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

406.12 Justification: Use of Force in Defense of Property

PART A – GENERAL INSTRUCTIONS

One of the issues (as to Count_____) (in this case) is whether the use of force by the defendant against [name of victim] was in defense of property. In this state, the use of force to protect property is lawful in certain situations. (But the use of deadly force is not permitted to protect property.)

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

[1] In order for a person lawfully to use force against another person in defense of property, he must reasonably believe the other person is committing or attempting to commit the offense of (stealing) (or) (property damage) (or) (tampering).

If he has such a belief, he is then permitted to use that amount of force which he reasonably believes to be necessary to end or prevent such (stealing) (or) (property damage) (or) (tampering).

[ Use the material in [2] ONLY if there is evidence the defendant used deadly force. Omit brackets and number.]

[2] But to prevent (stealing) (or) (property damage) (or) (tampering), a person is not permitted to use deadly force, that is, force which he knows will 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.

[ Use the material in [3] in ALL cases. Omit brackets and number.]

[3] As used in this instruction, the term “reasonable belief” means a belief based on reasonable grounds, that is, grounds which 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.

PART B – SPECIFIC INSTRUCTIONS

On the issue of the defense of property (as to Count_____) (in this case), you are instructed as follows:

If the defendant reasonably believed [name of victim] was (committing) (or) (attempting to commit) (stealing) (or) (property damage) (or) (tampering) and defendant used such force as reasonably appeared to be necessary to (prevent) (or) (end) the (stealing) (or) (property damage) (or) (tampering) by [name of victim], (and if the defendant did not use deadly force), then defendant acted in lawful defense of property.

The state has the burden of proving beyond a reasonable doubt that the defendant did not act in lawful defense of property. Unless you find beyond a reasonable doubt that the defendant did not act in lawful defense of property in using force against [name of victim], you must find the defendant not guilty (under Count _____).

Notes on Use

1. Section 563.041, RSMo 2016. This is a revision of MAI-CR 3d 306.12 (9-1-02). This form does not include any applicable statutory changes since 2002. You should review any changes to the statute and determine if modifications need to be made to the form.

2. The “burden of injecting the issue” of defense of property is on the defendant. Whenever there is evidence supporting this defense, this instruction must be given. 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 defense of property as submitted in Instruction No. _____,

If there is evidence supporting more than one claim of justifiable use of force, such as evidence supporting both defense of property and self-defense, a separate numbered cross-reference paragraph for each will be included in the verdict director.

NOTE: If a cross-reference to a justifiable use of force is included in a verdict director, such cross-reference must also be included in the verdict directors for any lesser included offenses. State v. Beeler, 12 S.W.3d 294 (Mo. banc 2000). The same issues arise if the defendant is charged with assault or any offense to which there can be a defense of justifiable use of force.

3. This instruction is divided into two parts.

The first part of the instruction, part A, sets out the general requirements for the lawful use of force in defense of property. The material in parentheses in the opening paragraph relating to the use of deadly force and the material in [2] will be used only when there is an issue as to whether deadly force was used. The use of deadly force is not justified in defense of property. If from the evidence in the case it is clear that deadly force was used, then this instruction will not be given as it would not be supported by the evidence. On the other hand, if there is no evidence of the use of deadly force, the material in parentheses in the opening paragraph and the material in [2] will be omitted.

Included in the material in [2] is a definition of serious physical injury. It should be used if the term “serious physical injury” is used in the instruction. See Notes on Use 6.

The material in [3] of part A will be used in all cases.

4. The second part of the instruction, part B, gives specific instructions relating to the specific case. The phrase in parentheses relating to the use of deadly force will be omitted if there is no evidence of the use of deadly force. If the evidence is such that there is an issue as to whether deadly force was used, the material relating to deadly force in the parentheses will be used.

5. Section 563.041.3 provides that “physical restraint” can be used as protective force in defense of property. If an issue of the lawful use of physical restraint is raised by the evidence, this instruction will be modified as follows:

Modify the second sentence of the opening paragraph of part A so that it reads: “In this state, the use of force, including the use of physical restraint, to protect property is lawful in certain situations.” Then add the following at the end of the material following [1]:

The reasonable use of physical restraint as protective force is lawful provided appropriate steps are taken to end the restraint as soon as it is reasonable to do so.

6. Definitions.

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

“serious physical injury.”

If the term is used in more than one instruction, the paragraph defining that term need not be included in this instruction. In that case, it must be defined in a separate instruction.

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

The definition of “serious physical injury” is from Section 556.061, RSMo 2016.

(b) The following terms, 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:

“property damage,”

“stealing,”

“tampering.”

See MAI-CR 4th 433.00 .