chapter h affirmative defenses

60 Pages·2008·0.1 MB·English

CHAPTER H

AFFIRMATIVE
DEFENSES

H:01 AFFIRMATIVE DEFENSES – GENERALLY
H:02 EFFECT OF IGNORANCE OR MISTAKE UPON
CULPABILITY (MISTAKEN BELIEF)
H:03 EFFECT OF IGNORANCE OR MISTAKE UPON
CULPABILITY (MISTAKEN BELIEF, LAW)
H:04 CONSENT OF VICTIM
H:05 CONSENT OF VICTIM (OFFENSES INVOLVING
BODILY INJURY OR THREAT OF BODILY INJURY)
H:06 DEFENDANT AS VICTIM OR INCIDENTAL ACTOR
H:07 WARNING TO LAW ENFORCEMENT AUTHORITY OR
VICTIM
H:08 EXECUTION OF PUBLIC DUTY
H:09 CHOICE OF EVILS
H:10 DURESS
H:11 AFFIRMATIVE DEFENSE FELONY MURDER
H:12 ENTRAPMENT
H:13 INSUFFICIENT AGE–UNDER TEN
H:14 INTOXICATION–VOLUNTARY
H:15 INTOXICATION–INVOLUNTARY
H:16 USE OF PHYSICAL FORCE–SPECIAL
RELATIONSHIPS
H:17 USE OF PHYSICAL FORCE–DEFENSE OF PERSON
H:18 USE OF PHYSICAL FORCE-DEADLY PHYSICAL
FORCE (IMMINENT DANGER OF DEATH OR SERIOUS
BODILY INJURY BY VICTIM)
H:19 USE OF PHYSICAL FORCE-DEADLY PHYSICAL
FORCE (KIDNAPPING/ROBBERY/SEXUAL
ASSAULT/ASSAULT FIRST OR SECOND DEGREE BY
VICTIM)
H:20 USE OF PHYSICAL FORCE - DEADLY PHYSICAL
FORCE (FORCE AGAINST OCCOUPANT/BURGLARY)
H:21 USE OF PHYSICAL FORCE IN DEFENSE OF
PREMISES
H:22 USE OF DEADLY PHYSICAL FORCE IN DEFENSE OF
PREMISES
H:23 USE OF DEADLY PHYSICAL FORCE AGAINST AN
INTRUDER
H:24 USE OF PHYSICAL FORCE IN DEFENSE OF
PROPERTY
H:25 USE OF PHYSICAL FORCE IN MAKING AN ARREST
OR IN PREVENTING AN ESCAPE–PEACE OFFICER
H:26 USE OF DEADLY FORCE IN MAKING AN ARREST OR
IN PREVENTING AN ESCAPE–PEACE OFFICER
H:27 USE OF DEADLY FORCE IN MAKING AN ARREST OR
IN PREVENTING AN ESCAPE (PRIVATE PERSON–
DIRECTION OF PEACE OFFICER)
H:28 USE OF DEADLY FORCE IN MAKING AN ARREST OR
IN PREVENTING AN ESCAPE (PRIVATE PERSON–
DIRECTION OF PEACE OFFICER–DEADLY FORCE
H:29 USE OF DEADLY FORCE IN MAKING AN ARREST OR
IN PREVENTING AN ESCAPE (PRIVATE PERSON,
ACTING ON HIS OWN)
H:30 USE OF DEADLY FORCE IN MAKING AN ARREST OR
IN PREVENTING AN ESCAPE (PRIVATE PERSON,
ACTING ON HIS OWN–DEADLY FORCE)
H:31 USE OF DEADLY FORCE IN MAKING AN ARREST OR
IN PREVENTING AN ESCAPE (DETENTION
FACILITY)
H:32 USE OF DEADLY FORCE IN MAKING AN ARREST OR
IN PREVENTING AN ESCAPE (DETENTION
FACILITY–DEADLY FORCE)
H:33 CRIMINAL ATTEMPT–ABANDONING EFFORT
H:34 CONSPIRACY–ABANDONING
H:35 CONSPIRACY–RENUNCIATION OF CRIMINAL
PURPOSE
H:36 CRIMINAL SOLICITATION–OBJECT ACHIEVED
H:37 CRIMINAL SOLICITATION–PREVENT COMMISSION
H:38 AFFIRMATIVE DEFENSE–COMPLICITY
H:39 FELONY MURDER–TWO OR MORE PARTICIPANTS
DEFENDANT ATTEMPTS TO DISENGAGE HIMSELF
H:40 FALSE IMPRISONMENT QUESTIONING OF PERSON
SUSPECTED OF THEFT WITHOUT LIABILITY
H:41 VIOLATION OF CUSTODY
H:42 CRIMINALITY OF CONDUCT–AGE OF VICTIM
H:43 OBSTRUCTING GOVERNMENTAL OPERATIONS
H:44 COMPOUNDING–BELIEF AMOUNT DUE DEFENDANT
H:45 TRADING IN PUBLIC OFFICE
H:46 DESIGNATION OF SUPPLIER
H:47 PERJURY–RETRACTION
H:48 DISOBEDIENCE OF PUBLIC SAFETY ORDERS UNDER
RIOT CONDITIONS
H:49 KNIFE–HUNTING OR FISHING
H:50 UNLAWFULLY CARRYING A CONCEALED WEAPON
(OWN PROPERTY OR AUTOMOBILE) (PERMIT)
H:51 POSSESSION OF WEAPON BY PREVIOUS OFFENDER
PURPOSE OF POSSESSION
H:52 OFFENSES RELATING TO FIREARMS AND WEAPONS
PEACE OFFICERS
H:53 POSSESSING AN ILLEGAL OR DANGEROUS WEAPON–
EXCEPTION
H:54 DISORDERLY CONDUCT–PROVOCATION
H:55 LIBEL–TRUTH OF STATEMENT
H:56 CRIMINAL USURY
H:57 COMMUNICATION–NEWS AGENCY
H:58 COMMUNICATIONS–PERSONAL PREMISES
H:59 COMMUNICATIONS–COMMON CARRIER
H:60 COMMUNICATION–PROHIBITED ACT
H:61 OFFENSE INVOLVING COMMUNICATION
H:62 BIGAMY
H:63 INTERFERENCE WITH STAFF, FACULTY, OR
STUDENTS OF EDUCATIONAL INSTITUTIONS
H(1-4) SPECIAL RULES

