2015 #26 self defense weekly law report

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Law of Self Defense: Weekly Law Report 2015 #26 (June 15-19, 2015) __________________________________________________________________________________________

__________________________________________________________________________________________ 2015 © www.lawofselfdefense.com of 41



Frequently Asked Questions

Q: What is the “Law of Self Defense: Law Report Weekly”?

A: Each week Law of Self Defense staff review self-defense court decisions from around the country. Thosewe find most interesting are summarized in each week’s “Law of Self Defense: Weekly Law Report.” The

cases are organized by state, in alphabetical order, first listed in summary fashion in the Table of Contents

and then by individual case.

Q: The Law of Self Defense is well-known for translating the “legalese” of self-defense law into “plain

English” easily understood by non-lawyers, as you do in your books, seminars, online training, and

blog posts. Is the same effort made to translate the cases in these Weekly Reports into “plain

English”?

A: I’m afraid not. Translating “legalese” into “plain English” takes a lot of effort, and simply isn’t tenable for

weekly reports of this type. Therefore we consider these reports a “graduate-level” product, for people

who already have a solid understanding of the legal principles of self-defense law. To get up to speed we

encourage you to start with our best-selling book, “The Law of Self-Defense, 2nd Edition,” (also available

from Amazon in print and Kindle, the NRA Store, and Gun Digest) which covers all 50 states at a high level.

You may also consider one of our state-specific live Law of Self Defense Seminars held all over the country

or state-specific online training classes. And, of course, there’s always the Law of Self Defense Blog.

Q: Do you recount each of the cases in their entirety?

A: No. Many cases that involve issues of self-defense also involve other issues unrelated to self-defense; we

only summarize the portions of the cases that directly involve issues of self-defense law. What we do

include are the case citation, a list of the key self-defense law issues covered in that case, the date of the

decision, and the text of the decision that discusses the specific self-defense laws of interest.

The goal is to provide the reader with an efficient way of deciding if they want to read the entire case.

Q: What if I want to read the entire case?

A: Every case summarized here is hyperlinked back to the full-length version of that case. We do, in fact,

strongly encourage you to read the entire text of any cases of particular interest to you, as that is the best

way to understand the fullest context of the court’s decisions.



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Table of Contents

CALIFORNIA

People v. Wildman, 2015 Cal. App. Unpub. LEXIS 4279 (CA Ct. App. 2015)

Key issues:

• No duty to retreat in California• Reasonableness; must have acted only because of reasonable fear • Imminence• Innocence; creation of violent circumstances through unlawful or wrongful conduct negates

self-defense

Date: June 18, 2015

CALIFORNIA

People v. Chandra, 2015 Cal. App. Unpub. LEXIS 4290 (CA Ct. App. 2015)

Key issues:

• Defense of dwelling; presumption of reasonable fear • Consciousness of guilt; witness intimidation; lying to police• Specialized knowledge

Date: June 16, 2015

IDAHO

State v. Kelly , 2105 Ida. App. LEXIS 51 (ID Ct. App. 2015)

Key issues:

• Voluntary intoxication, no defense• Elements of self-defense• Burden of production; failure to meet, self-defense instruction disallowed

Date: June 19, 2015

ILLINOIS

People v. Smith, 2015 Ill. App. Unpub. LEXIS 1307 (IL Ct. App. 2015)

Key issues:

• Consciousness of guilt evidence• Burden of persuasion on state to disprove self-defense beyond a reasonable doubt• Elements of self-defense

Date: June 15, 2015

Page

5

11

17

20



http://lawofselfdefense.com/law_case/people-v-smith-2015-ill-app-unpub-lexis-1307-il-ct-app-2015/


http://lawofselfdefense.com/law_case/state-v-kelly-2105-ida-app-lexis-51-id-ct-app-2015/


http://lawofselfdefense.com/law_case/people-v-chandra-2015-cal-app-unpub-lexis-4290-ca-ct-app-2015/


http://lawofselfdefense.com/law_case/people-v-wildman-2015-cal-app-unpub-lexis-4279-ca-ct-app-2015/















PENNSYLVANIA

Commonwealth v. Stallings, 2015 Pa. Super. Unpub. LEXIS 1776 (PA Sup. Ct. 2015)

Key issues:

• Multiple attackers, armed defender

• Reasonableness of fear • Speculative fear • Elements of self-defense

Date: June 16, 2015

TEXAS

Hernandez v. State, 2015 Tex. App. LEXIS 6022 (TX Ct. App. 2015)

Key issues:

• Words alone insufficient to justify force• Deadly force, defined• Elements of self-defense• Burden of production on the defendant• Burden of persuasion on the State, beyond a reasonable doubt

Date: June 16, 2015

UTAH

State v. Walker , 2015 UT App 153 (UT Ct. App. 2015)

Key issues:

• Victim’s prior acts of violence, admissibility in self-defense case• Elements of self-defense• Imminence• Reasonableness

Date: June 18, 2015

Page

25

29

37



http://lawofselfdefense.com/law_case/state-v-walker-2015-ut-app-153-ut-ct-app-2015/







http://lawofselfdefense.com/law_case/hernandez-v-state-2015-tex-app-lexis-6022-tx-ct-app-2015/


http://lawofselfdefense.com/law_case/commonwealth-v-stallings-2015-pa-super-unpub-lexis-1776-pa-sup-ct-2015/




CALIFORNIA

People v. Wildman, 2015 Cal. App. Unpub. LEXIS 4279 (CA Ct. App. 2015)

Key issues:

• No duty to retreat in California

• Reasonableness; must have acted only because of reasonable fear

• Imminence

• Innocence; creation of violent circumstances through unlawful or wrongful conduct negates self-defense

Date: June 18, 2015

Decision:

Daniel Charles Wildman appeals his conviction, by

jury, of the first degree murder (§§ Pen. Code, 187,

subd. (a), 189)1, of Darren Ziegler, and of being a

felon in possession of a firearm. (§ 12021, subd. (a)

(1).) The jury further found that appellant personally

and intentionally discharged a firearm in committing

the murder. (§ 12022.53, subd. (d).) The trial court

sentenced appellant to a total term of 50 years to life

in state prison.

Appellant contends: 1. the trial court erred when it

refused to limit the prosecutor's use of the word

"murder;" 2. appellant was denied a fair trial when the

trial court admitted evidence of his nine prior felony

convictions and of his uncharged misconduct in

selling and using methamphetamine and in physically

abusing his former girlfriend, Paula Napoli; 3. the trial

court erred when it instructed the jury that it couldconsider appellant's prior felonies in determining his

intent, motive or plan to kill Ziegler; 4. the trial court

erred in its instructions to the jury regarding self-

defense and imperfect self-defense; 5. the trial court

erred when it instructed the jury, in terms of CALCRIM

No. 361, regarding appellant's failure to explain or

deny incriminating evidence; 6. defense counsel at

trial rendered ineffective assistance when he failed to

object to the improper jury instructions; and 7. the

cumulative effect of these errors requires reversal.

We affirm.

Facts

Appellant was a methamphetamine dealer. In 2006,

he began a dating relationship with one of his

customers, Paula Napoli. By 2010, their relationship

soured. The couple fought frequently and sometimes

violently. On one occasion in 2010, appellant spit in

Napoli's face, knocked her to the ground and shook

her shoulders, causing her head to hit the concrete

beneath her. During other fights, he stabbed her in

the ear with a key, poked her in the eye, sprayed

brake cleaner on her and ripped a necklace from herneck. In June 2010, appellant sprayed Napoli with

pepper spray. He also injured her by stepping on her

foot while he was wearing boots.

Appellant became friends with Darren Ziegler in 2005

Ziegler, who worked as an auto mechanic, bought











methamphetamine from appellant. The two men also

worked on cars together. Their friendship ended in

2008 or 2009 after Ziegler accused appellant of

selling him substandard drugs. Appellant stopped

selling drugs to Ziegler or spending time with him

socially.

As the relationship between Napoli and appellant

deteriorated, she started dating Ziegler and using

drugs with him. Soon, she was seeing both men at

the same time. Appellant told Napoli that she was

betraying him and being disrespectful to him when

she dated Ziegler. According to Napoli, appellant

called Child Protective Services and reported that she

was using drugs while her young daughter was in the

house. He also tried to have Napoli's rent subsidy

revoked. Appellant told Napoli that, if he could not be

with her, no one could. He threatened to kill Napoli,

her young daughter, Ziegler and himself.

In August and September, appellant sent Napoli many

threatening text messages. One message said,

"You're a cold person and a bullshit parent, just like

your birth mom. And remember, I don't threaten you.Everything I say I do. Unlike you who threaten and

manipulate. . . . And I know you're afraid of what's

going to happen. I would be too. But that's what

happens when people betray." Another said, "For both

our sakes you best not be seeing that fucker . . . .

That would unleash a can of worms neither one of us

wants to deal with." Appellant later sent a message

saying, "I'm gonna do us both a favor. I'm taking him

with me. . . . He started it like a bitch. I'm finishing it."

Appellant also exchanged threatening text messages

with Ziegler. In one message, appellant told Ziegler,

"There's no fight in my heart. All I taste is death. One

of us has got to stop breathing. And I ain't afraid of

death. I invite it. [!] If you didn't learn one thing about

me then you are stupid. Fear is for pussies. And if you

ever thought I was a pussy you don't have half the

brain you think you do. I am a killer. Give me a

chance to shine." After appellant challenged Ziegler to

meet him in an isolated, semi-rural area to fight,

Zielger texted back, "I don't give a fuck about you or

your business. You're an abusive, manipulative,

arrogant liar. And dope has made you even worse

off . . . . [!] Let's [come] up with a more neutral area

during the day. No pussy pepper spray. No billy clubs.

No guns. No bullshit. No people. Just you and me."

On the weekend before the murder, September 25

and 26, 2010, Ziegler took Napoli's car to his work

shop, leaving his own car in Napoli's driveway. On

September 26, appellant sent Napoli a text message

asking if Ziegler could "come out to play[.]"

At about noon the next day, September 27, appellant

called Napoli. He wanted to meet with her and said

that if she did not, he was going to kill her. Napoli

refused to meet appellant. Appellant called back a few

hours later, offering to meet her in a public place. She

again refused. Appellant told Napoli, "if he was gonnago down, that he was gonna take [Napoli] with him."

At 12:45, between the two calls to Napoli, appellant

sent a text message to Ziegler that said, "Oh nigger,

don't forget. You promised me we were going to make

sweet love. If not here Hawaii will do. You stepped

way over the line, and you know better. There's no

excuse. Time to be the man you claim to be. Or are

you going to disappoint me again?"

Several hours later, around 5:10 p.m., appellant drove

to Ziegler's work shop in Thousand Oaks and revved

his engine in the parking lot. Ziegler, who had been

working on a car, walked outside of his shop at his

normal pace toward appellant's car. Numerous








witnesses testified that Ziegler had his arms at his

sides and nothing in his hands. When Ziegler was

about 30 feet away, appellant fired one shot at him

but missed. Appellant was standing behind the open,

driver's side door of his car. Ziegler took two more

steps toward appellant, who fired two more shots at

him. The first of these shots tore a hole in the leg of

Ziegler's shorts. The next shot hit Ziegler in the

abdomen. Ziegler fell to the ground, saying, "I've been

shot. I've been shot." Appellant got back into his car

and drove away quickly. None of the many witnesses

heard any argument or verbal confrontation between

appellant and Ziegler before the murder. Ziegler died

as a result of these gun shots.

Appellant drove to the Los Angeles apartment of Erika

Walthius. Two days later, on September 29, she

called an investigating detective to report that

appellant had overdosed on a bottle of pills. Appellant

was taken to a hospital and, after his release the next

day, taken into custody.

After his arrest, appellant gave a lengthy interview to

Detective Billy Hester. He told Hester that he did notgo to Ziegler's work place with the intention of killing

him. Instead, appellant said he planned to tell Ziegler

that he was done with their rivalry and was going to

let Ziegler have Napoli. After appellant revved his

engine, Ziegler "ran out" of his shop. Appellant

thought Ziegler was carrying a ball peen hammer in

his hand. The first two shots appellant fired were, he

said, warning shots. He fired the final shot because

Ziegler wouldn't stop running toward him. Appellant

said he was afraid Ziegler was going to attack him

and claimed that Ziegler would have killed him if he

hadn't shot first.

During the interview, appellant altered his version of

the events several times. He first described Ziegler as

running toward his car; he later said that Ziegler was

walking fast. Although appellant at first said Ziegler

was carrying a ball peen hammer in his hand, he later

said the hammer was in Ziegler's waistband and then

that he wasn't sure whether Ziegler was carrying

anything at all. Appellant also changed his story about

the location of his gun in his car. In one version of

events, the gun was on the passenger seat, in

another it was inside the center console. The clip or

magazine was alternatively loaded in the gun or

stored separately on the seat, under a clothing bag.

In his testimony at trial, appellant denied ever hitting

or threatening to hit Napoli. He described each of

their fights as mutual and cast Napoli as the

instigator. Napoli told appellant that Ziegler wanted to

kill him, so he started taking his gun with him

everywhere he went. He kept the gun in a secret

compartment in the driver's side door of his car.

