404.02 THE PRINCIPAL OFFENSE:  GENERAL RULES
(As to Count      , if) (If) you find and believe from the evidence beyond a reasonable doubt:
First, that (on) (on or about) [date], in the State of Missouri, the defendant [Insert name of particular defendant here and elsewhere in the instruction where others are on trial.] [Continue by submitting first essential element of the offense.], and 
Second, that [Continue in this and other paragraphs to submit all other essential elements of the offense.], (and)
(Third, that [Continue in this and other paragraphs as directed in Notes on Use 10 and 11.],)
then you will find the defendant guilty (under Count      ) of [name of offense] (unless you find and believe that it is more probably true than not true that the defendant is not guilty by reason of Instruction No.             [This would refer only to an affirmative defense as to which by statute the defendant bears the burden of persuasion.]) (unless you find and believe from the greater weight of the evidence that the defendant is not guilty by reason of a mental disease or defect excluding responsibility as submitted in Instruction No.            .)
(However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.)
[The court's instruction covering an infraction that is submitted to the jury as a lesser included offense or a lesser degree offense under Section 556.046, RSMo 2016, will be a verdict form without a punishment range.  If the infraction is not being submitted to the jury as a lesser included offense or a lesser degree offense, an infraction should not be submitted to the jury.  See Notes on Use 2 to MAI-CR 4th 423.60 on Trespass in the Second Degree:  Lesser Included Offense.]

Notes on Use
	1.	This is a revision of MAI-CR 4th 404.02 (7-1-19).  This revision is to the Notes on Use only.
	2.	When there is an appropriate verdict directing instruction in the MAI-CR 4th 414.00 Series through the 432.00 Series, that verdict directing instruction should be used.  If no such verdict directing instruction exists, or if a verdict directing instruction needs modification, this form, with appropriate modifications, must be followed.  When defendant's responsibility is based on the conduct of another person, see MAI-CR 4th 404.04.  If the offense involves an attempt to commit an offense, see MAI-CR 4th 404.06; if it is a conspiracy, see MAI-CR 4th 404.08; and if it is a hate offense, see MAI-CR 4th 404.10.
	3.	Introductory Paragraph
(a) If only one verdict directing instruction is being submitted, the introductory paragraph will read:
If you find and believe from the evidence beyond a reasonable doubt:
(b) For each lesser graded or lesser included verdict directing instruction, the introductory paragraphs will read:

