Page:Schnarr v. State, 2018 Ark. 333.pdf/15



an alleged belief may be evidenced [sic] that it was not in fact held, but if the tribunal was satisfied that the belief was held, the defendant in a prosecution for a crime founded on wrongful purpose should be entitled to be judged on the assumption that his belief was true. To convict for a belief arrived at on unreasonable grounds is, as we have urged, to convict for negligence. Where the crime otherwise requires greater culpability for a conviction, it is neither fair nor logical to convict when there is only negligence as to the circumstances that would establish a justification." M.P.C. § 3.09, Comment at 78 (Tent. Draft No. 8, 1958).

For example, assume a conductor recklessly misconstrues conduct by a passenger on a carrier as a breach of the peace, applies physical force, and injures the passenger. Section 41–514(1) would protect the conductor by permitting him to interpose a defense based on § 41–505(3) to a prosecution for purposeful conduct under § 41–1602 (Battery in the second degree). However, because the conductor acted recklessly in assessing the need to use force, § 41–514(1) withdraws justification as a defense to a prosecution under § 41–1603(b) (Battery in the third degree), since proof of recklessness suffices for conviction of the latter offense.

Id. at 134 n. 1, 39 S.W.3d at 756 n. 1. Thus, this court strongly suggested that section 5-2-614 withdraws justification as a defense to a prosecution for an offense for which the culpable mental state is recklessness or negligence. Furthermore, the court of appeals has specifically stated that section 5-2-614 "provides that justification is not available as a defense to an offense for which recklessness suffices to establish culpability." Merritt v. State, 82 Ark. App. 351, 354–55, 107 S.W.3d 894, 897 (2003) (holding that the appellant was not entitled to justification instructions with regard to first- and second-degree assault, which are committed if the accused acts recklessly, and the trial court did not err in refusing an instruction that would have made justification a defense to those offenses); see also Albretsen v. State, 2015 Ark. App. 33, at 5, 454 S.W.3d 232, 236 ("Arkansas Code Annotated section 5-2-614(a) (Repl. 2013) provides that justification is not available as a defense to an offense for which recklessness or negligence suffices to establish culpability."). "The General Assembly is presumed to be familiar with the appellate courts' interpretation of its statutes,