2015 #26 Self Defense Weekly Law Report

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

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2015 www.lawofselfdefense.com
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2015 #26 (June 15-19, 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. 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:
Im afraid not. Translating legalese into plain English takes a lot of effort, and simply isnt 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, theres 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 courts decisions.
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Table of Contents
CALIFORNIA
Page
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)
11
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)
17
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)
20
Key issues:
Consciousness of guilt evidence
Burden of persuasion on state to disprove self-defense beyond a reasonable doubt
Date:
June 15, 2015
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PENNSYLVANIA
Page
Commonwealth v. Stallings, 2015 Pa. Super. Unpub. LEXIS 1776 (PA Sup. Ct. 2015)
25
Key issues:
Multiple attackers, armed defender

Reasonableness of fear
Speculative fear
Date: June 16, 2015

TEXAS
Hernandez v. State, 2015 Tex. App. LEXIS 6022 (TX Ct. App. 2015)
29
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
UTAH
State v. Walker, 2015 UT App 153 (UT Ct. App. 2015)
37
Key issues:
Victims prior acts of violence, admissibility in self-defense case

Imminence
Reasonableness
Date: June 18, 2015
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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
deny incriminating evidence; 6. defense counsel at
jury, of the first degree murder ( Pen. Code, 187,
trial rendered ineffective assistance when he failed to
subd. (a), 189)1, of Darren Ziegler, and of being a
object to the improper jury instructions; and 7. the
felon in possession of a firearm. ( 12021, subd. (a)
cumulative effect of these errors requires reversal.
(1).) The jury further found that appellant personally
We affirm.
and intentionally discharged a firearm in committing

the murder. ( 12022.53, subd. (d).) The trial court
Facts
sentenced appellant to a total term of 50 years to life

in state prison.
Appellant was a methamphetamine dealer. In 2006,

he began a dating relationship with one of his
Appellant contends: 1. the trial court erred when it
customers, Paula Napoli. By 2010, their relationship
refused to limit the prosecutor's use of the word
soured. The couple fought frequently and sometimes
"murder;" 2. appellant was denied a fair trial when the
violently. On one occasion in 2010, appellant spit in
trial court admitted evidence of his nine prior felony
Napoli's face, knocked her to the ground and shook
convictions and of his uncharged misconduct in
her shoulders, causing her head to hit the concrete
selling and using methamphetamine and in physically
beneath her. During other fights, he stabbed her in
abusing his former girlfriend, Paula Napoli; 3. the trial
the ear with a key, poked her in the eye, sprayed
court erred when it instructed the jury that it could
brake cleaner on her and ripped a necklace from her
consider appellant's prior felonies in determining his
neck. In June 2010, appellant sprayed Napoli with
intent, motive or plan to kill Ziegler; 4. the trial court
pepper spray. He also injured her by stepping on her
erred in its instructions to the jury regarding self-
foot while he was wearing boots.
defense and imperfect self-defense; 5. the trial court

erred when it instructed the jury, in terms of CALCRIM
Appellant became friends with Darren Ziegler in 2005.
No. 361, regarding appellant's failure to explain or

Ziegler, who worked as an auto mechanic, bought
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methamphetamine from appellant. The two men also
me then you are stupid. Fear is for pussies. And if you
worked on cars together. Their friendship ended in
ever thought I was a pussy you don't have half the
2008 or 2009 after Ziegler accused appellant of
brain you think you do. I am a killer. Give me a
selling him substandard drugs. Appellant stopped
chance to shine." After appellant challenged Ziegler to
selling drugs to Ziegler or spending time with him
meet him in an isolated, semi-rural area to fight,
socially.
Zielger texted back, "I don't give a fuck about you or

your business. You're an abusive, manipulative,
As the relationship between Napoli and appellant
arrogant liar. And dope has made you even worse
deteriorated, she started dating Ziegler and using
off . . . . [] Let's [come] up with a more neutral area
drugs with him. Soon, she was seeing both men at
during the day. No pussy pepper spray. No billy clubs.
the same time. Appellant told Napoli that she was
No guns. No bullshit. No people. Just you and me."
betraying him and being disrespectful to him when

she dated Ziegler. According to Napoli, appellant
On the weekend before the murder, September 25
called Child Protective Services and reported that she
and 26, 2010, Ziegler took Napoli's car to his work
was using drugs while her young daughter was in the
shop, leaving his own car in Napoli's driveway. On
house. He also tried to have Napoli's rent subsidy
September 26, appellant sent Napoli a text message
revoked. Appellant told Napoli that, if he could not be
asking if Ziegler could "come out to play[.]"
with her, no one could. He threatened to kill Napoli,

her young daughter, Ziegler and himself.
At about noon the next day, September 27, appellant

called Napoli. He wanted to meet with her and said
In August and September, appellant sent Napoli many
that if she did not, he was going to kill her. Napoli
threatening text messages. One message said,
refused to meet appellant. Appellant called back a few
"You're a cold person and a bullshit parent, just like
hours later, offering to meet her in a public place. She
your birth mom. And remember, I don't threaten you.
again refused. Appellant told Napoli, "if he was gonna
Everything I say I do. Unlike you who threaten and
go down, that he was gonna take [Napoli] with him."
manipulate. . . . And I know you're afraid of what's

going to happen. I would be too. But that's what
At 12:45, between the two calls to Napoli, appellant
happens when people betray." Another said, "For both
sent a text message to Ziegler that said, "Oh nigger,
our sakes you best not be seeing that fucker . . . .
don't forget. You promised me we were going to make
That would unleash a can of worms neither one of us
sweet love. If not here Hawaii will do. You stepped
wants to deal with." Appellant later sent a message
way over the line, and you know better. There's no
saying, "I'm gonna do us both a favor. I'm taking him
excuse. Time to be the man you claim to be. Or are
with me. . . . He started it like a bitch. I'm finishing it."
you going to disappoint me again?"
Appellant also exchanged threatening text messages
Several hours later, around 5:10 p.m., appellant drove
with Ziegler. In one message, appellant told Ziegler,
to Ziegler's work shop in Thousand Oaks and revved
"There's no fight in my heart. All I taste is death. One
his engine in the parking lot. Ziegler, who had been
of us has got to stop breathing. And I ain't afraid of
working on a car, walked outside of his shop at his
death. I invite it. [] If you didn't learn one thing about
normal pace toward appellant's car. Numerous
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witnesses testified that Ziegler had his arms at his
running toward his car; he later said that Ziegler was
sides and nothing in his hands. When Ziegler was
walking fast. Although appellant at first said Ziegler
about 30 feet away, appellant fired one shot at him
was carrying a ball peen hammer in his hand, he later
but missed. Appellant was standing behind the open,
said the hammer was in Ziegler's waistband and then
driver's side door of his car. Ziegler took two more
that he wasn't sure whether Ziegler was carrying
steps toward appellant, who fired two more shots at
anything at all. Appellant also changed his story about
him. The first of these shots tore a hole in the leg of
the location of his gun in his car. In one version of
Ziegler's shorts. The next shot hit Ziegler in the
events, the gun was on the passenger seat, in
abdomen. Ziegler fell to the ground, saying, "I've been
another it was inside the center console. The clip or
shot. I've been shot." Appellant got back into his car
magazine was alternatively loaded in the gun or
and drove away quickly. None of the many witnesses
stored separately on the seat, under a clothing bag.
heard any argument or verbal confrontation between

appellant and Ziegler before the murder. Ziegler died
In his testimony at trial, appellant denied ever hitting
as a result of these gun shots.
or threatening to hit Napoli. He described each of

their fights as mutual and cast Napoli as the
Appellant drove to the Los Angeles apartment of Erika
instigator. Napoli told appellant that Ziegler wanted to
Walthius. Two days later, on September 29, she
kill him, so he started taking his gun with him
called an investigating detective to report that
everywhere he went. He kept the gun in a secret
appellant had overdosed on a bottle of pills. Appellant
compartment in the driver's side door of his car.
was taken to a hospital and, after his release the next
Appellant was also worried Napoli and Ziegler would
day, taken into custody.
turn him in to the police. On September 27, he asked

Napoli to meet him. He decided to talk to Ziegler
After his arrest, appellant gave a lengthy interview to
because Napoli wouldn't see him. Appellant was
Detective Billy Hester. He told Hester that he did not
planning to tell Ziegler that he wanted Ziegler and
go to Ziegler's work place with the intention of killing
Napoli both to stay out of his life. He did not plan to
him. Instead, appellant said he planned to tell Ziegler
kill Ziegler. Once he was at Ziegler's workplace,
that he was done with their rivalry and was going to
however, he thought Ziegler was charging at him with
let Ziegler have Napoli. After appellant revved his
a hammer in his hand Appellant grabbed his gun from
engine, Ziegler "ran out" of his shop. Appellant
the secret compartment and pointed it at Ziegler.
thought Ziegler was carrying a ball peen hammer in
When Ziegler kept coming, appellant got scared and
his hand. The first two shots appellant fired were, he
fired the gun until Ziegler stopped moving.
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
Discussion
hadn't shot first.

Prosecution's Use of the Word Murder
During the interview, appellant altered his version of
the events several times. He first described Ziegler as
...
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in the near future. An imminent danger is one that,
Evidence of Prior Convictions and Uncharged
from appearances, must be instantly dealt with."
Misconduct
Appellant contends the special instruction and
...
modifications to CALCRIM No. 505 and No. 571

improperly limited his right of self-defense because
Instructional Error
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
2. Instructions Regarding Self-Defense. The trial
the circumstances necessitating his use of force by
court instructed the jury on self-defense and imperfect
driving to Ziegler's workplace during normal business
self-defense with CALCRIM No. 505 and CALCRIM
hours. There was no error.
No. 571. Both pattern instructions were modified at

the request of the prosecutor and over appellant's
We note initially that appellant did not object to or
objections. Specifically, after listing the elements of
request any amplification of the imminent danger
lawful self-defense, the trial court informed the jury
instruction in the trial court. His failure to do so forfeits
that appellant must have believed he was in imminent
appellate review of the instruction. (People v. Johnson
danger. This belief "must have been reasonable and
(1993) 6 Cal.4th 1, 52; People v. Hamilton (1988) 46
[appellant] must have acted only because of that
Cal.3d 123, 146.) Appellant's trial counsel also failed
belief." After explaining that a defendant is not
to object on federal constitutional grounds to any of
required to retreat, the trial court modified the pattern
the self-defense or imperfect self-defense
instruction by adding, "However, this principle is not
instructions. Review of those issues has also been
available, and malice aforethought is not negated, if
forfeited. (People v. Hinton (1006) 37 Cal.4th 839,
the defendant by his unlawful or wrongful conduct
897.) Had the contentions been preserved for
created the circumstances which legally justified his
appellate review, we would reject them.
adversary's use of force, attack or pursuit." The trial

court inserted this same paragraph into CALCRIM
First, the trial court's special instruction regarding
No. 571, the pattern instruction on imperfect self-
imminent danger was a correct statement of the law.
defense.2
As our Supreme court has emphasized, "Fear of

future harm -- no matter how great the fear and no
With respect to the requirement that the defendant
matter how great the likelihood of the harm -- will not
believe he was in imminent danger, the trial court
suffice. The defendant's fear must be of imminent
instructed the jury, "'Imminent danger' as used in
danger to life or great bodily injury. '"[T]he peril must
these instructions, means that the danger must have
appear to the defendant as immediate and present
existed or appeared to the defendant to have existed
and not prospective or even in the near future. An
at the very time the fatal shot was fired. In other
imminent peril is one that, from appearances, must be
words, the danger must appear to the defendant as
instantly dealt with."' . . . . Put simply, the trier of fact
immediate and present, and not prospective or even
must find an actual fear of an imminent harm." (In re
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Christian S. (1994) 7 Cal.4th 768, 783.) The
factors in his decision to use deadly force. If they are,
instruction did not limit the jury's consideration only to
the homicide cannot be justified on a theory of self-
the moment at which appellant fired the third and fatal
defense. But if the only causation of the killing was
shot. Instead, it required the jury to determine
the reasonable fear that there was imminent danger
whether the danger appeared "to the defendant as
of death or great bodily injury, then the use of deadly
immediate and present and not prospective or even in
force in self-defense is proper, regardless of what
the near future."
other emotions the party who kills may have been

feeling but not acting upon." (People v. Trevino (1988)
Second, the instruction on self-defense, CALCRIM
200 Cal.App.3d 874, 879; see also People v. Shade
No. 505, correctly informed the jury that, to find
(1986) 185 Cal.App.3d 711, 716.)
appellant acted in self-defense, "Defendant's belief

