (emphasis added).
CHILD ABUSE BY A PARENT, GUARDIAN, OR CUSTODIAN
RESULTING IN DEATH OF A CHILD
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment in
this case is Child Abuse By A (Parent) (Guardian) (Custodian) Resulting In Death
Of A Child. One of two verdicts may be returned by you under this Count of the
Indictment. They are: (1) guilty; and (2) not guilty.
Child Abuse By A (Parent) (Guardian) (Custodian)
Resulting In Death Of A Child is committed when any parent, guardian or
custodian shall maliciously and intentionally inflict upon a child under his or
her care, custody or control, substantial physical pain, illness or any
impairment of physical condition by other than accidental means thereby causing
the death of such child.
"Child" means any person under eighteen years
of age not otherwise emancipated by law.
"Parent" means the biological father or mother
of a child, or the adoptive mother or father of a child.
"Custodian" means a person over the age of
fourteen years who has or shares actual physical possession or care and custody
of a child on a full-time or temporary basis, regardless of whether such person
has been granted custody of the child by any contract, agreement or legal
proceeding. "Custodian" shall also include, but not be limited to, the
spouse of a parent, guardian or custodian, or a person cohabiting with a parent,
guardian or custodian in the relationship of husband and wife, where such spouse
or other person shares actual physical possession or care and custody of a child
with the parent, guardian or custodian.
"Guardian" means a person who has care and
custody of a child as the result of any contract, agreement or legal proceeding.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant,
______________________________ is not required to prove himself innocent. He is
presumed by the law to be innocent of this charge and this presumption remains
with him throughout the entire trial.
Before the Defendant, ______________________________ can
be convicted of Child Abuse By A (Parent) (Guardian) (Custodian) Resulting In
Death Of A Child the State of West Virginia must overcome the presumption that
the Defendant, ______________________________ is innocent and prove to the
satisfaction of the jury beyond a reasonable doubt that:
1.
The Defendant, ______________________________,
2.
in _______________ County, West Virginia,
3.
on or about the _____ day of _______________, 199__,
4.
maliciously and intentionally,
5.
inflicted upon ______________________________, a child under (his) (her) care,
custody and control,
6.
(substantial physical pain)
(substantial illness)
(substantial impairment of physical condition)
7.
by other than accidental means,
8.
resulting in the death of ______________________________.
If after impartially considering, weighing and comparing
all the evidence, (both that of the State and that of the Defendant) the jury
and each member of the jury is convinced beyond a reasonable doubt of the truth
of the charge as to each of these elements of Child Abuse By A (Parent)
(Guardian) (Custodian) Resulting In Death Of A Child, you may find
______________________________ guilty of Child Abuse By A (Parent) (Guardian)
(Custodian) Resulting In Death Of A Child as charged in Count _____ of the
indictment. If the jury and each member of the jury has a reasonable doubt of
the truth of the charge as to any one or more of these elements of Child Abuse
By A (Parent) (Guardian) (Custodian) Resulting In Death Of A Child, you shall
find the Defendant ______________________________ not guilty.
COMMENT
CHILD ABUSE BY A PARENT, GUARDIAN, OR CUSTODIAN
RESULTING IN DEATH OF A CHILD
1.
W.Va. Code §61-8D-2a(b). "Death of A Child By A Parent, Guardian
or Custodian By Child Abuse."
2.
W.Va. Code §61-8D-1. "Definitions."
MURDER OF THE FIRST DEGREE OF A CHILD
BY A PARENT, GUARDIAN OR CUSTODIAN
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment in
this case is Murder of the First Degree of a Child By A (Parent) (Guardian)
(Custodian). One of two verdicts may be returned by you under this Count of the
Indictment. They are: (1) guilty; and (2) not guilty.
Murder of the First Degree of a Child By A (Parent)
(Guardian) (Custodian) is committed when any parent, guardian or custodian shall
maliciously and intentionally cause the death of a child under his or her care,
custody or control by his or her failure or refusal to supply such child with
necessary food, clothing, shelter or medical care. Provided, however, this
provision does not apply to any parent, guardian or custodian who fails or
refuses or allows another person to fail or refuse to supply a child under the
care, custody or control of such parent, guardian or custodian with necessary
medical care, when such medical care conflicts with the tenants and practices of
a recognized religious denomination or order of which such parent, guardian or
custodian is an adherent or member.
"Child" means any person under eighteen years
of age not otherwise emancipated by law.
"Parent" means the biological father or mother
of a child, or the adoptive mother or father of a child.
"Custodian" means a person over the age of
fourteen years who has or shares actual physical possession or care and custody
of a child on a full-time or temporary basis, regardless of whether such person
has been granted custody of the child by any contract, agreement or legal
proceeding. "Custodian" shall also include, but not be limited to, the
spouse of a parent, guardian or custodian, or a person cohabiting with a parent,
guardian or custodian in the relationship of husband and wife, where such spouse
or other person shares actual physical possession or care and custody of a child
with the parent, guardian or custodian.
"Guardian" means a person who has care and
custody of a child as the result of any contract, agreement or legal proceeding.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant,
______________________________ is not required to prove himself innocent. He is
presumed by the law to be innocent of this charge and this presumption remains
with him throughout the entire trial.
Before the Defendant, ______________________________ can
be convicted of Murder of the First Degree of a Child By A (Parent) (Guardian)
(Custodian) the State of West Virginia must overcome the presumption that the
Defendant, ______________________________ is innocent and prove to the
satisfaction of the jury beyond a reasonable doubt that:
1.
The Defendant, ______________________________,
2.
in _______________ County, West Virginia,
3.
on or about the _____ day of _______________, 199__,
4.
being the (parent) (guardian) (custodian) of ___________________________, a
child,
5.
did maliciously and intentionally,
6.
cause the death of __________________________,
7.
who was under (his) (her) care, custody and control,
8.
by (his) (her) refusal to supply said child with necessary (food) (clothing)
(shelter) (medical care).
If after impartially considering, weighing and
comparing all the evidence, (both that of the State and that of the Defendant)
the jury and each member of the jury is convinced beyond a reasonable doubt of
the truth of the charge as to each of these elements of Murder of the First
Degree of a Child By A (Parent) (Guardian) (Custodian), you may find
______________________________ guilty of Murder of the First Degree of a Child
By A (Parent) (Guardian) (Custodian) as charged in Count _____ of the
indictment. If the jury and each member of the jury has a reasonable doubt of
the truth of the charge as to any one or more of these elements of Murder of the
First Degree of a Child By A (Parent) (Guardian) (Custodian), you shall find the
Defendant ______________________________ not guilty.
COMMENT
MURDER OF THE FIRST DEGREE OF A CHILD
BY A PARENT, GUARDIAN OR CUSTODIAN
1.
W.Va. Code §61-8D-2(a).
2.
W.Va. Code §61-8D-1. "Definitions."
PARENTAL PERMITTING ANOTHER PERSON TO COMMIT
MURDER OF THE FIRST DEGREE OF A CHILD
WHILE THE CHILD IS IN THE CUSTODY
OF A PARENT, GUARDIAN OR CUSTODIAN
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment in
this case is Parental Permitting Another Person To Commit Murder of the First
Degree of a Child In The Custody Of A (Parent) (Guardian) (Custodian). One of
two verdicts may be returned by you under this Count of the Indictment. They
are: (1) guilty; and (2) not guilty.
Parental Permitting Another Person To Commit Murder of
the First Degree of a Child In The Custody Of A (Parent) (Guardian) (Custodian)
is committed when any parent, guardian or custodian shall knowingly permit
another person to maliciously and intentionally cause the death of a child under
his or her care, custody or control by his or her failure or refusal to supply
such child with necessary food, clothing, shelter or medical care. Provided,
however, this provision does not apply to any parent, guardian or custodian who
fails or refuses or allows another person to fail or refuse to supply a child
under the care, custody or control of such parent, guardian or custodian with
necessary medical care, when such medical care conflicts with the tenants and
practices of a recognized religious denomination or order of which such parent,
guardian or custodian is an adherent or member.