Appellant was also worried Napoli and Ziegler would

turn him in to the police. On September 27, he asked

Napoli to meet him. He decided to talk to Ziegler

because Napoli wouldn't see him. Appellant was

planning to tell Ziegler that he wanted Ziegler andNapoli both to stay out of his life. He did not plan to

kill Ziegler. Once he was at Ziegler's workplace,

however, he thought Ziegler was charging at him with

a hammer in his hand Appellant grabbed his gun from

the secret compartment and pointed it at Ziegler.

When Ziegler kept coming, appellant got scared and

fired the gun until Ziegler stopped moving.

Discussion

Prosecution's Use of the Word Murder

. . .








Evidence of Prior Convictions and Uncharged

Misconduct

. . .

Instructional Error

. . .

2. Instructions Regarding Self-Defense. The trial

court instructed the jury on self-defense and imperfect

self-defense with CALCRIM No. 505 and CALCRIM

No. 571. Both pattern instructions were modified at

the request of the prosecutor and over appellant's

objections. Specifically, after listing the elements of

lawful self-defense, the trial court informed the jury

that appellant must have believed he was in imminent

danger. This belief "must have been reasonable and

[appellant] must have acted only because of that

belief." After explaining that a defendant is not

required to retreat, the trial court modified the pattern

instruction by adding, "However, this principle is not

available, and malice aforethought is not negated, ifthe defendant by his unlawful or wrongful conduct

created the circumstances which legally justified his

adversary's use of force, attack or pursuit." The trial

court inserted this same paragraph into CALCRIM

No. 571, the pattern instruction on imperfect self-

defense.2

With respect to the requirement that the defendant

believe he was in imminent danger, the trial court

instructed the jury, "'Imminent danger' as used in

these instructions, means that the danger must have

existed or appeared to the defendant to have existed

at the very time the fatal shot was fired. In other

words, the danger must appear to the defendant as

immediate and present, and not prospective or even

in the near future. An imminent danger is one that,

from appearances, must be instantly dealt with."

Appellant contends the special instruction and

modifications to CALCRIM No. 505 and No. 571

improperly limited his right of self-defense because

they made the defenses unavailable if the jury found

he did not believe he was in imminent danger at the

very moment he fired the fatal shot; if he had multiple

motives for acting in self defense; and if he created

the circumstances necessitating his use of force by

driving to Ziegler's workplace during normal business

hours. There was no error.

We note initially that appellant did not object to or

request any amplification of the imminent danger

instruction in the trial court. His failure to do so forfeits

appellate review of the instruction. (People v. Johnson

(1993) 6 Cal.4th 1, 52; People v. Hamilton (1988) 46

Cal.3d 123, 146.) Appellant's trial counsel also failed

to object on federal constitutional grounds to any of

the self-defense or imperfect self-defense

instructions. Review of those issues has also been

forfeited. (People v. Hinton (1006) 37 Cal.4th 839,897.) Had the contentions been preserved for

appellate review, we would reject them.

First, the trial court's special instruction regarding

imminent danger was a correct statement of the law.

As our Supreme court has emphasized, "Fear of

future harm -- no matter how great the fear and no

matter how great the likelihood of the harm -- will not

suffice. The defendant's fear must be of imminent

danger to life or great bodily injury. '"[T]he peril must

appear to the defendant as immediate and present

and not prospective or even in the near future. An

imminent peril is one that, from appearances, must be

instantly dealt with."' . . . . Put simply, the trier of fact

must find an actual fear of an imminent harm." (In re








Christian S. (1994) 7 Cal.4th 768, 783.) The

instruction did not limit the jury's consideration only to

the moment at which appellant fired the third and fatal

shot. Instead, it required the jury to determine

whether the danger appeared "to the defendant as

immediate and present and not prospective or even in

the near future."

Second, the instruction on self-defense, CALCRIM

No. 505, correctly informed the jury that, to find

appellant acted in self-defense, "Defendant's belief

[that he was in imminent danger of being killed or

suffering great bodily injury] must have been

reasonable and he must have acted only because of

that belief." (CALCRIM No. 505.) This portion of the

instruction is based on section 198 which provides,

"A bare fear of the commission of [certain felonies], to

prevent which homicide may be lawfully committed, is

not sufficient to justify it. But the circumstances must

be sufficient to excite the fears of a reasonable

person, and the party killing must have acted under

the influence of such fears alone." Appellant contends

the phrase "such fears alone" precludes self-defense

where the defendant has a "purely personal,subjective 'bare fear' of death or great bodily injury." It

does not, he contends, preclude the defense where

"the party killing" has more than one motive, as long

as one of the motives is a reasonable fear that a

felony will occur.

Like other courts considering the issue, we reject

appellant's interpretation of section 198. Section 198

requires that a person who kills in self-defense do so

because that person reasonably believes himself or

herself to be in imminent danger of death or great

bodily injury. (See, e.g., People v. Flannel (1979) 25

Cal3d 668, 675.) "The party killing is not precluded

from feeling anger or other emotions save and except

fear; however, those other emotions cannot be causal

factors in his decision to use deadly force. If they are,

the homicide cannot be justified on a theory of self-

defense. But if the only causation of the killing was

the reasonable fear that there was imminent danger

of death or great bodily injury, then the use of deadly

force in self-defense is proper, regardless of what

other emotions the party who kills may have been

feeling but not acting upon." (People v. Trevino (1988)

200 Cal.App.3d 874, 879; see also People v. Shade

(1986) 185 Cal.App.3d 711, 716.)

Finally, the trial court correctly instructed the jury that

self-defense and imperfect self-defense are not

available "and malice aforethought is not negated, if

the defendant by his unlawful or wrongful conduct

created the circumstances which legally justified his

adversary's use of force, attack or pursuit." Our

Supreme Court has described this principle as "well

established[.]" (In re Christian S. (1994) 7 Cal.4th

768, 773, fn. 1.) Self-defense and imperfect self-

defense "may not be invoked by a defendant who,

through his own wrongful conduct (e.g., the initiation

of a physical assault or the commission of a felony),

has created the circumstances under which hisadversary's attack or pursuit is legally justified." (Id.;

see also People v. Enraca (2012) 53 Cal.4th 735,

761-762; People v. Seaton (2001) 26 Cal.4th 598,

664 (imperfect self- defense not available where

"defendant's testimony showed him to be the initial

aggressor and the victim's response legally

justified. . . .").)

The instruction did not, as appellant contends, require

the jury to reject his defense solely because appellant

drove to Ziegler's workplace. Instead, the jury was

instructed to reject appellant's claims of self-defense

and imperfect self-defense if it found that he engaged

in "unlawful or wrongful conduct" that created

circumstances under which Ziegler was justified in








attacking or using force against appellant. (See, e.g.,

People v. Frandsen (2011) 196 Cal.App.4th 266, 273

("Only when the victim resorts to unlawful force does

the defendant-aggressor regain the right of self-

defense.").) If the jury found any one of those factors

to be missing -- e.g., if appellant did not behave

unlawfully or wrongfully or if Ziegler did not attack or

use force against appellant -- the instruction would

not apply.

. . .

Ineffective Assistance of Counsel

"

Cumulative Error

. . .

Conclusion

The judgment is affirmed.

__________________________________________________________________________________________








CALIFORNIA

People v. Chandra, 2015 Cal. App. Unpub. LEXIS 4290 (CA Ct. App. 2015)

Key issues:

• Defense of dwelling; presumption of reasonable fear

• Consciousness of guilt; witness intimidation; lying to police

• Specialized knowledge

Date: June 16, 2015

Decision:

Defendant Aaron Chandra appeals from a judgment

convicting him of second degree murder and

possession of marijuana for sale and sentencing him

to a term of 40 years to life in prison. On appeal, he

argues that an instructional error and two evidentiary

errors require reversal of his convictions. He also

argues in his direct appeal, and in a petition for

habeas corpus, that his trial attorney provided

ineffective assistance and that the prosecutor

engaged in pervasive and prejudicial misconduct.1

We shall affirm the judgment and deny defendant's

writ petition.

Factual and Procedural History

Defendant was charged with one count of murder

(Pen. Code,2 § 187, subd. (a)) and one count of

possession of marijuana for sale (Health & Saf. Code,

§ 11359). The information also alleged several firearmenhancements (§ 12022.5, subd. (a), § 12022.7,

subd. (a), § 12022.53, subds. (b), (d), (g)).

The following evidence was presented at trial:

The Prosecution's Case

On August 29, 2010, Samir Hudieb arranged for the

victim, Osana Saga, to purchase from defendant four

ounces of marijuana for $800. About 2:00 p.m., Saga,

Hudieb and a third person, Chris Faasisila, drove to

defendant's house to make the purchase. Saga gave

Hudieb the money to purchase the marijuana and

Hudieb completed the purchase while the others

waited in the car.

After they drove away from defendant's house, Saga,

Faasisila, and Hudieb weighed the marijuana. Saga,

believing that defendant had shorted him an eighth of

an ounce, told Hudieb that he wanted either the

missing eighth or a full refund and he would return all

of the marijuana that he purchased to defendant.

When Hudieb called defendant and told him that they

were missing an eighth of an ounce, defendantdenied there was a shortage. Hudieb told defendant

that he was coming back to his house to show him

the shortage.

When they returned, Saga and Hudieb entered

defendant's garage while Faasisila waited in the car.











Defendant was in the garage with a friend. Hudieb

told defendant that the marijuana was short and that

he could weigh the marijuana himself. Defendant

insisted that it was not short. Saga told defendant that

he could give him the missing marijuana or a refund.

When defendant pulled out a $20 bill to give to Saga,

Saga became angry and slapped defendant. Then he

and defendant "[held] onto each other" and they

"push[ed] off each other" going in opposite directions.

Defendant then reached his arm up facing Saga and

Hudieb heard a loud bang. Hudieb estimated that

defendant was standing about seven or eight feet

away from Saga when defendant fired the shot.

Faasisila, who had stayed in the car at first, went to

the garage when he heard the argument. From the

doorway of the garage, he saw Saga arguing with

defendant. After the shooting, he, Saga and Hudieb

ran out of the garage. On his way out Faasisila

grabbed a cell phone. Saga collapsed on the sidewalk

and was transported by ambulance to the hospital,

where he later died.

Following his arrest, defendant told the police, "They just rushed into my house and told me to give them

everything. One of the guys punched me in the face

and then told the other guy to give him the gun. I went

and got my gun. Man, I'm scared. Am I going to

jail?"After the incident, defendant called Hudieb and

said that he shot Saga because Saga "was trippin."

Almost two years after the incident, in May of 2012,

Hudieb was arrested following an alleged attack on

defendant's brother. Hudieb denied the attack and the

case against Hudieb was eventually dismissed. In

January 2013, about a week and a half before his

testimony at defendant's trial, a car belonging to

Hudieb's girlfriend was spray-painted with the

following: "Fuck Samir," "You will pay," "Homo boy

snitch," "Rat," and "You will die." Hudieb testified that

he was "uncomfortable" testifying but he was not

concerned for his safety. He was not scared of

defendant and did not fear retribution. He admitted

that he had entered a use-immunity agreement with

the prosecutor under which the prosecutor promised

not to prosecute him for arranging the drug deal

between defendant and Saga in exchange for

Hudieb's promise to tell the truth at defendant's trial.

The police detective who interviewed defendant

shortly after his arrest observed a scratch on his left

ear, but no other visible injuries. Defendant

complained of soreness to the left of his face but

declined the officer's offer to take him to a hospital.

The Defense Case

Defendant testified that he had been selling marijuana

for approximately seven months prior to the shooting

incident and admitted selling Hudieb four ounces of

marijuana on the day of the shooting. He claimed that

he did not make a mistake when he weighed the

marijuana. When Hudieb called to say that themarijuana was short, he heard someone in the

background say "Tell him not to fuck with my money. I

got a cannon." Defendant told Hudieb to come to his

house so they could resolve the dispute. He felt

threatened and went upstairs to retrieve his gun.

Hudieb entered the garage first, then Saga and

Faasisila walked into the garage. Saga and Faasisila

were big and defendant noticed there was something

shiny in Saga's belt and believed it was a gun. Saga

asked why the marijuana was short and told

defendant to give him the money, then immediately

punched him in the face. When defendant attempted

to offer Saga a little more than $20, Saga said, "What

the fuck is this? I need everything you got." Then

Saga started punching defendant again. Defendant








did not believe Saga was going to stop hitting him or

that he could run away. Defendant thought Saga was

going to knock him unconscious or kill him. Saga's

last punch knocked defendant back against the wall.

When Saga came at him again with his fist back,

defendant pulled out his gun and fired three times.

Defendant admitted that he originally lied to the police

when he told them that he shot Saga because he saw

Saga pulling a gun from his waistband. He also

admitted that he called his brother from jail and told

his brother to make sure his friend, Huan Nguyen,

who was present during the shooting, knew to tell the

police that Saga had a gun sticking out of the right

side of his waistband. Defendant acknowledged that

his intent was to have Huan corroborate the lie he

had told the police. Finally, he admitted that he had

researched the law of homicide while in jail.

Defendant testified he did not "think" that he tried to

prevent Hudieb from testifying, but also claimed that

would not be something he would remember. Later,

however, he denied threatening Hudieb or directing

anyone to spray paint the car of Hudieb's girlfriend.He did not know if his brother or any other of his

associates had spray painted the car.

