Alaska Criminal Pattern Jury Instructions
Controlled Substances
11.81.350(b) Justification: Use of Deadly Force in Defense of Dwelling or Occupied Building

§ 11.81.350(b) Justification: Use of Deadly Force in Defense of Dwelling or Occupied Building

A defendant may use deadly 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 arson upon a dwelling or occupied building. The defendant’s belief must be reasonable under the circumstances.

Unless the state has proven beyond a reasonable doubt that the defendant did not act in defense of a dwelling or occupied building as described above, you shall find the defendant not guilty.

USE NOTE

The following terms are defined in other instructions:

“arson” – 11.46.400 and 11.46.410
“building” – 11.81.900(b)
“deadly force” – 11.81.900(b)
“dwelling” – 11.81.900(b)
“force”- 11.81.900(b)
“property” – 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 for instructions 11.81.330 and 11.81.335.

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 use of deadly force to defend property may also be justified under other circumstances where, for example, destruction of the property creates a substantial risk of serious physical injury to one’s person. See Commentary to AS 11.81.350. In such cases, the appropriate pattern instruction (e.g., use of deadly force in self defense) should be given.

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

 

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