[that he was in imminent danger of being killed or
Finally, the trial court correctly instructed the jury that
suffering great bodily injury] must have been
self-defense and imperfect self-defense are not
reasonable and he must have acted only because of
available "and malice aforethought is not negated, if
that belief." (CALCRIM No. 505.) This portion of the
the defendant by his unlawful or wrongful conduct
instruction is based on section 198 which provides,
created the circumstances which legally justified his
"A bare fear of the commission of [certain felonies], to
adversary's use of force, attack or pursuit." Our
prevent which homicide may be lawfully committed, is
Supreme Court has described this principle as "well
not sufficient to justify it. But the circumstances must
established[.]" (In re Christian S. (1994) 7 Cal.4th
be sufficient to excite the fears of a reasonable
768, 773, fn. 1.) Self-defense and imperfect self-
person, and the party killing must have acted under
defense "may not be invoked by a defendant who,
the influence of such fears alone." Appellant contends
through his own wrongful conduct (e.g., the initiation
the phrase "such fears alone" precludes self-defense
of a physical assault or the commission of a felony),
where the defendant has a "purely personal,
has created the circumstances under which his
subjective 'bare fear' of death or great bodily injury." It
adversary's attack or pursuit is legally justified." (Id.;
does not, he contends, preclude the defense where
see also People v. Enraca (2012) 53 Cal.4th 735,
"the party killing" has more than one motive, as long
761-762; People v. Seaton (2001) 26 Cal.4th 598,
as one of the motives is a reasonable fear that a
664 (imperfect self- defense not available where
felony will occur.
"defendant's testimony showed him to be the initial

aggressor and the victim's response legally
Like other courts considering the issue, we reject
justified. . . .").)
appellant's interpretation of section 198. Section 198

requires that a person who kills in self-defense do so
The instruction did not, as appellant contends, require
because that person reasonably believes himself or
the jury to reject his defense solely because appellant
herself to be in imminent danger of death or great
drove to Ziegler's workplace. Instead, the jury was
bodily injury. (See, e.g., People v. Flannel (1979) 25
instructed to reject appellant's claims of self-defense
Cal3d 668, 675.) "The party killing is not precluded
and imperfect self-defense if it found that he engaged
from feeling anger or other emotions save and except
in "unlawful or wrongful conduct" that created
fear; however, those other emotions cannot be causal
circumstances under which Ziegler was justified in
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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
Cumulative Error
the defendant-aggressor regain the right of selfdefense.").) 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
Conclusion
use force against appellant -- the instruction would

not apply.
The judgment is affirmed.
...
Ineffective Assistance of Counsel
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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
The Prosecution's Case
convicting him of second degree murder and

possession of marijuana for sale and sentencing him
On August 29, 2010, Samir Hudieb arranged for the
to a term of 40 years to life in prison. On appeal, he
victim, Osana Saga, to purchase from defendant four
argues that an instructional error and two evidentiary
ounces of marijuana for $800. About 2:00 p.m., Saga,
errors require reversal of his convictions. He also
Hudieb and a third person, Chris Faasisila, drove to
argues in his direct appeal, and in a petition for
defendant's house to make the purchase. Saga gave
habeas corpus, that his trial attorney provided
Hudieb the money to purchase the marijuana and
ineffective assistance and that the prosecutor
Hudieb completed the purchase while the others
engaged in pervasive and prejudicial misconduct.1
waited in the car.
We shall affirm the judgment and deny defendant's

writ petition.
After they drove away from defendant's house, Saga,

Faasisila, and Hudieb weighed the marijuana. Saga,
Factual and Procedural History
believing that defendant had shorted him an eighth of

an ounce, told Hudieb that he wanted either the
Defendant was charged with one count of murder
missing eighth or a full refund and he would return all
(Pen. Code,2 187, subd. (a)) and one count of
of the marijuana that he purchased to defendant.
possession of marijuana for sale (Health & Saf. Code,
When Hudieb called defendant and told him that they
11359). The information also alleged several firearm
were missing an eighth of an ounce, defendant
enhancements ( 12022.5, subd. (a), 12022.7,
denied there was a shortage. Hudieb told defendant
subd. (a), 12022.53, subds. (b), (d), (g)).
that he was coming back to his house to show him

the shortage.
The following evidence was presented at trial:

When they returned, Saga and Hudieb entered
defendant's garage while Faasisila waited in the car.
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Defendant was in the garage with a friend. Hudieb
snitch," "Rat," and "You will die." Hudieb testified that
told defendant that the marijuana was short and that
he was "uncomfortable" testifying but he was not
he could weigh the marijuana himself. Defendant
concerned for his safety. He was not scared of
insisted that it was not short. Saga told defendant that
defendant and did not fear retribution. He admitted
he could give him the missing marijuana or a refund.
that he had entered a use-immunity agreement with
When defendant pulled out a $20 bill to give to Saga,
the prosecutor under which the prosecutor promised
Saga became angry and slapped defendant. Then he
not to prosecute him for arranging the drug deal
and defendant "[held] onto each other" and they
between defendant and Saga in exchange for
"push[ed] off each other" going in opposite directions.
Hudieb's promise to tell the truth at defendant's trial.
Defendant then reached his arm up facing Saga and

Hudieb heard a loud bang. Hudieb estimated that
The police detective who interviewed defendant
defendant was standing about seven or eight feet
shortly after his arrest observed a scratch on his left
away from Saga when defendant fired the shot.
ear, but no other visible injuries. Defendant

complained of soreness to the left of his face but
Faasisila, who had stayed in the car at first, went to
declined the officer's offer to take him to a hospital.
the garage when he heard the argument. From the

doorway of the garage, he saw Saga arguing with
The Defense Case
defendant. After the shooting, he, Saga and Hudieb

ran out of the garage. On his way out Faasisila
Defendant testified that he had been selling marijuana
grabbed a cell phone. Saga collapsed on the sidewalk
for approximately seven months prior to the shooting
and was transported by ambulance to the hospital,
incident and admitted selling Hudieb four ounces of
where he later died.
marijuana on the day of the shooting. He claimed that

he did not make a mistake when he weighed the
Following his arrest, defendant told the police, "They
marijuana. When Hudieb called to say that the
just rushed into my house and told me to give them
marijuana was short, he heard someone in the
everything. One of the guys punched me in the face
background say "Tell him not to fuck with my money. I
and then told the other guy to give him the gun. I went
got a cannon." Defendant told Hudieb to come to his
and got my gun. Man, I'm scared. Am I going to
house so they could resolve the dispute. He felt
jail?"After the incident, defendant called Hudieb and
threatened and went upstairs to retrieve his gun.
said that he shot Saga because Saga "was trippin."
Hudieb entered the garage first, then Saga and

Faasisila walked into the garage. Saga and Faasisila
Almost two years after the incident, in May of 2012,
were big and defendant noticed there was something
Hudieb was arrested following an alleged attack on
shiny in Saga's belt and believed it was a gun. Saga
defendant's brother. Hudieb denied the attack and the
asked why the marijuana was short and told
case against Hudieb was eventually dismissed. In
defendant to give him the money, then immediately
January 2013, about a week and a half before his
punched him in the face. When defendant attempted
testimony at defendant's trial, a car belonging to
to offer Saga a little more than $20, Saga said, "What
Hudieb's girlfriend was spray-painted with the
the fuck is this? I need everything you got." Then
following: "Fuck Samir," "You will pay," "Homo boy
Saga started punching defendant again. Defendant
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did not believe Saga was going to stop hitting him or
gunshots, and Hudieb, Faasisila and Saga ran out of
that he could run away. Defendant thought Saga was
the garage. He denied that defendant's brother called
going to knock him unconscious or kill him. Saga's
him to tell him to lie to police about the victim having a
last punch knocked defendant back against the wall.
gun.
When Saga came at him again with his fist back,

defendant pulled out his gun and fired three times.
Verdict and Sentencing
Defendant admitted that he originally lied to the police
The jury found defendant guilty of second degree
when he told them that he shot Saga because he saw
murder and possession of marijuana for sale. The jury
Saga pulling a gun from his waistband. He also
also found true all of the firearm enhancements.
admitted that he called his brother from jail and told
Defendant was sentenced to a term of 40 years to life
his brother to make sure his friend, Huan Nguyen,
and filed a timely notice of appeal.
who was present during the shooting, knew to tell the

police that Saga had a gun sticking out of the right
Discussion
side of his waistband. Defendant acknowledged that

his intent was to have Huan corroborate the lie he
1. The court did not err in failing to instruct the
had told the police. Finally, he admitted that he had
jury on the evidentiary presumption found in the
researched the law of homicide while in jail.
Home Protection Bill of Rights.
Defendant testified he did not "think" that he tried to
"Section 198.5, enacted in 1984 and entitled the
prevent Hudieb from testifying, but also claimed that
'Home Protection Bill of Rights,' creates a rebuttable
would not be something he would remember. Later,
presumption that a residential occupant has a
however, he denied threatening Hudieb or directing
reasonable fear of death or great bodily injury when
anyone to spray paint the car of Hudieb's girlfriend.
he or she uses deadly force against an unlawful and
He did not know if his brother or any other of his
forcible intruder into the residence. [Citations.] For
associates had spray painted the car.
section 198.5 to apply, four elements must be met.

There must be an unlawful and forcible entry into a
Huan Nguyen testified that he was in the garage at
residence; the entry must be by someone who is not
the time of the shooting. He testified that Hudieb and
a member of the family or the household; the
Saga entered the garage within seconds of each
residential occupant must have used 'deadly' force
other. Faasisila came into the garage shortly after
(as defined in 198.5) against the victim within the
Saga, and he stood in the doorway. Saga told
residence; and finally, the residential occupant must
defendant that it was not "cool" to short him. When
have had knowledge of the unlawful and forcible
defendant offered Saga at least a $20 bill, Saga got
entry." (People v. Brown (1992) 6 Cal.App.4th 1489,
mad and punched defendant. Defendant and Saga
1494-1495.) Defendant contends the court erred in
fell out of Huan's view, but he heard a "ruckus" for
failing to instruct the jury with CALCRIM No. 3477,
about 10 or 15 seconds and thought Saga was still
which explains the statutory presumption.3
hitting defendant. Defendant lost his balance and did

not appear capable of fighting back. Then he heard
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Initially, the Attorney General argues that any
As defendant notes, section 198.5 does not define
instructional error was invited. At trial, defense
unlawful or forcible entry. However, other statutory
counsel requested the court to instruct with CALCRIM
provisions do. Unlawful entry is defined in section
No. 3477. The court indicated, however, that
602.5, subdivision (a) as the entry of a
CALCRIM No. 506 (justifiable homicide: defending
"noncommercial dwelling house . . . without consent
against harm to person within home or property) was
of the owner." The record does not support the
more appropriate than CALCRIM No. 3477.4
conclusion that Saga entered defendant's garage
Following discussions in chambers, the court
without consent. Defendant testified that he told
explained on the record that "we had some fairly
Hudieb to come to his house to resolve the
lengthy discussions with respect to the question of
discrepancy and that when Hudieb "called me and
self-defense as it relates to the instructions that
told me that he was outside . . . I told him to come to
specifically deal with defending property or a home
the back." Although defendant testified that he did not
versus an individual exercising the right of self-
invite Saga into his home, he clearly invited Hudieb
defense and I think we agreed that the facts of the
into the garage. He knew that Hudieb was with Saga
case as they came in do not lend themselves to the
and never indicated that Saga was not to enter the
instructions that have to do with the defense of a
property with Hudieb.
home or property." Both the prosecutor and defense

counsel agreed with the court's statement and
There is also no evidence that Saga's entry into the
defense counsel added, "I agree with all the
garage was forcible. Code of Civil Procedure section
instructions that will be given. I have . . . no objection
1159 provides that "Every person is guilty of a forcible
to them. I have not requested any instructions that the
entry who . . . [] 1. By breaking open doors,
court will not give. [] . . . [] To the extent that that's
windows, or other parts of a house, or by any kind of
at odds with what I filed with the court, I would
violence or circumstance of terror enters upon or into
withdraw my request for any instructions that will not
any real property. . . ." (See also 418 [forcible entry,
be given." The court concluded, "I'll give 506, which is
as defined by section 1159, is a misdemeanor].) Saga
defending against harm to a person within home or
did not use violence or threats to enter the garage.
property, which is more appropriate as opposed to . . .

