Kentucky Instructions to Juries – Criminal (Cooper)
CHAPTER 11 DEFENSESPart 2. Justification
§ 11.14 Protection of Property (From Damage)
[KRS 503.080(1)]
Instruction No. ___________
Protection of Property
A. If at the time the Defendant (method) (if he did so), he believed that (victim) was about to intentionally damage the Defendant’s property, and if (victim) neither had the right to damage the Defendant’s property nor any reasonable ground to believe that he had such a right, the Defendant [had no duty to retreat if he was in a place where he had a right to be and] was privileged to use such physical force against (victim) as he believed to be immediately necessary in order to protect his property.
B. Provided, however, if you believe from the evidence beyond a reasonable doubt that in so doing, the Defendant (1) intended to cause death or serious physical injury to (victim), or (2) thereby created, and knew he was creating a substantial risk of death or serious physical injury to (victim), then the Defendant was not so privileged].
COMMENT
Physical force may be used in the protection of one’s property from mere damage or trespass. Deadly physical force cannot be used, except to prevent dispossession, burglary, arson, robbery or another felony involving force. (See § 11.15, § 11.16 and § 11.17 below). The wanton or reckless belief qualification should be used if warranted by the evidence. The no “duty to retreat” phrase of subsection A. conforms to KRS 503.080(3). See also Comment to § 11.07, re: no duty to retreat.
Definitions: Intentionally (see § 3.01); Physical Force (see § 11.01); Serious Physical Injury (see § 3.09).