"Child" means any person under eighteen years
of age not otherwise emancipated by law.
"Parent" means the biological father or mother
of a child, or the adoptive mother or father of a child.
"Custodian" means a person over the age of
fourteen years who has or shares actual physical possession or care and custody
of a child on a full-time or temporary basis, regardless of whether such person
has been granted custody of the child In The Custody Of Any contract, agreement
or legal proceeding. "Custodian" shall also include, but not be
limited to, the spouse of a parent, guardian or custodian, or a person
cohabiting with a parent, guardian or custodian in the relationship of husband
and wife, where such spouse or other person shares actual physical possession or
care and custody of a child with the parent, guardian or custodian.
"Guardian" means a person who has care and
custody of a child as the result of any contract, agreement or legal proceeding.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant,
______________________________ is not required to prove himself innocent. He is
presumed by the law to be innocent of this charge and this presumption remains
with him throughout the entire trial.
Before the Defendant, ______________________________ can
be convicted of Parental Permitting Another Person To Commit Murder of the First
Degree of a Child In The Custody Of A (Parent) (Guardian) (Custodian) the State
of West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of the
jury beyond a reasonable doubt that:
1.
The Defendant, ______________________________,
2.
in _______________ County, West Virginia,
3.
on or about the _____ day of _______________, 199__,
4.
being the (parent) (guardian) (custodian) of ______________________________, a
child,
5.
did knowingly permit ______________________________,
6.
to maliciously and intentionally,
7.
cause the death of __________________________,
8.
who was under (his) (her) care, custody and control,
9.
by (his) (her) refusal to supply said child with necessary (food) (clothing)
(shelter) (medical care).
If after impartially considering, weighing and
comparing all the evidence, (both that of the State and that of the Defendant)
the jury and each member of the jury is convinced beyond a reasonable doubt of
the truth of the charge as to each of these elements of Parental Permitting
Another Person To Commit Murder of the First Degree of a Child In The Custody Of
A (Parent) (Guardian) (Custodian), you may find ______________________________
guilty of Parental Permitting Another Person To Commit Murder of the First
Degree of a Child In The Custody Of A (Parent) (Guardian) (Custodian) as charged
in Count _____ of the indictment. If the jury and each member of the jury has a
reasonable doubt of the truth of the charge as to any one or more of these
elements of Parental Permitting Another Person To Commit Murder of the First
Degree of a Child In The Custody Of A (Parent) (Guardian) (Custodian), you shall
find the Defendant ______________________________ not guilty.
COMMENT
PARENTAL PERMITTING ANOTHER PERSON TO COMMIT
MURDER OF THE FIRST DEGREE OF A CHILD
WHILE THE CHILD IS IN THE CUSTODY
OF A PARENT, GUARDIAN OR CUSTODIAN
1.
W.Va. Code §61-8D-2(b).
2.
W.Va. Code §61-8D-2(c).
3.
W.Va. Code §61-8D-1. "Definitions."
PARENT PERMITTING CHILD ABUSE BY ANOTHER PERSON
RESULTING IN DEATH OF A CHILD IN THE CUSTODY OF
THE PARENT, GUARDIAN OR CUSTODIAN
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment in
this case is Parental Permitting Child Abuse by Another Person Resulting In
Death Of A Child. One of two verdicts may be returned by you under this Count of
the Indictment. They are: (1) guilty; and (2) not guilty.
Parental Permitting Child Abuse by Another Person
Resulting In Death Of A Child is committed when any parent, guardian or
custodian shall knowingly permit another person to maliciously and intentionally
inflict upon a child under his or her care, custody or control, substantial
physical pain, illness or any impairment of physical condition by other than
accidental means thereby causing the death of such child.
"Child" means any person under eighteen years
of age not otherwise emancipated by law.
"Parent" means the biological father or mother
of a child, or the adoptive mother or father of a child.
"Custodian" means a person over the age of
fourteen years who has or shares actual physical possession or care and custody
of a child on a full-time or temporary basis, regardless of whether such person
has been granted custody of the child by any contract, agreement or legal
proceeding. "Custodian" shall also include, but not be limited to, the
spouse of a parent, guardian or custodian, or a person cohabiting with a parent,
guardian or custodian in the relationship of husband and wife, where such spouse
or other person shares actual physical possession or care and custody of a child
with the parent, guardian or custodian.
"Guardian" means a person who has care and
custody of a child as the result of any contract, agreement or legal proceeding.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant,
______________________________ is not required to prove himself innocent. He is
presumed by the law to be innocent of this charge and this presumption remains
with him throughout the entire trial.
Before the Defendant, ______________________________ can
be convicted of Parental Permitting Child Abuse by Another Person Resulting In
Death Of A Child the State of West Virginia must overcome the presumption that
the Defendant, ______________________________ is innocent and prove to the
satisfaction of the jury beyond a reasonable doubt that:
1.
The Defendant, ______________________________,
2.
in _______________ County, West Virginia,
3.
on or about the _____ day of _______________, 199__,
4.
being the (parent) (guardian) (custodian) of ______________________________,
5.
did knowingly permit ______________________________,
6.
to maliciously and intentionally,
7.
inflicted upon ______________________________, a child under (his) (her) care,
custody and control,
8.
(substantial physical pain) (substantial illness)
(substantial impairment of physical condition)
9.
by other than accidental means,
10.
resulting in the death of ______________________________.
If after impartially considering, weighing and
comparing all the evidence, (both that of the State and that of the Defendant)
the jury and each member of the jury is convinced beyond a reasonable doubt of
the truth of the charge as to each of these elements of Parental Permitting
Child Abuse by Another Person Resulting In Death Of A Child, you may find
______________________________ guilty of Parental Permitting Child Abuse by
Another Person Resulting In Death Of A Child as charged in Count _____ of the
indictment. If the jury and each member of the jury has a reasonable doubt of
the truth of the charge as to any one or more of these elements of Parental
Permitting Child Abuse by Another Person Resulting In Death Of A Child, you
shall find the Defendant ______________________________ not guilty.
COMMENT
PARENT PERMITTING CHILD ABUSE BY ANOTHER PERSON
RESULTING IN DEATH OF A CHILD IN THE CUSTODY OF
THE PARENT, GUARDIAN OR CUSTODIAN
1.
W.Va. Code §61-8D-2a(a).
2.
W.Va. Code §61-8D-2a(b).
3.
W.Va. Code §61-8D-1. "Definitions."
4.
State v. Wyatt, 482 S.E. 2d 147 (W.Va. 1996). This case discusses the
element of "knowingly" and was well as the definition of a
"custodian". See definitional instruction "Knowingly As An
Element Defined", page 1322.
CHILD ABUSE BY A PARENT, GUARDIAN, OR CUSTODIAN
RESULTING IN SERIOUS BODILY INJURY
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment in
this case is Child Abuse By A (Parent) (Guardian) (Custodian) Resulting In
Serious Bodily Injury. One of two verdicts may be returned by you under this
Count of the Indictment. They are: (1) guilty of Child Abuse By A (Parent)
(Guardian) (Custodian) Resulting In Serious Bodily Injury; and (2) not guilty.
Child Abuse By A (Parent) (Guardian) (Custodian)
Resulting In Serious Bodily Injury is committed when any parent, guardian or
custodian shall abuse a child and by such abuse cause such child serious bodily
injury.
"Child" means any person under eighteen years
of age not otherwise emancipated by law.
"Abuse" means the infliction upon a minor of
physical injury by other than accidental means.
"Parent" means the biological father or mother
of a child, or the adoptive mother or father of a child.
"Custodian" means a person over the age of
fourteen years who has or shares actual physical possession or care and custody
of a child on a full-time or temporary basis, regardless of whether such person
has been granted custody of the child by any contract, agreement or legal
proceeding. "Custodian" shall also include, but not be limited to, the
spouse of a parent, guardian or custodian, or a person cohabiting with a parent,
guardian or custodian in the relationship of husband and wife, where such spouse
or other person shares actual physical possession or care and custody of a child
with the parent, guardian or custodian.
