Proposed Jury Instructions  for Fraudulent
 Proceedings, Filings and Service

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).

    The offense charged in Count _____ of the Indictment in this case is Second Offense Engaging In Fraudulent Official Proceedings. One of two verdicts may be returned by you under the offense charged in the indictment. They are: (1) guilty of Second Offense Engaging In Fraudulent Official Proceedings and (2) not guilty.
    Second Offense Engaging In Fraudulent Official Proceedings is committed when any person knowingly engages in a fraudulent official proceeding or legal process having previously been convicted of Engaging In Fraudulent Official Proceedings.
(a)     Definitions - As used in this instruction:
     (1)      “Fraudulent” means not legally issued or sanctioned under the laws of this state or of the United States, including forged, false and materially misstated.
     (2)      “Legal Process” means an action, appeal, document instrument or other writing issued, filed or recorded to pursue a claim against person or property, exercise jurisdiction, enforce a judgment, fine a person, put a lien on property, authorize a search and seizure, arrest a person, incarcerate a person or direct a person to appear, perform or refrain from performing a specified act. “Legal process” includes, but is not limited to, a complaint, decree, demand, indictment, injunction, judgment, lien, motion, notice, order, petition, pleading, sentence, subpoena, summons, warrant or writ:
     (3)      Official Proceeding” means a proceeding involving a legal process or other process of a tribunal of this state or of the United States.
     (4)      “Person” means an individual, group, association, corporation or any other entity;
     (5)      “Public Official or employee” means an elected or appointed official or employee of a state or federal court, commission, department, agency, political subdivision or any governmental instrumentality
     (6)      “Recorder” means a clerk or other employee in charge of recording instruments in a court, commission or other tribunal of this state or of the United States;
     (7)      Tribunal” means a court or other judicial or quasi-judicial entity or an administrative, legislative or executive body or that of a political subdivision, created or authorized under the constitution or laws of this state or of the United States.
    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 law to be innocent of this charge and this presumption remains with him throughout the entire trial. Before the Defendant can be convicted of Second Offense Engaging In Fraudulent Official Proceedings, the State of West Virginia must overcome the presumption that he 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 engage in a (fraudulent official proceeding) (legal process)
5.      Having previously been convicted of Engaging In A Fraudulent (official proceeding) (legal process)
    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 the crime of Second Offense Engaging In Fraudulent Official Proceedings, you may find the Defendant guilty as charged in 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 the crime of Second Offense Engaging In Fraudulent Official Proceedings as charged in the indictment you shall find the Defendant not guilty.

4.      Did knowingly cause a public official or employee
5.      To file, record or deliver
6.      A fraudulent (claim of indebtedness) (common law lien) (other lien) (financial statement) (complaint) (summons) (judgment) (warrant) (legal process)
7.      (Including those issued as the result of a fraudulent official proceeding)
    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 the crime of Fraudulent Filings, you may find the Defendant guilty as charged in 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 the crime of Fraudulent Filings as charged in the indictment you shall find the Defendant not guilty.

    The offense charged in Count _____ of the Indictment in this case is Second Offense Fraudulent Filings. One of three verdicts may be returned by you under the offense charged in the indictment. They are: (1) guilty of Second Offense Fraudulent Filings; (2) guilty of Fraudulent Filings and (3) not guilty.
    Second Offense Fraudulent Filings is committed when any person knowingly causes a public official or employee to file, record or deliver a fraudulent claim of indebtedness, common law lien or other lien, financial statement, complaint, summons, judgment, warrant or other legal process including those issued as the result of a fraudulent official proceeding having previously been convicted of Fraudulent Filings.
    Fraudulent Filings is committed when any person knowingly causes a public official or employee to file, record or deliver a fraudulent claim of indebtedness, common law lien or other lien, financial statement, complaint, summons, judgment, warrant or other legal process including those issued as the result of a fraudulent official proceeding.
(a)     Definitions - As used in this instruction:
     a.      “Fraudulent” means not legally issued or sanctioned under the laws of this state or of the United States, including forged, false and materially misstated.
     b.      “Legal Process” means an action, appeal, document instrument or other writing issued, filed or recorded to pursue a claim against person or property, exercise jurisdiction, enforce a judgment, fine a person, put a lien on property, authorize a search and seizure, arrest a person, incarcerate a person or direct a person to appear, perform or refrain from performing a specified act. “Legal process” includes, but is not limited to, a complaint, decree, demand, indictment, injunction, judgment, lien, motion, notice, order, petition, pleading, sentence, subpoena, summons, warrant or writ:
     c.      Official Proceeding” means a proceeding involving a legal process or other process of a tribunal of this state or of the United States.
     d.      “Person” means an individual, group, association, corporation or any other entity;
     e.      “Public Official or employee” means an elected or appointed official or employee of a state or federal court, commission, department, agency, political subdivision or any governmental instrumentality
     f.      “Recorder” means a clerk or other employee in charge of recording instruments in a court, commission or other tribunal of this state or of the United States;
     g.      Tribunal” means a court or other judicial or quasi-judicial entity or an administrative, legislative or executive body or that of a political subdivision, created or authorized under the constitution or laws of this state or of the United States.
    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 law to be innocent of this charge and this presumption remains with him throughout the entire trial.

