2015 #20 self defense weekly law report

Law of Self Defense: Weekly Law Report 2015 #20 (May 4-10, 2015)__________________________________________________________________________________________

__________________________________________________________________________________________ 2015 © www.lawofselfdefense.com of 17

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 week’s “Law of Self Defense: Weekly Law Report.”

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

A: No. Many cases that involve issues of self-defense also involve other issues unrelated to self-defense; we only summarize the portions of the cases that directly involve issues of self-defense law. We also strip out

much of the introductory commentary of the case, for purposes of efficiency. What we do include are the case citation, a list of the key self-defense law issues covered in that case, the date of the decision, and the

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

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

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

A: Every case summarized here is hyperlinked back to the full-length version of that case. We do, in fact, strongly encourage you to read the entire text of any cases of particular interest to you, as that is the best

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

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

A: The cases are organized by state, in alphabetical order, first listed in summary fashion in the Table of Contents and then by individual case.

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

A: For almost two decades Law of Self Defense has been providing non-lawyers as well as police officers, defense attorneys, prosecutors, and judges with world-class instruction on self-defense law. We encourage

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consider one of our state-specific live Law of Self Defense Seminars held all over the country or state-specific online training classes. And, of course, there’s always the Law of Self Defense Blog.



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TABLE OF CONTENTS

NORTH CAROLINA

State v. Robinson, 2015 N.C. App. LEXIS 362 (NC Ct. App. 2015) Key issues: Knife deadly weapon as a matter of law when used to cause serious injury,

regardless of character of knife; pre-arrest silence & failure to call the police can be used against you

Date: May 5, 2015

State v. Branch, 2015 N.C. App. LEXIS 349 (NC Ct. App. 2015)Key issues: Innocence (first aggressor); Proportionality (knife against unarmed

opponent); Reputation/character evidence.Date: May 5, 2015

TEXAS

Espinoza v. State, 2015 Tex. App. LEXIS 4699 (TX Ct. App. 2015)Key issues: Burden of production on the defendant; burden of persuasion on the State.Date: May 7, 2015

Wilcut v. State, 2015 Tex. App. LEXIS 4572 (TX Ct. App. 2015)Key issues: Burden of production on the defendant; burden of persuasion on the State;

defense of property, defense of others.Date: May 6, 2015

VIRGINIA

Buchanan v. Commonwealth, 2015 Va. App. LEXIS 153 (VA Ct. App. 2015)Key issues: Excusable v. justified homicide; admissibility of defendant’s text messages.Date: May 5, 2015

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http://lawofselfdefense.com/law_case/state-v-robinson-2015-n-c-app-lexis-362-nc-ct-app-2015/


http://lawofselfdefense.com/law_case/state-v-branch-2015-n-c-app-lexis-349-nc-ct-app-2015/


http://lawofselfdefense.com/law_case/espinoza-v-state-2015-tex-app-lexis-4699-tx-ct-app-2015/


http://lawofselfdefense.com/law_case/wilcut-v-state-2015-tex-app-lexis-4572-tx-ct-app-2015/


http://lawofselfdefense.com/law_case/buchanan-v-commonwealth-2015-va-app-lexis-153-va-ct-app-2015/




NORTH CAROLINA

State v. Robinson, 2015 N.C. App. LEXIS 362 (NC Ct. App. 2015)

Key issues: Knife deadly weapon as a matter of law when used to cause serious injury, regardless of

character of knife; pre-arrest silence & failure to call the police can be used against you

Date: May 5, 2015

Decision:

II. Analysis

[ . . . ]

B. Jury instructions for lesser included offense

[ . . . ]

In the present case, Robinson complains that the trial court erred by declining to instruct the jury on assault

inflicting serious injury because it did not instruct the jury that the brass knuckle-handled pocketknife that

Robinson admitted to stabbing Pelcher with was a deadly weapon as a matter of law. By Robinson's

logic, the fact that the trial court did include a jury instruction on simple assault demonstrates that the

issue of whether or not the knife was a deadly weapon was a matter for the jury's determination and

also implies that the evidence was sufficient to support a finding by the jury that Pelcher was

intentionally cut or stabbed with a weapon that was not deadly. In support of this argument, Robinson

cites our Supreme Court's decision in State v. Palmer, 293 N.C. 633, 239 S.E.2d 406 (1977), which

recognized that,

[w]here the allegedly deadly weapon and the manner of its use are of such character as to

admit of but one conclusion, the question as to whether or not it is deadly within the foregoing

definition is one of law, and the [trial c]ourt must take the responsibility of so declaring. . . . But

where it may or may not be likely to produce fatal results, according to the manner of its use, or the

part of the body at which the blow is aimed, its allegedly deadly character is one of fact to be

determined by the jury.