If you do not find the defendant guilty of [name of offense from immediately higher verdict director] as submitted in Instruction No.            , you must consider whether he is guilty of [name of offense from the lesser verdict director] under this instruction.
If you find and believe from the evidence beyond a reasonable doubt:
Example:  If the defendant is charged with burglary in the first degree and the court determines that it also needs to submit burglary in the second degree, the introductory paragraphs for the burglary in the second degree instruction will be:
If you do not find the defendant guilty of burglary in the first degree as submitted in Instruction No.            , you must consider whether he is guilty of burglary in the second degree under this instruction. 
If you find and believe from the evidence beyond a reasonable doubt:
(c) For each verdict directing instruction that is an alternative to another verdict directing instruction submitting the same offense in the same degree under the same count, the introductory paragraphs will read:
If you do not find the defendant guilty of [name of offense from verdict director] under Instruction No.            , you must consider whether he is guilty of [name of offense from verdict director] under this instruction.
If you find and believe from the evidence beyond a reasonable doubt:
Example: If the defendant is charged with official misconduct by collecting taxes when none were due and with official misconduct by discriminating against an employee, the introductory paragraphs for the second verdict directing instruction will read:
If you do not find the defendant guilty of official misconduct in the second degree as submitted in Instruction No.            , you must consider whether he is guilty of official misconduct in the second degree under this instruction.
If you find and believe from the evidence beyond a reasonable doubt:
(d) If verdict directing instructions are submitted on two or more counts, the paragraph that reads:
If you find and believe from the evidence
beyond a reasonable doubt:
should instead read:
As to Count      , if you find and believe from the evidence beyond a reasonable doubt:
(e) If, in a verdict directing instruction form, the words "As to Count       " appear, and the case is submitted on two or more counts, those words shall be used and included in the instruction.
(f) If one or more of the above directions would not be appropriate for the introductory paragraph(s), then the user shall draft an appropriate introductory paragraph(s).
	4.	Identifying the Victim
Section 595.226, RSMo 2016, provides that no identifying information of the victim should be released for "an offense under chapter 566 or a victim of domestic assault or stalking."  Identifying information includes: name, home or temporary address, telephone number, social security number, place of employment, or physical characteristics.  Consistent with this statutory directive, the victim should be identified by means other than the victim's name, such as initials, for offenses under chapter 566, and for victims of domestic assault or stalking.
	5.	Time
The first paragraph of the verdict directing instruction generally refers to the time of the offense.  This is usually accomplished by saying that the offense occurred "on" or "on or about" a specific date.  The words "on or about" as the court has said "do not put the time at large, but indicate that it is stated with approximate certainty . . . .  [T]he phrase is used in reciting the date of an occurrence to escape the necessity of being bound by an exact date and means 'approximately,' 'about,' 'without substantial variance from,' 'near.'"  State v. Armstead, 283 S.W.2d 577, 582 (Mo. 1955).
It may be necessary to specify the time of the offense.  The following situations should be considered:
(a) Statute of Limitations.  A statute of limitations defense may be available if the offense occurred on one specific date, but not if the exact date is not specified.  In such a situation, upon request of the defendant, a specific date should be established in the instruction.
(b) Alibi.  Time may be of importance when the defense of alibi is relied upon.  The alibi defense, and evidence in support thereof, raises an issue that would make time of decisive importance even though the offense charged may not be of such nature as to make time of the essence.  State v. Graves, 588 S.W.2d 495, 497 (Mo. banc 1979).  See also State v. White, 621 S.W.2d 287, 295-296 (Mo. 1981), and State v. Sager, 600 S.W.2d 541, 573-575 (Mo. App. 1980).  In such a situation, upon request of the defendant, the time should be shown as "at about [time of day or night] on" a specific date, or "between the hours of [time of day or night] on" a specific date.
(c) Multiple Offenses - Same Victim, Short Period of Time.  If the defendant is charged with more than one offense involving the same victim on the same day, the time should be shown on each instruction as "at about [time of day or night] on" or "between the hours of [time of day or night] on" a specific date.
Certain offenses and circumstances may allow the state to use a less definite time period.  In State v. Walker, 208 S.W.2d 233 (Mo. 1948), involving a sex offense, an instruction specifying the time as "on or about the       day of December, 1945" was approved.  An instruction in a sodomy case involving a 12 year old girl that established the time as "the month of February" was upheld in State v. Siems, 535 S.W.2d 261 (Mo. App. 1976).  In "multiple acts" cases where the offense is alleged to have occurred during a period of time, the verdict director(s) must be drafted to ensure unanimity.  See State v. Celis-Garcia, 344 S.W. 3d 150, 159 (Mo. banc 2011).  See Notes on Use 7.
If it is impossible to fix the occasion of the offense by time or date, the instruction should be modified by the court to identify the occurrence by some other reference.
	6.	Place of Offense
The place of the offense may become of "decisive importance" under certain circumstances, such as (a) when evidence of alibi is introduced, or (b) when an issue of venue arises, or (c) where the defendant may have committed several separate offenses against the same victim at the same general location within a short space of time.
In such a situation, upon request of the defendant or on the court's own motion, the place should be more definitely identified, such as "the front bedroom on the second floor," "the southeast corner of the basement," etc.  In "multiple acts" cases, the specific place where a criminal act occurred might be necessary to ensure juror unanimity.  See Notes on Use 7.

