Law of Self Defense: Weekly Law Report

2015 #19 (April 27-May 1, 2015)

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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. Those
we find most interesting are summarized in each weeks Law of Self Defense: Weekly Law Report.

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. We also strip out
much of the introductory commentary of the case, for purposes of efficiency. 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 courts decisions.

Q:

How are the cases here organized, and how can I quickly know what issues are addressed in each?

A:

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:

Having access to these cases is great, but I still find a lot of the legal terminology and principles of
self-defense law confusing. Whats a good resource to really understand the law of self-defense?

A:

For almost two decades Law of Self Defense has been providing non-lawyers as well as police officers,
defense attorneys, prosecutors, and judges with world-class instruction on self-defense law. 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 statespecific online training classes. And, of course, theres always the Law of Self Defense Blog.

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TABLE OF CONTENTS
CALIFORNIA
People v. Christian, 2015 Cal. App. Unpub. LEXIS 3008 (CA Ct. App. 2015)
Key issues:
Imminence, fear of future harm insufficient Proportionality, force after threat
neutralized is excessive; burden of persuasion on the State.
Date:
April 30, 2015

Page
4

ILLINOIS
People v. Flemming, 2015 Ill. App. LEXIS 326 (IL Ct. App. 2015)
Key issues:
Burden of production on the defendant; burden of persuasion on the State;
elements of self-defense are cumulative, prosecution must disprove only
one; Reasonableness, subjective; imperfect self-defense; dfn. grave bodily
harm; dfn. deadly weapon.
Date:
May 1, 2015

TEXAS
Kellum v. State, 2015 Tex. App. LEXIS 4436 (TX Ct. App. 2015)
Key Issues:
Burden of production on defendant; burden of persuasion on the State,
beyond a reasonable doubt; Reasonableness, ordinary and prudent man in
the same circumstances.
Date:
April 30, 2015

11

Villarreal v. State, 2015 Tex. App. LEXIS 4315 (TX Ct. App. 2015)
Key Issues:
Burden of production on the defendant; Burden of persuasion on the State,
beyond a reasonable doubt; Avoidance, preclusion, option of retreat; Failure
to make statement to responding officers; Reasonableness, reasonable
belief deadly force was necessary; Defense of others; Deadly force dfn.;
Serous bodily injury dfn.
Date:
April 29, 2015

12

WASHINGTON
State v. Larkins, 2015 Wash. App. 2015 LEXIS 928 (WA Ct. App 2015)
Key issues:
Reasonableness, subjective fear; Reasonableness, objective; Imminence;
Proportionality, no more force than necessary; Reasonableness, subjective,
all facts and circumstances as defendant knew them; Reasonableness,
objective, reasonable and prudent person in defendants situation;
Proportionality, deadly defensive force only against threat of death or great
personal injury; Reasonableness, objective, fails; Reasonable Doubt, based
on reason and evidence; Truth, not role of jury to find the truth.
Date:
April 28, 2015

14

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CALIFORNIA
People v. Christian, 2015 Cal. App. Unpub. LEXIS 3008 (CA Ct. App. 2015)

Key issues:

Imminence, fear of future harm insufficient Proportionality, force after threat neutralized is
excessive; burden of persuasion on the State.

Date:

April 30, 2015

Decision:

[...]

"presume in support of the judgment the existence of

every fact the trier could reasonably deduce from the

DISCUSSION

evidence." (People v. Reilly (1970) 3 Cal.3d 421,

425.) An appellate court must not reweigh the

Christian [Defendant] contends the evidence was

evidence (People v. Culver (1973) 10 Cal.3d 542,

insufficient to prove beyond a reasonable doubt he

548), reappraise the credibility of the witnesses, or

committed battery. He says that when the facts of this

resolve factual conflicts, as these are functions

case are considered as a whole, "it is inherently

reserved for the trier of fact (In re Frederick G. (1979)

improbable and impossible of belief that [he] did not

96 Cal.App.3d 353, 367). Furthermore, an appellate

act in self-defense." We disagree.