Huan Nguyen testified that he was in the garage at

the time of the shooting. He testified that Hudieb and

Saga entered the garage within seconds of each

other. Faasisila came into the garage shortly after

Saga, and he stood in the doorway. Saga told

defendant that it was not "cool" to short him. When

defendant offered Saga at least a $20 bill, Saga got

mad and punched defendant. Defendant and Saga

fell out of Huan's view, but he heard a "ruckus" for

about 10 or 15 seconds and thought Saga was still

hitting defendant. Defendant lost his balance and did

not appear capable of fighting back. Then he heard

gunshots, and Hudieb, Faasisila and Saga ran out of

the garage. He denied that defendant's brother called

him to tell him to lie to police about the victim having a

gun.

Verdict and Sentencing

The jury found defendant guilty of second degree

murder and possession of marijuana for sale. The jury

also found true all of the firearm enhancements.

Defendant was sentenced to a term of 40 years to life

and filed a timely notice of appeal.

Discussion

1. The court did not err in failing to instruct the

jury on the evidentiary presumption found in the

Home Protection Bill of Rights.

"Section 198.5, enacted in 1984 and entitled the

'Home Protection Bill of Rights,' creates a rebuttable

presumption that a residential occupant has a

reasonable fear of death or great bodily injury when

he or she uses deadly force against an unlawful andforcible intruder into the residence. [Citations.] For

section 198.5 to apply, four elements must be met.

There must be an unlawful and forcible entry into a

residence; the entry must be by someone who is not

a member of the family or the household; the

residential occupant must have used 'deadly' force

(as defined in § 198.5) against the victim within the

residence; and finally, the residential occupant must

have had knowledge of the unlawful and forcible

entry." (People v. Brown (1992) 6 Cal.App.4th 1489,

1494-1495.) Defendant contends the court erred in

failing to instruct the jury with CALCRIM No. 3477,

which explains the statutory presumption.3








Initially, the Attorney General argues that any

instructional error was invited. At trial, defense

counsel requested the court to instruct with CALCRIM

No. 3477. The court indicated, however, that

CALCRIM No. 506 (justifiable homicide: defending

against harm to person within home or property) was

more appropriate than CALCRIM No. 3477.4

Following discussions in chambers, the court

explained on the record that "we had some fairly

lengthy discussions with respect to the question of

self-defense as it relates to the instructions that

specifically deal with defending property or a home

versus an individual exercising the right of self-

defense and I think we agreed that the facts of the

case as they came in do not lend themselves to the

instructions that have to do with the defense of a

home or property." Both the prosecutor and defense

counsel agreed with the court's statement and

defense counsel added, "I agree with all the

instructions that will be given. I have . . . no objection

to them. I have not requested any instructions that the

court will not give. [!] . . . [!] To the extent that that's

at odds with what I filed with the court, I would

withdraw my request for any instructions that will notbe given." The court concluded, "I'll give 506, which is

defending against harm to a person within home or

property, which is more appropriate as opposed to . . .

3477, which has to do with presumptions that applies

when there's forcible entry. And I think we agreed that

while there was entry into a home, it was not forcible."

Defendant disputes that the instructional error was

invited and argues that any waiver by counsel would

amount to ineffective assistance of counsel. We need

not determine whether there was invited error or a

waiver, however, because it is clear that there is no

substantial evidence that Saga "unlawfully and

forcibly" entered defendant's garage sufficient to

support the omitted instruction.

As defendant notes, section 198.5 does not define

unlawful or forcible entry. However, other statutory

provisions do. Unlawful entry is defined in section

602.5, subdivision (a) as the entry of a

"noncommercial dwelling house . . . without consent

of the owner." The record does not support the

conclusion that Saga entered defendant's garage

without consent. Defendant testified that he told

Hudieb to come to his house to resolve the

discrepancy and that when Hudieb "called me and

told me that he was outside . . . I told him to come to

the back." Although defendant testified that he did not

invite Saga into his home, he clearly invited Hudieb

into the garage. He knew that Hudieb was with Saga

and never indicated that Saga was not to enter the

property with Hudieb.

There is also no evidence that Saga's entry into the

garage was forcible. Code of Civil Procedure section

1159 provides that "Every person is guilty of a forcible

entry who . . . [!] 1. By breaking open doors,

windows, or other parts of a house, or by any kind of

violence or circumstance of terror enters upon or into

any real property. . . ." (See also § 418 [forcible entry,as defined by section 1159, is a misdemeanor].) Saga

did not use violence or threats to enter the garage.

Defendant's reliance on People v. Brown, supra, 6

Cal.App.4th at pages 1495-1496 for the proposition

that "[a] forcible entry . . . is the same as an unlawful

entry for purposes of residential burglary" is entirely

misplaced. In Brown there was no dispute that the

entry was forcible. The evidence showed that "the

victim entered defendant's front porch and advanced

toward defendant with a hammer raised back at

shoulder-height." (Id. at p. 1491.) The question on

appeal was whether the homeowner's unenclosed

front porch was part of his "residence" for purposes of

section 198.5. To answer that question, the court








looked to legal authority regarding what constitutes a

residence for purposes of a burglary. Because

"unlawful entry" is defined by the Penal Code, we

need not rely on analogy to determine its meaning.

Accordingly, we find no instructional error.

2. There was no error in the admission of

evidence of threats made against Hudieb prior to

trial.

As set forth above, Hudieb testified that threats

against him were painted on his girlfriend's car just

prior to trial. In closing argument, the prosecutor

argued that if defendant "tried to . . . discourage

someone from testifying against him, this may show

that he was aware of his guilt." The prosecutor

detailed the threats made against Hudieb and

reminded the jury that when defendant was asked

whether he tried to prevent Hudieb from testifying, his

initial response was "I don't think so" and then that he

"wouldn't remember that."5

Defendant acknowledges that his attorney did notobject to the introduction of this evidence but

contends that the admission of the testimony was

"plain error" and that his attorney performed

inadequately in failing to object. He argues that

because the identity of the persons who spray painted

the threats was unknown, the evidence should have

been excluded.

A defendant's "'"[e]fforts to suppress testimony

against himself indicate a consciousness of guilt on

the part of a defendant, and evidence thereof is

admissible against him. [Citation.] Generally, evidence

of the attempt of third persons to suppress testimony

is inadmissible against a defendant where the effort

did not occur in his presence. [Citation.] However, if

the defendant has authorized the attempt of the third

person to suppress testimony, evidence of such

conduct is admissible against the

defendant."'" (People v. Hannon (1977) 19 Cal.3d

588, 599, disapproved on another ground by People

v. Martinez (2000) 22 Cal.4th 750, 762-763.)

"Whether or not any given set of facts may constitute

suppression or attempted suppression of evidence

from which a trier of fact can infer a consciousness of

guilt on the part of a defendant is a question of law.

Thus in order for a jury to be instructed that it can

infer a consciousness of guilt from suppression of

adverse evidence by a defendant, there must be

some evidence in the record which, if believed by the

jury, will sufficiently support the suggested

inference." (Hannon, p. 597.)

Here, contrary to defendant's argument, there is

sufficient evidence connecting defendant to the

threats against Hudieb to support admission of the

evidence and the consciousness-of-guilt instruction.

The timing of the threats, which were made as jury

selection was starting, supports the inference that the

threats were intended to keep Hudieb from testifyingagainst defendant. Defendant's initial testimony

regarding whether he was involved in making the

threats was ambiguous and evasive. To the extent he

later attempted to deny involvement, his credibility

was largely undermined by his acknowledgment that

he had instructed his brother to persuade Huan to lie

about seeing Saga with a gun. Moreover, this

acknowledgement is itself evidence that he was

involved in efforts to alter the evidence, supporting

the inference that he bore some responsibility for the

threats to Hudieb. Because the evidence was

properly admitted, counsel cannot be faulted for

failing to object.6








3. There was no error in the admission of

testimony that defendant had studied the law of

homicide while in jail.

During his opening statement, defense counsel stated

that defendant acted in self-defense and explained

that defendant initially lied to the detective about

seeing Saga reaching for a gun, because he

"panicked" and he "didn't know the law of homicide."

During direct examination, defendant admitted that he

lied to the detective when he told him that he saw

Saga reach for a gun from his waistband during the

altercation. In response to the prosecutor's questions

on cross-examination, defendant acknowledged that

since being in jail he had researched the law of

homicide and that he now knew the different

standards applicable in a homicide case. When asked

whether that was why he had changed his story,

defendant said "No. I was just trying to tell exactly

what had happened." The prosecution relied on this

testimony in closing argument: "I asked defendant on

the witness stand, 'So when you gave your statement

to Detective Coffey and you said the victim was going

for a gun, you did not know the law of homicide,right?' 'Right, yes.' 'And since then, you've been

studying the law of homicide, haven't you?' 'Yes.'

'You've been looking at the homicide books?' 'Yes.' [!]

Here's why. This is the defense he's going for. This is

why he changed his story. It's called imperfect self-

defense. And basically if a defendant actually believes

that he's in danger, then he can protect himself." In

his closing argument, defense counsel argued that

defendant's "reaction [to the shooting] was obviously

to panic and do anything he could to avoid

prosecution and convince people it was a justified

shooting. He hid the gun in obvious panic. He told the

officers at the scene that . . . he heard Osana say to

[Faasisila], 'Get the gun.' Later, he told the police he

saw Osana reaching for the gun. [!] I mean, these are

just wildly desperate attempts by him to say what he

thinks he needs to say to make it a justified shooting.

And if you think . . . he knew the law of homicide, then

you're wrong. If you think he knows it now, you're also

wrong. If you think he had the mental acumen to

listen to the law and read it and craft a defense, then

you misjudged him on the stand because he doesn't

have that mental acumen. No offense intended to

[defendant]. But he obviously panicked." Defendant

acknowledges that no objection was lodged to the

prosecutor's questions but contends the trial court

erred by allowing the prosecutor to question

defendant about his study of the law and that his

attorney was ineffective in failing to object.

There was no error in permitting the prosecutor's

questions or deficiency in counsel's failure to object.

Defense counsel clearly had a tactical reason for

telling the jury that defendant did not know the law of

homicide at the time of his arrest. It was part of his

explanation for why defendant lied to the policefollowing his arrest--that because defendant was

unfamiliar with the law, he did not know that the truth

of what had actually happened was enough to

support a defense to the shooting.

. . .

Disposition

The judgment is affirmed. The petition for habeas

corpus is denied.

__________________________________________________________________________________________








IDAHO

State v. Kelly , 2105 Ida. App. LEXIS 51 (ID Ct. App. 2015)

Key issues:

• Voluntary intoxication, no defense

• Elements of self-defense

• Burden of production; failure to meet, self-defense instruction disallowed

Date: June 19, 2015

Decision:

Kurtis Thomas Kelly appeals from his judgment of

conviction for battery on a law enforcement officer.

For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURE

The basic facts in this case are undisputed. A

uniformed officer was dispatched around 1:30 a.m. to

a bar in response to a call reporting a fight. The officer

saw Kelly sitting on the sidewalk in handcuffs. The

officer had the handcuffs removed and questioned

Kelly. The officer determined that Kelly was

intoxicated and needed to go home. One of his

friends, who was sober, offered to drive Kelly home.

The friend and Kelly's wife asked the officer for

assistance in getting Kelly into the friend's car

because Kelly was too intoxicated to walk. On their

way to the car, Kelly complained about pain in his arm

and stated that he did not want to go to jail. Whilebeing assisted into the car, Kelly stood up and

punched the officer in the face with a closed fist.

Kelly was arrested and charged with battery on a law

enforcement officer. I.C. §§18-903, 18-915(3). He

moved to dismiss the charge, arguing that the state

failed to allege facts which established that the officer

was exercising an official duty when he was struck.

The district court denied the motion. After the state

rested at trial, Kelly moved for an acquittal, again

arguing that the state failed to meet its burden of

proving what specific official duty the officer was

performing at the time he was struck. The motion was

denied. Kelly now appeals, alleging that those

motions were improperly denied and the district court

made a number of errors at trial.

II. ANALYSIS

While Kelly raises many issues on appeal, they can

be consolidated into two claims of error by the district

court.1 First, Kelly alleges that the district court erred

in failing to grant his motion to dismiss and his motion

for an acquittal because the state failed to provide

evidence that the officer was performing his officialduty at the time he was punched. Second, Kelly

argues that the district court erred in instructing the

jury.

A. Officer's Duties











. . .

B. Jury Instructions

. . .

1. Due process

Kelly argues that his level of intoxication rendered him

incapable of forming the requisite mens rea and,

therefore, the district court erred in instructing the jury

that it could only consider Kelly's intoxication if it

found the intoxication to be involuntary. Kelly's

intoxication was admittedly voluntary. Kelly argues

that I.C. § 18-116 is unconstitutional because it

violates due process under the Idaho Constitution.

The statute at issue, I.C. § 18-116, states:

A person who is in an intoxicated condition is

criminally responsible for his conduct and an

intoxicated condition is not a defense to any offense

and may not be taken into consideration in

determining the existence of a mental state which is

an element of the offense unless the defendantproves that he did not know that it was an intoxicating

substance when he consumed, smoked, sniffed,

injected or otherwise ingested the substance causing

the condition.

