Alaska Criminal Pattern Jury Instructions
Controlled Substances
11.81.350(e)(1)&(2) Justification: Use of Deadly Force in Defense of Property (Vehicle)

§ 11.81.350(e)(1)&(2) Justification: Use of Deadly Force in Defense of Property (Vehicle)

A defendant [in a vehicle, or forcibly removed from a vehicle, may use deadly force upon another when and to the extent the defendant reasonably believes it is necessary to terminate what the defendant believes to be a carjacking of that vehicle at or about the time the vehicle is carjacked] [outside of a vehicle may use deadly force upon another when and to the extent the defendant believes it is necessary to terminate what the person believes to be the theft of that vehicle when another person, other than the perceived offender, is inside of the vehicle; this paragraph does not apply to a person outside of a vehicle who is involved in a dispute with a person inside of the vehicle who is a household member of the defendant.] 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 self-defense, you shall find the defendant not guilty.

USE NOTE

The following terms are defined in other instructions:

“carjacking” – 11.81.350(g)[1]
“deadly force” – 11.81.900(b)
“household member” – 11.81.350(e)(2)
“vehicle” – 11.81.350[g][2]

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.

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).

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).

 

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