court can only reject evidence accepted by the trier of

fact when the evidence is inherently improbable and

The legal principles, which apply equally to adult

impossible of belief. (People v. Maxwell (1979) 94

criminal trials and juvenile proceedings involving

Cal.App.3d 562, 577.) "Where the circumstances

criminal acts (In re Ryan N. (2001) 92 Cal.App.4th

support the trier of fact's finding of guilt, an appellate

1359, 1371; In re Cheri T. (1999) 70 Cal.App.4th

court cannot reverse merely because it believes the

1400, 1404), are settled. The test of sufficiency of the

evidence is reasonably reconciled with the

evidence is whether, reviewing the whole record in

defendant's innocence. [Citations.]" (People v. Meza

the light most favorable to the judgment below,

(1995) 38 Cal.App.4th 1741, 1747.) Reversal on the

substantial evidence is disclosed such that a

ground of insufficient evidence "is unwarranted unless

reasonable trier of fact could find the essential

it appears 'that upon no hypothesis whatever is there

elements of the crime beyond a reasonable doubt.

sufficient substantial evidence to support [the

(People v. Johnson (1980) 26 Cal.3d 557, 578;

finding].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th

accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.)

297, 331.)

Substantial evidence is that evidence which is

"reasonable, credible, and of solid value." (People v.

"A battery is any willful and unlawful use of force or

Johnson, supra, at p. 578.) An appellate court must

violence upon the person of another." ( 242.) If done
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in a rude or angry way, a kick to the head clearly

beyond a reasonable doubt, but whether there is

qualifies, as do hands or a forearm to the neck. (See

substantial evidence to support the trier of fact's

James v. State of California (2014) 229 Cal.App.4th

conclusion. (See People v. Redmond (1969) 71 Cal.

130, 137-138; People v. Myers (1998) 61 Cal.App.4th

2d 745, 755.) We conclude there is. In light of the

328, 335.) No intent to cause injury is required. (See

evidence as a whole, the court reasonably inferred

People v. Lara (1996) 44 Cal.App.4th 102, 107.)

David was kicked in the head; Jonathan had already

fled, so the culprit could only have been Christian;

"It follows that an offensive touching, although it

and Christian was not acting in lawful self-defense

inflicts no bodily harm, may nonetheless constitute a

because David was on the floor, injured, and so did

battery, which the victim is privileged to

not pose an immediate threat to Christian.

resist ...." (People v. Myers, supra, 61 Cal.App.4th at

p. 335.) "'To justify an act of self-defense for [a battery

Christian points out that even after being hit in the

charge], the defendant must have an honest and

head, David was able to get up and begin to chase

reasonable belief that bodily injury is about to be

after Jonathan. He argues there is nothing in

inflicted on him. [Citation.]' [Citation.]" (People v.

California law that requires him "to wait for his older,

Minifie (1996) 13 Cal.4th 1055, 1064, italics omitted.)

larger, and much more violent brother, to get up and

For a right of self-defense to exist, "the defendant's

finish choking him to death." Hyperbole aside, while

fear must be of imminent harm. [Citation.]" (People v.

California law may not have required Christian to wait

Lopez (2011) 199 Cal.App.4th 1297, 1305.) "Fear of

for David to get up and resume choking him, neither

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

did it give him free rein to kick David in the head when

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

David was on the floor and was not attempting to get

suffice.... '"[T]he peril must appear to the defendant as

up and resume choking him. (See, e.g., People v.

immediate and present and not prospective or even in

Pinholster (1992) 1 Cal.4th 865, 966 [right of self-

the near future. An imminent peril is one that, from

defense does not extend beyond time of real or

appearances, must be instantly dealt with."'" (In re

apparent danger], disapproved on another ground in

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

People v. Williams (2010) 49 Cal.4th 405, 459; People

v. Clark (2011) 201 Cal.App.4th 235, 250 [defendant

The prosecution has the burden of proving, beyond a

may use force only as long as danger exists or

reasonable doubt, a defendant did not act in self-

reasonably appears to exist]; People v. Perez (1970)

defense. (People v. Saavedra (2007) 156 Cal.App.4th

12 Cal.App.3d 232, 236 [when danger has passed

561, 571.) The juvenile court was well aware of this

and attacker has withdrawn, "there can be no

requirement. The question for us, then, is not whether

justification for the use of further force"].)