    Before the Defendant can be convicted of Second Offense Fraudulent Filings, the State of West Virginia must overcome the presumption that he 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 cause a public official or employee
5.      To file, record or deliver
6.      A fraudulent (claim of indebtedness) (common law lien) (other lien) (financial statement) (complaint) (summons) (judgment) (warrant) (legal process)
7.      (Including those issued as the result of a fraudulent official proceeding)
8.      Having previously been convicted of Fraudulent Filings.
    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 the crime of Second Offense Fraudulent Filings, you may find the Defendant guilty of Second Offense Fraudulent Filings as charged in 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 the crime of Second Offense Fraudulent Filings as charged in the indictment you shall find the Defendant not guilty of Second Offense Fraudulent Filings, (and deliberate on the lesser included offense of Fraudulent Filings as hereinafter instructed)..
    Before the Defendant can be convicted of Fraudulent Filings, the State of West Virginia must overcome the presumption that he 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 cause a public official or employee
5.      To file, record or deliver
6.      A fraudulent (claim of indebtedness) (common law lien) (other lien) (financial statement) (complaint) (summons) (judgment) (warrant) (legal process)
7.      (Including those issued as the result of a fraudulent official proceeding)
    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 the crime of Fraudulent Filings, you may find the Defendant guilty as charged in 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 the crime of Fraudulent Filings as charged in the indictment you shall find the Defendant not guilty

4.      Did knowingly serve a public official or employee
5.      With a fraudulent (claim of indebtedness) (common law lien) (other lien) (financial statement) (complaint) (summons) (judgment) (warrant) (legal process)
6.      (Including those issued as the result of a fraudulent official proceeding)
    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 the crime of Fraudulent Service, you may find the Defendant guilty as charged in 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 the crime of as charged in the indictment you shall find the Defendant not guilty.

    The offense charged in Count _____ of the Indictment in this case is Second Offense Fraudulent Service. One of two verdicts may be returned by you under the offense charged in the indictment. They are: (1) guilty of Second Offense Fraudulent Service and (2) not guilty.
    Second Offense Fraudulent Service is committed when any person knowingly serves a public official or employee with a fraudulent claim of indebtedness, common law lien or other lien, financial statement, complaint, summons, judgment or other legal process, including those issued as a result of a fraudulent official proceedings having previously been convicted of Fraudulent Service.
(a)     Definitions - As used in this instruction:
     a.      “Fraudulent” means not legally issued or sanctioned under the laws of this state or of the United States, including forged, false and materially misstated.
     b.      “Legal Process” means an action, appeal, document instrument or other writing issued, filed or recorded to pursue a claim against person or property, exercise jurisdiction, enforce a judgment, fine a person, put a lien on property, authorize a search and seizure, arrest a person, incarcerate a person or direct a person to appear, perform or refrain from performing a specified act. “Legal process” includes, but is not limited to, a complaint, decree, demand, indictment, injunction, judgment, lien, motion, notice, order, petition, pleading, sentence, subpoena, summons, warrant or writ:
     c.      Official Proceeding” means a proceeding involving a legal process or other process of a tribunal of this state or of the United States.
     d.      “Person” means an individual, group, association, corporation or any other entity;
     e.      “Public Official or employee” means an elected or appointed official or employee of a state or federal court, commission, department, agency, political subdivision or any governmental instrumentality
     f.      “Recorder” means a clerk or other employee in charge of recording instruments in a court, commission or other tribunal of this state or of the United States;
     g.      Tribunal” means a court or other judicial or quasi-judicial entity or an administrative, legislative or executive body or that of a political subdivision, created or authorized under the constitution or laws of this state or of the United States.
    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 law to be innocent of this charge and this presumption remains with him throughout the entire trial.
    Before the Defendant can be convicted of Second Offense Fraudulent Service, the State of West Virginia must overcome the presumption that he 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 serve a public official or employee
5.      With a fraudulent (claim of indebtedness) (common law lien) (other lien) (financial statement) (complaint) (summons) (judgment) (warrant) (legal process)
6.      (Including those issued as the result of a fraudulent official proceeding)
7.      Having previously been convicted of Fraudulent Service.
    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 the crime of Second Offense Fraudulent Service, you may find the Defendant guilty as charged in 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 the crime of Second Offense Fraudulent Service as charged in the indictment you shall find the Defendant not guilty.

1.    W.Va. Code, §61-5-27a.
2.    W.Va. Code, §61-5-27a, "Definition of Terms".

    Before the Defendant can be convicted of Second Offense Fraudulent Service, the State of West Virginia must overcome the presumption that he 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 serve a public official or employee
5.      With a fraudulent (claim of indebtedness) (common law lien) (other lien) (financial statement) (complaint) (summons) (judgment) (warrant) (legal process)
6.      (Including those issued as the result of a fraudulent official proceeding)
7.      Having previously been convicted of Fraudulent Service.
    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 the crime of Second Offense Fraudulent Service, you may find the Defendant guilty as charged in 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 the crime of Second Offense Fraudulent Service as charged in the indictment you shall find the Defendant not guilty of Second Offense Fraudulent Service (and deliberate on the lesser included offense of Fraudulent Services as hereinafter instructed).
    Before the Defendant can be convicted of Fraudulent Service, the State of West Virginia must overcome the presumption that he 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 serve a public official or employee
5.      With a fraudulent (claim of indebtedness) (common law lien) (other lien) (financial statement) (complaint) (summons) (judgment) (warrant) (legal process)
6.      (Including those issued as the result of a fraudulent official proceeding)
.    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 the crime of Fraudulent Service, you may find the Defendant guilty as charged in 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 the crime of Fraudulent Service as charged in the indictment you shall find the Defendant not guilty