	7.	Verdict Unanimity in Multiple Acts Cases
A "multiple acts" case arises when evidence is introduced of at least two distinct criminal acts, each of which could serve as the basis for a finding of guilt, but the defendant is charged with only one offense in a single count.  Multiple acts cases create a real possibility of a unanimous verdict problem.  The issue can be avoided by charging each distinct criminal act in a separate count.  See MACH-CR 2d 2.00, "I. Joinder of Offenses" (discussing "duplicitous" charges) and "O. Time of the Offense" (discussing ways to differentiate multiple similar offenses).
A criminal defendant has a constitutional right to a unanimous verdict, that is, a verdict in which all twelve jurors agree that the defendant is guilty of the same criminal conduct beyond a reasonable doubt.  A verdict-directing instruction that does not assure a unanimous verdict constitutes plain error.  Celis-Garcia, 344 S.W.3d at 159; State v. Pope, 733 S.W.2d 811 (Mo. App. 1987).  
In a multiple-acts case, specificity must be added to the verdict director(s) to assure unanimity relative to a particular act or event.  See Celis-Garcia, 344 S.W.3d at 158-59; Notes on Use 5(c) as to time and 6 as to place of offense.  
Unanimity issues can arise in various contexts.  For example, in Celis-Garcia, as to each of two child victims, the defendant was charged with committing one count of statutory sodomy based on hand-to-genital contact over a period of time.  Although the victims' testimony indicated that hand-to-genital contact had occurred during that time period in various locations, the verdict directors did not specify the location where the hand-to-genital contact occurred.  Accordingly, the Court found that the verdict directors violated the defendant's right to a unanimous verdict.
Unanimity concerns may also arise in cases with specific time frames.  In an early unanimity case, State v. Washington, 146 S.W. 1164 (Mo. 1912), the defendant was charged with setting up and keeping gambling devices.  He was charged in only one count, but the evidence revealed both a craps and a poker table.  The verdict director did not specify a particular gambling device.  The case was reversed because the court could not be assured of a unanimous verdict.
The key to ensuring juror unanimity in a multiple-acts case is a verdict director that requires a finding by the jury that encompasses the same criminal conduct and the same singular event.  Such a finding can be accomplished in two ways:
1.	The state elects one particular criminal act on which it will rely to support the charge and that particular criminal act is submitted for consideration in the verdict director; or
	2. 	The state elects to submit multiple criminal acts for the jury's consideration in alternative verdict directors.  If the state elects to submit multiple criminal acts, a separate verdict director must be submitted for each particular criminal act supported by the evidence, and an instruction based on MAI-CR 4th 404.16 shall be given immediately preceding the first verdict director of the series.
	Thus, for example, in a child molestation case, if there were two distinct acts of hand-to-genital contact on the date of the charged offense – one occurring in a bedroom and one occurring in a living room – the state could elect the bedroom incident and the verdict director would be drafted to direct the jury to determine whether the defendant touched the victim's genitals "in the bedroom" on that date.  Alternatively, the state could submit each act in alternative verdict directors, and one verdict director would specify an act "in the bedroom," while the other verdict director would specify an act "in the living room."