the prosecution proved the absence of self-defense

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ILLINOIS
People v. Flemming, 2015 Ill. App. LEXIS 326 (IL Ct. App. 2015)
Key issues: Burden of production on the defendant; burden of persuasion on the State; elements of self-defense
are cumulative, prosecution must disprove only one; Reasonableness, subjective; imperfect selfdefense; dfn. grave bodily harm; dfn. deadly weapon.
Date:

May 1, 2015

Decision:

[...]

whether, after viewing the evidence in a light most

favorable to the State, any rational trier of fact could

ANALYSIS

have found the essential elements of the crime

beyond a reasonable doubt. People v. Cunningham,

Defendant raises the following three arguments on

212 Ill. 2d 274, 278, 818 N.E.2d 304, 288 Ill. Dec. 616

appeal: the court erred in (1) finding him guilty of

(2004). The trier of fact, here the trial court, is

second degree murder where the State failed to

responsible for assessing the credibility of the

disprove he acted in self-defense, (2) finding him

witnesses, weighing the testimony, and drawing

guilty of aggravated battery and (3) failing to conduct

reasonable inferences from the evidence. People v.

an adequate inquiry regarding his pro se ineffective

Ortiz, 196 Ill. 2d 236, 259, 752 N.E.2d 410, 256 Ill.

assistance claim.

Dec. 530 (2001). We will not reverse a criminal

conviction unless the evidence is so improbable or

1. Second Degree Murder Conviction

unsatisfactory that it creates a reasonable doubt as to

the defendant's guilt. People v. Cox, 195 Ill. 2d 378,

Defendant first challenges the sufficiency of the

387, 748 N.E.2d 166, 254 Ill. Dec. 720 (2001).

evidence to sustain his conviction for second degree

murder. He argues that the court erred in finding him

Defendant was charged with two counts of first

guilty of second degree murder because the State

degree murder of Nabry under sections 9-1(a)(1) and

failed to disprove that he acted in self-defense

(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS

beyond a reasonable doubt and its entire case rested

5/9-1(a)(1), (a)(2) (West 2010)) but found guilty of

on the inconsistent and contradictory testimony of two

second degree murder on both counts. Pursuant to

inherently incredible witnesses, Gushiniere and

sections 9-1(a)(1) and (a)(2), first degree murder

McElroy.

occurs when a person kills another person without

lawful justification and, in performing the acts which

In considering a challenge to the sufficiency of the

cause the death, he (1) either intended to kill or do

evidence, the reviewing court must determine

great bodily harm to that individual or another or knew
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that such acts will cause death to that individual or

If the State negates any one of these elements, a

another or (2) knew that such acts create a strong

defendant's claim of self-defense fails. Id. at 128.

probability of death or great bodily harm to that

individual or another. 720 ILCS 5/9-1(a)(1), (a)(2)

Only if the State has successfully proven the

(West 2010). The elements of first and second degree

elements of first degree murder and negated a

murder are identical. People v. Jeffries, 164 Ill. 2d

defendant's claim of self-defense may the trier of fact

104, 122, 646 N.E.2d 587, 207 Ill. Dec. 21 (1995).

consider whether the defendant is guilty of first

Second degree murder differs from first degree

degree murder or second degree murder. Jeffries,

murder only in the presence of a mitigating factor,

164 Ill. 2d at 128-29. In order to be found guilty of

such as an alleged provocation or an unreasonable

second degree murder rather than first degree

belief in justification. People v. Porter, 168 Ill. 2d 201,

murder, a defendant must prove by a preponderance

213, 659 N.E.2d 915, 213 Ill. Dec. 569 (1995).

of the evidence that:

At trial, the State argued that defendant returned to

"(1) at the time of the killing he or she is acting

the apartment with a knife to retaliate against Nabry

under a sudden and intense passion resulting

and Gushiniere. Defendant argued that he went back

from serious provocation by the individual killed or

to the apartment unarmed to retrieve McElroy, not to

another whom the offender endeavors to kill, but

retaliate. He also argued that, even if the State met its

he or she negligently or accidentally causes the

burden to prove murder, it did not disprove self-

death of the individual killed; or

defense beyond a reasonable doubt. Self-defense is

(2) at the time of the killing he or she believes the

a recognized legal justification to first degree murder.

