T.P.I. 10.15 (a)

PUBLIC INDECENCY:   SUPPLEMENT INSTRUCTION NO. 1

Members of the Jury, you have determined that the defendant is guilty of public

 indecency as charged in Count I of the indictment.

It will now be your duty to determine:

1.                  Whether or not the defendant is eighteen (18) years of age or older, and

2.                  Whether or not the victim is under thirteen (13) years of age, and

3.                  Whether or not this is the defendant’s third or subsequent conviction for public indecency.

            The statutory law of this state provides that when a person is convicted of a third or subsequent offense of public indecency and further that the victim is less than thirteen years of age, then the punishment is enhanced or increased.

            You will first determine whether or not the defendant has two or more previous convictions of public indecency beyond a reasonable doubt.  You shall then determine

whether or not the defendant is at least eighteen (18) years of age and the victim less than thirteen (13) years of age beyond a reasonable doubt.  If you so find, you may fix a fine within the instructed limits if you feel a fine is warranted.  Your verdict on each of these matters must be unanimous; each juror must agree to any verdict.

            Any record of prior convictions of the defendant is evidence which you may consider.  A judgment of conviction of any person under the same name as that of the defendant may create an inference that the identity of such person is the same as the defendant.  However, the jury is not required to make this inference.  It is the exclusive province of the jury to determine whether the facts and circumstances shown by all the evidence in the case warrant which the law permits the jury to draw.¹

            If you find beyond a reasonable doubt that the conviction as set out in your previous verdict is a third or subsequent conviction, and further that the defendant is at least eighteen (18) years of age and the victim less than thirteen (13) years of age, your verdict shall so state and the court will impose a sentence as provided by law.  You may, however, if in your opinion a fine is warranted, assess a fine in an amount not exceeding Three Thousand Dollars ($3,000.00).²

            If, however, you find that this is not the defendant’s third or subsequent conviction of public indecency or that the defendant is not at least eighteen (18) years of age, or that the victim is not less than thirteen (13) years of age, then your verdict shall be not guilty as to this count.

            You will take with you the indictment and the court’s previous written instructions.  You shall follow such previous instructions as to the law of consideration of evidence, deliberations, reasonable doubt, witnesses and any other relevant matters.

You may now retire to consider your verdict.

FOOTNOTES