The instructions in this chapter are designed
to cover the affirmative offenses in §§ 18-1-407;
18-1-503.5; 18-1-504 and 505; 19-1-604; 18-1-701
through -709; 18-1-801,-804; 18-2-101; 18-2-203,-
204; 18-2-301; 18-3-304;18-4-407; 18-6-201; 18-8-
102; 18-8-108; 18-8-305; 18-8-307; 18-8-508; 18-9-
105,-106; 18-9-109; 18-9-305; 18-12-101,-102; 18-
12-105; 18-13-105; 18-15-104, C.R.S.
NOTES ON CHAPTER USE

Under this section “affirmative defense” means that
unless the state’s evidence raises the issue involving the
alleged defense, the defendant, to raise the issue, must
present some credible evidence on that issue.

If the issue involved in an affirmative defense is
raised, then the guilt of the defendant must be established
beyond a reasonable doubt as to that issue as well as to
elements of the offense. People v. Miller, 113 P.3d 743
(Colo. 2005)

This chapter contains general affirmative defenses and
affirmative defenses to specific crimes. Only statutory
affirmative defenses are set forth in this chapter. There
may be other, non-statutory affirmative defenses. Although
the defense of voluntary intoxication has been deemed not
to be an “affirmative defense” by the supreme court in
People v. Harlan, 8 P.3d 448 (Colo. 2000), it has been
included in this chapter.

H:01 AFFIRMATIVE DEFENSES - GENERALLY

In addition to proving all of the elements of the
crime charged beyond a reasonable doubt, the prosecution
also has the burden to disprove the affirmative defense
beyond a reasonable doubt.

After considering all the evidence, if you decide the
prosecution has failed to disprove beyond a reasonable
doubt any one or more elements of the affirmative defense,
you must return a verdict of not guilty.

NOTES ON USE

This language should now be included in the concluding
paragraphs of affirmative defense instructions and not set
forth in a separate instruction.

SOURCE & AUTHORITY

§18-1-407, C.R.S.