	Some cases that appear to be "multiple acts" cases are not, as a matter of law, "multiple acts" cases.  For instance, in a sexual offense case there could be evidence of repeated, identical, non-distinct criminal acts, and it may be impossible for the state to select a specific act to include in a verdict director.  If the evidence related to a single count includes multiple non-distinct acts, meaning that the evidence does not differentiate those acts by time, location, or some other distinguishing circumstance, then there is no need to modify the verdict director.  See State v. Dutcher, 583 S.W.3d 440, 442 (Mo. App. S.D. 2019) ("The acts were repeated, identical, non-distinct acts of abuse within the time periods alleged in the respective verdict directors so the jurors had no evidentiary basis on which to distinguish between the identical acts, and there was no risk that the jurors could have based the convictions on different underlying criminal acts.").   
	In addition, a verdict director's use of the disjunctive term "or" will not always implicate the unanimity concerns addressed in multiple-acts cases.  For instance, in cases involving physical injury to a single victim during a single incident, the manner in which injury was caused to the victim may not be clear, and a verdict director might posit that "the defendant shook or struck" the victim.  In such cases, "[a] disjunctive submission of alternative means by which a single crime is committed is proper if both alternatives are supported by sufficient evidence and the alternative means are in the same 'conceptual grouping.'"  State v. Richter, 504 S.W.3d 205, 211 (Mo. App. W.D. 2016).  In such cases, it is not necessary for the jury to unanimously agree upon the manner in which the offense was committed.  See State v. West, 551 S.W.3d 506, 524 (Mo. App. E.D. 2018) ("[T]he jury should not have been required to unanimously find which specific means Defendant used to recklessly cause Victim's death in order to find her guilty of involuntary manslaughter in the first degree[.]").
	8.	Venue
	The MAI-CR 4th instructions do not include venue as an element of the verdict directors.  Venue is not an element of a criminal offense and the state is not required to prove venue at trial.  For a general discussion, see State v. Taylor, 238 S.W.3d 145 (Mo. banc 2007).  Although venue is not an element of the offense, the Missouri Constitution provides that a defendant has the right to stand trial in the county in which he is alleged to have committed the offense.  Missouri Const. art. I, sec. 18(a);  Section 541.033.1, RSMo 2016.
The MACH-CR 2d charging forms do include the allegation of venue.  If a defendant charged with an offense believes that the venue alleged in the information is incorrect, the defendant should object to the venue before trial and have the trial judge determine whether the venue is correct.  If the trial judge determines that the venue is incorrect, the remedy is not dismissal, but rather a transfer of the case to the proper venue.  See Section 476.410, RSMo 2016. 
	9.	Numbering of Paragraphs
Most verdict directing instructions have paragraphs identified as "First," "Second," "Third," etc.  However, some instructions contain only one basic paragraph, and it is not labeled "First"; in other words, there is a paragraph "First" only if there is a paragraph "Second."
If a modification to the instruction requires an additional paragraph, then numerically label all paragraphs.  For example, MAI-CR 4th 419.12 does not have paragraphs "First" or "Second," but instead has a paragraph that begins "That."  If MAI-CR 4th 406.06 on self-defense is given, Notes on Use 2 thereto requires that a paragraph be added to the verdict director.  In this situation, "First" would be inserted in front of "That" in MAI-CR 4th 419.12, and "Second" would begin the paragraph required by Notes on Use 2 to MAI-CR 4th 406.06.
	10.	The Defendant - Multiple Defendants
Verdict directing instructions refer to "the defendant."  If there is only one defendant in the case being tried to the jury, the defendant will not be identified in the verdict director by name unless the verdict director says "[name of defendant]."