3477, which has to do with presumptions that applies
Defendant's reliance on People v. Brown, supra, 6
when there's forcible entry. And I think we agreed that
Cal.App.4th at pages 1495-1496 for the proposition
while there was entry into a home, it was not forcible."
that "[a] forcible entry . . . is the same as an unlawful
Defendant disputes that the instructional error was
entry for purposes of residential burglary" is entirely
invited and argues that any waiver by counsel would
misplaced. In Brown there was no dispute that the
amount to ineffective assistance of counsel. We need
entry was forcible. The evidence showed that "the
not determine whether there was invited error or a
victim entered defendant's front porch and advanced
waiver, however, because it is clear that there is no
toward defendant with a hammer raised back at
substantial evidence that Saga "unlawfully and
shoulder-height." (Id. at p. 1491.) The question on
forcibly" entered defendant's garage sufficient to
appeal was whether the homeowner's unenclosed
support the omitted instruction.
front porch was part of his "residence" for purposes of

section 198.5. To answer that question, the court
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2015 #26 (June 15-19, 2015)
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looked to legal authority regarding what constitutes a
the defendant has authorized the attempt of the third
residence for purposes of a burglary. Because
person to suppress testimony, evidence of such
"unlawful entry" is defined by the Penal Code, we
conduct is admissible against the
need not rely on analogy to determine its meaning.
defendant."'" (People v. Hannon (1977) 19 Cal.3d

588, 599, disapproved on another ground by People
Accordingly, we find no instructional error.
v. Martinez (2000) 22 Cal.4th 750, 762-763.)

"Whether or not any given set of facts may constitute
2. There was no error in the admission of
suppression or attempted suppression of evidence
evidence of threats made against Hudieb prior to
from which a trier of fact can infer a consciousness of
trial.
guilt on the part of a defendant is a question of law.

Thus in order for a jury to be instructed that it can
As set forth above, Hudieb testified that threats
infer a consciousness of guilt from suppression of
against him were painted on his girlfriend's car just
adverse evidence by a defendant, there must be
prior to trial. In closing argument, the prosecutor
some evidence in the record which, if believed by the
argued that if defendant "tried to . . . discourage
jury, will sufficiently support the suggested
someone from testifying against him, this may show
inference." (Hannon, p. 597.)
that he was aware of his guilt." The prosecutor

detailed the threats made against Hudieb and
Here, contrary to defendant's argument, there is
reminded the jury that when defendant was asked
sufficient evidence connecting defendant to the
whether he tried to prevent Hudieb from testifying, his
threats against Hudieb to support admission of the
initial response was "I don't think so" and then that he
evidence and the consciousness-of-guilt instruction.
"wouldn't remember that."5
The timing of the threats, which were made as jury

selection was starting, supports the inference that the
Defendant acknowledges that his attorney did not
threats were intended to keep Hudieb from testifying
object to the introduction of this evidence but
against defendant. Defendant's initial testimony
contends that the admission of the testimony was
regarding whether he was involved in making the
"plain error" and that his attorney performed
threats was ambiguous and evasive. To the extent he
inadequately in failing to object. He argues that
later attempted to deny involvement, his credibility
because the identity of the persons who spray painted
was largely undermined by his acknowledgment that
the threats was unknown, the evidence should have
he had instructed his brother to persuade Huan to lie
been excluded.
about seeing Saga with a gun. Moreover, this

acknowledgement is itself evidence that he was
A defendant's "'"[e]fforts to suppress testimony
involved in efforts to alter the evidence, supporting
against himself indicate a consciousness of guilt on
the inference that he bore some responsibility for the
the part of a defendant, and evidence thereof is
threats to Hudieb. Because the evidence was
admissible against him. [Citation.] Generally, evidence
properly admitted, counsel cannot be faulted for
of the attempt of third persons to suppress testimony
failing to object.6
is inadmissible against a defendant where the effort

did not occur in his presence. [Citation.] However, if
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3. There was no error in the admission of
officers at the scene that . . . he heard Osana say to
testimony that defendant had studied the law of
[Faasisila], 'Get the gun.' Later, he told the police he
homicide while in jail.
saw Osana reaching for the gun. [] I mean, these are

just wildly desperate attempts by him to say what he
During his opening statement, defense counsel stated
thinks he needs to say to make it a justified shooting.
that defendant acted in self-defense and explained
And if you think . . . he knew the law of homicide, then
that defendant initially lied to the detective about
you're wrong. If you think he knows it now, you're also
seeing Saga reaching for a gun, because he
wrong. If you think he had the mental acumen to
"panicked" and he "didn't know the law of homicide."
listen to the law and read it and craft a defense, then
During direct examination, defendant admitted that he
you misjudged him on the stand because he doesn't
lied to the detective when he told him that he saw
have that mental acumen. No offense intended to
Saga reach for a gun from his waistband during the
[defendant]. But he obviously panicked." Defendant
altercation. In response to the prosecutor's questions
acknowledges that no objection was lodged to the
on cross-examination, defendant acknowledged that
prosecutor's questions but contends the trial court
since being in jail he had researched the law of
erred by allowing the prosecutor to question
homicide and that he now knew the different
defendant about his study of the law and that his
standards applicable in a homicide case. When asked
attorney was ineffective in failing to object.
whether that was why he had changed his story,

defendant said "No. I was just trying to tell exactly
There was no error in permitting the prosecutor's
what had happened." The prosecution relied on this
questions or deficiency in counsel's failure to object.
testimony in closing argument: "I asked defendant on
Defense counsel clearly had a tactical reason for
the witness stand, 'So when you gave your statement
telling the jury that defendant did not know the law of
to Detective Coffey and you said the victim was going
homicide at the time of his arrest. It was part of his
for a gun, you did not know the law of homicide,
explanation for why defendant lied to the police
right?' 'Right, yes.' 'And since then, you've been
following his arrest--that because defendant was
studying the law of homicide, haven't you?' 'Yes.'
unfamiliar with the law, he did not know that the truth
'You've been looking at the homicide books?' 'Yes.' []
of what had actually happened was enough to
Here's why. This is the defense he's going for. This is
support a defense to the shooting.
why he changed his story. It's called imperfect selfdefense. 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
Disposition
defendant's "reaction [to the shooting] was obviously

to panic and do anything he could to avoid
The judgment is affirmed. The petition for habeas
prosecution and convince people it was a justified
corpus is denied.
shooting. He hid the gun in obvious panic. He told the

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2015 #26 (June 15-19, 2015)
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IDAHO
State v. Kelly, 2105 Ida. App. LEXIS 51 (ID Ct. App. 2015)
Key issues:
Voluntary intoxication, no defense
Burden of production; failure to meet, self-defense instruction disallowed
Date:
June 19, 2015
Decision:
Kurtis Thomas Kelly appeals from his judgment of
failed to allege facts which established that the officer
conviction for battery on a law enforcement officer.
was exercising an official duty when he was struck.
For the reasons set forth below, we affirm.
The district court denied the motion. After the state

rested at trial, Kelly moved for an acquittal, again
I. FACTS AND PROCEDURE
arguing that the state failed to meet its burden of

proving what specific official duty the officer was
The basic facts in this case are undisputed. A
performing at the time he was struck. The motion was
uniformed officer was dispatched around 1:30 a.m. to
denied. Kelly now appeals, alleging that those
a bar in response to a call reporting a fight. The officer
motions were improperly denied and the district court
saw Kelly sitting on the sidewalk in handcuffs. The
made a number of errors at trial.
officer had the handcuffs removed and questioned

Kelly. The officer determined that Kelly was
II. ANALYSIS
intoxicated and needed to go home. One of his

friends, who was sober, offered to drive Kelly home.
While Kelly raises many issues on appeal, they can
The friend and Kelly's wife asked the officer for
be consolidated into two claims of error by the district
assistance in getting Kelly into the friend's car
court.1 First, Kelly alleges that the district court erred
because Kelly was too intoxicated to walk. On their
in failing to grant his motion to dismiss and his motion
way to the car, Kelly complained about pain in his arm
for an acquittal because the state failed to provide
and stated that he did not want to go to jail. While
evidence that the officer was performing his official
being assisted into the car, Kelly stood up and
duty at the time he was punched. Second, Kelly
punched the officer in the face with a closed fist.
argues that the district court erred in instructing the

jury.
Kelly was arrested and charged with battery on a law

enforcement officer. I.C. 18-903, 18-915(3). He
A. Officer's Duties
moved to dismiss the charge, arguing that the state

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2015 #26 (June 15-19, 2015)
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...
prevents [the citizens of Montana] from doing so." Id.

Kelly has provided no authority to suggest that the
B. Jury Instructions
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
1. Due process
violate due process under the Idaho Constitution.
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
3. Self-defense
that it could only consider Kelly's intoxication if it

found the intoxication to be involuntary. Kelly's
Kelly alleges that the district court erred in failing to
intoxication was admittedly voluntary. Kelly argues
give his proposed jury instruction on self-defense. A
that I.C. 18-116 is unconstitutional because it
defendant is entitled to have the jury instructed on
violates due process under the Idaho Constitution.
every defense or theory of defense having any
The statute at issue, I.C. 18-116, states:
support in the evidence. State v. Hansen, 133 Idaho

323, 328, 986 P.2d 346, 351 (Ct. App. 1999).
A person who is in an intoxicated condition is
However, requested jury instructions should not be
criminally responsible for his conduct and an
given if they lack support in the facts of the case or
intoxicated condition is not a defense to any offense
are erroneous statements of the law. State v. Babb,
and may not be taken into consideration in
125 Idaho 934, 941, 877 P.2d 905, 912 (1994); State
determining the existence of a mental state which is
v. Bronnenberg, 124 Idaho 67, 71, 856 P.2d 104, 108
an element of the offense unless the defendant
(Ct. App. 1993).
proves that he did not know that it was an intoxicating

substance when he consumed, smoked, sniffed,
Idaho Code Section 19-2132(a) requires that the trial
injected or otherwise ingested the substance causing
court must provide to the jury being charged "all
the condition.
matters of law necessary for their information" and

must give a requested jury instruction if it determines
The statute plainly does not permit those who commit
that instruction to be correct and pertinent. Under a
crimes while voluntarily intoxicated to avoid culpability
four-part test, a requested instruction must be given
because of a diminished mental capacity. In the
where: (1) it properly states the governing law; (2) a
context of the U.S. Constitution, the United States
reasonable view of the evidence would support the
Supreme Court reviewed a Montana statute which
defendant's legal theory; (3) it is not addressed
disallowed consideration of voluntary intoxication
adequately by other jury instructions; and (4) it does
when a defendant's state of mind was at issue. See
not constitute an impermissible comment as to the
Montana v. Egelhoff, 518 U.S. 37, 56, 116 S. Ct.
evidence. State v. Fetterly, 126 Idaho 475, 476-77,
2013, 135 L. Ed. 2d 361 (1996). The Supreme Court
886 P.2d 780, 781-82 (Ct. App. 1994); see also State
held that, "nothing in the Due Process Clause
v. Evans, 119 Idaho 383, 385, 807 P.2d 62, 64 (Ct.
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2015 #26 (June 15-19, 2015)
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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
Kelly did not present evidence at trial sufficient to
suffice as long as his or her theory comports with a
require the district court to give his self-defense jury
reasonable view of the evidence. Fetterly, 126 Idaho
instruction. Specifically, there is no view of the
at 476-77, 886 P.2d at 781-82; State v. Kodesh, 122
evidence that would have allowed the jury to find that
Idaho 756, 758, 838 P.2d 885, 887 (Ct. App. 1992). In
Kelly satisfied the third element of self-defense--that a
other words, a defendant must present facts to
reasonable person, under similar circumstances,
support each element of a prima facie case for each
would have believed that he or she was in imminent
defense. State v. Camp, 134 Idaho 662, 665-66, 8 P.
danger of bodily injury. The record, including video
3d 657, 660-61 (Ct. App. 2000). If the defendant fails
images from the camera worn by the officer, shows
to provide evidence supporting any one of the
the officer being calm and helpful. There was no
necessary elements of a defense, the defendant has
indication that a reasonable person under these
failed to meet his or her burden and is not entitled to
circumstances would have believed that he or she
have the jury instructed on that defense.
was in imminent danger of bodily injury. Thus, Kelly

failed to make a prima facie showing of facts to
Self-defense is recognized in Idaho. See State v.
support each element of self-defense. Therefore, the
Woodward, 58 Idaho 385, 394, 74 P.2d 92, 96 (1937);
district court did not err in refusing to instruct the jury
see generally I.C. 19-201, 19-202, and 19-202A.
on self-defense.
Idaho Criminal Jury Instruction 1517 enumerates

what must be proven to find that a defendant acted in
4. Elements of crime
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 the