circumstances to be such that, if they existed,

1 Jeffries, 164 Ill. 2d at 127. Once defendant raised

would justify or exonerate the killing under the

this affirmative defense, the State had the burden to

principles stated in Article 7 of this Code, but his

prove beyond a reasonable doubt not only the

or her belief is unreasonable." 720 ILCS 5/9-2(a)

elements of first degree murder but also that the

(1), (a)(2) (West 2010).

murder was not carried out in self defense. Id. In

order to raise self-defense:

Given that the court found defendant guilty of second

degree murder, it necessarily must have found that

"[T]he defendant must establish some evidence

the State proved the elements of first degree murder,

of each of the following elements: (1) force was

the State disproved or defendant failed to raise at

threatened against a person; (2) the person

least one of the elements of self-defense and

threatened is not the aggressor; (3) the danger of

defendant proved by a preponderance of the

harm was imminent; (4) the threatened force was

evidence a mitigating factor sufficient to reduce the

unlawful; (5) he actually and subjectively believed

offense from first degree murder to second degree

a danger existed which required the use of the

murder. Id. at 129.

force applied; and (6) his beliefs were objectively

reasonable." Id. at 127-28.

Defendant challenges the State's assertion that he did

not act in self-defense. He argues the State's case
was so unsatisfactory, improbable and unreasonable

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that it established a reasonable doubt as to his guilt,
asserting that the State's case was predicated

"In the context of self-defense, it is the

exclusively on the testimony of two inherently

defendant's perception of the danger, and not the

incredible witnesses, Gushiniere and McElroy, who

actual danger, which is dispositive. ***

directly contracted each other and themselves on

Nevertheless, *** in cases of self-defense, the

nearly every relevant fact in the case regarding the

issue *** is whether the facts and circumstances

details of the fight that caused Nabry's death.

induced a reasonable belief that the threatened

danger, whether real or apparent, existed. The

The trial court was presented with conflicting versions

reasonableness of a defendant's subjective belief

of defendant's reentry into the apartment and

that he was justified in using deadly force is a

subsequent stabbing of Nabry. The State's version,

question of fact for the [trier of fact] to determine."

presented through the testimony of Gushiniere and

People v. Sawyer, 115 Ill. 2d 184, 193, 503 N.E.

McElroy, was that defendant approached the door

2d 331, 104 Ill. Dec. 774 (1986).

armed with a knife and, when the door opened, he

immediately attacked Gushiniere and Nabry and

Accepting Gushiniere's and McElroy's version of the

stabbed Nabry without provocation or legal

events, and viewing the evidence in a light most

justification. Defendant's version, presented through

favorable to the State, a rational trier of fact could find

his own testimony, was that he approached the door

that the State disproved beyond a reasonable doubt

unarmed, Gushiniere and Nabry were armed with

that any belief on defendant's part that he was

poles when they opened the door and, although he

justified in using deadly force was reasonable.

verbally tried to defuse the situation and run upstairs,

Nabry attacked him and he wound up stabbing Nabry

There is no question that Gushiniere and McElroy

in self-defense with Nabry's own knife.

contradicted each other throughout their testimony.

They did not agree on who sat where in the

When presented with conflicting versions of events

apartment, who was drinking alcohol, who was

from witnesses, it is the trial court's responsibility to

smoking crack or how the argument between McElroy

determine the credibility of those witnesses and to

and defendant arose. They did not agree on whether

determine which version to believe. People v.

Gushiniere chased defendant outside, whether

Villarreal, 198 Ill. 2d 209, 231, 761 N.E.2d 1175, 260

Gushiniere and defendant argued outside, whether

Ill. Dec. 619 (2001). Here, the court chose to believe

defendant knocked/banged on the door and yelled

the version presented by the State through the

when he returned to the apartment, whether

testimony of eyewitnesses Gushiniere and McElroy

Gushiniere and/or Nabry were holding poles or

and did not believe defendant's version of events.

weights when they opened the door and a myriad of

Gushiniere's and McElroy's testimony established that

other details.

