404.10	THE PRINCIPAL OFFENSE:  MODIFICATIONS FOR HATE OFFENSES -- ENHANCED PENALTIES
	
	1.	PROPERTY DAMAGE IN THE FIRST DEGREE
	(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 knowingly damaged [Briefly describe the property and, if real property, locate it.] (owned) (possessed) by [name of owner or possessor] by [Briefly describe what the defendant did.], and
Second, that defendant was knowingly motivated to do so (because of) (by reason of a motive related to) the (race) (color) (religion) (national origin) (sex) (sexual orientation) (disability) of [name of victim or victims],
and
Third, that the damage exceeded seven hundred fifty dollars,
then you will find the defendant guilty (under Count _____) of property damage in the first degree -- hate offense (under this instruction).
	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 (under this instruction).
	(As used in this instruction, the term "disability" means a mental, physical or developmental impairment that substantially limits one or more major life activities or the ability to provide adequately for one's care or protection, whether the impairment is congenital or acquired by accident, injury or disease, where such impairment is verified by medical findings.)
	(As used in this instruction, the term "sexual orientation" means male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, or having a self-image or identity not traditionally associated with one's gender.)

	2.	UNLAWFUL USE OF A WEAPON -- CARRYING A CONCEALED WEAPON
	(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 carried upon or about his person a (firearm) (knife) (blackjack) ([Name and briefly describe other weapon.]), and
Second, that defendant carried the [Refer to weapon by type.] so that it was concealed from ordinary observation, and
Third, that the [Refer to weapon by type.] was readily capable of lethal use, and
((Fourth), that the [Refer to weapon by type.] was readily accessible, and)
(Fourth) (Fifth), that with respect to the conduct submitted in this instruction defendant was motivated to do so (because of) (by reason of a motive related to) the (race) (color) (religion) (national origin) (sex) (sexual orientation) (disability) of [name of victim or victims], and
(Fifth) (Sixth), that defendant acted knowingly with respect to the facts and circumstances submitted in this instruction,
then you will find the defendant guilty (under Count _____) of unlawful use of a weapon -- hate offense (under this instruction).
	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 (under this instruction).
	(As used in this instruction, the term "blackjack" means any instrument that is designed or adapted for the purpose of stunning or inflicting physical injury by striking a person and which is readily capable of lethal use.)
	(As used in this instruction, the term "disability" means a mental, physical or developmental impairment that substantially limits one or more major life activities or the ability to provide adequately for one's care or protection, whether the impairment is congenital or acquired by accident, injury or disease, where such impairment is verified by medical findings.)
	(As used in this instruction, the term "sexual orientation" means male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, or having a self-image or identity not traditionally associated with one's gender.)

	3.	UNLAWFUL USE OF A WEAPON -- SHOOTING INTO A DWELLING, ETC.
	(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 knowingly (shot) (discharged) a firearm into a (railroad train) (boat) (aircraft) (motor vehicle [Identify or describe.]) (dwelling house) (building or structure used for the assembling of people), [Identify item or describe location.], and
Second, that defendant was knowingly motivated to do so (because of) (by reason of a motive related to) the (race) (color) (religion) (national origin) (sex) (sexual orientation) (disability) of [name of victim or victims],
then you will find the defendant guilty (under Count _____) of unlawful use of a weapon -- hate offense (under this instruction).
	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 (under this instruction).
	(As used in this instruction, the term "disability" means a mental, physical or developmental impairment that substantially limits one or more major life activities or the ability to provide adequately for one's care or protection, whether the impairment is congenital or acquired by accident, injury or disease, where such impairment is verified by medical findings.)
	(As used in this instruction, the term "sexual orientation" means male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, or having a self-image or identity not traditionally associated with one's gender.)

	4.	UNLAWFUL USE OF A WEAPON -- EXHIBITING
	(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 exhibited in the presence of one or more persons a [Refer to weapon by type or describe weapon.], and
Second, that he did so in (an angry) (a threatening) (an angry or threatening) manner, and
Third, that the [Refer to weapon by type.] was readily capable of lethal use, and
Fourth, that with respect to the conduct submitted in this instruction defendant was motivated to do so (because of) (by reason of a motive related to) the (race) (color) (religion) (national origin) (sex) (sexual orientation) (disability) of [name of victim or victims], and
Fifth, that defendant acted knowingly with respect to the facts and conduct submitted in this instruction,
then you will find the defendant guilty (under Count _____) of unlawful use of a weapon -- hate offense (under this instruction).
	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 (under this instruction).
	(As used in this instruction, the term "disability" means a mental, physical or developmental impairment that substantially limits one or more major life activities or the ability to provide adequately for one's care or protection, whether the impairment is congenital or acquired by accident, injury or disease, where such impairment is verified by medical findings.)
	(As used in this instruction, the term "sexual orientation" means male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, or having a self-image or identity not traditionally associated with one's gender.)