"Guardian" means a person who has care and
custody of a child as the result of any contract, agreement or legal proceeding.
"Bodily Injury" means substantial physical
pain, illness or any impairment of physical condition.
"Serious bodily injury" means bodily injury
which creates a substantial risk of death, which causes serious or prolonged
disfigurement, prolonged impairment of health, or prolonged loss or impairment
of the function of any bodily organ.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant,
______________________________ is not required to prove himself innocent. He is
presumed by the law to be innocent of this charge and this presumption remains
with him throughout the entire trial.
Before the Defendant, ______________________________ can
be convicted of Child Abuse By A (Parent) (Guardian) (Custodian) Resulting In
Serious Bodily Injury the State of West Virginia must overcome the presumption
that the Defendant, ______________________________ is innocent and prove to the
satisfaction of the jury beyond a reasonable doubt that:
1.
The Defendant, ______________________________,
2.
in _______________ County, West Virginia,
3.
on or about the _____ day of _______________, 199__,
4.
being the (parent) (guardian) (custodian) of ______________________________, a
child,
5.
did abuse such child, and
6.
by such abuse caused ______________________________ serious bodily injury.
If after impartially considering, weighing and
comparing all the evidence, (both that of the State and that of the Defendant)
the jury and each member of the jury is convinced beyond a reasonable doubt of
the truth of the charge as to each of these elements of Child Abuse By A
(Parent) (Guardian) (Custodian) Resulting In Serious Bodily Injury, you may find
______________________________ guilty of Child Abuse By A (Parent) (Guardian)
(Custodian) Resulting In Serious Bodily Injury as charged in Count _____ of the
indictment. If the jury and each member of the jury has a reasonable doubt of
the truth of the charge as to any one or more of these elements of Child Abuse
By A (Parent) (Guardian) (Custodian) Resulting In Serious Bodily Injury, you
shall find the Defendant ______________________________ not guilty.
COMMENT
CHILD ABUSE BY A PARENT, GUARDIAN, OR CUSTODIAN
RESULTING IN SERIOUS BODILY INJURY
1.
W.Va. Code §61-8D-3(b).
2.
W.Va. Code §61-8B-1. "Definitions."
3.
W.Va. Code §61-8D-1. "Definitions."
CHILD ABUSE BY A PARENT, GUARDIAN, OR CUSTODIAN
RESULTING IN SERIOUS BODILY INJURY
(with lesser included offense)
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment in
this case is Child Abuse By A (Parent) (Guardian) (Custodian) Resulting In
Serious Bodily Injury. One of three verdicts may be returned by you under this
Count of the Indictment. They are: (1) guilty of Child Abuse By A (Parent)
(Guardian) (Custodian) Resulting In Serious Boduily Injury; (2) guilty of Child
Abuse By A (Parent) (Guardian) (Custodianb) Resulting In Bodily Injury; and (3)
not guilty.
Child Abuse By A (Parent) (Guardian) (Custodian)
Resulting In Serious Bodily Injury is committed when any parent, guardian or
custodian shall abuse a child and by such abuse cause such child serious bodily
injury.
Child Abuse By A (Parent) (Guardian) (Custodian)
Resulting In Bodily Injury is committed when any parent, guardian or custodian
shall abuse a child and by such abuse cause such child bodily injury.
"Child" means any person under eighteen years
of age not otherwise emancipated by law.
"Abuse" means the infliction upon a minor of
physical injury by other than accidental means.
"Parent" means the biological father or mother
of a child, or the adoptive mother or father of a child.
"Custodian" means a person over the age of
fourteen years who has or shares actual physical possession or care and custody
of a child on a full-time or temporary basis, regardless of whether such person
has been granted custody of the child by any contract, agreement or legal
proceeding. "Custodian" shall also include, but not be limited to, the
spouse of a parent, guardian or custodian, or a person cohabiting with a parent,
guardian or custodian in the relationship of husband and wife, where such spouse
or other person shares actual physical possession or care and custody of a child
with the parent, guardian or custodian.
"Guardian" means a person who has care and
custody of a child as the result of any contract, agreement or legal proceeding.
"Bodily Injury" means substantial physical
pain, illness or any impairment of physical condition.
"Serious bodily injury" means bodily injury
which creates a substantial risk of death, which causes serious or prolonged
disfigurement, prolonged impairment of health, or prolonged loss or impairment
of the function of any bodily organ.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant,
______________________________ is not required to prove himself innocent. He is
presumed by the law to be innocent of this charge and this presumption remains
with him throughout the entire trial.
Before the Defendant, ______________________________ can
be convicted of Child Abuse By A (Parent) (Guardian) (Custodian) Resulting In
Serious Bodily Injury the State of West Virginia must overcome the presumption
that the Defendant, ______________________________ is innocent and prove to the
satisfaction of the jury beyond a reasonable doubt that:
1.
The Defendant, ______________________________,
2.
in _______________ County, West Virginia,
3.
on or about the _____ day of _______________, 199__,
4.
being the (parent) (guardian) (custodian) of ______________________________, a
child,
5.
did abuse such child, and
6.
by such abuse caused ______________________________ serious bodily injury.
If after impartially considering, weighing and
comparing all the evidence, (both that of the State and that of the Defendant)
the jury and each member of the jury is convinced beyond a reasonable doubt of
the truth of the charge as to each of these elements of Child Abuse By A
(Parent) (Guardian) (Custodian) Resulting In Serious Bodily Injury, you may find
______________________________ guilty of Child Abuse By A (Parent) (Guardian)
(Custodian) Resulting In Serious Bodily Injury as charged in Count _____ of the
indictment. If the jury and each member of the jury has a reasonable doubt of
the truth of the charge as to any one or more of these elements of Child Abuse
By A (Parent) (Guardian) (Custodian) Resulting In Serious Bodily Injury, you
shall find the Defendant ______________________________ not guilty of Child
Abuse By A (Parent) (Guardian) (Custodian) Resulting In Serious Bodily Injury
(and deliberate on the lesser included offense hereinafter instructed).
Before the Defendant, ______________________________ can
be convicted of Child Abuse By A (Parent) (Guardian) (Custodian) Resulting In
Bodily Injury the State of West Virginia must overcome the presumption that the
Defendant, ______________________________ is innocent and prove to the
satisfaction of the jury beyond a reasonable doubt that:
1.
The Defendant, ______________________________,
2.
in _______________ County, West Virginia,
3.
on or about the _____ day of _______________, 199__,
4.
being the (parent) (guardian) (custodian) of ______________________________, a
child,
5.
did abuse such child, and
6.
by such abuse caused ______________________________ bodily injury.
If after impartially considering, weighing and
comparing all the evidence, (both that of the State and that of the Defendant)
the jury and each member of the jury is convinced beyond a reasonable doubt of
the truth of the charge as to each of these elements of Child Abuse By A
(Parent) (Guardian) (Custodian) Resulting In Bodily Injury, you may find
______________________________ guilty of Child Abuse By A (Parent) (Guardian)
(Custodian) Resulting In Bodily Injury as charged in Count _____ of the
indictment. If the jury and each member of the jury has a reasonable doubt of
the truth of the charge as to any one or more of these elements of Child Abuse
By A (Parent) (Guardian) (Custodian) Resulting In Bodily Injury, you shall find
the Defendant ______________________________ not guilty.
COMMENT
CHILD ABUSE BY A PARENT, GUARDIAN, OR CUSTODIAN
RESULTING IN SERIOUS BODILY INJURY
(with lesser included offense)
1.
W.Va. Code §61-8D-3(b).
2.
W.Va. Code §61-8D-3(c).
3.
W.Va. Code §61-8B-1. "Definitions."
CHILD ABUSE BY A PARENT, GUARDIAN, OR CUSTODIAN
RESULTING IN BODILY INJURY
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Child Abuse By A (Parent) (Guardian) (Custodian) Resulting In
Bodily Injury. One of two verdicts may be returned by you under this Count of
the Indictment. They are: (1) guilty of Child Abuse By A (Parent) (Guardian)
(Custodian) Resulting In Bodily Injury; and (2) not guilty.