Id. at 643, 239 S.E.2d at 413 (citation omitted). As such, Robinson argues that the trial court's failure to

instruct on the lesser included offense of assault inflicting serious injury deprived the jury of the only

option by which it could have concluded that although Pelcher's injuries were serious, Robinson acted

without a deadly weapon.

There are several reasons why this argument fails. First, although our State's appellate courts have long

acknowledged that "the evidence in each case determines whether a certain kind of knife is properly

characterized as a lethal device as a matter of law or whether its nature and manner of use merely raises a

factual issue about its potential for producing death," see, e.g., State v. Sturdivant, 304 N.C. 293, 301, 283

S.E.2d 719, 726 (1981) (citations omitted), our prior decisions have also made clear that "[t]he definition of







a deadly weapon clearly encompasses a wide variety of knives. For instance, a hunting knife, a kitchen

knife, and a steak knife have been denominated deadly weapons per se. . . . A pocketknife is also

unquestionably capable of causing serious bodily injury or death." Id. at 301, 283 S.E.2d at 725-26; see

also State v. Collins, 30 N.C. 407, 409, 412 (1848) (opining that a pocketknife with a two and a half-inch

blade was a deadly weapon as a matter of law); State v. Cox, 11 N.C. App. 377, 380, 181 S.E.2d 205, 207

(1971) (holding that a knife with a three-inch blade constitutes a deadly weapon per se when used as a

weapon in an assault). Moreover, "well-established principles of North Carolina law allow the extent to

which a particular instrument is a deadly weapon to be inferred based on the effects resulting from the

use made of that instrument." State v. Walker, 204 N.C. App. 431, 446, 694 S.E.2d 484, 494 (2010)

(holding that a small knife was a deadly weapon where the defendant used it to wound the victim's lip,

arm, and back and cause a puncture wound to the victim's lung, resulting in substantial bleeding and

inflicting injuries requiring significant medical treatment); see also State v. Graham, 186 N.C. App.

182, 195, 650 S.E.2d 639, 648 (2007) (holding that the serious nature and extent of the victim's injuries

were sufficient for the trial court to instruct the jury that a knife was a deadly weapon as a matter of law

where one was used to stab a victim nine times resulting in a collapsed lung and other life-threatening

injuries requiring surgery), appeal dismissed and disc. review denied, 362 N.C. 477, 666 S.E.2d 765 (2008);

State v. Smallwood, 78 N.C. App. 365, 369, 337 S.E.2d 143, 145 (1985) ("Where the victim has in fact

suffered serious bodily injury or death, the courts have consistently held that a knife is a dangerous or

deadly weapon per se absent production or detailed description.").

When considered collectively, the prior cases from this Court and our Supreme Court make clear that

when a knife is used in an assault as a knife or in any other way "likely to produce death or great bodily

harm," it is proper to instruct the jury that it is a deadly weapon as a matter of law. See, e.g., State v. Torain,

316 N.C. 111, 121, 340 S.E.2d 465, 471 (citation omitted), cert. denied, 479 U.S. 836, 107 S. Ct. 133,

93 L. Ed. 2d 77 (1986). In fact, as our Supreme Court noted in Torain, where a knife "is of such character as

to admit of but one conclusion," the trial court commits harmless error by leaving the question of its

deadly character for the jury's determination. Id. at 119, 340 S.E.2d at 470. Indeed, in State v. McKinnon,

54 N.C. App. 475, 283 S.E.2d 555 (1981), this Court rejected a defendant's argument that his conviction

for assault with a deadly weapon resulting in serious bodily injury should be vacated because the trial court

had submitted the question of whether the knife he used on the victim was a deadly weapon to the jury

and therefore, according to the defendant, should have also been required to instruct the jury on the

lesser included offense of assault inflicting serious injury. Id. at 476-77, 283 S.E.2d at 557. Instead, we

reasoned that because the uncontradicted evidence in the record demonstrated that the defendant's

assault caused the victim's lung to collapse, the circumstances of the knife's use "admit of but one

conclusion," thus making its deadly character a question of law for the trial court's determination. Id.

at 477, 283 S.E.2d at 557. We therefore held that "the trial court should have held that the pocketknife as

used by [the] defendant was a deadly weapon as a matter of law. There was, therefore, no error in the

court's failure to submit the lesser offense of [assault inflicting serious injury]." Id. at 478, 283 S.E.2d at

557.





Here, we are confronted with virtually the same issue as in McKinnon, and we reach a similar conclusion.