	5.	ASSAULT IN THE THIRD DEGREE:  PHYSICAL INJURY OR GRAVE RISK OF DEATH OR PHYSICAL INJURY	
	(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 one of the following.  Omit brackets and number.]
[1]	attempted to cause physical injury to [name of victim] by [Describe means by which attempt was made.],
[2]	recklessly caused physical injury to [name of victim] by [Describe means by which injury was caused.],
[3]	with criminal negligence, caused physical injury to [name of victim] by means of a deadly weapon by [Describe conduct.],
[4]	recklessly created a grave risk of (death) (or) (serious physical injury) to [name of victim] by [Describe conduct.],
and
Second, that defendant was knowingly motivated to do so (because of) (by reason of a motive related to) the (race) (color) (religion) (national origin) (sex) (sexual orientation) (disability) of [name of victim or victims],
then you will find the defendant guilty (under Count _____) of assault in the third degree -- hate offense (under this instruction).
	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 (under this instruction).
	(As used in this instruction, the term "criminal negligence" means failure to be aware of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation.)
	(As used in this instruction, the term "recklessly" means to consciously disregard a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation.)
	(As used in this instruction, the term "serious physical injury" means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.)
	(As used in this instruction, a person attempts to cause physical injury when, for the purpose of causing that result, he does an act which is a substantial step toward causing that result.  A substantial step is conduct which is strongly corroborative of the firmness of the person's purpose to cause that result.  (It is no defense that, under the circumstances, it was impossible to achieve that result, if such result could have been achieved had the circumstances been as the person believed them to be.))
	(As used in this instruction, the term "disability" means a mental, physical or developmental impairment that substantially limits one or more major life activities or the ability to provide adequately for one's care or protection, whether the impairment is congenital or acquired by accident, injury or disease, where such impairment is verified by medical findings.)
	(As used in this instruction, the term "sexual orientation" means male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, or having a self-image or identity not traditionally associated with one's gender.)

	6.	ASSAULT IN THE THIRD DEGREE:  PHYSICAL CONTACT WITH INCAPACITATED PERSON	
	(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 caused physical contact with [name of victim], and
Second, that [name of victim] was an incapacitated person, and
Third, that with respect to the conduct submitted in this instruction, defendant was motivated to do so (because of) (by reason of a motive related to) the (race) (color) (religion) (national origin) (sex) (sexual orientation) (disability) of [name of victim or victims], and
Fourth, that with respect to the above, the defendant acted knowingly, and
Fifth, that a reasonable person who is not incapacitated would consider the physical contact offensive or provocative,
then you will find the defendant guilty (under Count _____) of assault in the third degree -- hate offense (under this instruction).
	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 (under this instruction).
	As used in this instruction, the term "incapacitated person" means a temporary or permanent physical or mental condition in which a person is unconscious, unable to appraise the nature of his or her conduct, or unable to communicate unwillingness to an act.    
	(As used in this instruction, the term "serious physical injury" means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.)
	(As used in this instruction, the term "disability" means a mental, physical or developmental impairment that substantially limits one or more major life activities or the ability to provide adequately for one's care or protection, whether the impairment is congenital or acquired by accident, injury or disease, where such impairment is verified by medical findings.)
	(As used in this instruction, the term "sexual orientation" means male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, or having a self-image or identity not traditionally associated with one's gender.)

	7.	ASSAULT IN THE THIRD DEGREE:  APPREHENSION OF INJURY OR OFFENSIVE CONTACT	
	(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 one of the following.  Omit brackets and number.].
[1]	purposely placed [name of victim] in apprehension of immediate physical injury by [Describe conduct.],
[2]	knowingly caused physical contact with [name of victim] knowing that [name of victim] would regard such contact as offensive or provocative,
and
Second, that defendant was knowingly motivated to do so (because of) (by reason of a motive related to) the (race) (color) (religion) (national origin) (sex) (sexual orientation) (disability) of [name of victim or victims],
then you will find the defendant guilty (under Count _____) of assault in the third degree -- hate offense (under this instruction).
	 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 (under this instruction).
	(As used in this instruction, the term "disability" means a mental, physical or developmental impairment that substantially limits one or more major life activities or the ability to provide adequately for one's care or protection, whether the impairment is congenital or acquired by accident, injury or disease, where such impairment is verified by medical findings.)
	(As used in this instruction, the term "sexual orientation" means male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, or having a self-image or identity not traditionally associated with one's gender.)