Child Abuse By A (Parent) (Guardian) (Custodian)
Resulting In Bodily Injury is committed when any parent, guardian or custodian
shall abuse a child and by such abuse cause such child bodily injury.
"Child" means any person under eighteen years
of age not otherwise emancipated by law.
"Abuse" means the infliction upon a minor of
physical injury by other than accidental means.
"Parent" means the biological father or mother
of a child, or the adoptive mother or father of a child.
"Custodian" means a person over the age of
fourteen years who has or shares actual physical possession or care and custody
of a child on a full-time or temporary basis, regardless of whether such person
has been granted custody of the child by any contract, agreement or legal
proceeding. "Custodian" shall also include, but not be limited to, the
spouse of a parent, guardian or custodian, or a person cohabiting with a parent,
guardian or custodian in the relationship of husband and wife, where such spouse
or other person shares actual physical possession or care and custody of a child
with the parent, guardian or custodian.
"Guardian" means a person who has care and
custody of a child as the result of any contract, agreement or legal proceeding.
"Bodily Injury" means substantial physical
pain, illness or any impairment of physical condition.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant,
______________________________ is not required to prove himself innocent. He is
presumed by the law to be innocent of this charge and this presumption remains
with him throughout the entire trial.
Before the Defendant, ______________________________ can
be convicted of Child Abuse By A (Parent) (Guardian) (Custodian) Resulting In
Bodily Injury the State of West Virginia must overcome the presumption that the
Defendant, ______________________________ is innocent and prove to the
satisfaction of the jury beyond a reasonable doubt that:
1.
The Defendant, ______________________________,
2.
in _______________ County, West Virginia,
3.
on or about the _____ day of _______________, 199__,
4.
being the (parent) (guardian) (custodian) of ______________________________, a
child,
5.
did abuse such child, and
6.
by such abuse caused ______________________________ bodily injury.
If after impartially considering, weighing and
comparing all the evidence, (both that of the State and that of the Defendant)
the jury and each member of the jury is convinced beyond a reasonable doubt of
the truth of the charge as to each of these elements of Child Abuse By A
(Parent) (Guardian) (Custodian) Resulting In Bodily Injury, you may find
______________________________ guilty of Child Abuse By A (Parent) (Guardian)
(Custodian) Resulting In Bodily Injury as charged in Count _____ of the
indictment. If the jury and each member of the jury has a reasonable doubt of
the truth of the charge as to any one or more of these elements of Child Abuse
By A (Parent) (Guardian) (Custodian) Resulting In Bodily Injury, you shall find
the Defendant ______________________________ not guilty.
COMMENT
CHILD ABUSE BY A PARENT, GUARDIAN, OR CUSTODIAN
RESULTING IN BODILY INJURY
1.
W.Va. Code §61-8D-3(a).
2.
W.Va. Code §61-8B-1. "Definitions."
3.
W.Va. Code §61-8D-1. "Definitions."
CHILD NEGLECT BY A PARENT, GUARDIAN, OR CUSTODIAN
RESULTING IN SERIOUS BODILY INJURY
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment in
this case is Child Neglect By A (Parent) (Guardian) (Custodian) Resulting In
Serious Bodily Injury. One of two verdicts may be returned by you under this
Count of the Indictment. They are: (1) guilty of Child Neglect By A (Parent)
(Guardian) (Custodian) Resulting In Serious Bodily Injury; and (2) not guilty.
Child Neglect By A (Parent) (Guardian) (Custodian)
Resulting In Serious Bodily Injury is committed when any parent, guardian or
custodian shall neglect a child and by such Neglect cause such child serious
bodily injury.
"Child" means any person under eighteen years
of age not otherwise emancipated by law.
"Neglect" means the infliction upon a minor of
physical injury by other than accidental means.
"Parent" means the biological father or mother
of a child, or the adoptive mother or father of a child.
"Custodian" means a person over the age of
fourteen years who has or shares actual physical possession or care and custody
of a child on a full-time or temporary basis, regardless of whether such person
has been granted custody of the child by any contract, agreement or legal
proceeding. "Custodian" shall also include, but not be limited to, the
spouse of a parent, guardian or custodian, or a person cohabiting with a parent,
guardian or custodian in the relationship of husband and wife, where such spouse
or other person shares actual physical possession or care and custody of a child
with the parent, guardian or custodian.
"Guardian" means a person who has care and
custody of a child as the result of any contract, agreement or legal proceeding.
"Bodily Injury" means substantial physical
pain, illness or any impairment of physical condition.
"Serious bodily injury" means bodily injury
which creates a substantial risk of death, which causes serious or prolonged
disfigurement, prolonged impairment of health, or prolonged loss or impairment
of the function of any bodily organ.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant,
______________________________ is not required to prove himself innocent. He is
presumed by the law to be innocent of this charge and this presumption remains
with him throughout the entire trial.
Before the Defendant, ______________________________ can
be convicted of Child Neglect By A (Parent) (Guardian) (Custodian) Resulting In
Serious Bodily Injury the State of West Virginia must overcome the presumption
that the Defendant, ______________________________ is innocent and prove to the
satisfaction of the jury beyond a reasonable doubt that:
1.
The Defendant, ______________________________,
2.
in _______________ County, West Virginia,
3.
on or about the _____ day of _______________, 199__,
4.
being the (parent) (guardian) (custodian) of ______________________________, a
child,
5.
did neglect such child, and
6.
by such neglect caused ______________________________ serious bodily injury.
If after impartially considering, weighing and
comparing all the evidence, (both that of the State and that of the Defendant)
the jury and each member of the jury is convinced beyond a reasonable doubt of
the truth of the charge as to each of these elements of Child Neglect By A
(Parent) (Guardian) (Custodian) Resulting In Serious Bodily Injury, you may find
______________________________ guilty of Child Neglect By A (Parent) (Guardian)
(Custodian) Resulting In Serious Bodily Injury as charged in Count _____ of the
indictment. If the jury and each member of the jury has a reasonable doubt of
the truth of the charge as to any one or more of these elements of Child Neglect
By A (Parent) (Guardian) (Custodian) Resulting In Serious Bodily Injury, you
shall find the Defendant ______________________________ not guilty.
COMMENT
CHILD NEGLECT BY A PARENT, GUARDIAN, OR CUSTODIAN
RESULTING IN SERIOUS BODILY INJURY
1.
W.Va. Code §61-8D-4(a).
2.
W.Va. Code §61-8B-1. "Definitions."
3.
W.Va. Code §61-8D-1. "Definitions."
4.
State v. DeBerry, 185 W.Va. 512, 408 S.E. 2d 91 (1991). There is no
criminal intent requirement under this statute. The State must prove
"neglect" as defined and that the "...neglect caused serious
bodily injury." Supra., p. 516.
CHILD NEGLECT BY A PARENT, GUARDIAN, OR CUSTODIAN
RESULTING IN BODILY INJURY
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment in
this case is Child Neglect By A (Parent) (Guardian) (Custodian) Resulting In
Bodily Injury. One of two verdicts may be returned by you under this Count of
the Indictment. They are: (1) guilty of Child Neglect By A (Parent) (Guardian)
(Custodian) Resulting In Bodily Injury; and (2) not guilty.
Child Neglect By A (Parent) (Guardian) (Custodian)
Resulting In Bodily Injury is committed when any parent, guardian or custodian
shall neglect a child and by such neglect cause such child bodily injury.
"Child" means any person under eighteen years
of age not otherwise emancipated by law.
"Neglect" means the unreasonable failure by a
parent, guardian or custodian or any person voluntarily accepting a supervisory
role towards a minor child to exercise a minimum degree of care to assure said
minor child's physical safety and health.
"Parent" means the biological father or mother
of a child, or the adoptive mother or father of a child.