The uncontradicted evidence in the record demonstrates that Robinson used his brass knuckle-

handled pocketknife to stab Pelcher five times, resulting in wounds to his face, chest, back, rib cage,

and ear, cuts to several blood vessels, and a collapsed lung and kidney, which required emergency

surgery and left Pelcher hospitalized for one week, half of which he spent in a coma. Clearly then,

Robinson used his knife in a way that was "likely to produce death or great bodily harm." See Torain, 316

N.C. at 121, 340 S.E.2d at 471. We consequently have no trouble concluding that the trial court should

have instructed the jury that the knife was a deadly weapon as a matter of law. We further conclude that,

as recognized in Torain, the trial court's failure to properly instruct the jury on this issue constituted

harmless error. See id. at 119, 340 S.E.2d at 470 ("[A]llowing [the] jury to decide nature of

instrumentality is error in some cases, but the higher burden of proof . . . is advantageous to [the]

defendant and is therefore harmless error."). Moreover, Robinson cites no evidence whatsoever

from which a reasonable juror could rationally conclude that the brass knuckle-handled pocketknife

was used in any way other than as a deadly weapon, and our review of the record reveals none either. We

therefore conclude, as in McKinnon, that the evidence here does not support a jury instruction on the lesser

included offense of assault inflicting serious injury. Accordingly, we hold that the trial court did not err in

declining to instruct the jury on this charge.

C. Right to remain silent

Finally, Robinson argues that the trial court committed plain error by allowing the State to comment without

objection during cross-examination and in its closing

argument on Robinson's decision to exercise his right to remain silent. We disagree.

"A criminal defendant's right to remain silent is

guaranteed under the Fifth Amendment to the United States Constitution and is made applicable to the

States by the Fourteenth Amendment." State v. Richardson, N.C. App. , , 741 S.E.2d 434, 440 (2013).

North Carolina's appellate courts "have consistently held that the State may not introduce evidence that a

defendant exercised his [F]ifth [A]mendment right to remain silent." State v. Moore, 366 N.C. 100, 104, 726

S.E.2d 168, 172 (2012) (citations and internal quotation marks omitted). "If a defendant has been

given his Miranda warnings, his silence may not be used against him." Id. (citations and internal quotation

marks omitted). "The rationale underlying this rule is that the value of constitutional privileges is largely

destroyed if persons can be penalized for relying on them." Id. (citation, internal quotation marks, and

brackets omitted). As a result, the extent to which "the State may use a defendant's silence at trial depends

on the circumstances of the defendant's silence and the purpose for which the State intends to use such

silence." State v. Boston, 191 N.C. App. 637, 648, 663 S.E.2d 886, 894, appeal dismissed and disc. review

denied, 362 N.C. 683, 670 S.E.2d 566 (2008). This Court has previously explained that a defendant's pre-

arrest silence and post-arrest, pre-Miranda warnings silence may not be used as substantive evidence of

guilt, but may be used by the State to impeach the defendant by suggesting that the defendant's prior

silence is inconsistent with his present statements at trial. A defendant's post-arrest, post-Miranda warnings

silence, however, may not be used for any purpose. State v. Mendoza, 206 N.C. App. 391, 395, 698 S.E.

2d 170, 174 (2010) (citations and internal quotation marks omitted).





In the present case, Robinson alleges two separate violations of his right to remain silent. First, he

contends that the State repeatedly and impermissibly commented on his exercise of that right during cross-

examination based on the following exchange:

Q: Mr. Robinson, sir, after [Pelcher] tried to shoot and kill you with a gun, at what point did you

report this assault on you to the police?A: Excuse me?

Q: When did you call the police that you'd been assaulted with a gun?

A: Why didn't I call the police?Q: Yes.

A: He pulled a gun out on me.Q: Why didn't you call the police because you had

to stab a man who pulled a gun out on you?A: Shoot--why I call the police? I mean, I'm not

going to call the police when the man sit there and he trying to shoot me.

...Q: Well, when you saw a lot of blood from a man

you had cut, why didn't you call the police and say, Hey, this man tried to shoot me?

A: I was scared.Q: Scared of what?

A: Scared--scared--I just stabbed this man. First thing--first--my first reaction is that I'm going to go

to jail.Q: Well, your story to this jury is that this man was

trying to assault you. Why didn't you tell the police that?

A: Why would I tell the police that when the police trying to look for me for assault with a deadly

weapon with intent to kill?Q: So, you had no thought of calling the police

and telling this story that you're telling the jury to the police; is that correct?

A: No, I was already told--you know what I'm

saying--make sure you tell your attorney, talk to him.

Q: Well, since June the 9th when this happened how many people have you told this story to

about the drugs and being assaulted?A: Talked to my attorney.

Q: Who else?A: That's it.

Q: Nobody? Not one other person?A: That's the only person I'm supposed to talk to

is my attorney anyway--Q: You didn't tell Tech?

