State v. Amschler , 2015 Mo. App. LEXIS 600 ( 2015 )

Gary M. Gaertner, Jr., Judge

Introduction

Aaron Amschler (Defendant) appeals the judgment entered upon his conviction by jury of one count of unlawful use of a Weapon for discharging a firearm while intoxicated in violation of Section BTl.OSO.l©.¹ He argues the trial court erred in refusing- to instruct the jury regarding self-defense. Because we agree that the evidence, when viewed in the light most favorable to Defendant, warranted' submission of a sélf-defense instruction, we reverse. ■

Background

On the morning of December 11, 2012, Defendant was at his father’s house. His father, Gary Amschler (Gary), received a phone call that morning from Laura Adams (Adams), who said that Clinton Chandler (Chandler) was on his way over to Gary’s house. Adams told Gary that Chandler'was enraged and had said Defendant “better not be there” and' that he would beat up Defendant.'

Gary testified he was concerned about this because he knew Chandler “was a dangerous guy.” He explained that two months earlier, Defendant was standing at the back of a truck and told Chandler not to back up, but Chandler drove backwards and ran over Defendant’s leg with the truck. Later that night, Chandler was at Gary’s house, and Defendant asked Chandler why he ran over his leg. Chandler responded by punching Defendant in the face, which knocked Defendant to the ground.

So, when Chandler and his wife Barbara Chandler (Barbara) arrived at Gary’s house on December 11, 2012, Gary met them outside. He stopped Chandler in the driveway, told him not to come any further, and ordered him to leave. Chandler refused to leave and demanded payment from Gary for landscaping work Chandler had done for Gary, Barbara testified Gary and Chandler were saying “horrible things” to each other, and that Chandler was cussing and threatening to hurt Gary. Chandler said “if I catch you out by yourself, old man, you’re going to pay me one way or another” and said he was going to “kick [his] ass.” Gary testified that Chandler spent 45 minutes standing in the road bordering Gary’s property, and he, also made threats toward his family including “I’ll kill you. I’ll kill your kids. I’ll burn both your houses.” Then Chandler got into his car and drove halfway up Garys long driveway. Chandler and Gary continued arguing. Gary testified that Chandler was speaking “over the roof [of his truck] so I didn’t know what he had.” Chandler said he might have also clenched his fist and waved it at Gary.²

At some point during this encounter, Gary went into his house and woke up Defendant, who had been sleeping. Gary told Defendant that Chandler was making threats and that Defendant should get his gun. Defendant emerged briefly from the house and then went back inside. Chandler testified he got into his car and started to back out of the driveway before stopping and continuing to argue with Gary. In the meantime, Defendant came back out of the house with a rifle in his hand. Gary testified that “[Chandler] got out and stepped around the car and started running at [Defendant] at about two hundred and fifty feet and then he stopped and said ‘Come over here and fight. I’ll kill you. I’ll kill your dad. I’ll kill your brother. I’ll burn your truck.’ ”

While the yelling continued, Defendant fired a shot from the rifle into the ground. Defendant testified that he was afraid of Chandler because of what Chandler had done to him previously, and he also knew Chandler did some work as a tree-trimmer and would likely have a gas jug in the back of his truck for refueling chainsaws. Defendant said he was scared of Chandler, knew him to be violent, and did not want to take a chance of letting Chandler burn down Gary’s house.

The evidence at trial varied as to how far away Chandler was from Defendant when Defendant fired the gun, ranging from 75 to 250 feet, but Barbara testified that Chandler was “definitely on the Am-schler property when the gun was fired.” Defendant did not see that Chandler had a weapon at any time. Both Defendant and Barbara testified that after Defendant fired the gun, Chandler did not leave but continued yelling at Gary and Defendant and making threats. Eventually, Chandler and Barbara left, and both Chandler and Defendant called the police.

When police arrived, they detected an odor of alcohol on Defendant’s breath. Defendant admitted- firing the gun. He told police he was afraid of Chandler and he fired the gun to defend himself. When Defendant was in custody, he provided a breath sample to police showing a blood alcohol content of .107.

The State charged Defendant as a prior offender with unlawful use of a weapon for discharging a firearm while intoxicated. At the close of the evidence, Defendant offered a self-defense jury instruction, which the trial court rejected. The trial court found that no substantial evidence supported the giving of that instruction because the evidence did not support a reasonable belief of Chandler’s use or imminent use of unlawful force. During their deliberation, the jury asked the trial court whether they needed to consider self-defense, and the trial court told them to be guided by the court’s instructions. The jury found Defendant guilty. The trial court sentenced Defendant to three years’ imprisonment, but suspended execution of that sentence and placed him on five years’ probation. This appeal follows.

