Alaska Criminal Pattern Jury Instructions
Controlled Substances
11.81.350(a) Justification: Use of Nondeadly Force in Defense of Property or Services

§ 11.81.350(a) Justification: Use of Nondeadly Force in Defense of Property or Services

A defendant may use nondeadly force upon another person when and to the extent the defendant believes it is necessary to terminate what the defendant believes to be the commission or attempted commission by the other person of an unlawful taking or damaging of property or services. The defendant’s beliefs must be reasonable under the circumstances.

Unless the state has proven beyond a reasonable doubt that the defendant did not act in defense of property or services as described above, 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)
“property” – 11.81.900(b)
“services” – 11.81.900(b)

The defense of property or premises justification is not characterized in the statute as an affirmative defense, so like self-defense and defense of others, it must be disproved beyond a reasonable doubt if placed in issue. See AS 11.81.900(b) (defining “defense”).

The trial judge must make a preliminary determination that “some evidence” supporting the defense exists, prior to allowing the jury instruction. Palmer v. State, 770 P.2d 296, 298 (Alaska App. 1989). See also Use Notes to Pattern Instructions 11.81.330 and 11.81.335.

An “unlawful taking or damaging of property or services” would include the crimes of theft, criminal mischief, and concealment of merchandise. See Commentary to AS 11.81.350(a).

This justification does not apply when the other person has already completed the offense. Woodward v. State, 855 P.2d 423, 428 n.14 (Alaska App. 1993).

The court of appeals in Jurco v. State addressed the question of how to reconcile this justification with AS 11.81.420, allowing law enforcement officers to execute court orders to seize property. 825 P.2d 909 (Alaska App. 1992). In such a case, the pattern instruction should be amended to comport with Jurco.

For a discussion of the reasonable belief standard see the Use Note to Pattern Instruction 11.81.330, use of force in defense of self, discussing Ha v. State, 892 P.2d 184, 194 (Alaska App. 1995).

 

[230628]