If two or more defendants are being tried together, the name of the particular defendant to which the instruction is directed should be inserted whenever there is a reference to "the defendant."  In such situations, the words "the defendant" will remain in the instruction and the name of the particular defendant will be inserted immediately after each reference to "the defendant."
If two or more defendants are being tried together, there shall be a separate verdict directing instruction for each defendant on each charge submitted to the jury.  When the defendant is being tried as an aider under Section 562.041, RSMo, special rules apply.  See MAI-CR 4th 404.04.
	11.	Gender-Neutral, Singular Form
Some instructions in MAI-CR 4th are written using the masculine gender and the singular form.  If the instruction using the masculine gender and the singular form is inappropriate, make the necessary modifications.
Use of the pronouns "he" or "she" is appropriate when the gender of the person is known.  Otherwise, use the name of the party or witness or use the noun "defendant" or "witness."
Substitute gender-neutral nouns for gender-specific nouns.  For example, use "police officer" instead of "policeman."
	12.	Essential Elements
Each verdict directing instruction must contain all of the essential elements of the offense.  A careful reading of the appropriate statutes is necessary, as well as examination of the charge against the defendant.  Consideration must be given to the evidence in the case.  In MAI-CR 4th, the verdict directing instructions make provisions for advising the jury of all essential elements.  Generally, this is accomplished in the body of each instruction.  However, in some situations, whether or not an issue becomes an element will depend on the circumstances of the case.
The mental element used in the instruction is normally that specified by the appropriate statute for the offense.  See Section 562.021, RSMo 2016.  If the statute fails to specify a mental state, Section 562.021 requires that the mental state be "knowingly," unless "the imputation of a mental state to the offense is clearly inconsistent with the purpose of the statute defining the offense or may lead to an absurd or unjust result."
The state may always elect to submit a higher mental element than that specified by the verdict director, or may elect to submit both the higher mental element and that mental element specified by the verdict director; if such election occurs, the two mental elements shall be submitted in the disjunctive, i.e., using the word "or."
	13.	Cross-References - Separate Numbered Paragraph
A cross-reference in a separate numbered paragraph to each special negative defense upon which a separate numbered instruction is being given shall follow the numbered paragraphs setting forth the essential elements.  It should be noted, however, that some special negative defenses are not instructed upon unless requested by the defendant.
The special negative defenses upon which a separate numbered instruction may be given include:
 1. 406.06	Justification:
Use of Force in Self-Defense

