Proposed Jury Instructions  for Intimidation/Retaliation
Against Public Officials 

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 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 Intimidation Of A (Public Official) (Public Employee) (Juror) (Witness), 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 (use) (threaten) (attempt to use)
5.     (Intimidation) (physical force) (harassment) (fraudulent legal process) ( fraudulent legal proceeding)
6.     With the intent to: ([impede] [obstruct] [a public official] [public employees] from performing his or her official duties); ([impede] [obstruct] [ a juror] [a witness] from performing his or her official duties in an official proceeding); ([influence] [delay] [prevent] the testimony of any person in an official proceeding); ([cause] [induce] a person to [withhold testimony] [withhold a record, document or other object from an official procedding]; ([alter] [destroy] [mutilate] [conceal] a [record] [document] [object] [impairing its integrity] [evade an official proceeding summoning a person to appear as a witness or produce a record, document or other object for an official proceeding] [be absent from an official proceeding to which such person has been summoned])
    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 Intimidation Of A (Public Official) (Public Employee) (Juror) (Witness) , 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 Intimidation Of A (Public Official) (Public Employee) (Juror) (Witness) as charged in the indictment you shall find the Defendant not guilty.

1.     W.Va. Code, §61-5-27

    The offense charged in Count _____ of the Indictment in this case is Retaliation Against A (Public Official) (Public Employee) (Juror) (Witness). One of two verdicts may be returned by you under the offense charged in the indictment. They are: (1) guilty of Retaliation Against A (Public Official) (Public Employee) (Juror) (Witness) and (2) not guilty.
    Retaliation Against A (Public Official) (Public Employee) (Juror) (Witness) is committed when any person causes injury or loss to a person or property or threatens or attempts to cause injury or loss to a person or property with the intent to retaliate against a ( (Public Official) (public employee) for the performance or nonperformance of an official duty; or with the intent to retaliate against a juror or witness for performing his or her official duties in an official proceeding; or with the intent to retaliate against any other person for attending, testifying or participating in an official proceeding, or for the production of any records, document or other object produced by a person in an official proceeding.
(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 Retaliation Against A (Public Official) (Public Employee) (Juror) (Witness), 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 (cause injury or loss to a person or property) (threaten or attempt to cause injury or loss to a person or property)
5.      With the intent to retaliate against a ([public official] [public employee]) (for the performance or non-performance of an official duty) ([juror] [witness] for performing his or her official duties in an official proceeding) ([person for] [attending] [testifying] [participating] [in an official proceeding] [production of any record, document or other object produced by that person in an 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 Retaliation Against A (Public Official) (Public Employee) (Juror) (Witness), 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 Retaliation Against A (Public Official) (Public Employee) (Juror) (Witness) as charged in the indictment you shall find the Defendant not guilty.