CO H:15 USE OF PHYSICAL FORCE, INCLUDING DEADLY PHYSICAL FORCE (INTRUDER INTO A DWELLING)

Colorado Jury Instructions, Criminal (2023)
CHAPTER H: DEFENSES
SECTION I: DEFENSES THAT ARE GENERALLY APPLICABLE

H:15: USE OF PHYSICAL FORCE, INCLUDING DEADLY PHYSICAL FORCE (INTRUDER INTO A DWELLING)

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

The defendant was legally authorized to use any degree of physical force [, including deadly physical force,] against another person without first retreating if:

1. he [she] was an occupant of a dwelling, and

2. the other person had made a knowingly unlawful entry into that dwelling, and

3. he [she] had a reasonable belief that, in addition to the uninvited entry, the other person had committed, was committing, or intended to commit a crime in the dwelling, and

4. he [she] reasonably believed the other person might use any physical force, no matter how slight, against any occupant of the dwelling.

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, at least one of the above numbered conditions.

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 § 18-1-704.5, C.R.S. 2022.

2. See Instruction F:87 (defining “deadly physical force”); Instruction F:114 (defining “dwelling”); Instruction F:195 (defining “knowingly”); see also People v. Ferguson, 43 P.3d 705, 707 (Colo. App. 2001) (in light of the way that “deadly physical force” is defined by statute, it is error to instruct the jury concerning the concept in a case in which the victim did not die); People v. Silva, 987 P.2d 909, 917 (Colo. App. 1999) (same).

3. See People v. Guenther, 740 P.2d 971, 981 (Colo. 1987) (“[I]f the pretrial motion to dismiss on grounds of statutory immunity is denied, the defendant may nonetheless raise at trial, as an affirmative defense to criminal charges arising out of the defendant’s use of physical force against an intruder into his home, the statutory conditions set forth in section 18-1-704.5(2). In such an instance, the burden of proof generally applicable to affirmative defenses would apply to the defense created by section 18-1-704.5(2). The defendant would be required to present some credible evidence supporting the applicability of section 18-1-704.5(2); and, if such evidence is presented, the prosecution would then bear the burden of proving beyond a reasonable doubt the guilt of the defendant as to the issue raised by the affirmative defense as well as all other elements of the offense charged.”).

4. See People v. Rau, 2022 CO 3, PP 25, 27, 501 P.3d 803 (holding that the basement of the defendant’s apartment complex was part of his “dwelling” because, similar to the attached garage discussed in People v. Jiminez, 651 P.2d 395 (Colo. 1982), it “was part of the building that [he] used for habitation” and its uses (including “control of the water and heat supply and the storage of household items”) were “incidental to and part of the use of [his] residence”; overruling People v. Cushinberry, 855 P.2d 18 (Colo. App. 1992), to the extent it held otherwise).

5. Section 18-1-704.5 requires an “unlawful entry”; it does not apply when an invitee remains unlawfully. See People v. Drennon, 860 P.2d 589, 591 (Colo. App. 1993).

6. In People v. McNeese, 892 P.2d 304, 310-11 (Colo. 1995), the supreme court held that the “unlawful entry” component of section 18-1-704.5 requires a culpable mental state of “knowingly” on the part of the intruder. See People v. Janes, 982 P.2d 300, 303 (Colo. 1999) (observing that a jury instruction with a requirement that the victim have made a “knowingly unlawful entry” “accurately tracks the language of People v. McNeese in an attempt to define the term ‘unlawful entry,'” but reversing because the instruction failed to make clear that it was the prosecution’s burden to disprove the affirmative defense beyond a reasonable doubt); see also People v. Jones, 2018 COA 112, PP 34, 39, 434 P.3d 760, 766 (holding that, when the court instructed the jury that the make-my-day defense applies when a person has “made an unlawful entry into the dwelling,” it erred in refusing to modify the phrase “unlawful entry” with the word “knowingly” because “the purpose of the ‘knowing’ element is to protect the accidental trespasser”); People v. Phillips, 91 P.3d 476, 482 (Colo. App. 2004) (while every unlawful entry is necessarily uninvited, an uninvited entry is not necessarily unlawful; for example, a police officer’s entry into a house can be lawful though uninvited); People v. Zukowski, 260 P.3d 339, 344 (Colo. App. 2010) (“Although the McNeese court used the phrase ‘in knowing violation of the criminal law,’ [ McNeese, 892 P.2d at 310], it appears that the phrase was intended to express a requirement that an intruder must knowingly engage in criminal conduct, not that an intruder knows he or she is violating a criminal statute.”).

7. This instruction does not include bracketed language describing the concepts of “provocation,” acting as an “initial aggressor,” or “combat by agreement.” Where a defendant who raises the affirmative defense of section 18-1-704.5 also raises the affirmative defense of person on grounds unrelated to the victim’s status as an intruding criminal, the court should explain one or more of these concepts (if applicable under the facts of the case) within the context of Instruction H:11 or H:12. See, e.g., People v. Zukowski, 260 P.3d 339, 344 (Colo. App. 2010) (jury instructed pursuant to section 18-1-704.5, and also as to self-defense with an explanation of the initial aggressor exception).

8. See Instruction H:11, Comments 3-6, 9-12 (no-duty to retreat; apparent necessity; multiple assailants; combat by agreement; exceptions must be supported by evidence; self-defense not a defense to conspiracy; transferred intent; criminal mischief).

9. See People v. Lane, 2014 COA 48 P 19, 343 P.3d 1019, 1024 (“[W]e conclude that [Smith v. United States, 133 S. Ct. 714 (2013) (when a defense excuses conduct that would otherwise be punishable but does not controvert any of the elements of the offense itself, the prosecution has no constitutional duty to overcome the defense by proof beyond a reasonable doubt)] did not overrule [ People v. Pickering, 276 P.3d 553 (Colo. 2011) (When a defendant presents evidence that raises the issue of an affirmative defense, the affirmative defense effectively becomes an additional element, and the trial court must instruct the jury that the prosecution bears the burden of proving beyond a reasonable doubt that the affirmative defense is inapplicable; when a defendant presents evidence that raises the issue of an elemental traverse, however, no such instruction is required; self-defense is an affirmative defense to second degree murder, but it is a traverse to crimes requiring recklessness, criminal negligence, or extreme indifference, such as reckless manslaughter)], and, thus, the trial court did not err in relying on Pickering to instruct the jury that self-defense was not an affirmative defense to the lesser-included charges of manslaughter and criminally negligent homicide.”).

10. In 2015, the Committee added Comment 9, citing to People v. Lane, supra.

11. In 2019, the Committee added the citation to Jones in Comment 6, and it updated Comment 8 to cross-reference additional Comments in Instruction H:11.

12. In 2021, the Committee updated Comment 4, adding the citation to Rau in place of the prior citation to Cushinberry (which Rau overruled).

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