defendant attacked Nabry without provocation as

soon as the door opened. Neither testified that Nabry

They did, however, agree that defendant was

and/or Gushiniere attacked or threatened defendant

agitated, aggressive and argumentative and possibly

first such that he would need to immediately stab

high while in the apartment the first time. This

Nabry to protect himself.

testimony was corroborated by Officer Cobb, who

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testified that defendant was aggressive and appeared

not bound to do so. Id. at 283. "'[C]ontradictory

under the influence of something when he questioned

testimony of a witness does not per se destroy [his

him outside, shortly before the stabbing. Gushiniere

credibility], and it remains for the trier of fact to decide

and McElroy also agreed that defendant refused to

when, if at all, he testified truthfully.'" Id. (quoting

leave the apartment and had to be forced out by

Sparling v. Peabody Coal Co., 59 Ill. 2d 491, 498-99,

Gushiniere, that he returned to the apartment shortly

322 N.E.2d 5 (1974)). "In other words, it is for the fact

after his conversation with the officers and, when

finder to judge how flaws in part of the testimony

Gushiniere opened the door to him, he immediately

affect the credibility of the whole." Id. Nothing in the

attacked. Gushiniere testified that, when he opened

record supports finding that the court erred in

the door, defendant was holding a knife and

crediting portions of Gushiniere and McElroy's

immediately stabbed Nabry while McElroy testified

testimony over defendant's testimony.

that defendant immediately charged Nabry and

Gushiniere and she did not see anything in

Defendant also argues that Gushiniere and McElroy

defendant's hands. However, they both agree that

were unreliable witnesses because they were both on

defendant was the aggressor; that he immediately

psychotropic medications. The mental health of a

attacked. The fact that McElroy did not see anything

witness can be relevant to assessing a witnesses'

in defendant's hands does not mean that he was not

credibility. People v. Williams, 147 Ill. 2d 173, 237,

holding a knife.

588 N.E.2d 983, 167 Ill. Dec. 853 (1991). Here,

however, beyond Gushiniere's and McElroy's

Defendant points out that Gushiniere and McElroy

testimony regarding the medications they were taking,

contradicted not only each other but themselves

the evidence did not otherwise call into question their

throughout their testimony. As the trial court noted,

ability to observe the situation clearly and

defense counsel was able to impeach both

communicate it accurately and truthfully.

Gushiniere and McElroy with statements each had

previously made to police officers and the grand jury.

Viewed in the light most favorable to the State, we

But none of these inconsistencies related to the crux

find that the evidence presented at trial supports

of the question here, whether defendant immediately

finding beyond a reasonable doubt that defendant

stabbed Nabry and/or attacked Gushiniere and Nabry

stabbed Nabry without lawful justification, intending to

when the door opened and, if so, whether he was

kill or cause great bodily harm to Nabry and knowing

justified in doing so, i.e., whether defendant could

that his act created a strong probability of death or

have reasonably believed that deadly force was

great bodily harm. Further, the testimony supports

necessary in the situation.

finding that defendant was the aggressor in the

situation and that any subjective belief he may have

Moreover, even if part of a witness's testimony is

had that he was justified in using deadly force as self-

questionable, this does not necessarily mean that

defense was unreasonable. Accordingly, the evidence

everything that the witness said on the stand must be

supports a finding that defendant did not prove he

subject to question. People v. Cunningham, 212 Ill. 2d

stabbed Nabry in self-defense.

274, 282-83, 818 N.E.2d 304, 288 Ill. Dec. 616

(2004). A fact finder may reject entire testimony but is
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Defendant asserts that the court's second degree
murder conviction represented a rejection of

As noted above, after viewing the evidence in a light

Gushiniere's account of the fight that resulted in

most favorable to the State, a rational trier of fact

Nabry's death. Gushiniere had testified that, when he

could find the evidence supports finding that

opened the door, defendant immediately stabbed

defendant's belief that the circumstances justified

Nabry in the chest. Defendant asserts that no

using self-defense against Nabry was unreasonable.

reasonable fact finder could find this version of the

Accordingly, the State proved first degree murder and

fight compatible with imperfect self defense, mutual

disproved self-defense beyond a reasonable doubt.