People v. Garcia, 113 P.3d 775 (Colo. 2005)
H:02 EFFECT OF IGNORANCE OR MISTAKE UPON
CULPABLITY (MISTAKEN BELIEF)

It is an affirmative defense to the crime of
_________________ that the defendant engaged in the
prohibited
(insert name of crime)
conduct under a mistaken belief, and due to this mistaken
belief by the defendant he did not form the particular
mental state required in order to commit the offense.

In addition to proving all of the elements of the
crime charged beyond a reasonable doubt, the prosecution
also has the burden to disprove the affirmative defense
beyond a reasonable doubt.

After considering all the evidence, if you decide the
prosecution has failed to disprove beyond a reasonable
doubt any one or more elements of the affirmative defense,
you must return a verdict of not guilty.

SOURCE & AUTHORITY

§§ 18-1-504(1) (a) and (3), C.R.S.

H:03 EFFECT OF IGNORANCE OR MISTAKE UPON
CULPABILITY (MISTAKEN BELIEF, LAW)

It is an affirmative defense to the crime of
___________________ that the defendant engaged in the
prohibited
(insert name of crime)
conduct under a mistaken belief that the conduct did not
constitute the crime, only if such conduct is permitted by:
[A statute or ordinance binding in this state] [An
administrative regulation, order, or grant of permission by
a body or official authorized and empowered to make such
order or grant the permission under the laws of the State
of Colorado] [An official written interpretation of the
statute or law relating to the offense, made or issued by a
public servant, agency, or body legally charged or
empowered with the responsibility of administering,
enforcing, or interpreting such statute, ordinance,
regulation, order, or law. If such interpretation is by
judicial decision, it must be binding in the State of
Colorado].

In addition to proving all of the elements of the
crime charged beyond a reasonable doubt, the prosecution
also has the burden to disprove the affirmative defense
beyond a reasonable doubt.

After considering all the evidence, if you decide the
prosecution has failed to disprove beyond a reasonable
doubt any one or more elements of the affirmative defense,
you must return a verdict of not guilty.

NOTES ON USE

Delete inapplicable material.

Some members of the committee believe that this
instruction sets forth an issue of law, which should be
decided by the court.

Arguably, the previous instruction, on mistaken
belief, could be used in place of this instruction, as a
mistaken belief of law under the above circumstances means
that the defendant did not form the culpable mental state
required for the commission of the offense.

SOURCE & AUTHORITY

§§18-1-504(2),(3), C.R.S.

People v. Lesslie, 24 P.3d 22 (Colo. App. 2000)

H:04 CONSENT OF VICTIM

It is an affirmative defense to the crime of (insert
name of crime) that the victim consented, if [the consent
negates an element of that offense] [the consent precludes
the infliction of the harm or evil sought to be prevented
by the law defining that offense].

In addition to proving all of the elements of the
crime charged beyond a reasonable doubt, the prosecution
also has the burden to disprove the affirmative defense
beyond a reasonable doubt.

After considering all the evidence, if you decide the
prosecution has failed to disprove beyond a reasonable
doubt any one or more elements of the affirmative defense,
you must return a verdict of not guilty.
NOTES ON USE

See Dunton v. People, 898 P.2d 571 (Colo. 1995);
People v. Bush, 948 P.2d 16 (Colo.App. 1997);People v.
Cruz, 923 P.2d 311 (Colo.App. 1996);People v. Williams, 899
P.2d 306 (Colo.App. 1995); People v. Martinez, 36 P.3d 154
(Colo. App. 2001); People v.Holwuttle, 155 P.3d 447 (Colo.
App. 2006)(use of this statute and §18-3-401(1.5) not
error); People v. Platt, 170 P.3d 802 (Colo.App. 2007).

Reference should be made to the special rules at the
end of this chapter, particularly “When Assent Does Not
Constitute Consent”.

In charges of sexual assault, the instruction
following §18-3-408.5, C.R.S. should be given if requested
by either party. Statutorily, this definition of consent
applies only in cases of sexual assault, but it may be used
as guidance in drafting an appropriate definitional
instruction in other consent cases.

The parties should define the harm or evil set forth
in the second bracketed alternative.

SOURCE & AUTHORITY

§18-1-505(1),(4), C.R.S.

