MO 406.10 JUSTIFICATION: USE OF PHYSICAL FORCE IN SELF-DEFENSE WHILE IN A DWELLING, RESIDENCE OR VEHICLE

Missouri Approved Instructions – Criminal (MAI-CR)
406.00 SERIES INSTRUCTIONS REQUIRED WHETHER REQUESTED OR NOT

406.10 Justification: Use of Force in Self-Defense While in a Dwelling, Residence or Vehicle

One of the issues (as to Count _____) (in this case) is whether the use of (deadly force) (physical force, including deadly force,) by the defendant against [Identify victim.] was lawful. On the issue of self-defense (as to Count _____) (in this case), you are instructed as follows:

In this state the use of physical force (, including the use of deadly force, by a person lawfully occupying a (dwelling) (residence) (vehicle), is lawful in certain situations. [ Select the appropriate paragraphs. Omit brackets and numbers.]

[ Use the material in [1] in all cases. Omit brackets and number.]

[1] A person who is lawfully occupying a (dwelling) (residence) (vehicle) may use (physical force, including) deadly force (,) to defend himself against another person who (attempts to enter unlawfully) (enters unlawfully) (remains after an unlawful entry of) that (dwelling) (residence) (vehicle) if he reasonably believes the use of some physical force is necessary to defend himself from what he reasonably believes is the use or imminent use of unlawful physical force.

A person is not required to retreat before resorting to the use of physical force to defend himself if he is lawfully (occupying)(entering)(remaining in) a (dwelling) (residence) (vehicle).

The state has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense. Unless you find beyond a reasonable doubt that the defendant did not act in lawful self-defense (under this instruction), you must find the defendant not guilty (under Count _____).

As used in this instruction, the term “reasonably believe” means a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared. It does not depend upon whether the belief turned out to be true or false.

As used in this instruction, a person “unlawfully enters” a (dwelling) (residence) (vehicle) when he enters such (dwelling) (residence) (vehicle) and is not licensed or privileged to do so. A person who, regardless of his purpose, enters a (dwelling) (residence) (vehicle) that at the time is open to the public does so with license unless he defies a lawful order not to enter personally communicated to him by the owner or by another authorized person. A license to enter a (dwelling) (residence) (vehicle) that is partly open to the public is not a license to enter in that part of the (dwelling) (residence) (vehicle) that is not open to the public.

(As used in this instruction, a person “attempts to enter unlawfully” when, with a purpose to enter unlawfully, he takes a substantial step toward entering unlawfully. A substantial step means conduct which is strongly corroborative of the person’s firmness to complete the unlawful entry. It does not matter that it was factually or legally impossible to complete the entry if such entry could have been made had the circumstances been as the person believed them to be.)

As used in this instruction, “deadly force” means physical force which is used with the purpose of causing or which a person knows to create a substantial risk of causing death or serious physical injury.

As used in this instruction, the term “serious physical injury” means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.

(As used in this instruction, the term “dwelling” means any building, inhabitable structure or conveyance of any kind, whether the building, inhabitable structure, or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.)

(As used in this instruction, the term “residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.)

EVIDENTIARY MATTERS

[ See Notes on Use 6 for instructions on the use of additional paragraphs dealing with evidence of reputation or prior conduct of the defendant or the victim.]

Notes on Use

1. Section 563.031, RSMo 2016. This is a revision of MAICR 4th 406.10 (7-1-17). This instruction should be used for offenses committed on or after August 28, 2007.

2. Section 563.031.2(2) allows for the use of deadly force by persons defending themselves against a person who has made an unlawful entry or is attempting to unlawfully enter into a dwelling, residence or vehicle. This statutory subdivision provides that a person lawfully occupying a dwelling, residence, or vehicle can lawfully use deadly force if “such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person.” This instruction should be used only when there is evidence the defendant was lawfully occupying a dwelling, residence or vehicle, and used physical force, non-deadly or deadly, against a person who entered unlawfully, was attempting to enter unlawfully, or who remained after unlawfully entering this dwelling, residence or vehicle. The entry must be into a dwelling, residence or vehicle. The conduct of the victim must be an attempt to enter unlawfully, an unlawful entry, or remaining after making an unlawful entry.

3. The “burden of injecting the issue” of the lawful use of physical force in self-defense against a person who has unlawfully entered, attempted to unlawfully enter, or remained after unlawfully entering a dwelling, residence or vehicle is on the defendant. Whenever there is evidence supporting this defense, this instruction must be given.