The statute plainly does not permit those who commit

crimes while voluntarily intoxicated to avoid culpability

because of a diminished mental capacity. In the

context of the U.S. Constitution, the United States

Supreme Court reviewed a Montana statute which

disallowed consideration of voluntary intoxication

when a defendant's state of mind was at issue. See

Montana v. Egelhoff, 518 U.S. 37, 56, 116 S. Ct.

2013, 135 L. Ed. 2d 361 (1996). The Supreme Court

held that, "nothing in the Due Process Clause

prevents [the citizens of Montana] from doing so." Id.

Kelly has provided no authority to suggest that the

Idaho Constitution should be treated differently than

the United States Constitution and his argument to

that effect is unpersuasive. Accordingly, we follow the

Supreme Court and hold that I.C. § 18-116 does not

violate due process under the Idaho Constitution.

. . .

3. Self-defense

Kelly alleges that the district court erred in failing to

give his proposed jury instruction on self-defense. A

defendant is entitled to have the jury instructed on

every defense or theory of defense having any

support in the evidence. State v. Hansen, 133 Idaho

323, 328, 986 P.2d 346, 351 (Ct. App. 1999).

However, requested jury instructions should not be

given if they lack support in the facts of the case or

are erroneous statements of the law. State v. Babb,

125 Idaho 934, 941, 877 P.2d 905, 912 (1994); State

v. Bronnenberg, 124 Idaho 67, 71, 856 P.2d 104, 108

(Ct. App. 1993).

Idaho Code Section 19-2132(a) requires that the trial

court must provide to the jury being charged "all

matters of law necessary for their information" and

must give a requested jury instruction if it determines

that instruction to be correct and pertinent. Under a

four-part test, a requested instruction must be given

where: (1) it properly states the governing law; (2) a

reasonable view of the evidence would support the

defendant's legal theory; (3) it is not addressed

adequately by other jury instructions; and (4) it does

not constitute an impermissible comment as to the

evidence. State v. Fetterly, 126 Idaho 475, 476-77,

886 P.2d 780, 781-82 (Ct. App. 1994); see also State

v. Evans, 119 Idaho 383, 385, 807 P.2d 62, 64 (Ct.








App. 1991). To meet the second prong of this test, the

defendant must present at least some evidence

supporting his or her theory, and any support will

suffice as long as his or her theory comports with a

reasonable view of the evidence. Fetterly, 126 Idaho

at 476-77, 886 P.2d at 781-82; State v. Kodesh, 122

Idaho 756, 758, 838 P.2d 885, 887 (Ct. App. 1992). In

other words, a defendant must present facts to

support each element of a prima facie case for each

defense. State v. Camp, 134 Idaho 662, 665-66, 8 P.

3d 657, 660-61 (Ct. App. 2000). If the defendant fails

to provide evidence supporting any one of the

necessary elements of a defense, the defendant has

failed to meet his or her burden and is not entitled to

have the jury instructed on that defense.

Self-defense is recognized in Idaho. See State v.

Woodward, 58 Idaho 385, 394, 74 P.2d 92, 96 (1937);

see generally I.C. §§ 19-201, 19-202, and 19-202A.

Idaho Criminal Jury Instruction 1517 enumerates

what must be proven to find that a defendant acted in

self-defense: (1) the defendant must have believed

that the defendant was in imminent danger of bodily

harm;(2) the defendant must have believed that theaction the defendant took was necessary to save the

defendant from the danger presented; (3) a

reasonable person, under similar circumstances,

would have believed that the defendant was in

imminent danger of bodily injury and believed that the

action taken was necessary; and (4) the defendant

must have acted only in response to that danger and

not for some other motivation. The burden of

production is on the defendant (who must raise self-

defense) to make a prima facie defense. Camp, 134

Idaho at 666 n.2, 8 P.3d at 661 n.2.

Kelly did not present evidence at trial sufficient to

require the district court to give his self-defense jury

instruction. Specifically, there is no view of the

evidence that would have allowed the jury to find that

Kelly satisfied the third element of self-defense--that a

reasonable person, under similar circumstances,

would have believed that he or she was in imminent

danger of bodily injury. The record, including video

images from the camera worn by the officer, shows

the officer being calm and helpful. There was no

indication that a reasonable person under these

circumstances would have believed that he or she

was in imminent danger of bodily injury. Thus, Kelly

failed to make a prima facie showing of facts to

support each element of self-defense. Therefore, the

district court did not err in refusing to instruct the jury

on self-defense.

4. Elements of crime

. . .

III. CONCLUSION

The district court did not err in denying Kelly's motion

to dismiss or his motion for a directed verdict because

the state met its burden of showing that the officer

was performing his duty at the time he was struck. In

addition, Kelly has not shown that the district court

erred in instructing the jury. Therefore, Kelly's

judgment of conviction for battery on a law

enforcement officer is affirmed.

__________________________________________________________________________________________








Illinois

People v. Smith, 2015 Ill. App. Unpub. LEXIS 1307 (IL Ct. App. 2015)

Key issues:

• Consciousness of guilt evidence

• Burden of persuasion on state to disprove self-defense beyond a reasonable doubt


Decision:

Following a bench trial, defendant William Smith was

found guilty of aggravated battery with a firearm, then

sentenced to nine years' imprisonment. On appeal,

defendant contends that his conviction should be

reversed because the State failed to disprove his

claim of self-defense beyond a reasonable doubt.

The record shows that defendant was charged with

attempted murder and aggravated battery with a

firearm in connection with an incident that took place

on the south side of Chicago in the early morning

hours of July 25, 2010. At trial, Keith Myles testified

that he owned a two-flat apartment building in which

Rasheen Black and his wife, Lakesha Jones, were

tenants. Myles testified that a day or two before the

incident, there had been an attempted burglary at his

building. His tenants, Rasheen Black and Lakesha

Jones, resided on the second floor of the building. He

believed that it had been their apartment that

someone had tried to burglarize. Around midnight on

July 24, 2010, Myles discovered that his building hadagain been burglarized and then he heard shots

coming from the gangway. Myles went outside where

he met defendant who he knew. Defendant told him

that he had caught someone trying to break into

Myles' apartment, so defendant shot at the burglars,

who escaped.

Defendant asked Myles not to call police, but Myles

stated that he had already called them, and that he

had to make a police report. Myles believed Black to

be defendant's nephew, so he told defendant he

needed to speak with Black to tell him about the

burglaries. Sometime later, Myles and Black were

having an argument on Myles' front porch when

defendant intervened. Defendant pulled out a shiny

revolver, held it close to the back of his leg pointing it

at the ground, and told Myles not to speak to Black

that way. Myles began arguing with defendant, but

Felicia Jordan and Black stepped in between them.

Jordan took Myles into his house, and Black took

defendant across the street.

About 12 minutes later, Myles went back outside

because he could not calm down, and saw defendant

and Black across the street. He started walking away

from them down the gangway toward his backyard.

Defendant shouted at Myles in a way that suggestedthat defendant wanted to apologize, but Myles

shouted profanity at defendant and kept walking. As

Myles walked through the gangway, he heard a bang

and "felt [his] pants jump," then realized that he had

been shot in the leg. Several more shots were fired

and he was hit twice in the left side of his back. Myles












was taken to the hospital where he was in a coma for

two weeks. Myles identified a picture of his residence

and circled where he was standing when he was shot.

He also verified that he was convicted of aggravated

unlawful use of a weapon in 2003, and sentenced to

probation.

On cross-examination, Myles initially stated that one

of the bullets entered his chest, just below his left

nipple, but he retracted that statement and indicated

that he was shot once in the leg and twice in the

back. He confirmed that he owned a boat, and that

the boat was near his residence that night, but denied

throwing a handgun into the boat. He stated that he

did not see who shot at him, and that he did not come

outside with his own gun, nor was he drinking that

evening. He also stated that he did not call the police

after defendant pulled out his gun on the porch, and

that he did not own a gun.

Black testified on behalf of defendant that he was

returning home from an amusement park with his

family around midnight on July 25, 2010, when he

saw a police vehicle in front of his residence. Laterthat night, he observed defendant, Myles, and Jordan,

who were all intoxicated, talking about the burglaries

while on the porch drinking alcohol. He also testified

that an argument broke out between defendant and

Myles and both of them had a gun. He stated that

Myles had a black gun which he always carried with

him, and defendant had a silver gun. Jordan and

Black were able to separate defendant and Myles,

and Black took defendant across the street, while

Myles went back into his home with Jordan.

Black further testified that Myles emerged from his

home few minutes later holding his gun, and yelled at

defendant across the street. He then came down the

stairs of his porch, crushed a beer can in his hand,

and pointed his gun at defendant. Black approached

Myles, and Myles pushed him out of the way, then

fired the first shot at defendant. Black laid on the

ground as the two men fired at each other, and when

he stood up, everyone was gone. He testified that

Myles fled through the gangway along the side of his

house where he dropped his gun in his boat. He then

came back through the gangway saying defendant

shot him, so Jordan and Black led him back to his

porch and gave him a pillow to lie on.

On cross-examination, Black stated that he did not

know how much the people on the porch were

drinking before he returned home that night. He also

stated that he did not see defendant fire his gun, but

that he could hear both men firing their guns, and that

this was the first time he had seen defendant with a

gun. When the police arrived, Black did not tell them

anything about the events of that night because they

were all friends and they agreed not to tell anybody.

Defendant acknowledged his prior convictions for

possession of a controlled substance in 2006 and

2008, then testified to the events of July 25, 2010. Hetestified that he was on the porch of Myles' residence

with Myles, Jordan, and Black drinking alcohol and

talking about the burglaries that occurred the previous

night. Myles and defendant started arguing about the

money defendant owed him, and were eventually

separated by Black and Jordan. Defendant testified

that he had a gun, and he also saw Myles retrieve a

gun from inside his home when he first came out onto

the porch that night. After they were separated,

defendant stood in the street talking to Black, while

Myles retreated inside his home. A little while later,

Myles emerged from his home with his gun and

shouted at defendant. Defendant yelled back as

Myles turned and started walking down the gangway

adjacent to the house. Myles then turned and fired his








gun at defendant, and defendant shot back trying to

scare Myles, not hit him.

On cross-examination, defendant stated that he and

Myles traded shots, that he was fleeing while

shooting, and that after firing, he ran through an

alleyway into a vacant lot. He also stated that on May

20, 2011, he met with an assistant State's Attorney

(ASA) and waived his Miranda rights, but that he did

not remember telling the ASA that Jordan was not

drinking that night, and that he and Myles were

arguing about defendant selling drugs on the porch.

The parties then stipulated that, if called, Dr. Dennis

Andrews would testify that Myles had multiple

gunshot wounds to his upper left torso and right thigh.

In rebuttal, the State introduced certified copies of

defendant's two convictions for possession of a

controlled substance, and certified copies of Black's

convictions for possession of a controlled substance

and possession of a fraudulent I.D. card. The court

received them for the limited purpose of

impeachment.

Detective Sandra Bryant then testified that she was

present for an interview with defendant, during which

he stated that Jordan was not drinking on the porch

with the rest of them, and that he and Myles were

arguing about defendant selling drugs in the

neighborhood. Detective Bryant testified that

defendant stated that after being separated, Myles

went into his gangway, then spun to face defendant

and raised his gun. Defendant fired two shots at

Myles. According to Detective Bryant, defendant

stated that he had not seen Myles with a gun prior to

that point. Defendant never indicated that Myles fired

his gun first.

Following closing arguments, the court found

defendant guilty of aggravated battery with a firearm,

but not attempted murder. In reaching this conclusion,

the court found that following a heated confrontation,

defendant lost his temper and shot Myles, and was

not acting in self-defense. The court concluded that

this was an unjustified shooting based on the conduct

of the participants immediately afterward, but found

defendant not guilty of attempted murder because the

State did not prove his intent to kill beyond a

reasonable doubt. After considering the relevant

factors in mitigation and aggravation, the court stated

that defendant was acting in a misguided attempt to

stand up for his nephew and sentenced him to a term

of nine years' imprisonment.

In this appeal from that judgment, defendant contends

that the State's case in chief, which rested on Myles'

improbable and incredible testimony, was insufficient

to disprove his claim of self-defense beyond a

reasonable doubt. Defendant further maintains that

the State's failure to call Jordan, an important

eyewitness to the event, should create a negative

inference regarding her possible testimony.

To sustain defendant's conviction for aggravated

battery with a firearm in this case, the State was

required to prove that he committed battery and

knowingly discharged a firearm and caused injury to

another person. 720 ILCS 5/12-3.05(e)(1) (West

2014). Defendant does not dispute that his conduct

satisfies the elements of this offense, but claims that

his actions constitute the affirmative defense of self-

defense.

"Self-defense is a right an individual is entitled to

exercise in those situations where he reasonably

believes that force is necessary to prevent death or

great bodily harm to himself." People v. Everette, 141








Ill. 2d 147, 162, 565 N.E.2d 1295, 152 Ill. Dec. 377

(1990). Defendant may assert the affirmative defense

of self-defense when unlawful force was threatened

against him, defendant was not the aggressor,

defendant believed that the danger of harm was

imminent, the use of force was necessary to avert

danger, and the amount of force was appropriate.

People v. Shields, 298 Ill. App. 3d 943, 947, 700 N.E.