	8.	HARASSMENT IN THE FIRST DEGREE
	(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 one of the following.  Omit brackets and number.].
[1]	communicated (in writing) (by telephone) to [Name of person.] a threat to [Describe conduct constituting a felony.],
[2]	made a telephone call anonymously to [Name of person or place called.],
[3]	made repeated telephone calls to [Name of person or place or places called.],
and
Second, that defendant did so for the purpose of (frightening) (or) (disturbing) [Name of person intended to be frightened.], 
and
Third, that defendant was knowingly motivated to do so (because of) (by reason of a motive related to) the (race) (color) (religion) (national origin) (sex) (sexual orientation) (disability) of [name of victim or victims],
then you will find the defendant guilty (under Count _____) of harassment in the first degree -- hate offense (under this instruction).
	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 (under this instruction).
	(As used in this instruction, the term "disability" means a mental, physical or developmental impairment that substantially limits one or more major life activities or the ability to provide adequately for one's care or protection, whether the impairment is congenital or acquired by accident, injury or disease, where such impairment is verified by medical findings.)
	(As used in this instruction, the term "sexual orientation" means male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, or having a self-image or identity not traditionally associated with one's gender.)

	9.	TAMPERING IN THE SECOND DEGREE
	(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 tampered with [Briefly describe property and, if fixed property, briefly locate it.], (owned) (possessed) by [name of owner or possessor], by [Briefly describe what defendant did.], and
Second, that defendant did so for the purpose of causing substantial inconvenience to [name of owner, possessor, or some other person], and
Third, that defendant was knowingly motivated to do so (because of) (by reason of a motive related to) the (race) (color) (religion) (national origin) (sex) (sexual orientation) (disability) of [name of victim or victims], 
then you will find the defendant guilty (under Count _____) of tampering in the second degree -- hate offense (under this instruction).
	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.
	(As used in this instruction, the term "disability" means a mental, physical or developmental impairment that substantially limits one or more major life activities or the ability to provide adequately for one's care or protection, whether the impairment is congenital or acquired by accident, injury or disease, where such impairment is verified by medical findings.)
	(As used in this instruction, the term "sexual orientation" means male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, or having a self-image or identity not traditionally associated with one's gender.)

	10.	PROPERTY DAMAGE IN THE SECOND DEGREE
	(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 knowingly damaged [Briefly describe the property and, if real property, locate it.] (owned) (possessed) by [Name of owner or possessor.] by [Briefly describe what the defendant did.], and
Second, that defendant was knowingly motivated to do so (because of) (by reason of a motive related to) the (race) (color) (religion) (national origin) (sex) (sexual orientation) (disability) of [name of victim or victims],
then you will find the defendant guilty (under Count _____) of property damage in the second degree -- hate offense (under this instruction).
	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 (under this instruction).
	(As used in this instruction, the term "disability" means a mental, physical or developmental impairment that substantially limits one or more major life activities or the ability to provide adequately for one's care or protection, whether the impairment is congenital or acquired by accident, injury or disease, where such impairment is verified by medical findings.)
	(As used in this instruction, the term "sexual orientation" means male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, or having a self-image or identity not traditionally associated with one's gender.)

	11.	TRESPASS IN THE FIRST DEGREE
	(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 knowingly (entered) (remained) unlawfully (in) (a building) (an inhabitable structure) located at [Briefly describe the location.] and (owned) (possessed) by [Name of owner or possessor.], and
Second, that defendant was knowingly motivated to do so (because of) (by reason of a motive related to) the (race) (color) (religion) (national origin) (sex) (sexual orientation) (disability) of [name of victim or victims],
then you will find the defendant guilty (under Count _____) of trespass in the first degree -- hate offense (under this instruction).
	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 (under this instruction).
	(As used in this instruction, the term "disability" means a mental, physical or developmental impairment that substantially limits one or more major life activities or the ability to provide adequately for one's care or protection, whether the impairment is congenital or acquired by accident, injury or disease, where such impairment is verified by medical findings.)
	(As used in this instruction, the term "sexual orientation" means male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, or having a self-image or identity not traditionally associated with one's gender.)