combat or any other theory of second degree murder,

Defendant did, however, prove one of the mitigating

i.e., if the court believed Gushiniere, it would have

factors for second degree murder and the court,

found defendant guilty of first degree murder. Not so.

therefore, did not err in finding defendant guilty of the

If the court believed defendant had an unreasonable

second degree murder of Nabry. Defendant does not

belief in self-defense when he stabbed Nabry without

challenge his sentence. We affirm the conviction and

legal justification, then the evidence supports a

sentence.

second degree murder conviction. People v. Hawkins,

296 Ill. App. 3d 830, 836, 696 N.E.2d 16, 231 Ill. Dec.

[...]

287 (1998).
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TEXAS
Kellum v. State, 2015 Tex. App. LEXIS 4436 (TX Ct. App. 2015)
Key Issues:

Burden of production on defendant; burden of persuasion on the State, beyond a reasonable

doubt; Reasonableness, ordinary and prudent man in the same circumstances.

Date:

April 30, 2015

Decision:

[...]

the defensive evidence." Saxton, 804 S.W.2d at 914.

When the evidence is conflicting, we generally defer

Standard of Review and Applicable Law

to the weight the jury gave to the contradictory

testimonial evidence. See Bundy v. State, 280 S.W.3d

[...]

425, 435 (Tex. App.--Fort Worth 2009, pet. ref'd)

(finding evidence factually sufficient in face of

When a defendant raises self-defense, he bears the

contradictory testimonial evidence).

burden of producing some evidence to support his

defense. See Zuliani v. State, 97 S.W.3d 589, 594

A person acts in self-defense in using force against

(Tex. Crim. App. 2003) (citing Saxton, 804 S.W.2d at

another when and to the degree he reasonably

913--14). Once the defendant produces some

believes the force is immediately necessary to protect

evidence supporting his defense, the state then bears

him from the other's use or attempted use of unlawful

the burden of persuasion to "disprove the raised

force. Tex. Penal Code Ann. 9.31(a) (West 2011).

defense." Id. The burden of persuasion does not

As applicable here, a person uses deadly force in

require the production of evidence; it requires only

self-defense when and to the degree he believes

that the state prove its case beyond a reasonable

deadly force is immediately necessary. Id. 9.32(a)

doubt. Id. Moreover, "[d]efensive evidence which is

(2). A "reasonable belief" is that which "would be held

merely consistent with the physical evidence at the

by an ordinary and prudent man in the same

scene of the alleged offense will not render the

circumstances as the actor." Id. 1.07(a)(42) (West

[s]tate's evidence insufficient since the credibility

Supp. 2014).

determination of such evidence is solely within the

jury's province[,] and the jury is free to accept or reject
[...]
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TEXAS
Villarreal v. State, 2015 Tex. App. LEXIS 4315 (TX Ct. App. 2015)
Key Issues:

Burden of production on the defendant; Burden of persuasion on the State, beyond a reasonable
doubt; Avoidance, preclusion, option of retreat; Failure to make statement to responding officers;
Reasonableness, reasonable belief deadly force was necessary; Defense of others; Deadly force
dfn.; Serous bodily injury dfn.

Date:

April 29, 2015

Decision:
[...]

1. Villarreal

A. Standard of Review

Villarreal does not argue that he did not shoot Moy;

he contends his actions were a matter of self-

Contrary to Villarreal's assertions, the question before

defense. Villarreal argues the record only supports

this court is not whether the State presented evidence

that the altercation between Villarreal and Moy was a

refuting Villarreal's self-defense evidence. The

verbal confrontation prior to Moy attacking Villarreal.

defendant, rather, has the burden of producing some

As evidence, Villarreal points to Garcia's testimony,

evidence to support the claim of self-defense. Zuliani

that he and Garcia retreated on several occasions

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

and that they were pursued by Moy and several other

(citing Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.

"party-goers." Only after Garcia tripped and Moy

Crim. App. 1991)). "Once the defendant produces

attacked him with a large planter, a threat of deadly

such evidence, the State" has the burden of

force, did Villarreal fire his weapon.

disproving the defense. Id. The burden of persuasion

does not require the State to produce evidence;

2. State

"rather it requires only that the State prove its case

beyond a reasonable doubt." Id. "When a jury finds

The State counters that the testimony supports that

the defendant guilty, [it implicitly finds] against the

prior to Villarreal shooting Moy, nothing prevented

defensive theory." Id.

either Villarreal or Garcia from leaving the residence.