2d 168, 233 Ill. Dec. 67 (1998). To raise the issue,

defendant must present some evidence regarding

each element (People v. Greene, 160 Ill. App. 3d

1089, 1096-97, 513 N.E.2d 1092, 112 Ill. Dec. 483

(1987)); however, once raised, the State need only

negate one element of the claim beyond a reasonable

doubt to defeat this affirmative defense (Shields, 298

Ill. App. 3d at 947). Whether the State has met its

burden is determined by the trier of fact (Greene, 160

Ill. App. 3d at 1096), and that decision will not be

disturbed on review unless it is so improbable or

unsatisfactory that it raises a reasonable doubt of

defendant's guilt (Shields, 298 Ill. App. 3d at 948). We

do not find this to be such a case.

Here, defendant first contends that the defensewitnesses' testimony shows that Myles raised his gun

and shot first, which caused defendant to act in self-

defense and fire back at Myles. He maintains that

although Myles testified that defendant shot first, his

testimony is so improbable and contrary to human

experience, that it cannot serve to negate the

elements of his self-defense claim.

Viewed in a light most favorable to the prosecution,

the evidence in this case shows that Myles and

defendant got into an argument where defendant

brandished a gun before being separated by Jordan

and Black. After being unable to calm down in his

home, Myles came back outside where he and

defendant engaged in a verbal exchange from across

the street. Myles then turned away from defendant to

walk down the gangway beside his home and was

shot three times. This evidence, and the reasonable

inferences therefrom, were sufficient to support the

trial court's decision to reject defendant's claim of self-

defense. Greene, 160 Ill. App. 3d at 1097.

Defendant contends, however, that the State's entire

case was based on the improbable and unbelievable

testimony of a single witness, which could not serve

to disprove his claim of self-defense beyond a

reasonable doubt. Defendant maintains that Myles

was the initial aggressor, and that his testimony that

he did not have a gun when he confronted defendant

again after the initial argument on his porch where he

saw defendant with a gun is unbelievable. He further

contends that Myles' testimony is so improbable and

inconsistent that its veracity must be called into

question.

At base, defendant contests the credibility

determination made by the trial court. This matter,

however, is within the province of the trial court

(People v. Sutherland, 223 Ill. 2d 187, 242, 860 N.E.2d 178, 307 Ill. Dec. 524 (2006)), and we will not

substitute our judgment for that of the trial court

unless the proof is so unsatisfactory that a reasonable

doubt of guilt appears (People v. Berland, 74 Ill. 2d

286, 305-06, 385 N.E.2d 649, 24 Ill. Dec. 508 (1978)).

It is uncontroverted that Myles was shot once in the

back of the leg, and twice in his upper, left torso.

Although defendant claims in his reply brief that the

State ignored a doctor's report establishing that

defendant was shot twice in the front of his body. We

have examined the report in the record before us and

it does not appear to state that Myles was actually

shot twice in the front of his body. Myles' testimony

provides a reasonable explanation for the








circumstances leading up to the shooting, and the

stipulation of the medical witness corroborates his

testimony regarding his injuries. Although defendant

contends that Myles was the initial aggressor and that

it is improbable that Myles would leave his house

unarmed to confront defendant after the initial

argument, Myles testified that he was not going

outside to confront defendant, and that he did not

address defendant until defendant yelled at him from

across the street. Furthermore, Myles testified that he

did not own a gun, and did not have one with him

during his argument with defendant on the porch, or

when he went back outside where he was shot by

defendant. Therefore, Myles' testimony that he was

not the initial aggressor and did not even have a gun

if believed by the trier of fact, negates defendant's

claim of self-defense because there was no unlawful

force threatened against him, and he was the initial

aggressor. Shields, 298 Ill. App. 3d at 947. It is clear

that the trier of fact believed Myles and not defendant

and Black.

Although, defendant essentially contends that the trial

court should have accepted the version of the incidentas presented by Black and himself instead of that

presented by Myles, this is not our prerogative.

Sutherland, 223 Ill. 2d at 242. We will not disturb the

trial court's credibility determination where the

testimony is not so improbable or unbelievable that a

rational trier of fact could find that it failed to disprove

defendant's claim of self-defense beyond a

reasonable doubt. People v. Beauchamp, 241 Ill. 2d

1, 8, 944 N.E.2d 319, 348 Ill. Dec. 366 (2011);

Greene, 160 Ill. App. 3d at 1096. In this case, the

court accepted Myles' version of events as credible

and rejected the version presented by Black and

defendant. We have no basis for disturbing that

determination.

Defendant next contends that we should draw a

negative inference from the State's failure to call

Jordan as a witness. He maintains that the State's

failure to call Jordan implies that her testimony would

have been unfavorable to the State's case.

We initially note that the State is not obligated to

produce every witness to a crime, and the failure to

produce a witness does not give rise to a presumption

that the witness' testimony would be unfavorable to

the prosecution. People v. Jones, 30 Ill. 2d 186, 190,

195 N.E.2d 698 (1964). A negative inference will arise

from the State's failure to call a witness only if that

witness appears to have special information relevant

to the case, so that her testimony is not merely

cumulative. People v. Jimerson, 69 Ill. App. 3d 403,

412, 388 N.E.2d 10, 26 Ill. Dec. 386 (1979). The

evidence here shows that Jordan did not witness the

shooting, and her testimony regarding the events for

which she was present would have only amounted to

cumulative evidence. Id. at 412. The State presented

sufficient evidence through Myles to establish

defendant's commission of aggravated battery with afirearm and disprove his claim of self-defense. People

v. Doll, 371 Ill. App. 3d 1131, 1138, 864 N.E.2d 916,

309 Ill. Dec. 675 (2007). Thus, we find no negative

inference arising from the State's failure to call Jordan

as a witness under the circumstances reflected in the

record. People v. Scott, 38 Ill. 2d 302, 306, 231 N.E.

2d 441 (1967).

Accordingly, we affirm the judgment of the circuit cour

of Cook County.

Affirmed.

__________________________________________________________________________________________








PENNSYLVANIA

Commonwealth v. Stallings, 2015 Pa. Super. Unpub. LEXIS 1776 (PA Sup. Ct. 2015)

Key issues:

• Multiple attackers, armed defender

• Reasonableness of fear

• Speculative fear


Date: June 16, 2015

Decision:

Crystal Noel Stallings (Appellant) appeals from the

judgment of sentence imposed following her

conviction for two counts of aggravated assault. Upon

review, we affirm.

The facts of this case can be summarized as follows.

Around 10:00 p.m. on November 15, 2012, an

incident occurred between Appellant and the Victim,

Shawntaya Council outside of the apartment shared

by Appellant and her girlfriend, Brandy. Brandy's six-

year-old daughter was also at the home. Prior to the

incident, Stacy Myers, Victim's girlfriend and a friend

of Appellant, picked up the Victim after work that

night. Another friend, Sharday, called the Victim and

told her that Appellant wanted to "resolve the issue"

with the Victim. N.T., 11/12/2013, at 82.1 Stacy and

the Victim drove to Appellant's apartment.2 Appellant,

who resided on the second floor, went downstairswhen the Victim and Stacy arrived. Sharday was also

there, but had driven separately. The Victim testified

that when Appellant came down the stairs, "she didn't

look like herself." Id. at 114. Appellant was carrying

"two knives, one in each hand[,]" and was "fidgety."

Id. at 114, 118. The Victim and Appellant engaged in a

conversation, witnessed by Sharday and Stacy. The

Victim, concerned for her safety, moved so she was

standing on the other side of a fence, then "swung out

of defense for" herself, missing Appellant. Id. at 118.

After the Victim took a second swing, which made

contact with Appellant's face, Appellant went around

the fence and stabbed the Victim with both knives,

injuring her upper abdomen and her neck.

The Victim then ran away, past Stacy and Sharday,

with Appellant chasing her. The Victim then spotted a

police officer, Officer Christopher Roosen, who called

for an ambulance and backup. The Victim told Officer

Roosen that she was stabbed by Appellant. The

Victim required extensive surgery to repair the

damage to her abdomen and was hospitalized for

several days.

Officer Timothy Clymer and two other police officers

responded to the area. Appellant let Officer Clymer

into the apartment where he observed an open

pocketknife. Officer Matthew Irvin took Appellant into

custody, and during this time, Appellant tried to

explain why she stabbed the Victim.












Appellant was charged with two counts of aggravated

assault in connection with this incident. A jury trial

commenced on November 12, 2013, and Appellant

was found guilty as to both counts. On December 30,

2013, Appellant was sentenced, in the mitigated

range, to 42 to 84 months' incarceration. Appellant

filed timely a post-sentence motion, which was denied

on May 27, 2014. Appellant filed a notice of appeal;

however, that appeal was quashed by this Court as

untimely filed.3 Appellant's direct appeal rights were

restored nunc pro tunc, and she filed timely a notice

of appeal. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

On appeal, Appellant sets forth three issues for our

review.

[1.] Whether the Commonwealth presented

insufficient evidence to overcome Appellant's

belief that she was reasonably in immediate fear

of serious bodily injury or death when surrounded

by multiple, potentially armed, attackers with no

avenue of complete safety to retreat?[2.] Whether the Commonwealth presented

insufficient evidence to overcome Appellant's

belief that she was reasonably in immediate fear

of serious bodily injury or death because

Appellant had a reasonable belief that the victim

was armed with a firearm at the time Appellant

stabbed the victim?

[3.] Whether the verdict was against the weight of

the evidence because the evidence demonstrates

Appellant's use of deadly force was reasonable

under the circumstances.

Appellant's Brief at 5 (suggested answers omitted).

Appellant's first two claims challenge the sufficiency

of the evidence.4 She contends the Commonwealth

did not present sufficient evidence to rebut her claim

that she acted in self-defense. Appellant's Brief at

12-15. We review this claim mindful of our well-settled

standard of review.

The standard we apply in reviewing the

sufficiency of the evidence is whether viewing all

the evidence admitted at trial in the light most

favorable to the verdict winner, there is sufficient

evidence to enable the fact-finder to find every

element of the crime beyond a reasonable doubt.

In applying [the above] test, we may not weigh the

evidence and substitute our judgment for the fact-

finder. In addition, we note that the facts and

circumstances established by the Commonwealth

need not preclude every possibility of innocence.

Any doubts regarding a defendant's guilt may be

resolved by the fact-finder unless the evidence is

so weak and inconclusive that as a matter of law

no probability of fact may be drawn from the

combined circumstances. The Commonwealth

may sustain its burden of proving every element ofthe crime beyond a reasonable doubt by means of

wholly circumstantial evidence. Moreover, in

applying the above test, the entire record must be

evaluated and all evidence actually received must

be considered. Finally, the [finder] of fact while

passing upon the credibility of witnesses and the

weight of the evidence produced, is free to believe

all, part or none of the evidence.

Commonwealth v. Smith, 97 A.3d 782, 790 (Pa.

Super. 2014).

According to our Supreme Court, the justified use of

deadly force requires:








a) the actor was free from fault in provoking or

continuing the difficulty which resulted in the use of

deadly force; b) the actor must have reasonably

believed that he was in imminent danger of death

or serious bodily injury, and that there was a

necessity to use such force in order to save

himself or others therefrom; and c) the actor did

not violate any duty to retreat or to avoid the

danger.

Commonwealth v. Harris, 542 Pa. 134, 137, 665 A.2d

1172, 1174 (1995). The defendant has no "burden to

prove" his self-defense claim. Commonwealth v.

Torres, 564 Pa. 219, 224, 766 A.2d 342, 345 (2001).

The Supreme Court explained the evidentiary

burdens as follows:

While there is no burden on a defendant to

prove the [self-defense] claim, before that

defense is properly at issue at trial, there must be

some evidence, from whatever source to justify a

finding of self-defense. If there is any evidence

that will support the claim, then the issue is

properly before the fact finder.

Id. (internal citations omitted). If the defendant

properly raises "self-defense under Section 505

of the Pennsylvania Crimes Code, the burden is

on the Commonwealth to prove beyond a

reasonable doubt that the defendant's act was not

justifiable self-defense." Commonwealth v.

McClendon, 874 A.2d 1223, 1229-30 (Pa. Super.

2005).

The Commonwealth sustains this burden if

it establishes at least one of the following: 1)

the accused did not reasonably believe that

he was in danger of death or serious bodily

injury; or 2) the accused provoked or

continued the use of force; or 3) the accused

had a duty to retreat and the retreat was

possible with complete safety.

Commonwealth v. Hammond, 953 A.2d 544, 559

(Pa. Super. 2008). The Commonwealth must

establish only one of these three elements beyond

a reasonable doubt to insulate its case from a self-

defense challenge to the evidence. The

Commonwealth can negate a self-defense claim if

it proves the defendant did not reasonably believe

he was in imminent danger of death or great bodily

injury and it was necessary to use deadly force to

save himself from that danger.

The requirement of reasonable belief

encompasses two aspects, one subjective and

one objective. First, the defendant must have

acted out of an honest, bona fide belief that he

was in imminent danger, which involves

consideration of the defendant's subjective

state of mind. Second, the defendant's belief

that he needed to defend himself with deadly

force, if it existed, must be reasonable in lightof the facts as they appeared to the defendant

a consideration that involves an objective

analysis.