"Custodian" means a person over the age of
fourteen years who has or shares actual physical possession or care and custody
of a child on a full-time or temporary basis, regardless of whether such person
has been granted custody of the child by any contract, agreement or legal
proceeding. "Custodian" shall also include, but not be limited to, the
spouse of a parent, guardian or custodian, or a person cohabiting with a parent,
guardian or custodian in the relationship of husband and wife, where such spouse
or other person shares actual physical possession or care and custody of a child
with the parent, guardian or custodian.
"Guardian" means a person who has care and
custody of a child as the result of any contract, agreement or legal proceeding.
"Bodily Injury" means substantial physical
pain, illness or any impairment of physical condition.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant,
______________________________ is not required to prove himself innocent. He is
presumed by the law to be innocent of this charge and this presumption remains
with him throughout the entire trial.
Before the Defendant, ______________________________ can
be convicted of Child Neglect By A (Parent) (Guardian) (Custodian) Resulting In
Bodily Injury the State of West Virginia must overcome the presumption that the
Defendant, ______________________________ is innocent and prove to the
satisfaction of the jury beyond a reasonable doubt that:
1.
The Defendant, ______________________________,
2.
in _______________ County, West Virginia,
3.
on or about the _____ day of _______________, 199__,
4.
being the (parent) (guardian) (custodian) of ______________________________, a
child,
5.
did neglect such child, and
6.
by such neglect caused ______________________________ bodily injury.
If after impartially considering, weighing and
comparing all the evidence, (both that of the State and that of the Defendant)
the jury and each member of the jury is convinced beyond a reasonable doubt of
the truth of the charge as to each of these elements of Child Neglect By A
(Parent) (Guardian) (Custodian) Resulting In Bodily Injury, you may find
______________________________ guilty of Child Neglect By A (Parent) (Guardian)
(Custodian) Resulting In Bodily Injury as charged in Count _____ of the
indictment. If the jury and each member of the jury has a reasonable doubt of
the truth of the charge as to any one or more of these elements of Child Neglect
By A (Parent) (Guardian) (Custodian) Resulting In Bodily Injury, you shall find
the Defendant ______________________________ not guilty.
COMMENT
CHILD NEGLECT BY A PARENT, GUARDIAN, OR CUSTODIAN
RESULTING IN BODILY INJURY
1.
W.Va. Code §61-8D-4(a).
2.
W.Va. Code §61-8B-1. "Definitions."
3.
W.Va. Code §61-8D-1. "Definitions."
4.
State v. DeBerry, 185 W.Va. 512, 408 S.E. 2d 91 (1991). There is no
criminal intent requirement under this statute. The State must prove
"neglect" as defined and that the "...neglect caused serious
bodily injury." Supra., p. 516.
SEXUAL ABUSE BY A PARENT, GUARDIAN,
OR CUSTODIAN OF A CHILD
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment in
this case is Sexual Abuse By A (Parent) (Guardian) (Custodian) Of A Child. One
of two verdicts may be returned by you under this Count of the Indictment. They
are: (1) guilty of Sexual Abuse By A (Parent) (Guardian) (Custodian) Of A Child;
and (2) not guilty.
Sexual Abuse By A (Parent) (Guardian) (Custodian) Of A
Child is committed when any parent, guardian or custodian of a child under his
or her care, custody or control engages in or attempts to engage in sexual
exploitation of, or in sexual intercourse, sexual intrusion or sexual contact
with a child under his or her care, custody or control, notwithstanding the fact
that the child may have willingly participated in such conduct, or the fact that
the child may have consented to such conduct or the fact that the child may have
suffered no apparent physical injury or mental or emotional injury as a result
of such conduct.
"Child" means any person under eighteen years
of age not otherwise emancipated by law.
"Parent" means the biological father or mother
of a child, or the adoptive mother or father of a child.
"Custodian" means a person over the age of
fourteen years who has or shares actual physical possession or care and custody
of a child on a full-time or temporary basis, regardless of whether such person
has been granted custody of the child by any contract, agreement or legal
proceeding. "Custodian" shall also include, but not be limited to, the
spouse of a parent, guardian or custodian, or a person cohabiting with a parent,
guardian or custodian in the relationship of husband and wife, where such spouse
or other person shares actual physical possession or care and custody of a child
with the parent, guardian or custodian.
"Guardian" means a person who has care and
custody of a child as the result of any contract, agreement or legal proceeding.
"Sexual intercourse" means any act between
persons not married to each other involving penetration, however slight, of the
female sex organ by the male sex organ or involving contact between the sex
organs of one person and the mouth or anus of another person.
"Sexual intrusion" means any act between
persons not married to each other involving penetration, however slight, of the
female sex organ or of the anus of any person by an object for the purpose of
degrading or humiliating the person so penetrated or for gratifying the sexual
desire of either party.
"Sexual contact" means any intentional
touching, either directly or through clothing, of the anus or any part of the
sex organs of another person, or the breasts of a female or intentional touching
of any part of another person's body by the actor's sex organs, where the victim
is not married to the actor and the touching is done for the purpose of
gratifying the sexual desire of either party.
"Sexual exploitation" means an act whereby (A)
a parent, custodian or guardian, whether for financial gain or not, persuades,
induces, entices or coerces a child to engage in "sexually explicit
conduct" which is defined as any of the following, whether actually
performed or simulated : genital to genital intercourse; fellatio; cunnilingus;
anal intercourse, oral to anal intercourse; bestiality; masturbation;
sadomasochistic abuse, including but not limited to flagellation, torture or
bondage; excretory functions in sexual contact; or exhibition of the genitals,
pubic or rectal areas of any person in a sexual context; or (B) A parent,
guardian or custodian persuades, induces, entices or coerces a child to display
his or her sex organs for the sexual gratification of the parent, guardian or
custodian, or a third person, or to display his or her sex organs under
circumstances in which the parent, guardian or custodian knows such display is
likely to be observed by others who would be affronted or alarmed.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant,
______________________________ is not required to prove himself innocent. He is
presumed by the law to be innocent of this charge and this presumption remains
with him throughout the entire trial.
Before the Defendant, ______________________________ can
be convicted of Sexual Abuse By A (Parent) (Guardian) (Custodian) Of A Child the
State of West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of the
jury beyond a reasonable doubt that:
1.
The Defendant, ______________________________,
2.
in _______________ County, West Virginia,
3.
on or about the _____ day of _______________, 199__,
4.
(did [engage] [attempt to engage] in sexual exploitation of
______________________________, a child)
(did [engage] [attempt to engage] in sexual intercourse with
______________________________, a child)
(did [engage] [attempt to engage] in sexual intrusion with
______________________________,
a child)
(did [engage] [attempt to engage] in sexual contact with
______________________________, a child),
5.
that the Defendant ______________________________ was then the (parent)
(guardian) (custodian) of said child,
6.
which child was under (his) (her) care, custody or control.
If after impartially considering, weighing and
comparing all the evidence, (both that of the State and that of the Defendant)
the jury and each member of the jury is convinced beyond a reasonable doubt of
the truth of the charge as to each of these elements of Sexual Abuse By A
(Parent) (Guardian) (Custodian) Of A Child, you may find
______________________________ guilty of Sexual Abuse By A (Parent) (Guardian)
(Custodian) Of A Child as charged in Count _____ of the indictment. If the jury
and each member of the jury has a reasonable doubt of the truth of the charge as
to any one or more of these elements of Sexual Abuse By A (Parent) (Guardian)
(Custodian) Of A Child, you shall find the Defendant
______________________________ not guilty.
COMMENT
SEXUAL ABUSE BY A PARENT,
GUARDIAN, OR CUSTODIAN
OF A CHILD
1.
W.Va. Code §61-8D-5(a).
2.
W.Va. Code §61-8B-1. "Definitions."
3.
W.Va. Code §61-8D-1. "Definitions."
4.
State v. George W. H., 439 S.E. 2d 423 (W.Va. 1993); State v. Rummer,
189 W.Va. 369, 432 S.E. 2d 39 (1993); State v. Gill, 187 W.Va. 136, 416
S.E. 2d 253 (1992).