A: --situation like this.Q: You didn't tell Tech?

A: No, I ain't tell Tech nothing. Tech was with me. I don't even talk to Tech.

Q: You didn't tell your mother when you went to New York?

A: I didn't tell my mother? No, I didn't tell my mother nothing, you know what I'm saying? My

mother already knew--it was when I went to New York. Yeah, I told her about--he tried to assault

me with a gun. She knew--yeah, I mean, that's--of course that.

Q: So, when you went to New York you did tell your mother?

A: Yeah, I told my--yeah, I did tell my mother about he tried--he tried to shoot me with a gun,

yeah.Q: Well, where's your mother today?

A: She's in New York. She's at work.Q: Who else besides your mother did you tell this

story to?A: That's it.

Q: Your mother and your lawyer?A: Yes, sir.

[ . . . ]





Robinson contends that the trial court committed plain error by allowing the State to cross-examine him

about his failure to make any statement to law enforcement before trial. In support of this argument,

Robinson cites our recent decision in Richardson. In Richardson, we granted a new trial to a defendant

who had been convicted on two counts of assault with a deadly weapon with intent to kill inflicting serious

injury in conjunction with a nightclub shooting based on our determination that it was plain error for the trial

court to allow the State to cross-examine the defendant about his post-arrest, post-Miranda

warning silence--specifically, the fact that his trial testimony constituted the first statement he had made

to authorities since the night of the shooting--while also stressing the fact that, unlike the defendant,

other witnesses at the crime scene had given statements to investigating officers immediately after

the shooting. Richardson, at , 741 S.E.2d at 442-43.

Robinson argues that the same logic should apply here, but his reliance on Richardson is misplaced

because Richardson is easily distinguished from the present facts insofar as our decision there was based

on the State's express references on cross-examination to the defendant's post-arrest, post-

Miranda silence, see id., whereas here, the subject matter of the questions to which Robinson now

objects clearly relates to his pre-arrest silence. Our Supreme Court has long recognized that "[t]he use of

pre[-]arrest silence to impeach a defendant's

credibility on cross-examination does not violate the Fifth or Fourteenth Amendment to the United States

Constitution." State v. Bishop, 346 N.C. 365, 386, 488 S.E.2d 769, 780 (1997) (citing Jenkins v. Anderson,

447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980)). As this Court has explained,

[w]hen a defendant chooses to testify in his own behalf . . . his [Fifth A]mendment right to remain silent

must give way to the [S]tate's right to seek to determine, by way of impeachment, whether a

defendant's prior silence is inconsistent with his trial testimony. The test is whether, under the

circumstances at the time of arrest, it would have been natural for [the] defendant to have asserted the

same defense asserted at trial.

State v. McGinnis, 70 N.C. App. 421, 424, 320 S.E.2d 297, 300 (1984) (citation omitted). In the present

case, the State sought to impeach Robinson's credibility after he testified that he stabbed Pelcher in

self-defense by pointing out that if his testimony were true, he would have had both the opportunity and the

motive to share his version of the events with police, but instead fled to New York. This conduct, and the

silence that accompanied it, all occurred before Robinson was ever arrested, advised of his Miranda

rights, or had any contact whatsoever with law enforcement regarding the stabbing.

[ . . . ]

__________________________________________________________________________________________





NORTH CAROLINA

State v. Branch, 2015 N.C. App. LEXIS 349 (NC Ct. App. 2015)

Key issues: Innocence (first aggressor); Proportionality (knife against unarmed opponent);

Reputation/character evidence.

Date: May 5, 2015

Decision:

II. Admission of Evidence under Rule 404(b)

In his first argument, defendant contends that the trial court committed reversible error by allowing the State

to introduce, pursuant to North Carolina Rule of Evidence 404(b), evidence of his assault on Ms.

DeVaughn in 2006. Defendant argues that the evidence was improperly admitted "for the sole

purpose of establishing [defendant's] propensity for aggression." We conclude that the admission of the

404(b) evidence, even if erroneous, did not prejudice defendant.

A. Standard of Review

N.C. Gen. Stat. § 8C-1, Rule 404(b) provides that

"[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order

to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake,

entrapment or accident." [ . . . ]

B. Discussion

On appeal, defendant argues that, because he admitted intentionally cutting Michael and relied on

the defense of self-defense, the 404(b) evidence was not admissible to show intent or absence of accident.

"Assuming arguendo that such evidence was improperly admitted in the present case, we conclude

that the defendant has failed to carry his burden under N.C.G.S. ß 15A-1443(a) to establish any

resulting prejudice by showing a reasonable possibility that a different result would have been

reached at trial had the error not been committed." State v. Groves, 324 N.C. 360, 371, 378 S.E.2d 763,

770 (1989).