Discussion

In his first point, Defendant argues that the trial court erred in refusing to instruct the jury regarding self-defense because there was substantial evidence from which the jury could have found that he fired the gun under a reasonable belief of imminent danger. We agree.³

As a threshold matter, the State argues Defendant failed to preserve this point for review because the self-defense instruction Defendant proffered at trial misstated the law. Failure to submit- a corrective instruction may leave a claim of instructional error unpreserved. See State v. Derenzy, 89 S.W.3d 472, 475 (Mo. banc 2002). However, regarding self-defense, where substantial evidence in the record shows that a party has injected the issue of self-defense into the case, the trial court is required to instruct the jury on self-defense, “even if such an instruction' was offered but not in proper form.” State v. Westfall, 75 S.W.3d 278, 281 n. 9 (Mo. banc 2002). Thus, even assuming arguendo Defendant’s proffered instruction misstated the law, it was the trial court’s and not Defendant’s duty to correct any errors. See id. Any failure of Defendant' to do so did not defeat preservation of this point for appeal.

Turning to the merits of Defendant’s claim, we review a trial court’s refusal of a requested jury instruction de novo. State v. Jackson, 433 S.W.3d 390, 395 (Mo. banc 2014). The trial court is required to instruct the jury regarding self-defense if there is any substantial evidence putting self-defense in issue. Westfall 75 S.W.3d at 280-81. In determining whether substantial evidence existed to require such an instruction, we view the evidence and reasonable' inferences therefrom in the light most favorable to Defendant and “the theory propounded by [Defendant.” Id. at 280. While the substantial evidence required could have come from Defendant’s testimony alone, the trial court’s obligation to instruct the jury remained even if the substantial evidence supporting the instruction was inconsistent with Defendant’s testimony. See id. Where a trial court is required to instruct the jury regarding self-defense, failure to do so constitutes reversible error. State v. Weems, 840 S.W.2d 222, 226 (Mo. banc 1992).

A defendant may be justified in using physical force when “he dr she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force” by . another person. Section 568.081.1, RSMo. (Supp. 2013). The use of deadly force requires in addition that the defendant “reasonably believe[ ] that such deadly, force is necessary to protect himself, or herself ... or another against death, serious physical injury, or any forcible felony.” Section 563.031.2(1), RSMo. (Supp. 2013). A reasonable belief is one “based on ... grounds that could lead a reasonable person in the same situation to the same belief. This depends upon how the facts reasonably appeared[,] not ... upon whether the belief turned out to be true or false.” State v. Smith, 456 S.W.3d 849 (Mo. banc 2015) (quoting MAI-CR ed 306.06A[6]).

The question here is whether there was substantial evidence from which the jury could have found that Defendant had a reasonable belief deadly force⁴ was necessary to defend himself from what he reasonably believed to be an imminent use of unlawful force by Chandler. Section 563.031.1. The reasonableness of Defendant’s belief itself was for the jury to determine. State v. Chambers, 671 S.W.2d 781, 783 (Mo. banc 1984).

In rejecting Defendant’s proposed self-defense instruction, the trial court noted that Chandler was a considerable distance away from Defendant, did not possess a weapon, and made no attempt to strike Defendant, and therefore concluded there was no evidence that any threat of force from Chandler was imminent. However, viewing the whole record in the¹ light most favorable to Defendant, we conclude there was substantial evidence warranting submission of the issue to the jury.

First, Chandler acknowledged .that he was there to “force them to do the right thing,” and Barbara heard him tell Gary he would get his money “one way or another.” Once Defendant was outside, there was evidence Chandler ran toward Defendant saying he would kill him, kill his family, and burn his truck and house. While there was testimony that Chandler never got closer than 75 feet from Defendant and was not holding a weapon, Defendant’s testimony about both the contents of Chandler’s truck and the truck itself could have supported a reasonable belief that Chandler would, use either to cause imminent harm.

For instance, Defendant testified that, knowing of Chandler’s employment, Defendant believed Chandler would have a gas jug in his truck that he could use'to set fire to the house. Moreover, in light of the evidence that Chandler had used a truck in the past to injure Defendant, a jury may have found it reasonable that Defendant could believe Chandler’s truck itself was a potential, weapon, and one that could quickly close the distance gap between Chandler and Defendant. Additionally, Defendant testified that on a scale of one to ten, his fear of Chandler was “[ejleven, ten.” Under these circumstances, we believe the jury should have been able to determine, in light of all the evidence how close Defendant had to let Chandler get to him before Defendant was justified in firing a warning shot.

