Page:Schnarr v. State, 2018 Ark. 333.pdf/10

 —the State's position that a reckless charging prohibits a justification instruction is mistaken because such prohibition is premature. Simply put, it is for the jury to determine culpability, not the prosecutor. Finally, we look at the entire Act, which supports our interpretation that the plain language of section § 5-2-614 provides that once the jury determines whether a defendant has been reckless or negligent in forming the belief that force is necessary, then the applicability of the justification defense is determined.

Our holding is also supported by our precedent. Justification is not an affirmative defense that must be pleaded but becomes a defense when any evidence tending to support its existence is offered to support it. Peals v. State, 266 Ark. 410, 584 S.W.2d 1 (1979). By statute, a justification, such as self-defense, is considered an element of the offense, and once raised, it must be disproved by the prosecution beyond a reasonable doubt. Ark. Code Ann. § 5-1-102(5)(C) (Repl. 2013); Anderson v. State, 353 Ark. 384, 403–04, 108 S.W.3d 592, 604–05 (2003).

Because we reverse and remand for a new trial, we do not reach Schnarr’s remaining points.

Reversed and remanded.

K, C.J., and W and W, JJ., dissent.