Commonwealth v. Mouzon, 617 Pa. 527, 551,

53 A.3d 738, 752 (2012).

Smith, 97 A.3d at 786-87 (some citations omitted).

Appellant first argues that the Commonwealth failed

to prove that she "did not reasonably believe that

[s]he was in danger of death or serious bodily injury."

Id. at 787. Appellant contends her belief that she

feared for her life was subjectively reasonable

because she knew that the Victim "had a concealed








weapons permit, owned a firearm, and was known to

carry a razor [blade] in her purse." Appellant's Brief at

13.

The trial court concluded that there was "no evidence

that the [V]ictim was armed with any weapon or that it

was reasonable for [Appellant] to think the [V]ictim

was armed under the circumstances." Trial Court

Opinion, 10/30/2014, at 7. "Simply put, [Appellant]

brought not just one but two knives to a fist fight." Id.

Appellant's testimony is instructive. When asked if

she could see any weapons during the altercation,

Appellant testified as follows: "Not visibly, but there

was an incident, like, when we were on talking terms,

that [the Victim] and Sharday were kind of joking

around and [the Victim] knocked [Sharday's] purse

over and a razor blade fell out. [The Victim] also has a

permit to carry a gun." N.T., 11/12/2013, at 178.

Appellant further testified that she saw the Victim with

a gun about a month earlier, and she saw Sharday

with a razor blade the week prior.

It is well-settled that "issues of whether a defendantacts out of an honest, bona fide belief and whether

such belief was reasonable are questions properly

resolved by the finder of fact." Commonwealth v. Hill,

629 A.2d 949, 952 (Pa. Super. 1993). Here, the

Commonwealth called into doubt Appellant's

testimony by presenting evidence that Appellant did

not bring this information to the attention of the police

when she was interviewed after the incident. N.T.,

11/12/2013, at 186-87. Moreover, Appellant conceded

that she never saw a weapon on either the Victim or

Sharday during the altercation. "Although the

Commonwealth is required to disprove a claim of self-

defense arising from any source beyond a reasonable

doubt, a jury is not required to believe the testimony

of the defendant who raises the claim."

Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa.

Super. 2008). Accordingly, this evidence, which the

jury clearly credited, was sufficient for the jury to

conclude that Appellant did not reasonably believe

she was in danger of imminent death or serious bodily

injury. Thus, this claim for relief fails.

Because the evidence was sufficient to show that

Appellant's belief that she was in danger was

unreasonable, the Commonwealth satisfied its burden

to prove that Appellant's stabbing of the Victim was

not justifiable self-defense. As the Commonwealth is

only required to satisfy one element of the

aforementioned test, we need not consider

Appellant's arguments as to the others. Therefore, we

hold that the Commonwealth sustained its burden "to

prove beyond a reasonable doubt that the defendant's

act was not justifiable self-defense." Smith, 97 A.3d at

787.

. . .

Judgment of sentence affirmed.

__________________________________________________________________________________________








TEXAS

Hernandez v. State, 2015 Tex. App. LEXIS 6022 (TX Ct. App. 2015)

Key issues:

• Words alone insufficient to justify force

• Deadly force, defined


• Burden of production on the defendant

• Burden of persuasion on the State, beyond a reasonable doubt

Date: June 16, 2015

Decision:

Priscilla Aguilar Hernandez was charged with

murdering her husband Jimmie Hernandez.1 See Tex.

Penal Code § 19.02(b) (setting out elements of

offense). A self-defense instruction was included in

the jury charge for the guilt or innocence portion of

the trial. The jury found Priscilla guilty. During the

punishment phase, a sudden-passion instruction was

included in the jury charge, see id. § 19.02(a)(2)

(defining "[s]udden passion"), .02(d) (allowing

defendant to raise issue of sudden passion during

punishment portion of trial and reducing severity of

offense to second-degree felony if jury finds that

defendant committed offense due to sudden passion),

but the jury determined that sudden passion did not

apply and sentenced Priscilla to 30 years'

imprisonment, see id. § 12.32 (providing permissible

punishment range for first-degree felony). In twoissues on appeal, Priscilla contends that the

"evidence is factually insufficient to support the jury's

negative finding on the sudden passion issue

contained in the trial court's charge on punishment"

and that the evidence is "insufficient to support the

jury's rejection of [her] self-defense claim." We will

address Priscilla's second issue first and, after

considering both issues, affirm the district court's

judgment of conviction.

BACKGROUND

Although some of the events leading up to the offense

at issue are contested, the following facts are

undisputed. Priscilla met Jimmie when she was a

minor, and she married Jimmie after her parents gave

their consent to the marriage. During their

relationship, Priscilla and Jimmie used illegal drugs

and drank alcohol regularly. At various points, Priscilla

and Jimmie had people staying with them for

extended periods of time, including a mutual friend,

Mary Bennett; one of Jimmie's cousins, Michael

Acosta; and Acosta's mother, Ermalinda Duarte.When Acosta was living with Priscilla and Jimmie, he

was a minor. At some point after Acosta moved in and

while he was still a minor, Priscilla and Acosta entered

into a sexual relationship and continued some type of

romantic relationship up until the day of the offense.

Prior to the offense, Acosta moved out of the house,












and Priscilla and Jimmie separated. After their

separation, Priscilla moved into a new home with her

and Jimmie's daughter, and Jimmie paid the rent on

the home. Although they were separated, Jimmie

lived with Priscilla for part of the time and with his

parents for the remainder of the time.

On the night of the offense, Priscilla's half brother,

Justin Stone, and his girlfriend, Staci Leach, were

staying at Priscilla's home. During the visit, Stone,

Jimmie, and Priscilla drank alcohol, but Leach did not

drink because she was pregnant; however, Leach did

smoke marijuana at various points throughout the

day. At some point early in the evening, Stone and

Leach fell asleep on the couches in Priscilla's living

room. After Stone and Leach went to sleep, Priscilla

and Jimmie decided to go out for the evening with

Jimmie's parents, and Priscilla and Jimmie continued

to drink throughout the evening. At the end of the

evening, Jimmie's parents offered to drive Priscilla

and Jimmie home. Priscilla accepted their offer, but

Jimmie decided that he would rather walk home.

After Priscilla arrived home, she left the home andwalked to meet Jimmie outside. When Priscilla met

Jimmie, some kind of conflict ensued, and the pair

ultimately returned to the home. While they were in

the house, Leach woke up after hearing Priscilla and

Jimmie argue. During the argument, Priscilla stabbed

Jimmie in the chest. Leach witnessed Priscilla stab

Jimmie. After being stabbed, Jimmie went outside and

died in the front of the house. Prior to the police

arriving on the scene, Priscilla fled the premises. After

talking with her parents the following day, Priscilla

agreed to turn herself in. Ultimately, Priscilla was

charged with and convicted of murder.

DISCUSSION

Self-Defense

In her second issue on appeal, Priscilla challenges

the sufficiency of the evidence supporting "the jury's

rejection of [her] self-defense claim."2

Under the Penal Code, an individual is guilty of the

crime of murder if she "intentionally or knowingly

causes the death of an individual." Tex. Penal Code §

19.02(b)(1). However, the Code also states that an

individual "is justified in using force against another

when and to the degree the actor reasonably believes

the force is immediately necessary to protect the

actor against the other's use or attempted use of

unlawful force," id. § 9.31(a), but the Code specifies

that the "use of force against another is not justified:

(1) in response to verbal provocation," id. § 9.31(b)

(1). Furthermore, the Code provides that an individual

"is justified in using deadly force against another . . . if

the actor would be justified in using force against the

other" and "when and to the degree the actor

reasonably believes the deadly force is immediatelynecessary . . . to protect the actor against the other's

use or attempted use of unlawful deadly force." Id. §

9.32(a). "'Deadly force' means force that is intended

or known by the actor to cause, or in the manner of its

use or intended use is capable of causing, death or

serious bodily injury." Id. § 9.01(3).

Self-defense is a fact issue for the jury to determine,

and if the jury enters a verdict of guilty, it implicitly

rejected the theory of self-defense. Saxton v. State,

804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991). For

self-defense claims, the defendant has the burden of

producing some evidence to support the claim. Zulian

v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003);

see also id. (contrasting self-defense from affirmative








defenses and explaining how burdens shift for self-

defense). If the defendant produces some evidence,

the State has "the burden of persuasion to disprove

the raised defense." Id. at 594. The State's burden

does not require the production of any additional

evidence; instead, "it requires only that the State

prove its case beyond a reasonable doubt." Id.; see

Saxton, 804 S.W.2d at 913. "Because the State bears

the burden of persuasion to disprove a" claim of self-

defense "by establishing its case beyond a

reasonable doubt, we review both legal and factual

sufficiency challenges to the jury's rejection of such a

defense under" the legal-sufficiency standard. See

Smith v. State, 355 S.W.3d 138, 145 (Tex. App.--

Houston [1st Dist.] 2011, pet. ref'd); cf. Brooks v.

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)

(providing that "legal-sufficiency standard is the only

standard that a reviewing court should apply in

determining whether the evidence is sufficient to

support each element of a criminal offense").

Under that standard, appellate courts view the

evidence in the light most favorable to the verdict and

determine whether "any rational trier of fact couldhave found the essential elements of the crime

beyond a reasonable doubt." Jackson v. Virginia, 443

U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979). When performing this review, an appellate

court must bear in mind that it is the factfinder's duty

to weigh the evidence, to resolve conflicts in the

testimony, and to make reasonable inferences "from

basic facts to ultimate facts." Id.; see also Tex. Code

Crim. Proc. art. 36.13 (explaining that "jury is the

exclusive judge of the facts"). Moreover, appellate

courts must "determine whether the necessary

inferences are reasonable based upon the combined

and cumulative force of all the evidence when viewed

in the light most favorable to the verdict." Hooper v.

State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).

Furthermore, appellate courts presume that

conflicting inferences were resolved in favor of the

conviction and defer to that resolution. Clayton v.

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

"When reviewing a legal-sufficiency challenge on the

issue of self-defense, a reviewing court views the

evidence in the light most favorable to the verdict to

see if any rational trier of fact could have found (1) the

essential elements of murder beyond a reasonable

doubt, and (2) against appellant on the self-defense

issue beyond a reasonable doubt." Hernandez v.

State, 309 S.W.3d 661, 665 (Tex. App.--Houston [14th

Dist.] 2010, pet. ref'd); see Armour v. State, No.

03-13-00250-CR, 2015 Tex. App. LEXIS 2328, at *3

(Tex. App.--Austin Mar. 12, 2015, no pet.) (mem. op.,

not designated for publication).

In contesting the sufficiency of the evidence, Priscilla

relies on her testimony from trial regarding her

recollections of the events leading up to the offense

as well as her reasons for stabbing Jimmie. In

particular, Priscilla discussed in her testimony various

instances of past abuse in which Jimmie allegedly hit

her, choked her, dragged her by the hands, threw heragainst a wall, and "blew boogers on my face."

Moreover, she related that she decided to separate

from Jimmie because of these incidents. Regarding

the night of the offense, Priscilla testified that she and

Acosta were texting one another, that some of the

texts were romantic in nature, and that Jimmie was

aware of the texting. Further, she related that she was

drinking that night, that Jimmie was intoxicated, that

Jimmie got angry at some point in the evening, that

Jimmie called her a "F'ing bitch," that she walked

back to meet Jimmie after his parents dropped her off

at her home, and that after she met Jimmie, the

following occurred:








He didn't say anything then. He walked straight

to me, picked me up by my hoodie, threw me

across the street, and he started walking towards

me. So I kicked at him, and he grabbed my boot --

he grabbed my foot. And when he twisted it, it

pulled my boot off. So he turned to throw my shoe.

I got up and I started yelling at him, telling him to

turn around, don't go to my house, and he told me

he would go wherever he wanted to go.

And I kept telling him to go to his mom's. I would

walk him there. And he just wasn't listening, and

so we stood there yelling for a little while.

. . .

And then he punched me in the eye. And when he

did that, I started yelling even more, and I yelled at

him for punching me, and he hit me in the head,

and I started backing up when I was yelling.

. . .

He spit in my face, and then I hit him in the mouth.

Furthermore, Priscilla testified that she ran for the

house, that Jimmie arrived a minute later, that she

told Leach what happened and asked her to wake

Stone up, that Jimmie started yelling, that Jimmiepushed her when Leach was not looking, that she

grabbed a pan as she was falling, that she hit Jimmie

with the pan when she got up, that she kept telling

Jimmie to leave while she was hitting him, that she hit

him two or three times with the pan, that Jimmie threw

a knife "at my feet," and that she picked up the knife.

Next, she explained that she stabbed Jimmie with the

knife when he came towards her, that she did not

intend to kill him, and that she was afraid that her life

was in danger. In addition, she testified that after she

stabbed Jimmie, she let go of the knife. Moreover,

she stated that after Stone woke up and went to

check on Jimmie outside, she realized that "Jimmie

was actually hurt," that she "ran outside," and that she

saw "blood everywhere." Priscilla also explained that

she told Jimmie that she was sorry, that he said that

he was sorry, that he told her to run after he heard

that Leach and Stone were calling the police, that she

ran, and that she spent the night under a bridge.