 2. 406.08	Justification:  
Use of Force in Defense of Third Persons

 3. 406.10	Justification:
Use of Force in Defense of Dwellings and 				Vehicles

 4. 406.12	Justification:
Use of Force in Defense of Property

 5. 406.14	Justification:
Use of Force by Law Enforcement Officer

 6. 406.16	Justification:

Use of Force by Private Person in Making Arrest

 7. 406.18	Justification:
Use of Force to Prevent Escape from Confinement

 8. 406.20	Justification:
Use of Force by Person Entrusted with Care and Supervision of Minor or Incompetent

 9. 408.16	Belief in Legality of Conduct

10. 410.28 Entrapment

11. 410.52 Intoxicated or Drugged Condition:
 Involuntary

Unless a Notes on Use requires a specific cross-reference, the following method may be used (assuming in the examples below that it will be the Third paragraph): 
Third, that defendant is not entitled to an acquittal
as submitted in Instruction No.      ,
Other optional methods are, in typical cases (the list is not complete):
Third, that defendant did not act in lawful self-
defense as submitted in Instruction No.      ,  
or
Third, that defendant was not entrapped as submitted
in Instruction No.      .

In addition, the Notes on Use to some verdict directors require a separate numbered paragraph in the verdict directing instruction setting forth a special negative defense; there is no corresponding separate numbered instruction for these special negative defenses.  For example, claim of right, see Notes on Use 9 to MAI-CR 4th 424.02.1.  See also MAI-CR 4th 404.11 on Defenses.
Some special negative defenses are not covered by the material in MAI-CR 4th due to their infrequent use.  If such a special negative defense exists, the user should examine the appropriate statute and draft the necessary instruction.
In many cases, such defenses will not fit into the format of the verdict directing instruction.  However, where the language negating the defense can be tailored to the main verdict director, such a format will normally be preferable to the use of a separate instruction.  The choice of including the defense in the verdict director or using a separate instruction shall be left to the court. 
	14.	Finding of Guilt
Following the numbered paragraphs, the instruction will give a direction to find the defendant guilty of the specific offense.  The direction could read, "then you will find the defendant guilty of assault in the first degree."  This direction must be modified if an offense has two or more different punishments.  For example, assault in the first degree is the general description for one type of felony assault.  Assault in the first degree with serious physical injury is a class A felony; if the assault did not cause serious physical injury, it is a class B felony.  If the assault in the first degree is being submitted as both a class A felony and class B felony, the clause directing the jury to find the defendant guilty of the class A felony will read, "then you will find the defendant guilty of assault in the first degree with serious physical injury."  Notes on Use 5 to MAI-CR 4th 419.06.  For the class B felony, the clause would read, "then you will find the defendant guilty of assault in the first degree." MAI-CR 4th 419.08.
	15.	Mental Disease or Defect
Section 552.030, RSMo 2016, provides for the defense of "mental disease or defect excluding responsibility."  To avail himself of this affirmative defense, a defendant must either plead not guilty by reason of mental disease or defect excluding responsibility or file timely written notice of the defendant's purpose to rely on such affirmative defense.  In addition, at trial, there must be evidence submitted showing lack of such responsibility.  If the court determines that "substantial evidence of lack of responsibility" has been introduced pursuant to Section 552.030.6, then the following rules apply:
(a) The "finding of guilt" clause will be modified by adding this clause to all verdict directing instructions:
unless you find and believe from the greater weight of the evidence that the defendant is not guilty by reason of a mental disease or defect excluding responsibility as submitted in Instruction No.      .
Thus, for example, an instruction on assault in the first degree under MAI-CR 4th 419.08 with a defense of mental disease or defect would be modified to read:
then you will find the defendant guilty of assault in the first degree unless you find and believe from the greater weight of the evidence that the defendant is not guilty by reason of a mental disease or defect excluding responsibility as submitted in Instruction No.      .
(b) Omit from all the verdict directing instructions the entire paragraph that begins, "However, unless you find and believe from the evidence . . . ."
For other matters involving the affirmative defense of mental disease or defect excluding responsibility, see MAI-CR 4th 406.02 and 406.04.
Compare MAI-CR 4th 408.03 on mental disease or defect negating culpable mental state.
	16.	General Converse
	As indicated in Notes on Use 15(b) above, the general converse is omitted if the affirmative defense of mental disease or defect excluding responsibility is submitted to the jury as a part of the verdict directing instruction.  It is also omitted if any other affirmative defense is submitted. 
	In all other verdict directing instructions, there shall be a general converse as follows:
However, unless you find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.
See also MAI-CR 4th 408.02 on special converses.

	17.	Terms That Must Be Defined
MAI-CR 4th 433.00 contains terms and their definitions.  These definitions are necessary to interpret legal terms for a lay jury.  Also, in some instances, the definitions are available because the term has a meaning different from the meaning usually given to the word.  Some verdict directing instructions contain terms that must be defined if that instruction is given to the jury.  In such situations, the definition will be given in a paragraph or in paragraphs immediately following the "However, unless you find" paragraph.
To determine whether terms must be defined or may be defined, carefully examine the pattern instruction and its Notes on Use.  See also MAI-CR 4th 433.00.
For example, MAI-CR 4th 419.02 requires that a definition of "serious physical injury" be given each time that instruction is used.  This is indicated by the fact that parentheses do not enclose the paragraph.  The definition of that term is inserted immediately after the "However, unless you find" paragraph.
As a further example, in MAI-CR 4th 419.02, the terms "sudden passion" and "adequate cause" must be defined if those terms are used in the instruction, but will not be defined if the terms are not used in the instruction.  This is brought to the user's attention by the fact that the paragraph defining those terms is in parentheses and also by Notes on Use 6(a) to MAI-CR 4th 419.02.
When drafting a verdict directing instruction for an offense not in MAI-CR 4th, the user should examine the appropriate statute to determine the terms, if any, that may require a definition.  The definition of the term shall be drafted by the user and submitted to the court for its consideration and approval.  See also MAI-CR 4th 433.00, Definitions - General Form.
	18.	Punishment 
See the 405.00 Series when the jury is to assess and declare punishment in a bifurcated proceeding.

If the offense is a code offense but is not punishable as a class A, B, C, D or E felony or a class A, B, or C misdemeanor, the appropriate language must be selected. 
If the offense is a non-code offense, appropriate language shall be submitted to the jury setting forth all punishment alternatives that are available for the jury to assess.  The general format used for code offenses should be used as a guide in drafting the range of punishment provisions.