PROCUREMENT BY A PARENT, GUARDIAN OR CUSTODIAN
OF ANOTHER PERSON TO SEXUALLY ABUSE
A CHILD LESS THAN SIXTEEN YEARS OF AGE
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment in
this case is Procurement By A (Parent) (Guardian) (Custodian) Of Another Person
To Sexually Abuse A Child Less Than Sixteen Years Of Age. One of two verdicts
may be returned by you under this Count of the Indictment. They are: (1) guilty
and (2) not guilty.
Procurement By A (Parent) (Guardian) (Custodian) Of
Another Person To Sexually Abuse A Child Less Than Sixteen Years Of Age is
committed when any parent, guardian or custodian knowingly procures another
person to engage in or attempt to engage in sexual exploitation of, or sexual
intercourse, sexual intrusion or sexual contact with a child under the care,
custody or control of said parent, guardian or custodian when said child is less
than sixteen years of age, notwithstanding the fact that the child may have
willingly participated in such conduct, or the fact that the child may have
consented to such conduct or the fact that the child may have suffered no
apparent physical injury or mental or emotional injury as a result of such
conduct.
"Child" means any person under eighteen years
of age not otherwise emancipated by law.
"Parent" means the biological father or mother
of a child, or the adoptive mother or father of a child.
"Custodian" means a person over the age of
fourteen years who has or shares actual physical possession or care and custody
of a child on a full-time or temporary basis, regardless of whether such person
has been granted custody of the child by any contract, agreement or legal
proceeding. "Custodian" shall also include, but not be limited to, the
spouse of a parent, guardian or custodian, or a person cohabiting with a parent,
guardian or custodian in the relationship of husband and wife, where such spouse
or other person shares actual physical possession or care and custody of a child
with the parent, guardian or custodian.
"Guardian" means a person who has care and
custody of a child as the result of any contract, agreement or legal proceeding.
"Sexual intercourse" means any act between
persons not married to each other involving penetration, however slight, of the
female sex organ by the male sex organ or involving contact between the sex
organs of one person and the mouth or anus of another person.
"Sexual intrusion" means any act between
persons not married to each other involving penetration, however slight, of the
female sex organ or of the anus of any person by an object for the purpose of
degrading or humiliating the person so penetrated or for gratifying the sexual
desire of either party.
"Sexual contact" means any intentional
touching, either directly or through clothing, of the anus or any part of the
sex organs of another person, or the breasts of a female or intentional touching
of any part of another person's body by the actor's sex organs, where the victim
is not married to the actor and the touching is done for the purpose of
gratifying the sexual desire of either party.
"Sexual exploitation" means an act whereby (A)
a parent, custodian or guardian, whether for financial gain or not, persuades,
induces, entices or coerces a child to engage in "sexually explicit
conduct" which is defined as any of the following, whether actually
performed or simulated : genital to genital intercourse; fellatio; cunnilingus;
anal intercourse, oral to anal intercourse; bestiality; masturbation;
sadomasochistic abuse, including but not limited to flagellation, torture or
bondage; excretory functions in sexual contact; or exhibition of the genitals,
pubic or rectal areas of any person in a sexual context; or (B) A parent,
guardian or custodian persuades, induces, entices or coerces a child to display
his or her sex organs for the sexual gratification of the parent, guardian or
custodian, or a third person, or to display his or her sex organs under
circumstances in which the parent, guardian or custodian knows such display is
likely to be observed by others who would be affronted or alarmed.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant,
______________________________ is not required to prove himself innocent. He is
presumed by the law to be innocent of this charge and this presumption remains
with him throughout the entire trial.
Before the Defendant, ______________________________ can
be convicted of Procurement By A (Parent) (Guardian) (Custodian) Of Another
Person To Sexually Abuse A Child Less Than Sixteen Years Of Age the State of
West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of the
jury beyond a reasonable doubt that:
1.
The Defendant, ______________________________,
2.
in _______________ County, West Virginia,
3.
on or about the _____ day of _______________, 199__,
4.
being the (parent) (guardian) (custodian) of ______________________________, a
child,
5.
which child was then less than sixteen years of age to-wit: age
________________________________,
6.
did knowingly procure ______________________________,
7.
(to [engage] [attempt to engage] in sexual exploitation of
______________________________, a child)
(to [engage] [attempt to engage] in sexual intercourse with
______________________________, a child)
(to [engage] [attempt to engage] in sexual intrusion with
______________________________, a child)
(to [engage] [attempt to engage] in sexual contact with
______________________________, a child),
8.
that the Defendant ______________________________ was then the (parent)
(guardian) (custodian) of said child,
9.
which child was then under the care, custody and control of the Defendant
______________________________.
If after impartially considering, weighing and
comparing all the evidence, (both that of the State and that of the Defendant)
the jury and each member of the jury is convinced beyond a reasonable doubt of
the truth of the charge as to each of these elements of Procurement By A
(Parent) (Guardian) (Custodian) Of Another Person To Sexually Abuse A Child Less
Than Sixteen Years Of Age, you may find ______________________________ guilty of
Procurement By A (Parent) (Guardian) (Custodian) Of Another Person To Sexually
Abuse A Child Less Than Sixteen Years Of Age as charged in Count _____ of the
indictment. If the jury and each member of the jury has a reasonable doubt of
the truth of the charge as to any one or more of these elements of Procurement
By A (Parent) (Guardian) (Custodian) Of Another Person To Sexually Abuse A Child
Less Than Sixteen Years Of Age, you shall find the Defendant
______________________________ not guilty.
COMMENT
PROCUREMENT BY A PARENT, GUARDIAN OR CUSTODIAN
OF ANOTHER PERSON TO SEXUALLY ABUSE
A CHILD LESS THAN SIXTEEN YEARS OF AGE
1.
W.Va. Code §61-8D-5(b).
2.
W.Va. Code §61-8B-1. "Definitions."
3.
W.Va. Code §61-8D-1. "Definitions."
4.
State v. George W. H., 439 S.E. 2d 423 (W.Va. 1993); State v. Rummer,
189 W.Va. 369, 432 S.E. 2d 39 (1993); State v. Gill, 187 W.Va. 136, 416
S.E. 2d 253 (1992).
PROCUREMENT BY A PARENT, GUARDIAN OR CUSTODIAN
OF ANOTHER PERSON TO SEXUALLY ABUSE
A CHILD SIXTEEN YEARS OF AGE OR OLDER
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment
in this case is Procurement By A (Parent) (Guardian) (Custodian) Of Another
Person To Sexually Abuse A Child Sixteen Years Of Age Or Older. One of two
verdicts may be returned by you under this Count of the Indictment. They are:
(1) guilty and (2) not guilty.
Procurement By A (Parent) (Guardian) (Custodian) Of
Another Person To Sexually Abuse A Child Sixteen Years Of Age Or Older is
committed when any parent, guardian or custodian knowingly procures another
person to engage in or attempt to engage in sexual exploitation of, or sexual
intercourse, sexual intrusion or sexual contact with a child under the care,
custody or control of said parent, guardian or custodian when said child is
sixteen years of age or older, notwithstanding the fact that the child may have
willingly participated in such conduct, or the fact that the child may have
consented to such conduct or the fact that the child may have suffered no
apparent physical injury or mental or emotional injury as a result of such
conduct.
"Child" means any person under eighteen years
of age or not otherwise emancipated by law.
"Parent" means the biological father or mother
of a child, or the adoptive mother or father of a child.
"Custodian" means a person over the age of
fourteen years who has or shares actual physical possession or care and custody
of a child on a full-time or temporary basis, regardless of whether such person
has been granted custody of the child by any contract, agreement or legal
proceeding. "Custodian" shall also include, but not be limited to, the
spouse of a parent, guardian or custodian, or a person cohabiting with a parent,
guardian or custodian in the relationship of husband and wife, where such spouse
or other person shares actual physical possession or care and custody of a child
with the parent, guardian or custodian.
"Guardian" means a person who has care and
custody of a child as the result of any contract, agreement or legal proceeding.