"'The elements of a charge under G.S. ß 14-32(b) are (1) an assault (2) with a deadly weapon (3) inflicting

serious injury (4) not resulting in death.'" State v. Ryder, 196 N.C. App. 56, 66, 674 S.E.2d 805, 812

(2009) (quoting State v. Aytche, 98 N.C. App. 358, 366, 391 S.E.2d 43, 47 (1990)). In this case,

defendant admitted to using a deadly weapon to inflict serious injury on Michael, but relied on a defense of

self-defense. As a result, the only factual issue for the jury's determination was whether defendant stabbed

Michael in self-defense.

Defendant argues that the admission of the 404(b) evidence compromised his ability to assert self-

defense against the charge of assault with a deadly weapon inflicting serious injury. "The theory of self-







defense entitles an individual to use 'such force as is necessary or apparently necessary to save himself

from death or great bodily harm. . . . A person may exercise such force if he believes it to be necessary

and has reasonable grounds for such belief.' Whether or not the belief was reasonable is a matter to be

determined by the jury 'from the facts and circumstances as they appeared to the accused at

the time.'" State v. Moore, 111 N.C. App. 649, 653, 432 S.E.2d 887, 889 (1993) (quoting State v. Marsh,

293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977)). "The right of self-defense is only available, however, to 'a

person who is without fault, and if a person voluntarily, that is aggressively and willingly, enters into a fight,

he cannot invoke the doctrine of self-defense unless he first abandons the fight, withdraws from it and

gives notice to his adversary that he has done so.'" State v. Allred, 129 N.C. App. 232, 235, 498 S.E.2d

204, 206 (1998) (quoting Marsh, 293 N.C. at 354, 237 S.E.2d at 747).

In this case the State presented overwhelming and

uncontradicted evidence that: (1) Michael was unarmed when he went to Durrell's house; (2) Michael

left Durrell's house first and defendant followed him outside; (3) during a fight lasting only a few seconds,

defendant cut Michael in his abdomen, and; (4) when bystanders separated defendant and Michael,

defendant threatened to kill Michael "next time" and threatened those around him. Defendant argues that

there was evidence that his hand was injured on the day of the fight, and that there was conflicting

evidence regarding who struck the first blow in the

fight, and whether the two men engaged in a verbal dispute before fighting. However, there was no

evidence presented from which a reasonable juror might infer that Michael was armed, that defendant

believed the use of deadly force was necessary to save himself from death or serious bodily injury, or

that such a belief would have been reasonable. Thus, even if the jury found that defendant's hand was

bandaged or that after he and Michael argued, Michael struck defendant with his hand, there was still

no evidence tending to show that defendant acted in self-defense. We conclude that there is no reasonable

possibility that the admission of the 404(b) evidence affected the outcome of the trial. This argument lacks

merit.

Because we hold that admission of the 404(b) evidence did not prejudice defendant, we do not

reach the issues of whether the evidence should have been excluded under North Carolina Rule of Evidence

403, or whether the trial court's instructions allowed the jury to consider the 404(b) evidence as proof of

issues that were not in dispute.

III. Conclusion

We hold that, even assuming, arguendo, that the trial court erred by admitting the challenged evidence

under North Carolina Rule of Evidence 404(b), defendant has failed to establish the requisite

prejudice from admission of the evidence.

[ . . . ]

__________________________________________________________________________________________





TEXAS

Espinoza v. State, 2015 Tex. App. LEXIS 4699 (TX Ct. App. 2015)

Key issues: Burden of production on the defendant; burden of persuasion on the State.

Date: May 7, 2015

Decision:

[ . . . ]

Analysis

Appellant argues that the evidence is legally insufficient because the trial judge erred in rejecting

her self-defense claim. Appellant asserts that she was justified in using self-defense because she was

protecting herself in her own residence. The State responds that the evidence is legally sufficient to

support the conviction.

In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light

most favorable to the fact-finding and determine whether a rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.

2012). We are required to defer to the fact finder's credibility and weight determinations because the fact

finder is the sole judge of the witnesses' credibility and the weight to be given their testimony. See

Jackson, 443 U.S. at 326.

A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v.

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

Once the defendant does so, the State then bears the burden of persuasion to disprove the raised defense.

Id. The burden of persuasion does not require the State to produce evidence; it requires only that the

State prove its case beyond a reasonable doubt. Id. A determination of guilt by the fact finder implies a

finding against the defensive theory. Id.