Next, after Defendant fired the shot, he saw “[Chandler] c[o]me walking towards me towards the house.... ” Similarly, Barbara testified that Chandler- was on Gary’s property and did not leave even after Defendant fired the gun, which could lend to confirmation of a reasonable belief on Defendant’s part that Chandler had no intention of leaving without causing the harm he was threatening. There was evidence that Defendant was standing only, a few feet from his front door and arguably had no place to retreat without risking Chandler coming closer to or inside his home to carry out his.threats. The jury should have been given the opportunity to consider whether this evidence formed a reasonable belief on Defendant’s part that there was an imminent threat of unlawful force.

Additionally, there was evidence. of Chandler’s prior violent behavior toward Defendant and others. Specifically, two months before this incident, Chandler ran over Defendant’s leg with a truck and then punched Defendant in the face when he later asked Chandler about it. This evidence was relevant to establish the reasonableness of Defendant’s belief that the use of deadly force was necessary. See State v. Waller, 816 S.W.2d 212, 216 (Mo. banc 1991); State v. Peoples, 621 S.W.2d 324, 327 (Mo.App.W.D.1981) (acts of violence by victim upon defendant may prove reasonableness of defendant’s apprehension).

The jury also heard evidence of Chandler’s reputation for violence, and Defendant testified that he had seen Chandler hurt other people in fights. In one of these instances, Defendant said Chandler believed the person owed him money and Chandler “knocked his teeth crooked in his mouth.” In light of the fact that Chandler was also at Gary’s house that day to collect money he .believed Gary owed him, the jury should have had an opportunity to consider whether this evidence contributed to a reasonable belief that .an imminent threat of unlawful force existed.⁶ See State v. Gonzales, 153 S.W.3d 311, 312-13 (Mo. banc 2005) (evidence of victim’s reputation for violence is relevant to issue of reasonableness.of defendant’s:fear of victim where-defendant knew of victim’s reputation).

Defendant’s counsel also ' elicited evidence of Chandler’s prior convictions. Chandler admitted at the timé of trial he was incarcerated for felony domestic assault, arising out of an event that occurred on December 12, 2012, the day after this incident. Chandler also had prior convictions for stealing, various drug-related offenses including felony distribution, as well as three other assault convictions.

Finally, self-defense was Chandler’s entire theory of defense. In fact, both the State and Defendant’s counsel discussed the issue of self-defense with the jury during opening statements and both attorneys asked Defendant questions regarding self-defense during his testimony. Further, the jury inquired during deliberations whether they could consider self-defense.

Viewing all of these circumstances in the light most favorable to Defendant and to his theory of the . case, we conclude the trial court erred in determining that there was no substantial evidence on the record from which the jury, could find that Chandler approached Defendant in a manner that Defendant could reasonably have believed posed an imminent threat of unlawful force, requiring the use of deadly force in defense. See Westfall, 75 S.W.3d at 280-81. While a jury may ultimately find Defendant did not act in self-defense, it is up to a jury to decide which evidence they find credible and whether Defendant’s fear was reasonable. See State v. Jackson, 433 S.W.3d 390, 399 (Mo. banc 2014) (jury has right to disbelieve all or any part of evidence, and refuse to draw needed inferences).

Thus, the trial court committed reversible error in refusing to instruct the jury regarding self-defense. Point granted.⁷

Conclusion

Defendant sufficiently injected the issue of self-defense such that the trial court should have instructed the jury that they could consider whether Defendant’s actions were justified under the circumstances. Thus, we reverse the trial court’s judgment and remand for a new trial.

Robert G. Dowd, Jr., J., concurs.

1 . All statutory references are ;to RSMo. . (2000), unless otherwise indicated.

2 . Because this case involves multiple individuals with the same last name, we refer to some of them by first name. We do so for the sake of clarity only and intend no disrespect.

3 . While Defendant does not contest the element of his intoxication, he testified at trial that he drank a beer after firing the shot and before police arrived.

4 . Defendant did not dispute that firing a.shot into the ground was a use of deadly force.

6 . Defendant’s counsel also sought to introduce evidence that Chandler had a reputation for violence when he was looking for drugs, and that Chandler was in fact looking to obtain money for drugs on the day when he came to Defendant’s father’s house. The trial court excluded this evidence, but the trial court should reexamine this question upon retrial in light of the fact that' self-defense will be at issue. See State v. Gonzales, 153 S.W.3d 311, 312-13 (Mo. banc 2005).

7 . Defendant’s second point contests the trial court’s exclusion of statements Defendant made during a 911 call following this incident. Because Defendant sought to introduce this evidence to bolster his defense of self- . defense, which will now be at issue upon retrial, and because admission of evidence is a matter for the trial court's discretion, we leave it to the trial court upon remand to determine at that point whether this evidence should be admitted.

1 . Because Aaron Amschler and his father Gary share the same last name, I will refer each of them by first name. I intend no disrespect to the parties in doing so.