CO H:18 USE OF NON-DEADLY PHYSICAL FORCE (DEFENSE OF PROPERTY)

CO H:18 USE OF NON-DEADLY PHYSICAL FORCE (DEFENSE OF PROPERTY)

State: Colorado

Colorado Jury Instructions-Criminal (COLJI-Crim) (2016)

H:18 USE OF NON-DEADLY PHYSICAL FORCE (DEFENSE OF PROPERTY)

The evidence presented in this case has raised the affirmative defense of “physical force in defense of property,” as a defense to [insert name(s) of offense(s)].

The defendant was legally authorized to use physical force upon another person if:

1. he [she] used reasonable and appropriate physical force when and to the extent that he [she] reasonably believed it was necessary to prevent what he [she] reasonably believed to be an attempt by the other person to commit the offense of [theft] [criminal mischief] [criminal tampering involving property].

The prosecution has the burden to prove, beyond a reasonable doubt, that the defendant’s conduct was not legally authorized by this defense. In order to meet this burden of proof, the prosecution must disprove, beyond a reasonable doubt, the above numbered condition.

After considering all the evidence, if you decide the prosecution has failed to meet this burden of proof, then the prosecution has failed to prove the defendant’s conduct was not legally authorized by this defense, which is an essential element of [insert name(s) of offense(s)]. In that event, you must return a verdict of not guilty of [that] [those] offense[s].

After considering all the evidence, if you decide the prosecution has met this burden of proof, then the prosecution has proved the defendant’s conduct was not legally authorized by this defense. In that event, your verdict[s] concerning the charge[s] of [insert name(s) of offense(s)] must depend upon your determination whether the prosecution has met its burden of proof with respect to the remaining elements of [that] [those] offense[s].

COMMENT

1. See § 18-1-706, C.R.S. 2016.

2. See Instruction G2:01 (criminal attempt); Chapter 4-4 (theft); Instruction 4-5:01 (criminal mischief); Instructions 4-5:12, 4-5:13 (tampering).

3. See Instruction H:11, Comment 5 (multiple assailants).

4. Because prevention of a crime is an essential condition of the defense, an instruction should not be given where a defendant uses force after the crime has been completed. See People v. Oslund, 2012 COA 62, ¶¶ 23–26, 292 P.3d 1025, 1029 (defense of property instruction not warranted where defendant used force while trying to apprehend the thief and recover the property; because theft was completed, use of force could not prevent it from occurring); People v. Goedecke, 730 P.2d 900, 901 (Colo. App. 1986) (defense of property instruction not warranted where defendant used physical force on the victim some time after the victim had completed the alleged theft).

5. If the defendant used deadly physical force, this affirmative defense is not applicable. See § 18-1-706, C.R.S. 2016 (a defendant may “use deadly physical force under these circumstances only in defense of himself or another as described in section 18-1-704”).

By | 2017-04-01T13:30:43+00:00 January 20th, 2015|Comments Off on CO H:18 USE OF NON-DEADLY PHYSICAL FORCE (DEFENSE OF PROPERTY)