Notes on Use
	1.	Section 557.035, RSMo 2016.  This is a revision of MAI-CR 3d 304.09 (1-1-05).  This instruction applies to offenses that occurred on or after January 1, 2017.  It pertains to certain offenses where there commission was motivated by race, color, religion, national origin, sex, sexual orientation, or disability of the victim.
	2.	This form must be used when the defendant is charged with a violation of one or more of the following statutes: Section 565.054, RSMo 2016, (assault in the third degree); Section 565.090.1(1)(3) and (4), RSMo 2016, (harassment in the first degree); Section 569.090.1(1), RSMo 2016, (tampering in the second degree); Section 569.100.1(1), RSMo 2016, (property damage in the first degree); Section 569.120.1(1), RSMo 2016, (property damage in the second degree); Section 569.140, RSMo 2016, (trespass in the first degree); Section 571.030.1(1)-(4) and (6)-(8), RSMo 2016, (unlawful use of a weapon); and, Section 574.050, RSMo 2016, (rioting), and it is further charged under Section 557.035, RSMo 2016, that the defendant's conduct was motivated by the race, color, religion, national origin, sex, sexual orientation or disability of the victim.
	3.	Under Section 557.035.3, the court and not the jury assesses and declares the punishment for hate offenses.  However, the jury may assess punishment for a lesser included offense.  The optional term "under this instruction," will only be used if the jury is instructed on a lesser included offense.
	4.	When submitting an offense motivated by ethnic intimidation, each motivating factor charged and supported by the evidence must be submitted to the jury.  See State v. Callen, 45 S.W. 3d 888 (Mo. banc 2001).
	5.	For the paragraph submitting motivation, select the factor that has been charged as the motivation for the offense.  If the instruction submits more than one motivating factor, the charge must have alleged more than one motivating factor, and the instruction must use the word "and" between the motivating factors.
	6.	Consult the appropriate verdict director and its Notes on Use for the underlying offense for all directions in drafting the verdict director including any directions for mandatory definitions or possible defenses.  For the offense of assault in the third degree:  physical injury -- hate offense, the verdict director and Notes on Use for the underlying offense is MAI-CR 4th 419.16.  For the offense of harassment in the first degree -- hate offense, the verdict director and Notes on Use for the underlying offense is MAI-CR 4th 419.20.  For the offense of tampering in the second degree -- hate offense, the verdict director and Notes on Use for the underlying offense is MAI-CR 4th 423.24.  For the offense of property damage in the first degree -- hate offense, the verdict director and Notes on Use for the underlying offense is MAI-CR 4th 423.40.  For the offense of property damage in the second degree -- hate offense, the verdict director and Notes on Use for the underlying offense is MAI-CR 4th 423.42.  For the offense of trespass in the first degree -- hate offense, the verdict director and Notes on Use for the underlying offense is MAI-CR 4th 423.58.  For the offense of unlawful use of a weapon -- carrying a concealed weapon -- hate offense, the verdict director and Notes on Use is MAI-CR 4th 426.04.  For the offense of unlawful use of a weapon -- exhibiting -- hate offense, the verdict director and Notes on Use for the underlying offense is MAI-CR 4th 426.06.  For the offense of unlawful use of a weapon -- shooting into a dwelling, etc. -- hate offense, the verdict director and Notes on Use for the underlying offense is MAI-CR 4th 426.10.
	7.	Definitions.
		(a) The definition of "disability" is from Section 556.061, RSMo 2016.
		The definition of "sexual orientation" is from Section 556.061, RSMo 2016.  If the state charges either or both as a motivating factor, the definition(s) must be added as a separate paragraph after the paragraph beginning "However, unless you find and believe ... ."
		(b) The following term may be defined by the court on its own motion and must be defined upon written request in proper form by the state or by the defendant:
			"knowingly."
See MAI-CR 4th 433.00.
		(c) For guidance on terms that may be defined and must be defined, refer to Notes on Use that follow the verdict director for the underlying offense.
	8.	For violations of Section 571.030.1(2) and (6)-(8), RSMo 2016, (unlawful use of a weapon) and Section 574.050, RSMo 2016, (rioting), there are no approved verdict directors and Notes on Use.  Consult MAI-CR 4th 404.02 and accompanying Notes on Use for directions in drafting the verdict director for these violations including any directions for mandatory definitions or possible defenses.  When drafting a hate offense verdict director for a violation of these sections, the verdict director must allege that defendant was knowingly motivated to act as a result of a motive related to the race, color, religion, national origin, sex, sexual orientation, or disability of the victim.