PROCURING AGENT DEFENSE

PROCURING AGENT DEFENSE It is a defense to the charge of (specify distribution or trafficking offense) that the Defendant acted as the procuring agent for the buyer. A procuring agent for the buyer is a person who acts only on behalf of the buyer and not as, or on behalf of, the seller. A person who is a procuring agent for the buyer cannot be found guilty of distributing the unlawful drug because the act of “buying” falls outside the definition of “to distribute.” The burden is on the prosecution to prove beyond a reasonable doubt that the Defendant was not acting only as the procuring agent for the buyer. If the prosecution does not meet its burden, then you must find the Defendant not guilty of the offense of (specify distribution or trafficking offense). Notes H.R.S. § 712-1240. Commentary Under the procuring agent defense, “ ‘one who acts merely as a procuring agent for the buyer is a principal in the purchase, not the sale, and, therefore, can be held liable only to the extent that the purchaser is held liable.’ ” State v. Davalos, 113 Hawaiʻi 385, 387, 153 P.3d 456, 458 (2007) (quoting State v. Balanza, 93 Hawaiʻi 279, 284, 1 P.3d 281, 286 (2000) (State v. Reed, 77 Hawaiʻi 72, 79, 881 P.2d 1218, 1225 (1994). A buyer or the agent of the buyer cannot be convicted of distributing a dangerous drug, HRS § 712-1242(1)(c), since “ ‘to buy’ [or to offer to buy] clearly falls outside the meaning of ‘to distribute’ as that term is defined in HRS § 712-1240.” State v. Aluli, 78 Hawaiʻi 317, 323, 893 P.2d 168, 174 (1995). The question of whether a defendant was acting on the seller’s behalf or on the purchaser’s behalf rests on the specific facts of the case. Davalos, 113 Hawaiʻi at 392, 153 P.3d at 463. Generally these are questions of fact for the fact finder. Id. The procuring agent defense is not an affirmative defense. Id. at 387 n. 6, 153 P.3d at 458 n.6. “Hence, like all non- affirmative defenses, the prosecution must disprove the defense beyond a reasonable doubt.” Id. DEFENSE OF PROPERTY WHEN THE USE OF “DEADLY FORCE” IS AT ISSUE The use of force in the defense of property is a defense to the charge(s) of (specify charge and its included offenses). The use of force in defense of property involves consideration of two issues. First, you must determine whether the defendant did or did not use “deadly force.” Second, you must determine whether the force used was justified. The burden is on the prosecution to prove beyond a reasonable doubt that the force used by the defendant was not justified. If the prosecution does not meet its burden, then you must find the defendant not guilty. The first issue is: Did the defendant use “deadly force?” “Deadly Force” means force which the defendant uses with the intent of causing, or which he/she knows to create a substantial risk of causing, death or serious bodily injury. “Force” means any bodily impact, restraint, or confinement, or the threat thereof. “Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. [Intentionally firing a firearm in the direction of another person or in the direction which the person is believed to be constitutes deadly force.] [A threat to cause death or serious bodily injury, by the production of a weapon or otherwise, so long as the actor’s intent is limited to creating an apprehension that he/she will use deadly force if necessary, does not constitute deadly force.] If you determine that the defendant used “deadly force,” then you are to proceed to the section in this instruction entitled “Deadly Force Used.” If you determine that the defendant did not use “deadly force,” then you are to proceed to the section in this instruction entitled “Deadly Force Not Used.” You must then follow the law in the applicable section to determine the second issue, which is whether the force used by the defendant was justified. Deadly Force Used The use of deadly force upon or toward another person in defense of property is justified only if the defendant reasonably believes that such force is immediately necessary because: [the person against whom the deadly force is used is attempting to dispossess the defendant of his/her dwelling other than under a claim of right to its possession] [the person against whom the deadly force is used is attempting to commit [felony property damage] [burglary] [robbery] [felony theft]* and: [that person used or threatened deadly force [against the defendant] [in the defendant’s presence]] [the use of force other than deadly force by the defendant to prevent [felony property damage][burglary][robbery][felony theft] would expose the defendant or another person in the defendant’s presence to a substantial risk of serious bodily injury.]] The reasonableness of the defendant’s belief that the use of protective deadly force in defense of property was immediately necessary shall be determined from the viewpoint of a reasonable person in the defendant’s position under the circumstances of which the defendant was aware or as the defendant reasonably believed them to be when the deadly force was used. Deadly Force Not Used The use of force upon or toward another person in defense of property is justified if the defendant reasonably believes that such force is immediately necessary: [To prevent criminal trespass or burglary* in a building or upon real property in the defendant’s possession, or in the possession of another person for whose protection the defendant acts] [To prevent unlawful entry upon real property in the defendant’s possession, or in the possession of another person for whose protection the defendant acts] [To prevent theft, criminal mischief, or any trespassory taking of,* any tangible movable property in the defendant’s possession, or in the possession of another person for whose protection the defendant acts.] The reasonableness of the defendant’s belief that the use of protective force in defense of property was immediately necessary shall be determined from the viewpoint of a reasonable person in the defendant’s position under the circumstances of which the defendant was aware or as the defendant reasonably believed them to be when the force was used. The defendant may use such force as he/she believes is necessary to protect the threatened property, provided that the defendant first requests that the person stop the interference with the property. However, the defendant need not make such a request if the defendant reasonably believes: [Such a request would be useless] [It would be dangerous to the defendant or another person to make the request] [Substantial harm would be done to the physical condition of the property that is sought to be protected before the request could effectively be made.] [The use of confinement as protective force is justifiable only if the defendant takes all reasonable measures to terminate the confinement as soon as he/she knows that he/she can do so with safety to the property, unless the person confined has been arrested on a charge of crime.] For Offenses Where the Requisite State of Mind is Reckless or Negligent [The use of force upon or toward another person in defense of property is not available for the offense(s) of (specify any offense in which the requisite state of mind is either recklessness or negligence) if the prosecution proves: (1) The defendant was reckless in believing that he/she was justified in using deadly force or force in defense of property; or (2) The defendant was reckless in acquiring or failing to acquire any knowledge or belief which was material to the justifiability of his/her use of deadly force or force in defense of property.] Note *The court should provide instructions on the elements of any applicable triggering felony offense.