"Sexual intercourse" means any act between
persons not married to each other involving penetration, however slight, of the
female sex organ by the male sex organ or involving contact between the sex
organs of one person and the mouth or anus of another person.
"Sexual intrusion" means any act between
persons not married to each other involving penetration, however slight, of the
female sex organ or of the anus of any person by an object for the purpose of
degrading or humiliating the person so penetrated or for gratifying the sexual
desire of either party.
"Sexual contact" means any intentional
touching, either directly or through clothing, of the anus or any part of the
sex organs of another person, or the breasts of a female or intentional touching
of any part of another person's body by the actor's sex organs, where the victim
is not married to the actor and the touching is done for the purpose of
gratifying the sexual desire of either party.
"Sexual exploitation" means an act whereby (A)
a parent, custodian or guardian, whether for financial gain or not, persuades,
induces, entices or coerces a child to engage in "sexually explicit
conduct" which is defined as any of the following, whether actually
performed or simulated : genital to genital intercourse; fellatio; cunnilingus;
anal intercourse, oral to anal intercourse; bestiality; masturbation;
sadomasochistic abuse, including but not limited to flagellation, torture or
bondage; excretory functions in sexual contact; or exhibition of the genitals,
pubic or rectal areas of any person in a sexual context; or (B) A parent,
guardian or custodian persuades, induces, entices or coerces a child to display
his or her sex organs for the sexual gratification of the parent, guardian or
custodian, or a third person, or to display his or her sex organs under
circumstances in which the parent, guardian or custodian knows such display is
likely to be observed by others who would be affronted or alarmed.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant,
______________________________ is not required to prove himself innocent. He is
presumed by the law to be innocent of this charge and this presumption remains
with him throughout the entire trial.
Before the Defendant, ______________________________ can
be convicted of Procurement By A (Parent) (Guardian) (Custodian) Of Another
Person To Sexually Abuse A Child Sixteen Years Of Age Or Older the State of West
Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of the
jury beyond a reasonable doubt that:
1.
The Defendant, ______________________________,
2.
in _______________ County, West Virginia,
3.
on or about the _____ day of _______________, 199__,
4.
being the (parent) (guardian) (custodian) of ______________________________, a
child,
5.
which child was then sixteen years of age or older to-wit: age
________________________________,
6.
(to [engage] [attempt to engage] in sexual exploitation of
______________________________, a child)
(to [engage] [attempt to engage] in sexual intercourse with
______________________________, a child)
(to [engage] [attempt to engage] in sexual intrusion with
______________________________, a child)
(to [engage] [attempt to engage] in sexual contact with
______________________________,
a child),
7.
that the Defendant ______________________________ was then the (parent)
(guardian) (custodian) of said child,
8.
which child was then under the care, custody and control of the Defendant
______________________________.
If after impartially considering, weighing and
comparing all the evidence, (both that of the State and that of the Defendant)
the jury and each member of the jury is convinced beyond a reasonable doubt of
the truth of the charge as to each of these elements of Procurement By A
(Parent) (Guardian) (Custodian) Of Another Person To Sexually Abuse A Child
Sixteen Years Of Age Or Older, you may find ______________________________
guilty of Procurement By A (Parent) (Guardian) (Custodian) Of Another Person To
Sexually Abuse A Child Sixteen Years Of Age Or Older as charged in Count _____
of the indictment. If the jury and each member of the jury has a reasonable
doubt of the truth of the charge as to any one or more of these elements of
Procurement By A (Parent) (Guardian) (Custodian) Of Another Person To Sexually
Abuse A Child Sixteen Years Of Age Or Older, you shall find the Defendant
______________________________ not guilty.
COMMENT
PROCUREMENT BY A PARENT, GUARDIAN OR CUSTODIAN
OF ANOTHER PERSON TO SEXUALLY ABUSE
A CHILD SIXTEEN YEARS OF AGE OR OLDER
1.
W.Va. Code §61-8D-5(c).
2.
W.Va. Code §61-8B-1. "Definitions."
3.
W.Va. Code §61-8D-1. "Definitions."
4.
State v. George W. H., 439 S.E. 2d 423 (W.Va. 1993); State v. Rummer,
189 W.Va. 369, 432 S.E. 2d 39 (1993); State v. Gill, 187 W.Va. 136, 416
S.E. 2d 253 (1992).
SENDING, DISTRIBUTING, EXHIBITING, POSSESSING
DISPLAYING OR TRANSPORTING MATERIAL BY A PARENT
GUARDIAN OR CUSTODIAN DEPICTING A CHILD
ENGAGED IN SEXUALLY EXPLICIT CONDUCT
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment in
this case is (Sending) (Distributing) (Exhibiting) (Possession) (Displaying)
(Transporting) By A (Parent) (Guardian) (Custodian) Material Depicting A Child
Engaged In Sexually Explicit Conduct. One of two verdicts may be returned by you
under this Count of the Indictment. They are: (1) guilty and (2) not guilty.
(Sending) (Distributing) (Exhibiting) (Possession)
(Displaying) (Transporting) By A (Parent) (Guardian) (Custodian) Material
Depicting A Child Engaged In Sexually Explicit Conduct is committed when any
parent, guardian or custodian who, with knowledge, sends or causes to be sent,
or distributes, exhibits, possesses, displays or transports any material
visually portraying a child under his or her care, custody or control engaged in
any sexually explicit conduct.
"Child" means any person under eighteen years
of age or not otherwise emancipated by law.
"Parent" means the biological father or mother
of a child, or the adoptive mother or father of a child.
"Custodian" means a person over the age of
fourteen years who has or shares actual physical possession or care and custody
of a child on a full-time or temporary basis, regardless of whether such person
has been granted custody of the child by any contract, agreement or legal
proceeding. "Custodian" shall also include, but not be limited to, the
spouse of a parent, guardian or custodian, or a person cohabiting with a parent,
guardian or custodian in the relationship of husband and wife, where such spouse
or other person shares actual physical possession or care and custody of a child
with the parent, guardian or custodian.
"Guardian" means a person who has care and
custody of a child as the result of any contract, agreement or legal proceeding.
"Sexually explicit conduct" is defined as any
of the following, whether actually performed or simulated : genital to genital
intercourse; fellatio; cunnilingus; anal intercourse, oral to anal intercourse;
bestiality; masturbation; sadomasochistic abuse, including but not limited to
flagellation, torture or bondage; excretory functions in sexual contact; or
exhibition of the genitals, pubic or rectal areas of any person in a sexual
context; or (B) A parent, guardian or custodian persuades, induces, entices or
coerces a child to display his or her sex organs for the sexual gratification of
the parent, guardian or custodian, or a third person, or to display his or her
sex organs under circumstances in which the parent, guardian or custodian knows
such display is likely to be observed by others who would be affronted or
alarmed.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant,
______________________________ is not required to prove himself innocent. He is
presumed by the law to be innocent of this charge and this presumption remains
with him throughout the entire trial.
Before the Defendant, ______________________________ can
be convicted of (Sending) (Distributing) (Exhibiting) (Possession) (Displaying)
(Transporting) By A (Parent) (Guardian) (Custodian) Material Depicting A Child
Engaged In Sexually Explicit Conduct the State of West Virginia must overcome
the presumption that the Defendant, ______________________________ is innocent
and prove to the satisfaction of the jury beyond a reasonable doubt that:
1.
The Defendant, ______________________________,
2.
in _______________ County, West Virginia,
3.
on or about the _____ day of _______________, 199__,
4.
being the (parent) (guardian) (custodian) of ______________________________, a
child,
5.
did (send) (cause to be sent) (distribute) (exhibit) (possess) (display)
(transport),
6.
material which visually portrayed ____________________________ (his) (her)
child,
7.
engaged in sexually explicit conduct,
8.
and upon which date ______________________________ was under (his) (her) care,
custody and control.