action the defendant took was necessary to save the
III. CONCLUSION
defendant from the danger presented; (3) a

reasonable person, under similar circumstances,
The district court did not err in denying Kelly's motion
would have believed that the defendant was in
to dismiss or his motion for a directed verdict because
imminent danger of bodily injury and believed that the
the state met its burden of showing that the officer
action taken was necessary; and (4) the defendant
was performing his duty at the time he was struck. In
must have acted only in response to that danger and
addition, Kelly has not shown that the district court
not for some other motivation. The burden of
erred in instructing the jury. Therefore, Kelly's
production is on the defendant (who must raise self-
judgment of conviction for battery on a law
defense) to make a prima facie defense. Camp, 134
enforcement officer is affirmed.
Idaho at 666 n.2, 8 P.3d at 661 n.2.
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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
Defendant asked Myles not to call police, but Myles
sentenced to nine years' imprisonment. On appeal,
stated that he had already called them, and that he
defendant contends that his conviction should be
had to make a police report. Myles believed Black to
reversed because the State failed to disprove his
be defendant's nephew, so he told defendant he
claim of self-defense beyond a reasonable doubt.
needed to speak with Black to tell him about the

burglaries. Sometime later, Myles and Black were
The record shows that defendant was charged with
having an argument on Myles' front porch when
attempted murder and aggravated battery with a
defendant intervened. Defendant pulled out a shiny
firearm in connection with an incident that took place
revolver, held it close to the back of his leg pointing it
on the south side of Chicago in the early morning
at the ground, and told Myles not to speak to Black
hours of July 25, 2010. At trial, Keith Myles testified
that way. Myles began arguing with defendant, but
that he owned a two-flat apartment building in which
Felicia Jordan and Black stepped in between them.
Rasheen Black and his wife, Lakesha Jones, were
Jordan took Myles into his house, and Black took
tenants. Myles testified that a day or two before the
defendant across the street.
incident, there had been an attempted burglary at his

building. His tenants, Rasheen Black and Lakesha
About 12 minutes later, Myles went back outside
Jones, resided on the second floor of the building. He
because he could not calm down, and saw defendant
believed that it had been their apartment that
and Black across the street. He started walking away
someone had tried to burglarize. Around midnight on
from them down the gangway toward his backyard.
July 24, 2010, Myles discovered that his building had
Defendant shouted at Myles in a way that suggested
again been burglarized and then he heard shots
that defendant wanted to apologize, but Myles
coming from the gangway. Myles went outside where
shouted profanity at defendant and kept walking. As
he met defendant who he knew. Defendant told him
Myles walked through the gangway, he heard a bang
that he had caught someone trying to break into
and "felt [his] pants jump," then realized that he had
Myles' apartment, so defendant shot at the burglars,
been shot in the leg. Several more shots were fired
who escaped.
and he was hit twice in the left side of his back. Myles
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2015 #26 (June 15-19, 2015)
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was taken to the hospital where he was in a coma for
and pointed his gun at defendant. Black approached
two weeks. Myles identified a picture of his residence
Myles, and Myles pushed him out of the way, then
and circled where he was standing when he was shot.
fired the first shot at defendant. Black laid on the
He also verified that he was convicted of aggravated
ground as the two men fired at each other, and when
unlawful use of a weapon in 2003, and sentenced to
he stood up, everyone was gone. He testified that
probation.
Myles fled through the gangway along the side of his

house where he dropped his gun in his boat. He then
On cross-examination, Myles initially stated that one
came back through the gangway saying defendant
of the bullets entered his chest, just below his left
shot him, so Jordan and Black led him back to his
nipple, but he retracted that statement and indicated
porch and gave him a pillow to lie on.
that he was shot once in the leg and twice in the

back. He confirmed that he owned a boat, and that
On cross-examination, Black stated that he did not
the boat was near his residence that night, but denied
know how much the people on the porch were
throwing a handgun into the boat. He stated that he
drinking before he returned home that night. He also
did not see who shot at him, and that he did not come
stated that he did not see defendant fire his gun, but
outside with his own gun, nor was he drinking that
that he could hear both men firing their guns, and that
evening. He also stated that he did not call the police
this was the first time he had seen defendant with a
after defendant pulled out his gun on the porch, and
gun. When the police arrived, Black did not tell them
that he did not own a gun.
anything about the events of that night because they

were all friends and they agreed not to tell anybody.
Black testified on behalf of defendant that he was

returning home from an amusement park with his
Defendant acknowledged his prior convictions for
family around midnight on July 25, 2010, when he
possession of a controlled substance in 2006 and
saw a police vehicle in front of his residence. Later
2008, then testified to the events of July 25, 2010. He
that night, he observed defendant, Myles, and Jordan,
testified that he was on the porch of Myles' residence
who were all intoxicated, talking about the burglaries
with Myles, Jordan, and Black drinking alcohol and
while on the porch drinking alcohol. He also testified
talking about the burglaries that occurred the previous
that an argument broke out between defendant and
night. Myles and defendant started arguing about the
Myles and both of them had a gun. He stated that
money defendant owed him, and were eventually
Myles had a black gun which he always carried with
separated by Black and Jordan. Defendant testified
him, and defendant had a silver gun. Jordan and
that he had a gun, and he also saw Myles retrieve a
Black were able to separate defendant and Myles,
gun from inside his home when he first came out onto
and Black took defendant across the street, while
the porch that night. After they were separated,
Myles went back into his home with Jordan.
defendant stood in the street talking to Black, while

Myles retreated inside his home. A little while later,
Black further testified that Myles emerged from his
Myles emerged from his home with his gun and
home few minutes later holding his gun, and yelled at
shouted at defendant. Defendant yelled back as
defendant across the street. He then came down the
Myles turned and started walking down the gangway
stairs of his porch, crushed a beer can in his hand,
adjacent to the house. Myles then turned and fired his
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2015 #26 (June 15-19, 2015)
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gun at defendant, and defendant shot back trying to
Following closing arguments, the court found
scare Myles, not hit him.
defendant guilty of aggravated battery with a firearm,

but not attempted murder. In reaching this conclusion,
On cross-examination, defendant stated that he and
the court found that following a heated confrontation,
Myles traded shots, that he was fleeing while
defendant lost his temper and shot Myles, and was
shooting, and that after firing, he ran through an
not acting in self-defense. The court concluded that
alleyway into a vacant lot. He also stated that on May
this was an unjustified shooting based on the conduct
20, 2011, he met with an assistant State's Attorney
of the participants immediately afterward, but found
(ASA) and waived his Miranda rights, but that he did
defendant not guilty of attempted murder because the
not remember telling the ASA that Jordan was not
State did not prove his intent to kill beyond a
drinking that night, and that he and Myles were
reasonable doubt. After considering the relevant
arguing about defendant selling drugs on the porch.
factors in mitigation and aggravation, the court stated

that defendant was acting in a misguided attempt to
The parties then stipulated that, if called, Dr. Dennis
stand up for his nephew and sentenced him to a term
Andrews would testify that Myles had multiple
of nine years' imprisonment.
gunshot wounds to his upper left torso and right thigh.

In this appeal from that judgment, defendant contends
In rebuttal, the State introduced certified copies of
that the State's case in chief, which rested on Myles'
defendant's two convictions for possession of a
improbable and incredible testimony, was insufficient
controlled substance, and certified copies of Black's
to disprove his claim of self-defense beyond a
convictions for possession of a controlled substance
reasonable doubt. Defendant further maintains that
and possession of a fraudulent I.D. card. The court
the State's failure to call Jordan, an important
received them for the limited purpose of
eyewitness to the event, should create a negative
impeachment.
inference regarding her possible testimony.
Detective Sandra Bryant then testified that she was
To sustain defendant's conviction for aggravated
present for an interview with defendant, during which
battery with a firearm in this case, the State was
he stated that Jordan was not drinking on the porch
required to prove that he committed battery and
with the rest of them, and that he and Myles were
knowingly discharged a firearm and caused injury to
arguing about defendant selling drugs in the
another person. 720 ILCS 5/12-3.05(e)(1) (West
neighborhood. Detective Bryant testified that
2014). Defendant does not dispute that his conduct
defendant stated that after being separated, Myles
satisfies the elements of this offense, but claims that
went into his gangway, then spun to face defendant
his actions constitute the affirmative defense of self-
and raised his gun. Defendant fired two shots at
defense.
Myles. According to Detective Bryant, defendant

stated that he had not seen Myles with a gun prior to
"Self-defense is a right an individual is entitled to
that point. Defendant never indicated that Myles fired
exercise in those situations where he reasonably
his gun first.
believes that force is necessary to prevent death or

great bodily harm to himself." People v. Everette, 141
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2015 #26 (June 15-19, 2015)
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Ill. 2d 147, 162, 565 N.E.2d 1295, 152 Ill. Dec. 377
the street. Myles then turned away from defendant to
(1990). Defendant may assert the affirmative defense
walk down the gangway beside his home and was
of self-defense when unlawful force was threatened
shot three times. This evidence, and the reasonable
against him, defendant was not the aggressor,
inferences therefrom, were sufficient to support the
defendant believed that the danger of harm was
trial court's decision to reject defendant's claim of self-
imminent, the use of force was necessary to avert
defense. Greene, 160 Ill. App. 3d at 1097.
danger, and the amount of force was appropriate.

People v. Shields, 298 Ill. App. 3d 943, 947, 700 N.E.
Defendant contends, however, that the State's entire
2d 168, 233 Ill. Dec. 67 (1998). To raise the issue,
case was based on the improbable and unbelievable
defendant must present some evidence regarding
testimony of a single witness, which could not serve
each element (People v. Greene, 160 Ill. App. 3d
to disprove his claim of self-defense beyond a
1089, 1096-97, 513 N.E.2d 1092, 112 Ill. Dec. 483
reasonable doubt. Defendant maintains that Myles
(1987)); however, once raised, the State need only
was the initial aggressor, and that his testimony that
negate one element of the claim beyond a reasonable
he did not have a gun when he confronted defendant
doubt to defeat this affirmative defense (Shields, 298
again after the initial argument on his porch where he
Ill. App. 3d at 947). Whether the State has met its
saw defendant with a gun is unbelievable. He further
burden is determined by the trier of fact (Greene, 160
contends that Myles' testimony is so improbable and
Ill. App. 3d at 1096), and that decision will not be
inconsistent that its veracity must be called into
disturbed on review unless it is so improbable or
question.
unsatisfactory that it raises a reasonable doubt of

defendant's guilt (Shields, 298 Ill. App. 3d at 948). We
At base, defendant contests the credibility
do not find this to be such a case.
determination made by the trial court. This matter,

however, is within the province of the trial court
Here, defendant first contends that the defense
(People v. Sutherland, 223 Ill. 2d 187, 242, 860 N.E.
witnesses' testimony shows that Myles raised his gun
2d 178, 307 Ill. Dec. 524 (2006)), and we will not
and shot first, which caused defendant to act in self-
substitute our judgment for that of the trial court
defense and fire back at Myles. He maintains that
unless the proof is so unsatisfactory that a reasonable
although Myles testified that defendant shot first, his
doubt of guilt appears (People v. Berland, 74 Ill. 2d
testimony is so improbable and contrary to human
286, 305-06, 385 N.E.2d 649, 24 Ill. Dec. 508 (1978)).
experience, that it cannot serve to negate the

elements of his self-defense claim.
It is uncontroverted that Myles was shot once in the

back of the leg, and twice in his upper, left torso.
Viewed in a light most favorable to the prosecution,
Although defendant claims in his reply brief that the
the evidence in this case shows that Myles and
State ignored a doctor's report establishing that
defendant got into an argument where defendant
defendant was shot twice in the front of his body. We
brandished a gun before being separated by Jordan
have examined the report in the record before us and
and Black. After being unable to calm down in his
it does not appear to state that Myles was actually
home, Myles came back outside where he and
shot twice in the front of his body. Myles' testimony
defendant engaged in a verbal exchange from across
provides a reasonable explanation for the
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circumstances leading up to the shooting, and the
stipulation of the medical witness corroborates his
Defendant next contends that we should draw a
testimony regarding his injuries. Although defendant
negative inference from the State's failure to call
contends that Myles was the initial aggressor and that
Jordan as a witness. He maintains that the State's
it is improbable that Myles would leave his house
failure to call Jordan implies that her testimony would
unarmed to confront defendant after the initial
have been unfavorable to the State's case.
argument, Myles testified that he was not going