4. A paragraph making a cross-reference to this instruction will be added to the verdict director as follows:

(Second) (Third) ([next numbered paragraph]), that defendant did not act in lawful self-defense as submitted in Instruction No._____).

If there is evidence supporting more than one claim of justifiable use of physical force, such as evidence supporting both self-defense under MAI-CR 4th 406.06 and self-defense by a lawful occupier of dwellings, residences and vehicles, a separate numbered cross-reference paragraph for each instruction on the justifiable use of physical force will be included in the verdict director.

5. If there is an issue as to whether the defendant used deadly force, then the phrase, “physical force, including deadly force,” should be used. If there is no dispute as to whether the defendant used deadly force, the phrase “deadly force” should be used.

6. Section 563.031(1), provides that self-defense by occupiers of dwellings, residences and vehicles and self-defense under MAI-CR 4th 406.06 will, subject to some exceptions, be denied to a person who is an initial aggressor. It will be rare for this issue to arise under this instruction. A person lawfully occupying a dwelling, residence or vehicle is entitled to be an initial aggressor in order to defend himself from an individual who has unlawfully entered his dwelling, residence or vehicle. However, a person lawfully occupying a dwelling, residence or vehicle can be an initial aggressor if he uses physical force against a person who is not attempting to enter unlawfully, has not unlawfully entered, or has not remained after unlawfully entering the dwelling, residence or vehicle. Should the situation arise, this instruction must be modified to include the issue of initial aggressor. See MAI-CR 4th 406.06 .

Section 563.031.1(3), also denies this defense and self-defense to a person who “was attempting to commit, committing or escaping after the commission of a forcible felony.” If such a situation arises, this instruction must be modified to include that issue. See MAI-CR 4th 406.06 . Note that the name of the forcible felony must be used and that felony must be defined as well as any mandatory definitions of terms used in the definition of the forcible felony. See Notes on Use 6 MAI-CR 4th 406.06 .

7. The last part of this instruction deals with matters of evidence. If there is evidence of the reputation of the victim or the defendant, or evidence of prior acts of or threats by the victim or the defendant, such are relevant to the defendant’s belief as to the necessity of using physical force. A paragraph or paragraphs explaining such may be added at the written request, in proper form, of either party. See paragraphs [1]-[6] under “EVIDENTIARY MATTERS” in MAI-CR 4th 406.06 for how to make thee

submissions. When supported by the evidence, similar paragraphs may be added to this instruction. The material under “EVIDENTIARY MATTERS” of MAI-CR 4th 406.06 should be modified for this instruction. If any these paragraphs are used, the following sentence will be used at the end of the instruction:

“You, however, should consider all of the evidence in the case in determining whether the defendant acted in lawful self-defense.”

8. Transferred Intent. If there is evidence that the defendant acted in self-defense as an occupier of a dwelling, residence or vehicle by using physical force directed at the person (A, the attacker) who made or attempted to make the unlawful entry, but the defendant injured or killed another person (B, a bystander), this instruction should be modified. In the opening paragraph, change the opening sentence as follows:

a. One of the issues (as to Count_____) (in this case) is whether the use of physical force by the defendant that resulted in (injury to) (the death of) [ name of B, bystander] was in lawful self-defense by a person lawfully occupying a (dwelling) (residence) (vehicle) against a person who (was attempting to enter unlawfully) (unlawfully entered) (remained after unlawfully entering) a

(dwelling) (residence) (vehicle).

b. When inserting “[ Identify victim.],” use the name of A, the attacker. For a discussion of transferred intent, see State v. Zumwalt, 973 S.W. 2d 504 (Mo. App. 1998).

9. Definitions.

(a) When the following terms are used in this instruction, the paragraph defining that term must be used:

“attempts to enter unlawfully,”

“dwelling,”

“residence.”

If the term is not used, the optional paragraph defining the term should not be used.

The definition of “attempt to unlawfully enter” is based on Section 562.012, RSMo 2016. The definition of “dwelling” is from Section 563.011, RSMo 2016. The definition of “residence” is from Section 556.011, RSMo 2016.

(b) The following term, if used in the instruction, may be defined by the court on its own motion and must be defined upon written request in proper form by the state or by the defendant:

“purpose.”

(c) The definition of “deadly force” is based on Section 563.011. The definition of “unlawfully enter” is based on Section 563.011. The definition of “serious physical injury” is from Section 556.061, RSMo 2016.

See MAI-CR 4th 433.00 .

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