In addition to her testimony, two signed statements

that Priscilla gave to the police after the offense were

admitted as exhibits and portions of the first

statement were introduced through the testimony of

Texas Ranger Dwayne Goll, who responded to the

911 call and later took Priscilla's statement. In

Priscilla's first statement, she communicated that she

went out with Jimmie on the night of the offense, that

they continued drinking after going out, that Jimmie

got angry at her, that Jimmie called her "a bitch and

[told] me to go see my boyfriend," that Jimmie walked

home, that she met Jimmie outside, that Jimmie

started yelling, that Jimmie threw her down, that she

started kicking Jimmie, that Jimmie removed her boot

that Jimmie started hitting her in the face, that she hit

him in the mouth and made his lip bleed, and that

Jimmie started spitting on her. In the statement,

Priscilla also related that after going inside the house,

she attempted unsuccessfully to wake her brother up,noticed a pan in the kitchen, and used the pan to hit

Jimmie in the back of the head twice. Regarding the

offense, Priscilla recalled in her statement that Jimmie

threw a knife at her and that when he threw it a

second time, she picked it up and stabbed him.

Specifically, she wrote that "I did not intend to stab

him when the knife came out. To me I did not swing it.

I just went like that, and I turned around and stabbed

him." In addition, Priscilla informed the police that she

told Jimmie that she was sorry, that Stone told her to

leave, that she left the house and started walking, and

that she turned herself in hours later. Finally, Priscilla

explained in her statement that "[i]t was not really

unusual for Jimmie to hit me," that she thought this

incident happened because everyone was very drunk








and that at the time of the offense, she and Jimmie

were both seeing other people and were only living

together for the sake of their young daughter.

In addition to pointing to her own testimony regarding

her history with Jimmie and regarding the events at

issue, Priscilla also relies on testimony from

individuals who observed her prior interactions with

Jimmie as support for the idea that Jimmie was

physically abusive, that Jimmie initiated the conflict on

the night in question, and that she feared for her life

when she stabbed Jimmie. Specifically, she points to

the testimony of her mother, Diane Aguilar, who

explained that on two prior occasions Priscilla told her

that Jimmie had hit her and had thrown "snot on her."

In addition, Priscilla refers to the testimony of Duarte

in which Duarte explained that during the time that

she lived with Jimmie and Priscilla, she heard Jimmie

threaten to kill Priscilla and saw Jimmie physically

assault Priscilla. Moreover, Duarte also testified that

Jimmie called her home on the night of the offense

looking for Acosta, that Jimmie was intoxicated when

he made the call, and that Jimmie threatened to kill

Acosta during the call because of his affair withPriscilla.

During the trial, Acosta also testified regarding his

observations from the time that he was living with

Jimmie and Priscilla. Specifically, he stated that he

heard Priscilla and Jimmie argue regularly and saw

them hit one another; however, Acosta clarified that

he only saw Priscilla hit Jimmie after Jimmie hit her

first. Moreover, Acosta characterized Jimmie and

Priscilla's relationship as unstable, described Jimmie

as the aggressor, and recalled that he feared for

Priscilla's life when Jimmie got violent. Furthermore,

he testified that on the night of the offense, he and

Priscilla were exchanging texts that were sexual in

nature and that at some point in the evening, Jimmie

became aware that the texts were being exchanged.

In addition to the testimony above, Aguilar and

Priscilla's aunt, Rosalinda Mendez, both testified

regarding their interactions with Priscilla after the

offense. In her testimony, Mendez explained that

when she saw Priscilla after the incident, Priscilla had

bruises on one of her cheeks and on her back and

had what looked to be "the beginning of a black eye."

Furthermore, Mendez stated that Priscilla told her tha

Jimmie "hit her and that he was kicking her."3

Similarly, Aguilar testified that when she saw Priscilla

on the day after the offense, Priscilla had bruises on

one of her wrists and on one of her eyes.

Finally, when making her sufficiency challenge,

Priscilla refers to testimony from Dr. Lisa Watts, who

discussed battered-women's syndrome and post-

traumatic stress disorder and described how those

conditions might have been in play during the offense

Specifically, Dr. Watts diagnosed Priscilla as suffering

from both conditions, described prior physical

altercations that allegedly occurred between Priscillaand Jimmie, revealed sexual abuse that Priscilla had

experienced in her life that was committed by

individuals other than Jimmie, and stated that based

on her review of this case and of Priscilla's history,

she did not believe that Priscilla intended to kill

Jimmie; on the contrary, Dr. Watts surmised that

Priscilla "was just trying to protect herself and remove

the immediate danger." In addition, Dr. Watts testified

that she believed that Priscilla was afraid for her life

on the night of the offense. Moreover, Dr. Watts

explained that it was not uncommon for individuals

suffering from post-traumatic stress disorder to forget

details of traumatic events and to appear unemotiona

after an event.








However, in addition to the testimony from Priscilla

regarding the offense at issue, the State called Leach

to the stand to testify regarding what she witnessed

on the night of the offense. When describing Priscilla

and Jimmie's relationship, Leach stated that they

"seemed happy for the most part" but that she had

observed them argue before.4 Regarding the night in

question, Leach mentioned that she asked Priscilla

about some hickeys on her neck and that Priscilla

admitted that someone other than Jimmie had given

them to her. Next, she stated that after she fell asleep

on the sofa in Priscilla's home, she woke up when she

heard Priscilla and Jimmie arguing, and Leach

testified that she saw Priscilla come in the front door

followed by Jimmie. Moreover, Leach explained that

Priscilla told her that Jimmie "had hit her or something

and she was missing a boot, and she was yelling at

him because" he threw her boot. Furthermore, Leach

recalled that it looked like someone had spit around

Priscilla's eyebrow and that there was blood in the

spit. When describing her interactions with Jimmie,

Leach explained that she asked him if he hit Priscilla

and that Jimmie said that he "did not lay a hand on

her" but did admit that he spit on Priscilla.

After discussing her conversation with Jimmie, Leach

revealed that she watched Jimmie and Priscilla go

into the kitchen, heard them continue their argument,

and observed Priscilla pick up a pan and start hitting

Jimmie in the head multiple times with it. Moreover,

Leach explained that Jimmie did not try to hit Priscilla

back and, in fact, "did not raise his hand to her at all"

or threaten her in any way during the entire

encounter. Next, Leach revealed that she saw

Priscilla grab "a handful of knives" from nearby in the

kitchen and said that after Priscilla grabbed the

knives, Jimmie attempted to leave the kitchen and

come back to the living room. Further, Leach stated

that when Jimmie was attempting to leave the

kitchen, Priscilla "threw one knife at him and it stuck

in the ground in the floor, and he picked it up by the

blade and told her, "[']you missed me, Bitch, try again.

[']" When describing that statement, Leach explained

that Jimmie did not yell the statement or move toward

Priscilla. Next, Leach testified that Jimmie handed the

blade back to Priscilla and that when he handed the

knife back, he held the knife by the blade.5

Furthermore, Leach recalled that after Jimmie

returned the knife, he and Priscilla continued to argue

and that when Priscilla turned to walk away, Jimmie

"told her to go fuck another kid." In addition, Leach

explained that after Jimmie made that statement,

Priscilla held the knife high above her head, turned

around, stabbed Jimmie in the chest, backed up, and

said, "ha, Bitch." When describing the offense, Leach

stated that she saw Priscilla walk away, saw Jimmie

pull the knife out, watched Jimmie walk outside, and

heard Jimmie say "don't call the cops."

Regarding the events that occurred after the offense,

Leach explained that she went outside to see if she

could help and that after she went outside, Priscilla

ran outside, grabbed Jimmie's arm, and "was trying to jerk him up like get him to set up or something";

however, Leach also revealed that Jimmie did not

move or say anything. Furthermore, Leach testified

that Priscilla kept saying that she was sorry and was

freaking out. In addition, Leach testified that Priscilla

came back in the house to try to get Stone to wake up

and that Priscilla kicked the knife under the couch2;

however, Leach explained that she did not know if

Priscilla kicked the knife intentionally or not. Next,

Leach explained that Stone told Priscilla that he was

going to call the cops and that Priscilla said that she

would wait for the cops to arrive but that after Stone

went inside to make the call, Priscilla disappeared.








In addition to the testimony from Leach regarding the

events that she witnessed, the State also called

Bennett to the stand to discuss her observations of

Priscilla and Jimmie's relationship.3 In her testimony,

Bennett described Jimmie as "real calm and quiet"

and said that he was not a violent person.

Furthermore, although she admitted that she saw

Jimmie and Priscilla argue, she testified that Priscilla

was the aggressor and started the arguments. In

addition, Bennett related that she had been around

Jimmie and Priscilla when they were drinking and that

Priscilla loses her temper when she drinks. During her

testimony, Bennett also explained that she was only

aware of one physical altercation between Jimmie

and Priscilla and agreed that Priscilla had sustained

injuries during the altercation, but Bennett reaffirmed

that Priscilla was the aggressor in the relationship.

In light of the evidence summarized above, there

were conflicts in the evidence regarding not only the

events immediately preceding the stabbing but also

regarding whether Priscilla or Jimmie was the

aggressor in their relationship, and the resolution of

those conflicts turned on the weight and the credibilitythat the jury chose to give to the testimony and

evidence presented during the trial. In resolving the

conflicts between Priscilla's and Leach's testimonies

regarding the offense, the jury was aided by other

portions of Priscilla's testimony. Specifically, in her

testimony, Priscilla admitted that she has a temper

and will get mean if she drinks and further admitted

that she was intoxicated on the night that Jimmie

died. In addition, she recalled that Jimmie did not hit

her in the house prior to her stabbing him and instead

"just pushed" her. Moreover, Priscilla acknowledged

that she signed the statements that she gave to the

police after the offense in which she stated that she

was drinking on the night that she stabbed Jimmie

and that when she drinks and gets mad, she can get

violent.4

Furthermore, the jury also had the benefit of

examining the signed statements that Priscilla made

to the police. In a portion of her second statement,

Priscilla explained that "Jimm[ie] handed me the

knife . . . and I threw it and Jimm[ie] picked it up and

gave it back to me and that's when I stabbed him. I

don't know why I stabbed him." In addition, she

explained that "When I'm drunk I'm usually fine until

somebody sets me off and I get out of hand then. I

get mean. Whenever I'm drinking everything gets to

me. Everything just piles up on my mind. Jimm[ie] set

me off the night of the stabbing."

In addition, the jury was aided by the testimony from

Priscilla and Leach showing that Priscilla left the

scene of the offense, see Devoe v. State, 354 S.W.3d

457, 470 (Tex. Crim. App. 2011) (explaining that flight

can support inference of guilt), and from the portion of

Priscilla's testimony in which she admitted that after

she fled, she made no attempt to check on Jimmie or

otherwise inquire about him until hours later when shecalled her father. Furthermore, when deciding what

weight to give the conflicting testimonies, the jury was

aware that many of the individuals who testified that

Jimmie had previously assaulted Priscilla were either

related to Priscilla or had been in a romantic

relationship with her, and the jury was also aware that

Leach was dating Priscilla's brother at the time of the

offense and was still dating him at the time of the trial

when she testified for the State. In addition, the jury

heard testimony from Officer Goll and Deputy Sheriff

Connie Baker regarding Priscilla's demeanor during

their conversations with her after the offense. In

particular, Officer Goll stated that Priscilla "was pretty

matter of fact, and we went through the questions and

answers pretty easily," and Officer Baker testified that








when Priscilla modified her statement that she initially

made to the police, Priscilla did not appear to be

expressing any remorse. In addition, Officer Goll

explained that he photographed and examined

Priscilla's hands to see if there were any defensive

wounds but that there were no wounds on her hands.

When resolving the inconsistencies in the evidence,

the jury was also guided by testimony from Priscilla,

Aguilar, and Officer Baker regarding Priscilla's prior

conviction for domestic violence stemming from an

incident in which she assaulted her younger brother.

Regarding the incident, Priscilla recounted that she

became intoxicated and fought with her younger

brother at her mother's house, and she also explained

that she attempted to throw a rock at the house in

order to break a window and get in the home.

Similarly, Aguilar testified that Priscilla hit her younger

brother when she was intoxicated. Further, Officer

Baker explained that after she arrived on the scene,

she arrested Priscilla for public intoxication and for

assault family violence.

Finally, the jury was aided by Dr. Watts'sacknowledgment that much of her opinion regarding

Priscilla was based on information that she obtained

from Priscilla and that her conclusions were premised

on Priscilla being truthful in her answers.

By finding Priscilla guilty, the jury determined that

Priscilla intentionally or knowingly caused Jimmie's

death by stabbing him and that Priscilla's actions

were not justified by a reasonable belief that deadly

force was immediately necessary to protect her

against Jimmie's use or attempted use of unlawful

deadly force. See Tex. Penal Code §§ 9.31(a), (b)(1),

19.02(b)(1). Given that courts reviewing a legal-

sufficiency challenge consider the evidence in the

light most favorable to the verdict and bearing in mind

the jury's role in weighing and resolving

inconsistencies in the evidence, we must conclude

that a rational jury could have found that the State

proved each element of the offense of murder beyond

a reasonable doubt and also found beyond a

reasonable doubt that Priscilla's conduct was not

justified self-defense. Accordingly, we conclude that

the evidence is sufficient to support Priscilla's

conviction and overrule her second issue on appeal.

Sudden Passion

. . .