outside to confront defendant, and that he did not
We initially note that the State is not obligated to
address defendant until defendant yelled at him from
produce every witness to a crime, and the failure to
across the street. Furthermore, Myles testified that he
produce a witness does not give rise to a presumption
did not own a gun, and did not have one with him
that the witness' testimony would be unfavorable to
during his argument with defendant on the porch, or
the prosecution. People v. Jones, 30 Ill. 2d 186, 190,
when he went back outside where he was shot by
195 N.E.2d 698 (1964). A negative inference will arise
defendant. Therefore, Myles' testimony that he was
from the State's failure to call a witness only if that
not the initial aggressor and did not even have a gun
witness appears to have special information relevant
if believed by the trier of fact, negates defendant's
to the case, so that her testimony is not merely
claim of self-defense because there was no unlawful
cumulative. People v. Jimerson, 69 Ill. App. 3d 403,
force threatened against him, and he was the initial
412, 388 N.E.2d 10, 26 Ill. Dec. 386 (1979). The
aggressor. Shields, 298 Ill. App. 3d at 947. It is clear
evidence here shows that Jordan did not witness the
that the trier of fact believed Myles and not defendant
shooting, and her testimony regarding the events for
and Black.
which she was present would have only amounted to

cumulative evidence. Id. at 412. The State presented
Although, defendant essentially contends that the trial
sufficient evidence through Myles to establish
court should have accepted the version of the incident
defendant's commission of aggravated battery with a
as presented by Black and himself instead of that
firearm and disprove his claim of self-defense. People
presented by Myles, this is not our prerogative.
v. Doll, 371 Ill. App. 3d 1131, 1138, 864 N.E.2d 916,
Sutherland, 223 Ill. 2d at 242. We will not disturb the
309 Ill. Dec. 675 (2007). Thus, we find no negative
trial court's credibility determination where the
inference arising from the State's failure to call Jordan
testimony is not so improbable or unbelievable that a
as a witness under the circumstances reflected in the
rational trier of fact could find that it failed to disprove
record. People v. Scott, 38 Ill. 2d 302, 306, 231 N.E.
defendant's claim of self-defense beyond a
2d 441 (1967).
reasonable doubt. People v. Beauchamp, 241 Ill. 2d

1, 8, 944 N.E.2d 319, 348 Ill. Dec. 366 (2011);
Accordingly, we affirm the judgment of the circuit court
Greene, 160 Ill. App. 3d at 1096. In this case, the
of Cook County.
court accepted Myles' version of events as credible

and rejected the version presented by Black and
Affirmed.
defendant. We have no basis for disturbing that

determination.
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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
conversation, witnessed by Sharday and Stacy. The
judgment of sentence imposed following her
Victim, concerned for her safety, moved so she was
conviction for two counts of aggravated assault. Upon
standing on the other side of a fence, then "swung out
review, we affirm.
of defense for" herself, missing Appellant. Id. at 118.

After the Victim took a second swing, which made
The facts of this case can be summarized as follows.
contact with Appellant's face, Appellant went around
Around 10:00 p.m. on November 15, 2012, an
the fence and stabbed the Victim with both knives,
incident occurred between Appellant and the Victim,
injuring her upper abdomen and her neck.
Shawntaya Council outside of the apartment shared

by Appellant and her girlfriend, Brandy. Brandy's six-
The Victim then ran away, past Stacy and Sharday,
year-old daughter was also at the home. Prior to the
with Appellant chasing her. The Victim then spotted a
incident, Stacy Myers, Victim's girlfriend and a friend
police officer, Officer Christopher Roosen, who called
of Appellant, picked up the Victim after work that
for an ambulance and backup. The Victim told Officer
night. Another friend, Sharday, called the Victim and
Roosen that she was stabbed by Appellant. The
told her that Appellant wanted to "resolve the issue"
Victim required extensive surgery to repair the
with the Victim. N.T., 11/12/2013, at 82.1 Stacy and
damage to her abdomen and was hospitalized for
the Victim drove to Appellant's apartment.2 Appellant,
several days.
who resided on the second floor, went downstairs

when the Victim and Stacy arrived. Sharday was also
Officer Timothy Clymer and two other police officers
there, but had driven separately. The Victim testified
responded to the area. Appellant let Officer Clymer
that when Appellant came down the stairs, "she didn't
into the apartment where he observed an open
look like herself." Id. at 114. Appellant was carrying
pocketknife. Officer Matthew Irvin took Appellant into
"two knives, one in each hand[,]" and was "fidgety."
custody, and during this time, Appellant tried to
Id. at 114, 118. The Victim and Appellant engaged in a

explain why she stabbed the Victim.
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Appellant's first two claims challenge the sufficiency
Appellant was charged with two counts of aggravated
of the evidence.4 She contends the Commonwealth
assault in connection with this incident. A jury trial
did not present sufficient evidence to rebut her claim
commenced on November 12, 2013, and Appellant
that she acted in self-defense. Appellant's Brief at
was found guilty as to both counts. On December 30,
12-15. We review this claim mindful of our well-settled
2013, Appellant was sentenced, in the mitigated
standard of review.
range, to 42 to 84 months' incarceration. Appellant

filed timely a post-sentence motion, which was denied
The standard we apply in reviewing the
on May 27, 2014. Appellant filed a notice of appeal;
sufficiency of the evidence is whether viewing all
however, that appeal was quashed by this Court as
the evidence admitted at trial in the light most
untimely filed.3 Appellant's direct appeal rights were
favorable to the verdict winner, there is sufficient
restored nunc pro tunc, and she filed timely a notice
evidence to enable the fact-finder to find every
of appeal. Both Appellant and the trial court complied
element of the crime beyond a reasonable doubt.
with Pa.R.A.P. 1925.
In applying [the above] test, we may not weigh the

evidence and substitute our judgment for the fact-
On appeal, Appellant sets forth three issues for our
finder. In addition, we note that the facts and
review.
circumstances established by the Commonwealth

need not preclude every possibility of innocence.
[1.] Whether the Commonwealth presented
Any doubts regarding a defendant's guilt may be
insufficient evidence to overcome Appellant's
resolved by the fact-finder unless the evidence is
belief that she was reasonably in immediate fear
so weak and inconclusive that as a matter of law
of serious bodily injury or death when surrounded
no probability of fact may be drawn from the
by multiple, potentially armed, attackers with no
combined circumstances. The Commonwealth
avenue of complete safety to retreat?
may sustain its burden of proving every element of
[2.] Whether the Commonwealth presented
the crime beyond a reasonable doubt by means of
insufficient evidence to overcome Appellant's
wholly circumstantial evidence. Moreover, in
belief that she was reasonably in immediate fear
applying the above test, the entire record must be
of serious bodily injury or death because
evaluated and all evidence actually received must
Appellant had a reasonable belief that the victim
be considered. Finally, the [finder] of fact while
was armed with a firearm at the time Appellant
passing upon the credibility of witnesses and the
stabbed the victim?
weight of the evidence produced, is free to believe
[3.] Whether the verdict was against the weight of
all, part or none of the evidence.
the evidence because the evidence demonstrates

Appellant's use of deadly force was reasonable
Commonwealth v. Smith, 97 A.3d 782, 790 (Pa.
under the circumstances.
Super. 2014).
Appellant's Brief at 5 (suggested answers omitted).
According to our Supreme Court, the justified use of

deadly force requires:
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2015 #26 (June 15-19, 2015)
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a) the actor was free from fault in provoking or
continued the use of force; or 3) the accused
continuing the difficulty which resulted in the use of
had a duty to retreat and the retreat was
deadly force; b) the actor must have reasonably
possible with complete safety.
believed that he was in imminent danger of death

or serious bodily injury, and that there was a
Commonwealth v. Hammond, 953 A.2d 544, 559
necessity to use such force in order to save
(Pa. Super. 2008). The Commonwealth must
himself or others therefrom; and c) the actor did
establish only one of these three elements beyond
not violate any duty to retreat or to avoid the
a reasonable doubt to insulate its case from a self-
danger.
defense challenge to the evidence. The

Commonwealth can negate a self-defense claim if
Commonwealth v. Harris, 542 Pa. 134, 137, 665 A.2d
it proves the defendant did not reasonably believe
1172, 1174 (1995). The defendant has no "burden to
he was in imminent danger of death or great bodily
prove" his self-defense claim. Commonwealth v.
injury and it was necessary to use deadly force to
Torres, 564 Pa. 219, 224, 766 A.2d 342, 345 (2001).
save himself from that danger.
The Supreme Court explained the evidentiary

burdens as follows:
The requirement of reasonable belief

encompasses two aspects, one subjective and
While there is no burden on a defendant to
one objective. First, the defendant must have
prove the [self-defense] claim, before that
acted out of an honest, bona fide belief that he
defense is properly at issue at trial, there must be
was in imminent danger, which involves
some evidence, from whatever source to justify a
consideration of the defendant's subjective
finding of self-defense. If there is any evidence
state of mind. Second, the defendant's belief
that will support the claim, then the issue is
that he needed to defend himself with deadly
properly before the fact finder.
force, if it existed, must be reasonable in light

of the facts as they appeared to the defendant,
Id. (internal citations omitted). If the defendant
a consideration that involves an objective
properly raises "self-defense under Section 505
analysis.
of the Pennsylvania Crimes Code, the burden is

on the Commonwealth to prove beyond a
Commonwealth v. Mouzon, 617 Pa. 527, 551,
reasonable doubt that the defendant's act was not
53 A.3d 738, 752 (2012).
justifiable self-defense." Commonwealth v.

McClendon, 874 A.2d 1223, 1229-30 (Pa. Super.
Smith, 97 A.3d at 786-87 (some citations omitted).
2005).
Appellant first argues that the Commonwealth failed
The Commonwealth sustains this burden if
to prove that she "did not reasonably believe that
it establishes at least one of the following: 1)
[s]he was in danger of death or serious bodily injury."
the accused did not reasonably believe that
Id. at 787. Appellant contends her belief that she
he was in danger of death or serious bodily
feared for her life was subjectively reasonable
injury; or 2) the accused provoked or
because she knew that the Victim "had a concealed
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2015 #26 (June 15-19, 2015)
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weapons permit, owned a firearm, and was known to
Sharday during the altercation. "Although the
carry a razor [blade] in her purse." Appellant's Brief at
Commonwealth is required to disprove a claim of self-
13.
defense arising from any source beyond a reasonable

doubt, a jury is not required to believe the testimony
The trial court concluded that there was "no evidence
of the defendant who raises the claim."
that the [V]ictim was armed with any weapon or that it
Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa.
was reasonable for [Appellant] to think the [V]ictim
Super. 2008). Accordingly, this evidence, which the
was armed under the circumstances." Trial Court
jury clearly credited, was sufficient for the jury to
Opinion, 10/30/2014, at 7. "Simply put, [Appellant]
conclude that Appellant did not reasonably believe
brought not just one but two knives to a fist fight." Id.
she was in danger of imminent death or serious bodily

injury. Thus, this claim for relief fails.
Appellant's testimony is instructive. When asked if

she could see any weapons during the altercation,
Because the evidence was sufficient to show that
Appellant testified as follows: "Not visibly, but there
Appellant's belief that she was in danger was
was an incident, like, when we were on talking terms,
unreasonable, the Commonwealth satisfied its burden
that [the Victim] and Sharday were kind of joking
to prove that Appellant's stabbing of the Victim was
around and [the Victim] knocked [Sharday's] purse
not justifiable self-defense. As the Commonwealth is
over and a razor blade fell out. [The Victim] also has a
only required to satisfy one element of the
permit to carry a gun." N.T., 11/12/2013, at 178.
aforementioned test, we need not consider
Appellant further testified that she saw the Victim with
Appellant's arguments as to the others. Therefore, we
a gun about a month earlier, and she saw Sharday
hold that the Commonwealth sustained its burden "to
with a razor blade the week prior.
prove beyond a reasonable doubt that the defendant's

act was not justifiable self-defense." Smith, 97 A.3d at
It is well-settled that "issues of whether a defendant
787.
acts 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
Judgment of sentence affirmed.
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
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2015 #26 (June 15-19, 2015)
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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
address Priscilla's second issue first and, after
murdering her husband Jimmie Hernandez.1 See Tex.
considering both issues, affirm the district court's
Penal Code 19.02(b) (setting out elements of
judgment of conviction.
offense). A self-defense instruction was included in

the jury charge for the guilt or innocence portion of
BACKGROUND
the trial. The jury found Priscilla guilty. During the

punishment phase, a sudden-passion instruction was
Although some of the events leading up to the offense
included in the jury charge, see id. 19.02(a)(2)
at issue are contested, the following facts are
(defining "[s]udden passion"), .02(d) (allowing
undisputed. Priscilla met Jimmie when she was a
defendant to raise issue of sudden passion during
minor, and she married Jimmie after her parents gave
punishment portion of trial and reducing severity of
their consent to the marriage. During their
offense to second-degree felony if jury finds that
relationship, Priscilla and Jimmie used illegal drugs
defendant committed offense due to sudden passion),
and drank alcohol regularly. At various points, Priscilla
but the jury determined that sudden passion did not
and Jimmie had people staying with them for
apply and sentenced Priscilla to 30 years'
extended periods of time, including a mutual friend,
imprisonment, see id. 12.32 (providing permissible
Mary Bennett; one of Jimmie's cousins, Michael
punishment range for first-degree felony). In two
Acosta; and Acosta's mother, Ermalinda Duarte.
issues on appeal, Priscilla contends that the
When Acosta was living with Priscilla and Jimmie, he
"evidence is factually insufficient to support the jury's
was a minor. At some point after Acosta moved in and
negative finding on the sudden passion issue
while he was still a minor, Priscilla and Acosta entered
contained in the trial court's charge on punishment"
into a sexual relationship and continued some type of
and that the evidence is "insufficient to support the
romantic relationship up until the day of the offense.
jury's rejection of [her] self-defense claim." We will