H:05 CONSENT OF VICTIM (OFFENSES INVOLVING BODILY
INJURY OR THREAT OF BODILY INJURY)

It is an affirmative defense to the crime of (insert
name of crime) that the victim consented, if [the bodily
injury consented to or threatened by the conduct consented
to is not serious] [the conduct and the injury are
reasonably foreseeable hazards of joint participation in a
lawful athletic contest or competitive sport].

In addition to proving all of the elements of the
crime charged beyond a reasonable doubt, the prosecution
also has the burden to disprove the affirmative defense
beyond a reasonable doubt.

After considering all the evidence, if you decide the
prosecution has failed to disprove beyond a reasonable
doubt any one or more elements of the affirmative defense,
you must return a verdict of not guilty.

NOTES ON USE

Reference should be made to the special rules at the
end of this chapter, particularly that addressing the
situation in which assent does not constitute consent.

This instruction is designed to cover only the consent
of a victim of an offense against person. For other
offenses, the previous instruction should be used.

SOURCE & AUTHORITY

§18-1-505(2), C.R.S.

H:06 DEFENDANT AS VICTIM OR INCIDENTAL ACTOR

It is an affirmative defense to the crime of (insert
name of crime), that:

1. the behavior of another constitutes an offense, and

2. [the defendant is a victim of that offense][the
defendant’s conduct is inevitably incidental to the
commission of that offense].

In addition to proving all of the elements of the
crime charged beyond a reasonable doubt, the prosecution
also has the burden to disprove the affirmative defense
beyond a reasonable doubt.

After considering all the evidence, if you decide the
prosecution has failed to disprove beyond a reasonable
doubt any one or more elements of the affirmative defense,
you must return a verdict of not guilty.

NOTES ON USE

See People v. Hart, 787 P.2d 186 (Colo.App. 1989).

People v. Grace, 55 P.3d 165 (Colo. App. 2001)
(discussing
application of the defense).
This instruction should be given only where the
defendant’s
criminal liability for the behavior of another is an issue
at trial.

SOURCE & AUTHORITY

§18-1-604(1), C.R.S.

H:07 WARNING TO LAW ENFORCEMENT AUTHORITY OR
VICTIM

It is an affirmative defense to the crime of_(insert
name of crime)_ that, prior to the commission of that
offense, the defendant terminated [his][her] effort to
promote or facilitate its commission and either gave timely
warning to law enforcement authorities or gave timely
warning to the intended victim.

In addition to proving all of the elements of the
crime charged beyond a reasonable doubt, the prosecution
also has the burden to disprove the affirmative defense
beyond a reasonable doubt.

After considering all the evidence, if you decide the
prosecution has failed to disprove beyond a reasonable
doubt any one or more elements of the affirmative defense,
you must return a verdict of not guilty.

NOTES ON USE

This instruction should be given only in cases where
the defendant’s criminal liability is based upon the
behavior of another.

SOURCE & AUTHORITY

§18-1-604(2), C.R.S.

H:08 EXECUTION OF PUBLIC DUTY

It is an affirmative defense to the crime of (insert
name of crime) that the defendant’s conduct was required or
authorized by a provision of law or a judicial decree
binding in Colorado.
In addition to proving all of the elements of the
crime charged beyond a reasonable doubt, the prosecution
also has the burden to disprove the affirmative defense
beyond a reasonable doubt.

After considering all the evidence, if you decide the
prosecution has failed to disprove beyond a reasonable
doubt any one or more elements of the affirmative defense,
you must return a verdict of not guilty.

NOTES ON USE

This affirmative defense is available unless
inconsistent with other provisions of §§18-1-702 through-
710, C.R.S., defining the justifiable use of physical
force, and any other provision of law. “Provision of law”
and “judicial decree” are specifically defined in the
definitions chapter and in § 18-1-701(2), C.R.S.

SOURCE & AUTHORITY

§18-1-701, C.R.S.

H:09 CHOICE OF EVILS

It is an affirmative defense to the crime
of____________________ that the conduct engaged in by the
(insert name of crime)
defendant was:

1. necessary as an emergency measure to avoid an
imminent
public or private injury,

2. which was about to occur because of a situation
occasioned or developed through no conduct of the
defendant, and

3. which was of sufficient gravity that, according to
ordinary standards of intelligence and morality, the
desirability and urgency of avoiding the injury clearly
outweighed the desirability of avoiding the injury sought
to be prevented by the statute defining (insert name of
crime)