Although Garcia testified that Moy was threatening

[...]

him with a large planter, during his statement to

officers, Villarreal never mentioned Moy using the

B. Arguments of the Parties

planter as a weapon. The jury could have reasonably

dismissed Garcia's testimony because no other

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witness so testified, and the only evidence of a threat

force." See Tex. Penal Code Ann. 9.32(a) (West

on Garcia was during Garcia's unsubstantiated

2011); Morales, 357 S.W.3d at 4. Villarreal was

testimony.

required to show that he reasonably believed deadly

force was immediately necessary to protect either

C. Self Defense

himself or Garcia from Moy's alleged use or

attempted use of unlawful deadly force. Tex. Penal

"A person commits [murder] if he . . . intentionally or

Code Ann. 9.32(a); Morales, 357 S.W.3d at 4; see

knowingly causes the death of an individual [or if he]

also Tex. Penal Code Ann. 9.33 (requiring "the actor

intends to cause serious bodily injury and commits an

reasonably believes that his intervention is

act clearly dangerous to human life that causes the

immediately necessary to protect the third person").

death of an individual . . . ." Tex. Penal Code Ann.

19.02(b)(1), (b)(2) (West 2011). Under certain

"Deadly force" is force "intended or known by the

circumstances, however, self-defense justifies the use

actor to cause, or in the manner of its use or its

of deadly force. Morales v. State, 357 S.W.3d 1, 7

intended use is capable of causing, death or serious

(Tex. Crim. App. 2011).

bodily injury." Tex. Penal Code Ann. 9.01(3).

"Serious bodily injury" is an injury that "creates a

To prevail on a claim of self-defense, a defendant

substantial risk of death or that causes death, serious

must prove that (1) he would have been justified in

permanent disfigurement, or protracted loss or

using force against the other person, and (2) it was

impairment of the function of any bodily member or

reasonable to believe that "deadly force [was]

organ." Id. 1.07(a)(46).

immediately necessary [for protection] against the

other's use or attempted use of unlawful deadly

[...]

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WASHINGTON
State v. Larkins, 2015 Wash. App. 2015 LEXIS 928 (WA Ct. App 2015)
Key issues:

Reasonableness, subjective fear; Reasonableness, objective; Imminence; Proportionality, no

more force than necessary; Reasonableness, subjective, all facts and circumstances as
defendant knew them; Reasonableness, objective, reasonable and prudent person in defendants
situation; Proportionality, deadly defensive force only against threat of death or great personal
injury; Reasonableness, objective, fails; Reasonable Doubt, based on reason and evidence;
Truth, not role of jury to find the truth.

Date:

April 28, 2015

Decision:
[...]

circumstances the defendant knew when the act

occurred." Read, 147 Wn.2d at 243. The objective

III. SELF-DEFENSE

elements consider "what a reasonable person would

have done if placed in the defendant's situation."

Larkins [the Defendant] argues that the trial court

Read, 147 Wn.2d at 243.

violated her right to present a defense when it refused

to instruct the jury on self-defense. Because no

The standard of review depends on the reason the

evidence supported her theory of self-defense, we

trial court refused to grant the self-defense instruction.

disagree.

State v. Walker, 136 Wn.2d 767, 771, 966 P.2d 883

(1998). If the trial court declines the self-defense

A defendant is entitled to have the jury instructed on

instruction based on a factual dispute, we review its

self-defense if there is some evidence to support the

decision for abuse of discretion. Walker, 136 Wn.2d at

theory. State v. Walden, 131 Wn.2d 469, 473, 932 P.

771-72. But if the trial court declines the self-defense

2d 1237 (1997). Self-defense has three elements: (1)

instruction based on a ruling of law, we review its

the defendant subjectively feared that she was in

decision de novo. Walker, 136 Wn.2d at 772. Here,

imminent danger of great bodily harm, (2) the

the trial court refused to give a self-defense

defendant's belief was objectively reasonable, and (3)

instruction because it found no reasonable person in

the defendant exercised no more force than

Larkins's shoes would have acted as she did. This

reasonably necessary. State v. Werner, 170 Wn.2d

ruling involves an issue of law we review de novo.

