Alaska Criminal Pattern Jury Instructions
Controlled Substances
11.81.330 Justification: Use of Nondeadly Force in Defense of Self

§ 11.81.330 Justification: Use of Nondeadly Force in Defense of Self

The law of self-defense regarding the use of nondeadly force is as follows:

A defendant may use nondeadly force upon another when and to the extent the defendant believes it is necessary for self-defense against what the defendant believes to be the use of unlawful force by the other person. The defendant’s beliefs must be reasonable under the circumstances.

However, a defendant may not use nondeadly force in self-defense if

(1) the defendant used the force in mutual combat not authorized by law; or

(2) the defendant provoked the other’s conduct with intent to cause physical injury to the other; or

(3) the defendant was the initial aggressor; or

(4) the force used was the result of using a deadly weapon or dangerous instrument the defendant possessed while [acting alone or with others to further a felony criminal objective of the defendant or one or more other defendants] [a participant in a felony transaction or purported transaction or in immediate flight from a felony transaction or violation of AS 11.71] [acting alone or with others in revenge for, retaliation for, or response to actual or perceived conduct by a rival or perceived rival, or a member or perceived member of a rival group, if the defendant, or the group on whose behalf the defendant is acting, has a history or reputation for violence among civilians.]

In any of these circumstances, the defendant may use nondeadly force if the defendant has withdrawn from the encounter and effectively communicated the withdrawal to the other person and the other person persists in continuing the incident by the use of unlawful force.

Unless the state has proven beyond a reasonable doubt that the defendant did not act in self-defense, you shall find the defendant not guilty.

USE NOTE

The following terms are defined in other instructions:

“deadly force” – 11.81.900(b)
“force” – 11.81.900(b)
“nondeadly force” – 11.81.900(b)

In circumstances where the exceptions set forth in the third paragraph are not applicable, those portions may be deleted.

The decision whether to instruct the jury on self-defense belongs to the trial judge. The defendant bears the burden of producing some evidence in support of a claim of self-defense before the court must give the instruction. The court need not give an instruction if the only basis for a self-defense claim is speculation. Hamilton v. State, 59 P. 3d 760 (Alaska App. 2002). The “some evidence” burden, however, is not a heavy one, and is satisfied when the evidence, viewed in the light most favorable to the defendant, might arguably lead a juror to entertain a reasonable doubt as to the defendant’s guilt. Paul v. State, 655 P.2d 772, 775 (Alaska App. 1982). Even a weak or implausible self-defense claim is a question for the jury, and the trial judge should not evaluate the credibility, strength, or weight of evidence in determining whether the burden has been met. Folger v. State, 648 P.2d 111, 113 (Alaska App. 1982);Paul v. State, 655 P.2d at 776. “Some evidence” may consist, for example, solely of the uncorroborated testimony of the defendant. Brown v. State, 698 P.2d 671, 674 (Alaska App. 1985). But the defendant need not testify so long as there is other evidence of self-defense. Blackhurst v. State, 721 P.2d 645 (Alaska App. 1986).

In determining whether there is some evidence of self-defense, the court must examine every element of the justification, depending upon the particular facts of the case. For example, the court must evaluate whether there is some evidence that (1) the defendant actually believed the use of nondeadly force was necessary, and (2) a reasonable person would have held such a belief under the same circumstances. Weston v. State, 682 P.2d 1119, 1121 (Alaska, 1984). Similarly, it may be necessary in a particular case to determine whether there is some evidence that the defendant was not an initial aggressor. Brown v. State, 698 P.2d 671, 673-74 (Alaska App. 1985).

The definition of “force” in AS 11.81.900(b) includes actual bodily impact, restraint, or confinement, as well as the threat of imminent bodily impact, restraint, or confinement. Thus, self-defense may apply where a defendant reasonably perceived a threat of harm, so long as the perceived harm was imminent. Ha v. State, 892 P.2d 184, 194 (Alaska App. 1995).

The reasonableness of a defendant’s beliefs must be evaluated by the jury based on the circumstances of the situation facing the defendant, including any relevant knowledge the defendant had about the other person; physical attributes of all persons involved (including the defendant); and any prior experiences that could provide a reasonable basis for the defendant’s beliefs. Ha v. State, 892 P.2d 184, 194-95 (Alaska App. 1995). A defendant’s distorted perceptions due to mental illness, however, may not be a factor in evaluating the reasonableness of the defendant’s beliefs. Id. at 195-96.

This pattern instruction may require slight modification when a defendant claims that an act of self-defense was prompted by the danger posed by a group of attackers, and not just the danger posed by the alleged victim named in the charging document. Under such circumstances, the defendant is entitled to have the jury assess the defendant’s actions in light of the total danger posed (or apparently posed) by the group. Allen v. State, 51 P.3d 949, 958-59 (Alaska App. 2002).

 

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