CONCLUSION

Having overruled both of Priscilla's issues on appeal,we affirm the district court's judgment of conviction.

__________________________________________________________________________________________








UTAH

State v. Walker, 2015 UT App 153 (UT Ct. App. 2015)

Key issues:

• Victim’s prior acts of violence, admissibility in self-defense case


• Imminence

• Reasonableness

Date: June 18, 2015

Decision:

Frontis Walker Jr. has been charged with aggravated

assault and intends to claim that he acted in self-

defense. Walker filed a motion in the district court

seeking to admit evidence of his alleged victim's prior

acts of violence, which Walker argues is admissible

pursuant to the Utah Rules of Evidence and Utah

Code section 76-2-402(5). The district court granted

Walker's motion in part and denied it in part. Walker

brings this interlocutory appeal from the district court's

order. We vacate the district court's order and remand

this matter for further proceedings, including

reevaluation of the admissibility of the proposed self-

defense evidence.

BACKGROUND

The State charged Walker with aggravated assault

following an altercation between Walker and hisgirlfriend's cousin (Cousin).1 On February 12, 2013,

Cousin visited the home that Walker shared with his

girlfriend. Walker and Cousin argued over whether

Cousin could drink beer in the house. At some point,

Walker told Cousin that he wanted to take the dispute

outside. Once outside, Walker punched Cousin in the

face, knocking him unconscious and causing him to

suffer an apparent seizure.

Walker claimed that he struck Cousin in self-defense.

In support of that claim, Walker filed a motion in the

district court seeking to admit evidence of specific

acts of violence Cousin had committed between 1996

and 2013. This evidence included four domestic-

violence assault convictions resulting from acts

occurring in 1996, 1997, 2003, and 2007; a conviction

for a 2009 battery; four allegations of various assaults

occurring in 1998, 2007, 2012, and 2013; and the

testimony of two witnesses who would state that

Cousin had become "intoxicated and violent" on

several occasions. Walker's motion argued that the

evidence consisted of Cousin's "prior violent acts or

violent propensities" and was therefore admissible

under Utah Code section 76-2-402(5) to show theimminence of the threat to Walker and the

reasonableness of his response. Walker also argued

that Cousin's history was admissible under the Utah

Rules of Evidence without resort to section

76-2-402(5). In response, the State filed a motion to

exclude the evidence.











After a hearing on the competing motions, the district

court ruled that Cousin's 1997 felony conviction was

admissible pursuant to the State's stipulation and rule

609(a)(1) of the Utah Rules of Evidence. The district

court also "strictly constru[ed]" Utah Code section

76-2-402(5) to conclude that Cousin's "prior violent

acts are admissible to show whether the defendant

reasonably believed that force was necessary and the

danger was imminent." However, recognizing that

"this is a novel issue and there is no applicable case

law," the district court ruled that Walker "may only

admit evidence of prior violent acts that can be

proven in the form of certified convictions within the

last ten years." This ruling established the

admissibility of three more convictions, those

occurring in 2003, 2007, and 2009.

We granted Walker's petition for interlocutory review

of the district court's ruling.

ISSUE AND STANDARD OF REVIEW

Walker argues that all of Cousin's prior violent actsmust be admitted at his trial pursuant to both Utah

Code section 76-2-402(5) and the Utah Rules of

Evidence. For the reasons discussed herein, we limit

our discretionary review to the interpretation of Utah

Code section 76-2-402(5). See McCloud v. State,

2013 UT App 219, ! 19 n.3, 310 P.3d 767 (limiting the

scope of an interlocutory appeal to a single issue

despite briefing of additional issues); Gunn Hill Dairy

Props., LLC v. Los Angeles Dep't of Water & Power,

2012 UT App 20, !! 20-21, 269 P.3d 980 (discussing

discretionary nature of interlocutory appeals).

"Questions of statutory interpretation are matters of

law, which we review for correctness." State v.

Graham, 2011 UT App 332, ! 14, 263 P.3d 569.

ANALYSIS

Utah Code section 76-2-402 permits a defendant to

assert self-defense in certain circumstances. "A

person is justified in threatening or using force agains

another when and to the extent that the person

reasonably believes that force or a threat of force is

necessary to defend the person . . . against another

person's imminent use of unlawful force." Utah Code

Ann. § 76-2-402(1) (LexisNexis 2012). Section

76-2-402(5) expressly identifies certain factors that

may be considered in evaluating the reasonableness

and imminence aspects of a self-defense claim:

In determining imminence or reasonableness

under Subsection (1), the trier of fact may

consider, but is not limited to, any of the following

factors: (a) the nature of the danger; (b) the

immediacy of the danger; (c) the probability that

the unlawful force would result in death or serious

bodily injury; (d) the other's prior violent acts or

violent propensities; and (e) any patterns of abuse

or violence in the parties' relationship.

Id. § 76-2-402(5).

Walker intends to assert a claim of self-defense.

Walker argues that evidence of Cousin's prior violent

acts must be admitted under the plain language of

Utah Code section 76-2-402(5) to show that Walker

reasonably believed force was necessary to defend

himself against Cousin's imminent use of unlawful

force. Walker contends that section 76-2-402(5)

supersedes the Utah Rules of Evidence because it

substantively affects the elements of a self-defense

claim. In the alternative, Walker argues that section

76-2-402(5) implements evidentiary or procedural

changes that effectively amend the Utah Rules of

Evidence.








We first address Walker's contention that Utah Code

section 76-2-402(5) has a substantive effect on the

law of self-defense. According to Walker, section

76-2-402(5)(d) "is either a substantive law that

defines 'reasonableness' and 'imminence' in the

context of self-defense or it is a prima facie rule of

evidence that is so intertwined with the substantive

right to plead self-defense that the Court must treat it

as substantive." We disagree.

Nothing in the plain language of section 76-2-402(5)

suggests that the factors enumerated therein are

intended to substantively alter the definitions of

reasonableness or imminence. Rather, that section

provides that "the trier of fact may consider" the

enumerated factors, including an alleged victim's

violent acts and propensities. Utah Code Ann. §

76-2-402(5) (emphasis added). The ultimate question

before the trier of fact remains the reasonableness of

a defendant's belief that force was necessary to

defend against another's imminent use of unlawful

force. See id. § 76-2-402(1). Further, since the Utah

Legislature enacted section 76-2-402(5), both thiscourt and the Utah Supreme Court have stated that a

claim of self-defense "'does not place . . . character at

issue.'" State v. Campos, 2013 UT App 213, ! 87, 309

P.3d 1160 (omission in original) (quoting State v.

Leber, 2009 UT 59, ! 23, 216 P.3d 964). This

statement appears to be incompatible with Walker's

assertion that "the purpose of [section] 76-2-402(5)(d)

is to bestow defendants with the right to present

evidence with broad narrative value of the alleged

victim's violent character." (Citation and internal

quotation marks omitted.)

We conclude that section 76-2-402(5) does just what

its plain language states--it identifies a nonexclusive

list of factors that may appropriately bear on a

factfinder's evaluation of a self-defense claim. Section

76-2-402(5) thereby establishes that the enumerated

factors may not be categorically excluded as

potentially admissible evidence. Section 76-2-402(5)

also serves as a guide for judges and practitioners by

identifying factors that may be useful in establishing

or refuting self-defense. But we cannot read the

language "may consider" as enshrining an absolute

right to admit evidence of an alleged victim's prior

violent acts or propensities. Nor does the language

otherwise substantively change the law of self-

defense.

By way of comparison, the Utah Supreme Court has

held that the Legislature substantively changed the

law of negligence when it enacted Utah Code section

41-6-186. See Ryan v. Gold Cross Servs., Inc., 903 P.

2d 423, 425 (Utah 1995). Section 41-6-186 stated,

"The failure to wear a seat belt does not constitute

contributory or comparative negligence, and may not

be introduced as evidence in any civil litigation on the

issue of injuries or on the issue of mitigation of

damages." Utah Code Ann. § 41-6-186 (Michie 1988).

Rejecting a challenge that the statute violatedconstitutional restrictions on the Legislature's power

to make evidentiary rules, the supreme court

concluded that "the statute's operative provisions

announce a substantive principle: 'The failure to wear

a seat belt does not constitute contributory or

comparative negligence . . . .'" Ryan, 903 P.2d at 425

(omission in original). Here, there is no corresponding

language in Utah Code section 76-2-402(5) that

effects any substantive change to the law of self-

defense.

Walker also argues that the Legislature intended

section 76-2-402(5) to amend the Utah Rules of

Evidence. Walker contends that the language "may

consider . . . any of the following factors" means that








evidence of the enumerated factors must necessarily

be admitted for the factfinder's consideration. See

Utah Code Ann. § 76-2-402(5) (LexisNexis 2012). We

are not convinced that the Utah Legislature intended

section 76-2-402(5) to amend the Utah Rules of

Evidence.

As discussed above, the plain language of section

76-2-402(5) states only that the trier of fact "may

consider" a non-exhaustive list of factors. See id. This

statutory language does not expressly purport to

amend or override any provisions of the Utah Rules of

Evidence; indeed, it does not even use the word

"evidence," speaking instead in terms of "factors."

Further, the bill enacting section 76-2-402(5)

contained a statement of legislative intent, indicating,

"It is intended that otherwise competent evidence

regarding a victim's response to patterns of domestic

abuse or violence be considered by the trier of fact in

determining reasonableness or imminence." H.B. 13,

50th Leg., Gen. Sess. (Utah 1994) (emphasis added).

Because the Utah Rules of Evidence comprise the

yardstick by which evidence is deemed "competent,"

the reference to "otherwise competent evidence"strongly suggests that the Legislature did not intend

for section 76-2-402(5) to override or amend the Utah

Rules of Evidence.

We also note that, in enacting section 76-2-402(5),

the Utah Legislature did not employ the procedure

that has been recognized as the method by which the

Legislature can constitutionally amend the Utah Rules

of Evidence. "While the Legislature has the

constitutional authority to amend the Rules of

Procedure and Evidence adopted by the Utah

Supreme Court, it may only do so by joint resolution

adopted 'upon a vote of two-thirds of all members of

both houses of the Legislature.'" Allred v. Saunders,

2014 UT 43, ! 3 n.2, 342 P.3d 204 (quoting Utah

Const. art. VIII, § 4). Here, although the parties agree

that section 76-2-402(5) was enacted by a two-thirds

vote, it was not enacted by joint resolution. Nor did

the enacting bill expressly purport to amend the Utah

Rules of Evidence. Thus, even though section

76-2-402(5) was adopted by a two-thirds majority, "it

constitutes an amendment to a statute, not an

amendment to a rule of procedure adopted by the

Supreme Court." See Allred, 2014 UT 43, ! 3 n.2, 342

P.3d 204; see also State v. Larsen, 850 P.2d 1264,

1266-67 (Utah 1993) ("It would appear that article

VIII, section 4 requires any legislation which amends

a court rule to comply with the same legislative joint

rules and practice governing amendments to statutes,

that is, to refer to the rule specifically by number and

indicate how it is to be amended." (citing Utah House

and Senate Joint Rule 4.11)).

In light of the statute's plain language and the

Legislature's statement of intent in enacting Utah

Code section 76-2-402(5), as well as to avoid

separation-of-powers concerns, we decline Walker's

invitation to interpret that section as amending or

otherwise affecting the application of the Utah Rulesof Evidence. Thus, while section 76-2-402(5)

identifies a non-exclusive list of factors that may be

considered, evidence in support of those factors must

still satisfy the Utah Rules of Evidence to be

admissible.

Walker also argues that Cousin's prior violent acts are

admissible under the Utah Rules of Evidence without

regard to Utah Code section 76-2-402(5). We decline

to evaluate that issue at this interlocutory stage of the

proceedings. It is apparent from the district court's

ruling that the court made its evidentiary ruling under

the erroneous impression that Utah Code section

76-2-402(5) controlled over the ordinary evidentiary

rules. Thus, the district court has yet to analyze the








prior violent acts under the applicable evidentiary

rules, and we decline to conduct that analysis in the

first instance. See Gunn Hill Dairy Props., LLC v. Los

Angeles Dep't of Water & Power, 2012 UT App 20, !!

20-21, 269 P.3d 980 (discussing discretionary nature

of interlocutory appeals). Additionally, at least one of

Walker's evidentiary arguments--that the prior acts

evidence is admissible under the doctrine of chances,

see State v. Verde, 2012 UT 60, !! 47-62, 296 P.3d

673--does not appear to have been presented to the

district court in support of Walker's motion to admit

the evidence. "As a general rule, claims not raised

before the trial court may not be raised on appeal."

State v. Benson, 2014 UT App 92, ! 24, 325 P.3d 855

(citation and internal quotation marks omitted). For

these reasons, we decline to evaluate the evidence

under the Utah Rules of Evidence at this time. Walker

may pursue those arguments before the district court

on remand.

CONCLUSION

We conclude that evidence of an alleged victim's prior

violent acts or propensities--and the other factors

enumerated in Utah Code section 76-2-402(5)--must

satisfy the Utah Rules of Evidence to be admissible.

We therefore vacate the district court's evidentiary

ruling and remand this matter for further proceedings

consistent with this opinion.

__________________________________________________________________________________________

__________________________________________________________________________________________

__________________________________________________________________________________________



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