Prior to the offense, Acosta moved out of the house,
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2015 #26 (June 15-19, 2015)
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and Priscilla and Jimmie separated. After their
DISCUSSION
separation, Priscilla moved into a new home with her

and Jimmie's daughter, and Jimmie paid the rent on
Self-Defense
the home. Although they were separated, Jimmie

lived with Priscilla for part of the time and with his
In her second issue on appeal, Priscilla challenges
parents for the remainder of the time.
the sufficiency of the evidence supporting "the jury's

rejection of [her] self-defense claim."2
On the night of the offense, Priscilla's half brother,

Justin Stone, and his girlfriend, Staci Leach, were
Under the Penal Code, an individual is guilty of the
staying at Priscilla's home. During the visit, Stone,
crime of murder if she "intentionally or knowingly
Jimmie, and Priscilla drank alcohol, but Leach did not
causes the death of an individual." Tex. Penal Code
drink because she was pregnant; however, Leach did
19.02(b)(1). However, the Code also states that an
smoke marijuana at various points throughout the
individual "is justified in using force against another
day. At some point early in the evening, Stone and
when and to the degree the actor reasonably believes
Leach fell asleep on the couches in Priscilla's living
the force is immediately necessary to protect the
room. After Stone and Leach went to sleep, Priscilla
actor against the other's use or attempted use of
and Jimmie decided to go out for the evening with
unlawful force," id. 9.31(a), but the Code specifies
Jimmie's parents, and Priscilla and Jimmie continued
that the "use of force against another is not justified:
to drink throughout the evening. At the end of the
(1) in response to verbal provocation," id. 9.31(b)
evening, Jimmie's parents offered to drive Priscilla
(1). Furthermore, the Code provides that an individual
and Jimmie home. Priscilla accepted their offer, but
"is justified in using deadly force against another . . . if
Jimmie decided that he would rather walk home.
the actor would be justified in using force against the

other" and "when and to the degree the actor
After Priscilla arrived home, she left the home and
reasonably believes the deadly force is immediately
walked to meet Jimmie outside. When Priscilla met
necessary . . . to protect the actor against the other's
Jimmie, some kind of conflict ensued, and the pair
use or attempted use of unlawful deadly force." Id.
ultimately returned to the home. While they were in
9.32(a). "'Deadly force' means force that is intended
the house, Leach woke up after hearing Priscilla and
or known by the actor to cause, or in the manner of its
Jimmie argue. During the argument, Priscilla stabbed
use or intended use is capable of causing, death or
Jimmie in the chest. Leach witnessed Priscilla stab
serious bodily injury." Id. 9.01(3).
Jimmie. After being stabbed, Jimmie went outside and

died in the front of the house. Prior to the police
Self-defense is a fact issue for the jury to determine,
arriving on the scene, Priscilla fled the premises. After
and if the jury enters a verdict of guilty, it implicitly
talking with her parents the following day, Priscilla
rejected the theory of self-defense. Saxton v. State,
agreed to turn herself in. Ultimately, Priscilla was
804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991). For
charged with and convicted of murder.
self-defense claims, the defendant has the burden of

producing some evidence to support the claim. Zuliani
v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003);
see also id. (contrasting self-defense from affirmative
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2015 #26 (June 15-19, 2015)
__________________________________________________________________________________________
defenses and explaining how burdens shift for self-
Furthermore, appellate courts presume that
defense). If the defendant produces some evidence,
conflicting inferences were resolved in favor of the
the State has "the burden of persuasion to disprove
conviction and defer to that resolution. Clayton v.
the raised defense." Id. at 594. The State's burden
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
does not require the production of any additional
"When reviewing a legal-sufficiency challenge on the
evidence; instead, "it requires only that the State
issue of self-defense, a reviewing court views the
prove its case beyond a reasonable doubt." Id.; see
evidence in the light most favorable to the verdict to
Saxton, 804 S.W.2d at 913. "Because the State bears
see if any rational trier of fact could have found (1) the
the burden of persuasion to disprove a" claim of self-
essential elements of murder beyond a reasonable
defense "by establishing its case beyond a
doubt, and (2) against appellant on the self-defense
reasonable doubt, we review both legal and factual
issue beyond a reasonable doubt." Hernandez v.
sufficiency challenges to the jury's rejection of such a
State, 309 S.W.3d 661, 665 (Tex. App.--Houston [14th
defense under" the legal-sufficiency standard. See
Dist.] 2010, pet. ref'd); see Armour v. State, No.
Smith v. State, 355 S.W.3d 138, 145 (Tex. App.--
03-13-00250-CR, 2015 Tex. App. LEXIS 2328, at *3
Houston [1st Dist.] 2011, pet. ref'd); cf. Brooks v.
(Tex. App.--Austin Mar. 12, 2015, no pet.) (mem. op.,
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)
not designated for publication).
(providing that "legal-sufficiency standard is the only

standard that a reviewing court should apply in
In contesting the sufficiency of the evidence, Priscilla
determining whether the evidence is sufficient to
relies on her testimony from trial regarding her
support each element of a criminal offense").
recollections of the events leading up to the offense

as well as her reasons for stabbing Jimmie. In
Under that standard, appellate courts view the
particular, Priscilla discussed in her testimony various
evidence in the light most favorable to the verdict and
instances of past abuse in which Jimmie allegedly hit
determine whether "any rational trier of fact could
her, choked her, dragged her by the hands, threw her
have found the essential elements of the crime
against a wall, and "blew boogers on my face."
beyond a reasonable doubt." Jackson v. Virginia, 443
Moreover, she related that she decided to separate
U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560
from Jimmie because of these incidents. Regarding
(1979). When performing this review, an appellate
the night of the offense, Priscilla testified that she and
court must bear in mind that it is the factfinder's duty
Acosta were texting one another, that some of the
to weigh the evidence, to resolve conflicts in the
texts were romantic in nature, and that Jimmie was
testimony, and to make reasonable inferences "from
aware of the texting. Further, she related that she was
basic facts to ultimate facts." Id.; see also Tex. Code
drinking that night, that Jimmie was intoxicated, that
Crim. Proc. art. 36.13 (explaining that "jury is the
Jimmie got angry at some point in the evening, that
exclusive judge of the facts"). Moreover, appellate
Jimmie called her a "F'ing bitch," that she walked
courts must "determine whether the necessary
back to meet Jimmie after his parents dropped her off
inferences are reasonable based upon the combined
at her home, and that after she met Jimmie, the
and cumulative force of all the evidence when viewed
following occurred:
in the light most favorable to the verdict." Hooper v.

State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).
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2015 #26 (June 15-19, 2015)
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He didn't say anything then. He walked straight
she told Jimmie that she was sorry, that he said that
to me, picked me up by my hoodie, threw me
he was sorry, that he told her to run after he heard
across the street, and he started walking towards
that Leach and Stone were calling the police, that she
me. So I kicked at him, and he grabbed my boot --
ran, and that she spent the night under a bridge.
he grabbed my foot. And when he twisted it, it

pulled my boot off. So he turned to throw my shoe.
In addition to her testimony, two signed statements
I got up and I started yelling at him, telling him to
that Priscilla gave to the police after the offense were
turn around, don't go to my house, and he told me
admitted as exhibits and portions of the first
he would go wherever he wanted to go.
statement were introduced through the testimony of
And I kept telling him to go to his mom's. I would
Texas Ranger Dwayne Goll, who responded to the
walk him there. And he just wasn't listening, and
911 call and later took Priscilla's statement. In
so we stood there yelling for a little while.
Priscilla's first statement, she communicated that she
...
went out with Jimmie on the night of the offense, that
And then he punched me in the eye. And when he
they continued drinking after going out, that Jimmie
did that, I started yelling even more, and I yelled at
got angry at her, that Jimmie called her "a bitch and
him for punching me, and he hit me in the head,
[told] me to go see my boyfriend," that Jimmie walked
and I started backing up when I was yelling.
home, that she met Jimmie outside, that Jimmie
...
started yelling, that Jimmie threw her down, that she
He spit in my face, and then I hit him in the mouth.
started kicking Jimmie, that Jimmie removed her boot,

that Jimmie started hitting her in the face, that she hit
Furthermore, Priscilla testified that she ran for the
him in the mouth and made his lip bleed, and that
house, that Jimmie arrived a minute later, that she
Jimmie started spitting on her. In the statement,
told Leach what happened and asked her to wake
Priscilla also related that after going inside the house,
Stone up, that Jimmie started yelling, that Jimmie
she attempted unsuccessfully to wake her brother up,
pushed her when Leach was not looking, that she
noticed a pan in the kitchen, and used the pan to hit
grabbed a pan as she was falling, that she hit Jimmie
Jimmie in the back of the head twice. Regarding the
with the pan when she got up, that she kept telling
offense, Priscilla recalled in her statement that Jimmie
Jimmie to leave while she was hitting him, that she hit
threw a knife at her and that when he threw it a
him two or three times with the pan, that Jimmie threw
second time, she picked it up and stabbed him.
a knife "at my feet," and that she picked up the knife.
Specifically, she wrote that "I did not intend to stab
Next, she explained that she stabbed Jimmie with the
him when the knife came out. To me I did not swing it.
knife when he came towards her, that she did not
I just went like that, and I turned around and stabbed
intend to kill him, and that she was afraid that her life
him." In addition, Priscilla informed the police that she
was in danger. In addition, she testified that after she
told Jimmie that she was sorry, that Stone told her to
stabbed Jimmie, she let go of the knife. Moreover,
leave, that she left the house and started walking, and
she stated that after Stone woke up and went to
that she turned herself in hours later. Finally, Priscilla
check on Jimmie outside, she realized that "Jimmie
explained in her statement that "[i]t was not really
was actually hurt," that she "ran outside," and that she
unusual for Jimmie to hit me," that she thought this
saw "blood everywhere." Priscilla also explained that
incident happened because everyone was very drunk,
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2015 #26 (June 15-19, 2015)
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and that at the time of the offense, she and Jimmie
nature and that at some point in the evening, Jimmie
were both seeing other people and were only living
became aware that the texts were being exchanged.
together for the sake of their young daughter.

