• 2002 - Dangerous Special Offender (Bifurcated Trial)
  • K-5.46
    • Convictions
    • Special Offender
    • Closing Instructions
    • Closing Instructions

  • The Defendant has been found guilty of _________________. A dangerous special offender is a person who

     

    [1) is a dangerous, mentally abnormal person whose conduct has been characterized by persistent aggressive behavior, and the behavior makes the offender a serious danger to other persons]; or

     

    [2) is a professional criminal who has substantial income or resources derived from criminal activity]; or

     

    [3) was convicted of an offense that seriously endangered the life of another person, and the offender had previously been convicted of a similar offense]; or

     

    [4) used a firearm, dangerous weapon, or destructive device in the commission of the offense or during the flight from the scene of the offense].

     

    ESSENTIAL ELEMENTS

     

    The State's burden is satisfied if the evidence shows, beyond a reasonable doubt, one or more of the following:

     

    [1) The defendant is a dangerous, mentally abnormal person whose conduct has been characterized by persistent aggressive behavior, and the behavior makes the offender a serious danger to other persons];

     

    [2) The defendant is a professional criminal who has a substantial income or resources derived from criminal activity];

     

    [3) The defendant was convicted of an offense that seriously endangered the life of another person, and the offender had previously been convicted of a similar offense];

     

    [4) The defendant used a firearm, dangerous weapon, or destructive device in the commission of the offense or during the flight from the scene of the offense].

     

    DEFINITIONS

     

    “Substantial income or resources”: Substantial income is income which for any period of one year or more exceeds $ ________ and which for the same period exceeds fifty 2003 NDJI-CRIMINAL K- 5.46 percent of the offender's declared adjusted gross income for North Dakota income tax purposes. Income or resources may be considered substantial if it is proven that the Defendant has had control of income or property not explained as derived from a source other than criminal activity. [Insert relevant definitions. 12.1-01-04.]

     

    *****

    • 12.1-32-09
    • State v. Clark, 2000 ND 9, 621 NW2d 576
  • Notes: If the notice specifying that the Defendant is a dangerous offender only alleges that the Defendant used a firearm, dangerous weapon, or destructive device in the commission of the offense or during the flight from the scene of the offense, the Jury may make a special finding of proof of this allegation without an additional hearing subsequent to a verdict or finding of guilt. NDCC 12.1-32-09(4)(a). The calculation necessary for the definition of “substantial source of income” is the minimum wage, determined on the basis of a forty-hour week and a fifty-week year without reference to exceptions, under section 6(a)(1) of the Fair Labor Standards Act of 1938, as amended, for an employee engaged in commerce or in the production of goods for commerce.