The issue of self-defense is a fact issue to be determined by the fact finder, who is free to accept or

reject the defensive issue. See Saxton v. State, 804 S.W.2d 910, 913--14 (Tex. Crim. App. 1991). As the

sole judge of the weight and credibility accorded any witness's testimony, the fact finder is free to believe or

disbelieve the testimony of all witnesses, and to accept or reject any or all of the evidence produced

by the respective parties. See Cleveland v. State, 177 S.W.3d 374, 380(Tex. Crim. App. 2005).

To obtain a conviction for assault, the State had to

prove beyond a reasonable doubt that appellant intentionally, knowingly, or recklessly caused bodily

injury to Susan Shorkey by striking Shorkey's head, face, or body or by pulling Shorkey's hair with

defendant's hand. See Tex. Penal Code Ann. ß 22.01(a)(1) (West Supp. 2014). "Bodily injury" means

physical pain, illness, or any impairment of physical condition. Id.







Appellant does not challenge the fact that Shorkey sustained bodily injuries due to an assault. Rather,

she claims the evidence shows that she was justified in using force--hitting Shorkey--to prevent Shorkey

from using force against her while she was in her residence. But there was conflicting evidence as to

who was the aggressor. Aragon and Shorkey testified that appellant was the aggressor. Appellant and

Espinoza testified that Shorkey was the aggressor, and that appellant only acted in self-defense.

It was the role of the trial court, as fact-finder, to

resolve the conflicts in the evidence. See Saxton,

804 S.W.2d at 913--14. The trial court could have reasonably concluded the evidence did not support

appellant's self-defense claim. See Cleveland, 177 S.W.3d at 380. Viewing the evidence under the

proper standard, we conclude a rational trier of fact could reject appellant's claim of self-defense and find

beyond a reasonable doubt that appellant assaulted Shorkey. Thus, the evidence is sufficient to sustain

the conviction. We overrule appellant's sole issue.

[ . . . ]

__________________________________________________________________________________________





TEXAS

Wilcut v. State, 2015 Tex. App. LEXIS 4572 (TX Ct. App. 2015)

Key issues: Burden of production on the defendant; burden of persuasion on the State; defense

of property, defense of others.

Date: May 6, 2015

Decision:

[ . . . ]

Sufficiency of the Evidence

In her second, third, and fourth issues, Wilcut contends the evidence is legally insufficient to support

the jury's implicit rejection of her defensive theories.

A. Self-Defense, Defense of Property, and Defense of Property of a Third Person

Section 9.31(a) of the Texas Penal Code defines the

defensive theory of self-defense. Tex. Penal Code Ann. ß 9.31(a) (West 2011). ] Under section 9.31(a),

"a person is justified in using force against another when and to the degree the actor reasonably believes

force is immediately necessary to protect the actor against the other's use or attempted use of unlawful

force." Id. The use of force against another is not justified if the actor provoked the other's use of

unlawful force unless the actor abandons the encounter. Id. at ß 9.31(b)(4).

Section 9.41(a) of the Code defines the defensive

theory of defense of one's own property. Id. at ß 9.41(a). Under section 9.41(a), "a person in lawful

possession of land or tangible, movable property is justified in using force against another when and to

the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the

other's trespass on the land or unlawful interference with the property." Id.

Section 9.43 of the Code defines the defensive theory

of defense of a third person's property. Id. at ß 9.43. Under section 9.43, a person is justified in using force

against another to protect land or tangible, movable property of a third person if: (1) the actor would be

justified in using force to protect his own land or property under section 9.41; and (2) the actor

reasonably believes: (1) the unlawful interference constitutes attempted or consummated theft of or

criminal mischief to the tangible, movable personal property; or (2) the third person whose land or

property he uses force to protect is the actor's parent. Id

B. Burden of Proof

A defendant bears the initial burden of production with

regard to a defensive theory. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). This requires the

defendant to produce some evidence that supports the particular defense. Zuliani, 97 S.W.3d at 594.

Once the defendant meets this burden by producing some evidence, the State then bears the burden of







persuasion to disprove the raised defense. Zuliani, 97 S.W.3d at 594; Saxton v. State, 804 S.W.2d 910, 913

(Tex. Crim. App. 2001). The burden of persuasion is not one that requires the production of evidence, so

the State is not required to affirmatively produce evidence refuting the defensive claim. Saxton, 804

S.W.2d at 913. Instead, the State is required only to prove its case beyond a reasonable doubt. Zuliani, 97

S.W.3d at 594; Saxton, 804 S.W.2d at 913. When the defendant is found guilty, there is an implicit finding

against the defensive theory. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914.

C. Legal Sufficiency Standard of Review

In evaluating the legal sufficiency of the evidence, "we

consider all the evidence in the light most favorable to the verdict and determine whether, based on that

evidence and reasonable inferences therefrom, a rational juror could have found the essential elements

of the crime beyond a reasonable doubt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

"Viewing the evidence 'in the light most favorable to the verdict' under a legal-sufficiency standard means

that the reviewing court is required to defer to the jury's credibility and weight determinations because

the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony." Brooks v.

