Affirmative Defense to Unauthorized Entry in a Dwelling in the Second Degree

Affirmative Defense to Unauthorized Entry in a Dwelling in the Second Degree: H.R.S. § 708-812.6(3) (Applicable to offenses occurring on or after July 5, 2011) The Defendant has raised an affirmative defense to the offense of Unauthorized Entry in a Dwelling in the Second Degree. Before you may consider the affirmative defense, you must first determine whether the prosecution has proved all of the elements of Unauthorized Entry in a Dwelling in the Second Degree beyond a reasonable doubt. If you unanimously find that the prosecution has not proved all of the elements of that offense beyond a reasonable doubt, then you must find the Defendant not guilty of the offense without considering the affirmative defense. If you unanimously find that the prosecution has proved all of the elements of the offense beyond a reasonable doubt, then you must consider the affirmative defense. There are three elements to the affirmative defense, each of which the Defendant must prove. These three elements are: 1. That there was a social gathering of invited guests at the dwelling the Defendant entered; and 2. That the Defendant intended to join the social gathering; and 3. That the Defendant did not intend to commit any unlawful act other than the unlawful entry. The Defendant must prove an affirmative defense by a preponderance of the evidence. This means that the Defendant must prove that it is more likely than not, or more probable than not, that each element of the affirmative defense occurred. In determining whether the Defendant has proved an affirmative defense by a preponderance of the evidence, you must consider all of the evidence that has been presented to you regardless of who presented it. Your determination as to whether the Defendant has proved the affirmative defense must be unanimous and is to be indicated by answering “Yes” or “No” on a special interrogatory that will be provided to you. If you are unable to reach a unanimous agreement as to whether the affirmative defense has been proved or not been proved, then a verdict may not be returned on the charge of Unauthorized Entry in a Dwelling in the Second Degree. Notes H.R.S. § 708-812.6(3) For special interrogatory, see instruction 10.03G.