Colorado Jury Instructions-Criminal (COLJI-Crim) (2016)

H:17 USE OF DEADLY PHYSICAL FORCE (DEFENSE OF PREMISES)

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

The defendant was legally authorized to use deadly physical force upon another person if:

1. he [she] she was in possession or control of any building, realty, or other premises, [or was a person licensed or privileged to be there,] and

2. he [she] reasonably believed the use of deadly physical force was necessary to prevent what he [she] reasonably believed to be an attempt by the trespasser to commit first degree arson.]

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 § 18-1-705, C.R.S. 2016.

2. See Instruction F:87 (defining “deadly physical force”); Instruction F:284 (defining “premises”); Instruction 4-1:01 (first degree arson); Instruction G2:01 (criminal attempt); Instructions 4-5:03, 4-5:04, 4-5:05, 4-5:09 (criminal trespass); 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 Instruction H:11, Comment 3 (no-duty to retreat), Comment 5 (multiple assailants); Instruction H:16 (use of non-deadly physical force in defense of premises), Comment 3 (police officers as trespassers).