State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (emphasis in original). The jury can choose to believe

all, some or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991).

D. Analysis

In view of the testimony presented, the jury could have chosen to believe Wilcut provoked the use of

force against her by entering the mobile home,

bumping and pushing Laurie, Lisa, and Troy, and attempting to hit them with a three-foot tree limb.

Although Wilcut denied taking these actions, the jury is the sole judge of the credibility of the witnesses.

See Brooks, 323 S.W.3d at 899. Because the jury could have found Wilcut provoked the use of force

against her, the jury could have rejected her self-defense theory on that basis. See Tex. Penal Code. ß

9.31(b)(4).

In addition, Wilcut testified she struck Laurie with the glass because she was unable to breathe. Wilcut did

not testify she struck Laurie with the glass to "prevent or terminate [her and] the other's trespass on the land

or the unlawful interference with the property." Tex. Penal Code Ann. ß 9.41(a); see also Tidmore v. State,

976 S.W.2d 724, 731 (Tex. App.--Tyler 1998, pet. ref'd) (holding trial court did not err in failing to instruct

jury regarding defense of property when evidence established appellant discharged gun in rage or to

protect himself). Also, the jury could have determined the use of force to protect any property was not

"immediately necessary" in view of Wilcut's testimony that she had phoned 911 and believed law

enforcement should have arrived before she did. Accordingly, the jury could have implicitly rejected

Wilcut's defensive theories of defense of property and defense of third person's property.

Wilcut's second, third, and fourth issues are

overruled.

Jury Charge

In her first issue, Wilcut asserts the jury charge included an erroneous instruction with regard to

defense of a third person's property, and the error resulted in egregious harm. The portion of the jury





charge about which Wilcut complains is the following instruction on defense of a third person's property:

A person is justified in using force or deadly force

against another to protect land or tangible, moveable property of a third person if, under the

circumstances as she reasonably believes them to be, the actor would be justified in using force or

deadly force to protect her own land or property and the actor reasonably believes the unlawful

interference constitutes attempted or consummated theft of or criminal mischief to the

tangible, moveable property, and a third person whose land or property she uses force or deadly

force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the

actor's care.

(emphasis added). As previously noted, under section 9.43 of the Code, a person is justified in using force

against another to protect land or tangible, movable property of a third person if: (1) the actor would be

justified in using force to protect his own land under section 9.41(a); and (2) the actor reasonably believes:

(1) the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the

tangible, movable personal property; or (2) the third person whose land or property he uses force to

protect is the actor's parent. See Tex. Penal Code. ß 9.43. In its brief, the State concedes that the use of

the conjunctive term "and" in the jury charge was

erroneous.

[ . . . ]

As previously noted, the jury could have found from Wilcut's testimony that she was not acting in defense

of property when she struck Laurie, but was only acting to defend herself. See Tidmore, 976 S.W.2d at

731. Moreover, the jury could have found Wilcut's use of force was not "immediately necessary" given her

testimony that she previously contacted law enforcement and only wanted Laurie, Lisa, and Troy

to exit the mobile home until law enforcement arrived. During closing argument, the prosecutor emphasized

this testimony, asserting, "Why -- if you called the police, if you were really worried that someone was

trespassing and destroying your father's property, why didn't you stay out by your truck and wait for law

enforcement to arrive?" Although Wilcut notes the words "constitutes attempted or consummated theft of

or criminal mischief to the tangible" were underlined in the jury charge by a pen or pencil, any theory or

conclusion about the reason or by whom those words were underlined would be pure speculation. Having

reviewed the record as a whole, we conclude the record does not establish actual as opposed to

theoretical harm or show that Wilcut was deprived of a fair and impartial trial.

[ . . . ]

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VIRGINIA

Buchanan v. Commonwealth, 2015 Va. App. LEXIS 153 (VA Ct. App. 2015)

Key issues: Excusable v. justified homicide; admissibility of defendant’s text messages.

Date: May 5, 2015

Decision:

[ . . . ]

B. SUFFICIENT EVIDENCE SUPPORTED BUCHANAN'S CONVICTIONS

When considering the sufficiency of the evidence on

appeal, we "presume the judgment of the trial court to be correct" and reverse only if the trial court's

decision is "plainly wrong or without evidence to support it." Davis v. Commonwealth, 39 Va. App. 96,

99, 570 S.E.2d 875, 876-77 (2002); see also McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.