If after impartially considering, weighing and
comparing all the evidence, (both that of the State and that of the Defendant)
the jury and each member of the jury is convinced beyond a reasonable doubt of
the truth of the charge as to each of these elements of (Sending) (Distributing)
(Exhibiting) (Possession) (Displaying) (Transporting) By A (Parent) (Guardian)
(Custodian) Material Depicting A Child Engaged In Sexually Explicit Conduct, you
may find ______________________________ guilty of (Sending) (Distributing)
(Exhibiting) (Possession) (Displaying) (Transporting) By A (Parent) (Guardian)
(Custodian) Material Depicting A Child Engaged In Sexually Explicit Conduct as
charged in Count _____ of the indictment. If the jury and each member of the
jury has a reasonable doubt of the truth of the charge as to any one or more of
these elements of (Sending) (Distributing) (Exhibiting) (Possession)
(Displaying) (Transporting) By A (Parent) (Guardian) (Custodian) Material
Depicting A Child Engaged In Sexually Explicit Conduct, you shall find the
Defendant ______________________________ not guilty.
COMMENT
SENDING, DISTRIBUTING, EXHIBITING, POSSESSING
DISPLAYING OR TRANSPORTING MATERIAL BY A PARENT
GUARDIAN OR CUSTODIAN DEPICTING A CHILD
ENGAGED IN SEXUALLY EXPLICIT CONDUCT
1.
W.Va. Code §61-8D-6.
2.
W.Va. Code §61-8C-1. "Definitions."
3.
W.Va. Code §61-8D-1. "Definitions."
FILMING OR PHOTOGRAPHING SEXUALLY EXPLICIT
CONDUCT OF A MINOR
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment in
this case is (Filming) (Photographing) Sexually Explicit Conduct Of A Minor. One
of two verdicts may be returned by you under this Count of the Indictment. They
are: (1) guilty and (2) not guilty.
(Filming) (Photographing) Sexually Explicit Conduct Of A
Minor is committed when any person causes or knowingly permits, uses, persuades,
induces, entices or cooerces a minor to do or assist in any sexually explicit
conduct when such person has knowledge that any such act is being (photographed)
(filmed); or who (photographs) (films) a minor engaging in any sexually explicit
conduct.
(a) "Minor" means any child under eighteen
years of age
(b) “Knowledge”
means knowing or having reasonable cause to know which warrants further
inspection or inquiry;
(c) “Sexually explicit conduct” includes any of the
following, whether actually performed or simulated:
(1) Genital to genital
intercourse
(2) Fellatio
(3)
Cunnilingus
(4)
anal intercourse
(5)
oral to anal intercourse
(6)
bestiality
(7)
masturbation
(8)
sadomasochistic abuse, including but not limited to flagellation, torture or
bondage
(9)
excretory functions in a sexual context or
(10)
exhibition of the genitals, pubic or rectal areas of any person in a sexual
context.
(d) “Person” means an
individual, partnership, firm, association, corporation or other legal entity.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant,
______________________________ is not required to prove himself innocent. He is
presumed by the law to be innocent of this charge and this presumption remains
with him throughout the entire trial.
Before the Defendant, ______________________________ can
be convicted of (Filming) (Photographing) Sexually Explicit Conduct Of A Minor
the State of West Virginia must overcome the presumption that the Defendant,
______________________________ is innocent and prove to the satisfaction of the
jury beyond a reasonable doubt that:
1.
The Defendant, ______________________________,
2.
in _______________ County, West Virginia,
3.
on or about the _____ day of _______________, 2____
4.
(Did knowingly [film] [photograh]
(Did knowingly [cause] [permit] [use] [persuade]
[induce] [entice] [coerce]
5.
A minor (to engage in) (to do) ( to assist in)
6.
Sexually explicit conduct
7.
(When the defendant has knowledge that any such act was being [photographed]
[filmed])
If after impartially considering, weighing and
comparing all the evidence, (both that of the State and that of the Defendant)
the jury and each member of the jury is convinced beyond a reasonable doubt of
the truth of the charge as to each of these elements of (Filming)
(Photographing) Sexually Explicit Conduct Of A Minor you may find
______________________________ guilty of (Filming) (Photographing) Sexually
Explicit Conduct Of A Minor as charged in Count _____ of the indictment. If the
jury and each member of the jury has a reasonable doubt of the truth of the
charge as to any one or more of these elements of (Filming) (Photographing)
Sexually Explicit Conduct Of A Minor, you shall find the Defendant
______________________________ not guilty.
COMMENT
(Filming) (Photographing) Sexually Explicit Conduct Of A Minor
1.
W.Va. Code §61-8C-2(a)
2.
W.Va. Code §61-8C-2(b)
(PARENTAL) (CUSTODIAN)
FILMING OR PHOTOGRAPHING SEXUALLY EXPLICIT
CONDUCT OF MINORS
______________ INSTRUCTION NO. ____
The offense charged in Count _____ of the Indictment in
this case is (Parental) (Custodian) (Filming) (Photographing) Sexually Explicit
Conduct Of A Minor. One of two verdicts may be returned by you under this Count
of the Indictment. They are: (1) guilty and (2) not guilty.
(Parental) (Custodian) (Filming) (Photographing)
Sexually Explicit Conduct Of A Minor is committed when any parent, legal
guardian or person having custody and control of a minor causes or knowingly
permits, uses, persuades, induces, entices or coerce such minor child to do or
assist in any sexually explicit conduct when such person has knowledge that any
such act is being (photographed) (filmed); or who (photographs) (films) such
minor child engaging in any sexually explicit conduct.
(a) "Minor" means any child under eighteen
years of age.
(b) “Knowledge”
means knowing or having reasonable cause to know which warrants further
inspection or inquiry;
(c) “Sexually explicit conduct” includes any of the
following whether actually performed or simulated:
(1) Genital to genital
intercourse
(2) Fellatio
(3)
Cunnilingus
(4)
anal intercourse
(5)
oral to anal intercourse
(6)
bestiality
(7)
masturbation
(8)
sadomasochistic abuse, including but not limited to flagellation, torture or
bondage
(9)
excretory functions in a sexual context or
(10)
exhibition of the genitals, pubic or rectal areas of any person in a sexual
context.
(d) “Person” means an
individual, partnership, firm, association, corporation or other legal entity.
The burden is on the State to prove the guilt of the
Defendant beyond a reasonable doubt and the Defendant,
______________________________ is not required to prove himself innocent. He is
presumed by the law to be innocent of this charge and this presumption remains
with him throughout the entire trial.
Before the Defendant, ______________________________ can
be convicted of (Parental) (Custodian) (Filming) (Photographing) Sexually
Explicit Conduct Of A Minor the State of West Virginia must overcome the
presumption that the Defendant, ______________________________ is innocent and
prove to the satisfaction of the jury beyond a reasonable doubt that:
1.
The Defendant, ______________________________,
2.
in _______________ County, West Virginia,
3.
on or about the _____ day of _______________, 2____
4.
(Did knowingly [film] [photograph]
(Did knowingly [cause] [permit] [use] [persuade]
[induce] [entice] [coerce]
5.
A minor child (to engage in) (to do) ( to assist in)
6.
Sexually explicit conduct
7.
(When the defendant has knowledge that any such act was being [photographed]
[filmed])
8.
And the Defendant ____________________ was the (parent) (legal guardian)
(person having custody and control) of such minor child.
If after impartially considering, weighing and
comparing all the evidence, (both that of the State and that of the Defendant)
the jury and each member of the jury is convinced beyond a reasonable doubt of
the truth of the charge as to each of these elements of (Parental) (Custodian)
(Filming) (Photographing) Sexually Explicit Conduct Of A Minor you may find
______________________________ guilty of (Parental) (Custodian) (Filming)
(Photographing) Sexually Explicit Conduct Of A Minor as charged in Count _____
of the indictment. If the jury and each member of the jury has a reasonable
doubt of the truth of the charge as to any one or more of these elements of
(Parental) (Custodian) (Filming) (Photographing) Sexually Explicit Conduct Of A
Minor, you shall find the Defendant ______________________________ not guilty.
COMMENT
(Parental) (Custodian) (Filming) (Photographing)
Sexually Explicit Conduct Of A Minor
1.
W.Va. Code §61-8C-2(c)