In addition to the testimony above, Aguilar and
In addition to pointing to her own testimony regarding
Priscilla's aunt, Rosalinda Mendez, both testified
her history with Jimmie and regarding the events at
regarding their interactions with Priscilla after the
issue, Priscilla also relies on testimony from
offense. In her testimony, Mendez explained that
individuals who observed her prior interactions with
when she saw Priscilla after the incident, Priscilla had
Jimmie as support for the idea that Jimmie was
bruises on one of her cheeks and on her back and
physically abusive, that Jimmie initiated the conflict on
had what looked to be "the beginning of a black eye."
the night in question, and that she feared for her life
Furthermore, Mendez stated that Priscilla told her that
when she stabbed Jimmie. Specifically, she points to
Jimmie "hit her and that he was kicking her."3
the testimony of her mother, Diane Aguilar, who
Similarly, Aguilar testified that when she saw Priscilla
explained that on two prior occasions Priscilla told her
on the day after the offense, Priscilla had bruises on
that Jimmie had hit her and had thrown "snot on her."
one of her wrists and on one of her eyes.
In addition, Priscilla refers to the testimony of Duarte

in which Duarte explained that during the time that
Finally, when making her sufficiency challenge,
she lived with Jimmie and Priscilla, she heard Jimmie
Priscilla refers to testimony from Dr. Lisa Watts, who
threaten to kill Priscilla and saw Jimmie physically
discussed battered-women's syndrome and post-
assault Priscilla. Moreover, Duarte also testified that
traumatic stress disorder and described how those
Jimmie called her home on the night of the offense
conditions might have been in play during the offense.
looking for Acosta, that Jimmie was intoxicated when
Specifically, Dr. Watts diagnosed Priscilla as suffering
he made the call, and that Jimmie threatened to kill
from both conditions, described prior physical
Acosta during the call because of his affair with
altercations that allegedly occurred between Priscilla
Priscilla.
and Jimmie, revealed sexual abuse that Priscilla had

experienced in her life that was committed by
During the trial, Acosta also testified regarding his
individuals other than Jimmie, and stated that based
observations from the time that he was living with
on her review of this case and of Priscilla's history,
Jimmie and Priscilla. Specifically, he stated that he
she did not believe that Priscilla intended to kill
heard Priscilla and Jimmie argue regularly and saw
Jimmie; on the contrary, Dr. Watts surmised that
them hit one another; however, Acosta clarified that
Priscilla "was just trying to protect herself and remove
he only saw Priscilla hit Jimmie after Jimmie hit her
the immediate danger." In addition, Dr. Watts testified
first. Moreover, Acosta characterized Jimmie and
that she believed that Priscilla was afraid for her life
Priscilla's relationship as unstable, described Jimmie
on the night of the offense. Moreover, Dr. Watts
as the aggressor, and recalled that he feared for
explained that it was not uncommon for individuals
Priscilla's life when Jimmie got violent. Furthermore,
suffering from post-traumatic stress disorder to forget
he testified that on the night of the offense, he and
details of traumatic events and to appear unemotional
Priscilla were exchanging texts that were sexual in
after an event.
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However, in addition to the testimony from Priscilla
kitchen, Priscilla "threw one knife at him and it stuck
regarding the offense at issue, the State called Leach
in the ground in the floor, and he picked it up by the
to the stand to testify regarding what she witnessed
blade and told her, "[']you missed me, Bitch, try again.
on the night of the offense. When describing Priscilla
[']" When describing that statement, Leach explained
and Jimmie's relationship, Leach stated that they
that Jimmie did not yell the statement or move toward
"seemed happy for the most part" but that she had
Priscilla. Next, Leach testified that Jimmie handed the
observed them argue before.4 Regarding the night in
blade back to Priscilla and that when he handed the
question, Leach mentioned that she asked Priscilla
knife back, he held the knife by the blade.5
about some hickeys on her neck and that Priscilla
Furthermore, Leach recalled that after Jimmie
admitted that someone other than Jimmie had given
returned the knife, he and Priscilla continued to argue
them to her. Next, she stated that after she fell asleep
and that when Priscilla turned to walk away, Jimmie
on the sofa in Priscilla's home, she woke up when she
"told her to go fuck another kid." In addition, Leach
heard Priscilla and Jimmie arguing, and Leach
explained that after Jimmie made that statement,
testified that she saw Priscilla come in the front door
Priscilla held the knife high above her head, turned
followed by Jimmie. Moreover, Leach explained that
around, stabbed Jimmie in the chest, backed up, and
Priscilla told her that Jimmie "had hit her or something
said, "ha, Bitch." When describing the offense, Leach
and she was missing a boot, and she was yelling at
stated that she saw Priscilla walk away, saw Jimmie
him because" he threw her boot. Furthermore, Leach
pull the knife out, watched Jimmie walk outside, and
recalled that it looked like someone had spit around
heard Jimmie say "don't call the cops."
Priscilla's eyebrow and that there was blood in the

spit. When describing her interactions with Jimmie,
Regarding the events that occurred after the offense,
Leach explained that she asked him if he hit Priscilla
Leach explained that she went outside to see if she
and that Jimmie said that he "did not lay a hand on
could help and that after she went outside, Priscilla
her" but did admit that he spit on Priscilla.
ran outside, grabbed Jimmie's arm, and "was trying to

jerk him up like get him to set up or something";
After discussing her conversation with Jimmie, Leach
however, Leach also revealed that Jimmie did not
revealed that she watched Jimmie and Priscilla go
move or say anything. Furthermore, Leach testified
into the kitchen, heard them continue their argument,
that Priscilla kept saying that she was sorry and was
and observed Priscilla pick up a pan and start hitting
freaking out. In addition, Leach testified that Priscilla
Jimmie in the head multiple times with it. Moreover,
came back in the house to try to get Stone to wake up
Leach explained that Jimmie did not try to hit Priscilla
and that Priscilla kicked the knife under the couch2;
back and, in fact, "did not raise his hand to her at all"
however, Leach explained that she did not know if
or threaten her in any way during the entire
Priscilla kicked the knife intentionally or not. Next,
encounter. Next, Leach revealed that she saw
Leach explained that Stone told Priscilla that he was
Priscilla grab "a handful of knives" from nearby in the
going to call the cops and that Priscilla said that she
kitchen and said that after Priscilla grabbed the
would wait for the cops to arrive but that after Stone
knives, Jimmie attempted to leave the kitchen and
went inside to make the call, Priscilla disappeared.
come back to the living room. Further, Leach stated

that when Jimmie was attempting to leave the
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In addition to the testimony from Leach regarding the
and that when she drinks and gets mad, she can get
events that she witnessed, the State also called
violent.4
Bennett to the stand to discuss her observations of

Priscilla and Jimmie's relationship.3 In her testimony,
Furthermore, the jury also had the benefit of
Bennett described Jimmie as "real calm and quiet"
examining the signed statements that Priscilla made
and said that he was not a violent person.
to the police. In a portion of her second statement,
Furthermore, although she admitted that she saw
Priscilla explained that "Jimm[ie] handed me the
Jimmie and Priscilla argue, she testified that Priscilla
knife . . . and I threw it and Jimm[ie] picked it up and
was the aggressor and started the arguments. In
gave it back to me and that's when I stabbed him. I
addition, Bennett related that she had been around
don't know why I stabbed him." In addition, she
Jimmie and Priscilla when they were drinking and that
explained that "When I'm drunk I'm usually fine until
Priscilla loses her temper when she drinks. During her
somebody sets me off and I get out of hand then. I
testimony, Bennett also explained that she was only
get mean. Whenever I'm drinking everything gets to
aware of one physical altercation between Jimmie
me. Everything just piles up on my mind. Jimm[ie] set
and Priscilla and agreed that Priscilla had sustained
me off the night of the stabbing."
injuries during the altercation, but Bennett reaffirmed

that Priscilla was the aggressor in the relationship.
In addition, the jury was aided by the testimony from

Priscilla and Leach showing that Priscilla left the
In light of the evidence summarized above, there
scene of the offense, see Devoe v. State, 354 S.W.3d
were conflicts in the evidence regarding not only the
457, 470 (Tex. Crim. App. 2011) (explaining that flight
events immediately preceding the stabbing but also
can support inference of guilt), and from the portion of
regarding whether Priscilla or Jimmie was the
Priscilla's testimony in which she admitted that after
aggressor in their relationship, and the resolution of
she fled, she made no attempt to check on Jimmie or
those conflicts turned on the weight and the credibility
otherwise inquire about him until hours later when she
that the jury chose to give to the testimony and
called her father. Furthermore, when deciding what
evidence presented during the trial. In resolving the
weight to give the conflicting testimonies, the jury was
conflicts between Priscilla's and Leach's testimonies
aware that many of the individuals who testified that
regarding the offense, the jury was aided by other
Jimmie had previously assaulted Priscilla were either
portions of Priscilla's testimony. Specifically, in her
related to Priscilla or had been in a romantic
testimony, Priscilla admitted that she has a temper
relationship with her, and the jury was also aware that
and will get mean if she drinks and further admitted
Leach was dating Priscilla's brother at the time of the
that she was intoxicated on the night that Jimmie
offense and was still dating him at the time of the trial
died. In addition, she recalled that Jimmie did not hit
when she testified for the State. In addition, the jury
her in the house prior to her stabbing him and instead
heard testimony from Officer Goll and Deputy Sheriff
"just pushed" her. Moreover, Priscilla acknowledged
Connie Baker regarding Priscilla's demeanor during
that she signed the statements that she gave to the
their conversations with her after the offense. In
police after the offense in which she stated that she
particular, Officer Goll stated that Priscilla "was pretty
was drinking on the night that she stabbed Jimmie
matter of fact, and we went through the questions and

answers pretty easily," and Officer Baker testified that
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2015 #26 (June 15-19, 2015)
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when Priscilla modified her statement that she initially
were not justified by a reasonable belief that deadly
made to the police, Priscilla did not appear to be
force was immediately necessary to protect her
expressing any remorse. In addition, Officer Goll
against Jimmie's use or attempted use of unlawful
explained that he photographed and examined
deadly force. See Tex. Penal Code 9.31(a), (b)(1),
Priscilla's hands to see if there were any defensive
19.02(b)(1). Given that courts reviewing a legal-
wounds but that there were no wounds on her hands.
sufficiency challenge consider the evidence in the

light most favorable to the verdict and bearing in mind
When resolving the inconsistencies in the evidence,
the jury's role in weighing and resolving
the jury was also guided by testimony from Priscilla,
inconsistencies in the evidence, we must conclude
Aguilar, and Officer Baker regarding Priscilla's prior
that a rational jury could have found that the State
conviction for domestic violence stemming from an
proved each element of the offense of murder beyond
incident in which she assaulted her younger brother.
a reasonable doubt and also found beyond a
Regarding the incident, Priscilla recounted that she
reasonable doubt that Priscilla's conduct was not
became intoxicated and fought with her younger
justified self-defense. Accordingly, we conclude that
brother at her mother's house, and she also explained
the evidence is sufficient to support Priscilla's
that she attempted to throw a rock at the house in
conviction and overrule her second issue on appeal.
order to break a window and get in the home.

Similarly, Aguilar testified that Priscilla hit her younger
Sudden Passion
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.
CONCLUSION
Finally, the jury was aided by Dr. Watts's
Having overruled both of Priscilla's issues on appeal,
acknowledgment that much of her opinion regarding
we affirm the district court's judgment of conviction.
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
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2015 #26 (June 15-19, 2015)
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UTAH
State v. Walker, 2015 UT App 153 (UT Ct. App. 2015)
Key issues:
Victims prior acts of violence, admissibility in self-defense case
Imminence
Reasonableness
Date:
June 18, 2015
Decision:
Frontis Walker Jr. has been charged with aggravated
face, knocking him unconscious and causing him to
assault and intends to claim that he acted in self-
suffer an apparent seizure.
defense. Walker filed a motion in the district court

seeking to admit evidence of his alleged victim's prior
Walker claimed that he struck Cousin in self-defense.
acts of violence, which Walker argues is admissible
In support of that claim, Walker filed a motion in the
pursuant to the Utah Rules of Evidence and Utah
district court seeking to admit evidence of specific
Code section 76-2-402(5). The district court granted
acts of violence Cousin had committed between 1996
Walker's motion in part and denied it in part. Walker
and 2013. This evidence included four domestic-
brings this interlocutory appeal from the district court's
violence assault convictions resulting from acts
order. We vacate the district court's order and remand
occurring in 1996, 1997, 2003, and 2007; a conviction
this matter for further proceedings, including
for a 2009 battery; four allegations of various assaults
reevaluation of the admissibility of the proposed self-
occurring in 1998, 2007, 2012, and 2013; and the
defense evidence.
testimony of two witnesses who would state that