333, 337-38, 241 P.3d 410 (2010). Self-defense

Read, 147 Wn.2d at 243.

involves both subjective and objective elements.

State v. Read, 147 Wn.2d 238, 242-43, 53 P.3d 26

A defendant may only use as much force in self-

(2002). The subjective element considers the

defense as "what a reasonably prudent person would

defendant's acts "in light of all the facts and

find necessary under the conditions as they appeared
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to the defendant." Walden, 131 Wn.2d at 474. Deadly

656, 904 P.2d 245 (1995). "It is reversible error to

force may be used only if the defendant reasonably

instruct the jury in a manner that would relieve the

believes that he or she is threatened with death or

State of this burden." Pirtle, 127 Wn.2d at 656. "We

great personal injury. Walden, 131 Wn.2d at 474.

review a challenged jury instruction de novo,

evaluating it in the context of the instructions as a

If placed in the situation Larkins faced, no reasonably

whole." Pirtle, 127 Wn.2d at 656.

prudent person would have believed himself or

herself to be in imminent danger of death or great

The instruction that Larkins complains of has never

personal injury. Nor would any reasonably prudent

been held to be improper. To the contrary, our

person have believed it necessary to strike Johnson

Supreme Court has directed the use of WPIC 4.01 to

with the automobile to defend against the perceived

instruct juries of the nature of the government's

danger in these circumstances. Although Larkins

burden. State v. Bennett, 161 Wn.2d 303, 318, 165 P.

believed that Johnson possessed a gun and had

3d 1241 (2007). The trial court did exactly that,

been digging in her purse while walking, Johnson was

reproducing WPIC 4.01 verbatim:

not brandishing a gun or threatening Larkins with a

gun. In fact, Larkins never saw Johnson with a gun.

The defendant has entered a plea of not guilty.

Rather, Johnson was walking away from Larkins at

That plea puts in issue every element of each

the time Larkins ran over her. Larkins also believed

crime charged. The State is the plaintiff and has

that Johnson's family would hurt her. But Johnson's

the burden of proving each element of each crime

family members were not present at the scene. Any

beyond a reasonable doubt. The defendant has no

threat that Johnson's family posed to Larkins was not

burden of proving that a reasonable doubt exists.

imminent and could not have justified Larkins killing

Johnson. See Read, 147 Wn.2d at 242-43.

A defendant is presumed innocent. This

presumption continues throughout the entire trial

The objective test for self-defense is not met here.

unless during your deliberations you find it has

Therefore, we hold that the trial court did not err by

been overcome by the evidence beyond a

denying Larkins a self-defense instruction.

reasonable doubt.

IV. Reasonable Doubt Instruction

A reasonable doubt is one for which a reason

exists and may arise from the evidence or lack of

Larkins argues that the trial court's reasonable doubt

evidence. It is such a doubt as would exist in the

instruction undercut the State's burden of proof by

mind of a reasonable person after fully, fairly, and

erroneously inviting the jury to search for the truth.

carefully considering all of the evidence or lack of

We disagree.

evidence. If, from such consideration, you have an

abiding belief in the truth of the charge, you are

"Jury instructions, taken in their entirety, must inform

satisfied beyond a reasonable doubt.

the jury that the State bears the burden of proving

every essential element of a criminal offense beyond
a reasonable doubt." State v. Pirtle, 127 Wn.2d 628,
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Clerk's Papers (CP) at 144; see also 11 Washington

jury to acquit the defendant unless the government

Practice: Washington Pattern Jury Instructions:

convinces the jury of the truth of the charge. WPIC

Criminal 4.01, at 85 (3rd ed. 2008).

4.01 does not misstate the State's burden, and

therefore, we hold that the trial court did not err by

Larkins argues that WPIC 4.01 improperly suggests

giving the WPIC 4.01 instruction.

that the jury's role is to search for the truth. But WPIC
4.01 does not tell the jury to find the truth--it tells the
[...]
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