Del. P.J.I. Crim. No. 11.905

INTENTION AND ABILITY TO MEET OBLIGATIONS

[AFFIRMATIVE DEFENSE]

In this case, Defendant has asserted an affirmative defense to the charge of

Unlawful Use of a Credit Card. The affirmative defense is that Defendant intended

and had the ability to meet Defendant’s obligations.

In order to establish this affirmative defense, Defendant must prove each of the

following two (2) elements by a preponderance of the evidence:

(1) Defendant intended to meet all obligations to the issuer of the credit card

arising out of Defendant’s use of the card; and

(2) Defendant had the ability to meet the issuer's obligations.

Proof by a preponderance of the evidence means proof something is more

likely true than not. It means certain evidence, when compared to the evidence

opposed to it, is more convincing. Preponderance of the evidence does not depend on

the number of witnesses. If the evidence is evenly balanced, then Defendant has not

proved the defense by a preponderance of the evidence, and you must find against

Defendant on that point. The state has no burden to present any evidence on this

matter.

If after considering all of the evidence, you find this affirmative defense is

established by a preponderance of the evidence, then you must find Defendant not

guilty. Even if Defendant has not met this burden of proof for this particular

affirmative defense, you must find Defendant not guilty if you find the State has not

met its burden of proving its case beyond a reasonable doubt.

“Intentionally” means it was Defendant’s conscious objective or purpose to

satisfy Defendant’s obligations to the credit card issuer.