2d 259, 261 (1997) (en banc). Under this standard, "a reviewing court does not 'ask itself whether it believes

that the evidence at the trial established guilt beyond a reasonable doubt.'" Crowder v. Commonwealth, 41

Va. App. 658, 662, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99

S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). It asks instead whether "'any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.'" Kelly v. Commonwealth, 41 Va.

App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Jackson, 443 U.S. at 319). We do not

"substitute our judgment for that of the trier of fact" even if our opinion were to differ. Wactor v.

Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002).

"'In Virginia, every unlawful homicide is presumed to be murder of the second degree.'" Tizon v.

Commonwealth, 60 Va. App. 1, 10-11, 723 S.E.2d 260, 264 (2012) (quoting Pugh v. Commonwealth,

223 Va. 663, 667, 292 S.E.2d 339, 341 (1982)). "'Murder . . . is a homicide committed with malice,

either express or implied.'" Id. at 11, 723 S.E.2d at 264 (quoting Pugh, 223 Va. at 667, 292 S.E.2d at

341). "Malice inheres in the 'doing of a wrongful act intentionally, or without just cause or excuse, or as a

result of ill will,'" and may be inferred from the deliberate use of a deadly weapon. Id. at 11, 723 S.E.

2d at 265 (quoting Dawkins v. Commonwealth, 186 Va. 55, 61, 41 S.E.2d 500, 503 (1947)). Killing in self-

defense, however, may be either justifiable or excusable homicide.

"Justifiable homicide in self-defense occurs where a

person, without any fault on his part in provoking or bringing on the difficulty, kills another under

reasonable apprehension of death or great bodily harm to himself." Bailey v. Commonwealth, 200 Va.

92, 96, 104 S.E.2d 28, 31 (1958); Dodson v. Commonwealth, 159 Va. 976, 167 S.E. 260 (1933).

"Excusable homicide in self-defense occurs where the accused, although in some fault in the first instance in

provoking or bringing on the difficulty, when attacked retreats as far as possible, announces his desire for

peace, and kills his adversary from a reasonably







apparent necessity to preserve his own life or save himself from great bodily harm." Bailey, 200 Va. at 96,

104 S.E.2d at 31.

Yarborough v. Commonwealth, 217 Va. 971, 975, 234 S.E.2d 286, 290 (1977).

Buchanan admitted that he shot and killed Robbins

on November 18, 2012. He explained to the jury that he shot Robbins in self-defense after Robbins

attacked him. Buchanan claimed that he shot Robbins while Robbins was on top of him hitting him in the

head with a two-liter bottle and his fists. The jury, however, rejected Buchanan's version of the events

and concluded that he killed Robbins with malice.5 Ample evidence supported the jury's decision.

Buchanan's animosity towards Robbins was well-

documented and clearly established. On the night that he shot Robbins, Buchanan sent text messages to

Pickle expressing his desire to shoot and kill Robbins. He sent similar messages to Pickle and Jones nearly

a week before the killing. He also told the 911 dispatcher that answered one of his calls that he was

going to shoot Robbins and "feel good about it." Buchanan was frustrated and angry at Robbins, and

he had physically wrestled him out of the apartment before he called the police. Couch testified that

Buchanan pointed a gun at Robbins's head during this altercation, and Robbins told the police that

Buchanan had held something against his head that felt like a gun.

Although the police officers that responded to

Buchanan's 911 calls told him that they would arrest

Robbins if he filed a criminal trespassing complaint against him, Buchanan refused to do so. Instead, he

allowed Robbins to remain in the area and spend the night in a nearby ditch. He then approached Robbins

armed with a gun and a piece of metal rebar and told him to leave the area.6 While Buchanan testified that

Robbins attacked him, he was not injured during the alleged assault. Edwards testified that Robbins was

not belligerent during their interactions that evening and that he did not appear to be intoxicated.

Moreover, the testimony of the medical examiner that performed an autopsy on Robbins also cast doubt on

Buchanan's description of the attack. The downward trajectory of the bullet that killed Robbins suggested

that he was not shot by someone who was pinned underneath him.

Under these circumstances, the jury reasonably

concluded that Buchanan's version of the shooting was not credible. The jury was "at liberty to discount

[Buchanan's] self-serving statements as little more than lying to conceal [his] guilt, and could treat such

prevarications as affirmative evidence of guilt." Armstead v. Commonwealth, 56 Va. App. 569, 581,

695 S.E.2d 561, 567 (2010) (citation and internal quotation marks omitted). Based on Buchanan's

animosity towards Robbins, evidenced by numerous statements in which he expressed a desire to shoot

and kill him, the jury could infer that Buchanan killed Robbins with malice. Accordingly, we conclude that

the evidence presented supported both of Buchanan's convictions.

[ . . . ]

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2015 #20 self defense weekly law report

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