Cousin had become "intoxicated and violent" on
BACKGROUND
several occasions. Walker's motion argued that the

evidence consisted of Cousin's "prior violent acts or
The State charged Walker with aggravated assault
violent propensities" and was therefore admissible
following an altercation between Walker and his
under Utah Code section 76-2-402(5) to show the
girlfriend's cousin (Cousin).1 On February 12, 2013,
imminence of the threat to Walker and the
Cousin visited the home that Walker shared with his
reasonableness of his response. Walker also argued
girlfriend. Walker and Cousin argued over whether
that Cousin's history was admissible under the Utah
Cousin could drink beer in the house. At some point,
Rules of Evidence without resort to section
Walker told Cousin that he wanted to take the dispute
76-2-402(5). In response, the State filed a motion to
outside. Once outside, Walker punched Cousin in the

exclude the evidence.
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2015 #26 (June 15-19, 2015)
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ANALYSIS
After a hearing on the competing motions, the district
court ruled that Cousin's 1997 felony conviction was
Utah Code section 76-2-402 permits a defendant to
admissible pursuant to the State's stipulation and rule
assert self-defense in certain circumstances. "A
609(a)(1) of the Utah Rules of Evidence. The district
person is justified in threatening or using force against
court also "strictly constru[ed]" Utah Code section
another when and to the extent that the person
76-2-402(5) to conclude that Cousin's "prior violent
reasonably believes that force or a threat of force is
acts are admissible to show whether the defendant
necessary to defend the person . . . against another
reasonably believed that force was necessary and the
person's imminent use of unlawful force." Utah Code
danger was imminent." However, recognizing that
Ann. 76-2-402(1) (LexisNexis 2012). Section
"this is a novel issue and there is no applicable case
76-2-402(5) expressly identifies certain factors that
law," the district court ruled that Walker "may only
may be considered in evaluating the reasonableness
admit evidence of prior violent acts that can be
and imminence aspects of a self-defense claim:
proven in the form of certified convictions within the

last ten years." This ruling established the
In determining imminence or reasonableness
admissibility of three more convictions, those
under Subsection (1), the trier of fact may
occurring in 2003, 2007, and 2009.
consider, but is not limited to, any of the following

factors: (a) the nature of the danger; (b) the
We granted Walker's petition for interlocutory review
immediacy of the danger; (c) the probability that
of the district court's ruling.
the unlawful force would result in death or serious

bodily injury; (d) the other's prior violent acts or
ISSUE AND STANDARD OF REVIEW
violent propensities; and (e) any patterns of abuse

or violence in the parties' relationship.
Walker argues that all of Cousin's prior violent acts

must be admitted at his trial pursuant to both Utah
Id. 76-2-402(5).
Code section 76-2-402(5) and the Utah Rules of

Evidence. For the reasons discussed herein, we limit
Walker intends to assert a claim of self-defense.
our discretionary review to the interpretation of Utah
Walker argues that evidence of Cousin's prior violent
Code section 76-2-402(5). See McCloud v. State,
acts must be admitted under the plain language of
2013 UT App 219, 19 n.3, 310 P.3d 767 (limiting the
Utah Code section 76-2-402(5) to show that Walker
scope of an interlocutory appeal to a single issue
reasonably believed force was necessary to defend
despite briefing of additional issues); Gunn Hill Dairy
himself against Cousin's imminent use of unlawful
Props., LLC v. Los Angeles Dep't of Water & Power,
force. Walker contends that section 76-2-402(5)
2012 UT App 20, 20-21, 269 P.3d 980 (discussing
supersedes the Utah Rules of Evidence because it
discretionary nature of interlocutory appeals).
substantively affects the elements of a self-defense
"Questions of statutory interpretation are matters of
claim. In the alternative, Walker argues that section
law, which we review for correctness." State v.
76-2-402(5) implements evidentiary or procedural
Graham, 2011 UT App 332, 14, 263 P.3d 569.
changes that effectively amend the Utah Rules of

Evidence.
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2015 #26 (June 15-19, 2015)
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factfinder's evaluation of a self-defense claim. Section
We first address Walker's contention that Utah Code
76-2-402(5) thereby establishes that the enumerated
section 76-2-402(5) has a substantive effect on the
factors may not be categorically excluded as
law of self-defense. According to Walker, section
potentially admissible evidence. Section 76-2-402(5)
76-2-402(5)(d) "is either a substantive law that
also serves as a guide for judges and practitioners by
defines 'reasonableness' and 'imminence' in the
identifying factors that may be useful in establishing
context of self-defense or it is a prima facie rule of
or refuting self-defense. But we cannot read the
evidence that is so intertwined with the substantive
language "may consider" as enshrining an absolute
right to plead self-defense that the Court must treat it
right to admit evidence of an alleged victim's prior
as substantive." We disagree.
violent acts or propensities. Nor does the language

otherwise substantively change the law of self-
Nothing in the plain language of section 76-2-402(5)
defense.
suggests that the factors enumerated therein are

intended to substantively alter the definitions of
By way of comparison, the Utah Supreme Court has
reasonableness or imminence. Rather, that section
held that the Legislature substantively changed the
provides that "the trier of fact may consider" the
law of negligence when it enacted Utah Code section
enumerated factors, including an alleged victim's
41-6-186. See Ryan v. Gold Cross Servs., Inc., 903 P.
violent acts and propensities. Utah Code Ann.
2d 423, 425 (Utah 1995). Section 41-6-186 stated,
76-2-402(5) (emphasis added). The ultimate question
"The failure to wear a seat belt does not constitute
before the trier of fact remains the reasonableness of
contributory or comparative negligence, and may not
a defendant's belief that force was necessary to
be introduced as evidence in any civil litigation on the
defend against another's imminent use of unlawful
issue of injuries or on the issue of mitigation of
force. See id. 76-2-402(1). Further, since the Utah
damages." Utah Code Ann. 41-6-186 (Michie 1988).
Legislature enacted section 76-2-402(5), both this
Rejecting a challenge that the statute violated
court and the Utah Supreme Court have stated that a
constitutional restrictions on the Legislature's power
claim of self-defense "'does not place . . . character at
to make evidentiary rules, the supreme court
issue.'" State v. Campos, 2013 UT App 213, 87, 309
concluded that "the statute's operative provisions
P.3d 1160 (omission in original) (quoting State v.
announce a substantive principle: 'The failure to wear
Leber, 2009 UT 59, 23, 216 P.3d 964). This
a seat belt does not constitute contributory or
statement appears to be incompatible with Walker's
comparative negligence . . . .'" Ryan, 903 P.2d at 425
assertion that "the purpose of [section] 76-2-402(5)(d)
(omission in original). Here, there is no corresponding
is to bestow defendants with the right to present
language in Utah Code section 76-2-402(5) that
evidence with broad narrative value of the alleged
effects any substantive change to the law of self-
victim's violent character." (Citation and internal
defense.
quotation marks omitted.)

Walker also argues that the Legislature intended
We conclude that section 76-2-402(5) does just what
section 76-2-402(5) to amend the Utah Rules of
its plain language states--it identifies a nonexclusive
Evidence. Walker contends that the language "may
list of factors that may appropriately bear on a
consider . . . any of the following factors" means that
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2015 #26 (June 15-19, 2015)
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evidence of the enumerated factors must necessarily
Const. art. VIII, 4). Here, although the parties agree
be admitted for the factfinder's consideration. See
that section 76-2-402(5) was enacted by a two-thirds
Utah Code Ann. 76-2-402(5) (LexisNexis 2012). We
vote, it was not enacted by joint resolution. Nor did
are not convinced that the Utah Legislature intended
the enacting bill expressly purport to amend the Utah
section 76-2-402(5) to amend the Utah Rules of
Rules of Evidence. Thus, even though section
Evidence.
76-2-402(5) was adopted by a two-thirds majority, "it

constitutes an amendment to a statute, not an
As discussed above, the plain language of section
amendment to a rule of procedure adopted by the
76-2-402(5) states only that the trier of fact "may
Supreme Court." See Allred, 2014 UT 43, 3 n.2, 342
consider" a non-exhaustive list of factors. See id. This
P.3d 204; see also State v. Larsen, 850 P.2d 1264,
statutory language does not expressly purport to
1266-67 (Utah 1993) ("It would appear that article
amend or override any provisions of the Utah Rules of
VIII, section 4 requires any legislation which amends
Evidence; indeed, it does not even use the word
a court rule to comply with the same legislative joint
"evidence," speaking instead in terms of "factors."
rules and practice governing amendments to statutes,
Further, the bill enacting section 76-2-402(5)
that is, to refer to the rule specifically by number and
contained a statement of legislative intent, indicating,
indicate how it is to be amended." (citing Utah House
"It is intended that otherwise competent evidence
and Senate Joint Rule 4.11)).
regarding a victim's response to patterns of domestic

abuse or violence be considered by the trier of fact in
In light of the statute's plain language and the
determining reasonableness or imminence." H.B. 13,
Legislature's statement of intent in enacting Utah
50th Leg., Gen. Sess. (Utah 1994) (emphasis added).
Code section 76-2-402(5), as well as to avoid
Because the Utah Rules of Evidence comprise the
separation-of-powers concerns, we decline Walker's
yardstick by which evidence is deemed "competent,"
invitation to interpret that section as amending or
the reference to "otherwise competent evidence"
otherwise affecting the application of the Utah Rules
strongly suggests that the Legislature did not intend
of Evidence. Thus, while section 76-2-402(5)
for section 76-2-402(5) to override or amend the Utah
identifies a non-exclusive list of factors that may be
Rules of Evidence.
considered, evidence in support of those factors must

still satisfy the Utah Rules of Evidence to be
We also note that, in enacting section 76-2-402(5),
admissible.
the Utah Legislature did not employ the procedure

that has been recognized as the method by which the
Walker also argues that Cousin's prior violent acts are
Legislature can constitutionally amend the Utah Rules
admissible under the Utah Rules of Evidence without
of Evidence. "While the Legislature has the
regard to Utah Code section 76-2-402(5). We decline
constitutional authority to amend the Rules of
to evaluate that issue at this interlocutory stage of the
Procedure and Evidence adopted by the Utah
proceedings. It is apparent from the district court's
Supreme Court, it may only do so by joint resolution
ruling that the court made its evidentiary ruling under
adopted 'upon a vote of two-thirds of all members of
the erroneous impression that Utah Code section
both houses of the Legislature.'" Allred v. Saunders,
76-2-402(5) controlled over the ordinary evidentiary
2014 UT 43, 3 n.2, 342 P.3d 204 (quoting Utah
rules. Thus, the district court has yet to analyze the
__________________________________________________________________________________________
Page 40 of 41

2015 #26 (June 15-19, 2015)
__________________________________________________________________________________________
prior violent acts under the applicable evidentiary
may pursue those arguments before the district court
rules, and we decline to conduct that analysis in the
on remand.
first instance. See Gunn Hill Dairy Props., LLC v. Los

Angeles Dep't of Water & Power, 2012 UT App 20,
CONCLUSION
20-21, 269 P.3d 980 (discussing discretionary nature

of interlocutory appeals). Additionally, at least one of
We conclude that evidence of an alleged victim's prior
Walker's evidentiary arguments--that the prior acts
violent acts or propensities--and the other factors
evidence is admissible under the doctrine of chances,
enumerated in Utah Code section 76-2-402(5)--must
see State v. Verde, 2012 UT 60, 47-62, 296 P.3d
satisfy the Utah Rules of Evidence to be admissible.
673--does not appear to have been presented to the
We therefore vacate the district court's evidentiary
district court in support of Walker's motion to admit
ruling and remand this matter for further proceedings
the evidence. "As a general rule, claims not raised
consistent with this opinion.
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
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
__________________________________________________________________________________________
Page 41 of 41

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Law of Self Defense: Weekly Law Report

2015 #26 (June 15-19, 2015)

Law of Self Defense: Weekly Law Report

Frequently Asked Questions

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Law of Self Defense: Weekly Law Report

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June 18, 2015

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Law of Self Defense: Weekly Law Report

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Date: June 16, 2015

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Victims prior acts of violence, admissibility in self-defense case

Date: June 18, 2015

Law of Self Defense: Weekly Law Report

June 18, 2015

deny incriminating evidence; 6. defense counsel at

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

trial rendered ineffective assistance when he failed to

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

object to the improper jury instructions; and 7. the

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

cumulative effect of these errors requires reversal.

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

and intentionally discharged a firearm in committing

sentenced appellant to a total term of 50 years to life

Appellant was a methamphetamine dealer. In 2006,

Appellant contends: 1. the trial court erred when it

customers, Paula Napoli. By 2010, their relationship

refused to limit the prosecutor's use of the word

soured. The couple fought frequently and sometimes

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

violently. On one occasion in 2010, appellant spit in

trial court admitted evidence of his nine prior felony

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

convictions and of his uncharged misconduct in

her shoulders, causing her head to hit the concrete

selling and using methamphetamine and in physically

beneath her. During other fights, he stabbed her in

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

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

court erred when it instructed the jury that it could

brake cleaner on her and ripped a necklace from her

consider appellant's prior felonies in determining his

neck. In June 2010, appellant sprayed Napoli with

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

pepper spray. He also injured her by stepping on her

erred in its instructions to the jury regarding self-

foot while he was wearing boots.

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

Appellant became friends with Darren Ziegler in 2005.

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

Law of Self Defense: Weekly Law Report

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

worked on cars together. Their friendship ended in

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

2008 or 2009 after Ziegler accused appellant of

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