State v. Bellinger
| Decision Date | 22 June 2012 |
| Docket Number | No. 105,008.,105,008. |
| Citation | 278 P.3d 975,47 Kan.App.2d 776 |
| Parties | STATE of Kansas, Appellee, v. Robert L. BELLINGER, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. A defendant is entitled to instructions on the law applicable to his or her theory of defense if there is evidence to support the theory.
2. When the trial court denies a request to give an instruction, an appellate court must review the evidence in a light most favorable to the party requesting the instruction. However, there must be evidence which, viewed in the light most favorable to the defendant, is sufficient to justify a rational factfinder finding in accordance with the defendant's theory.
3. K.S.A. 2010 Supp. 21–3211 and K.S.A. 2010 Supp. 21–3214 are discussed and applied.
4. To establish the use of force as a justifiable defense, the party claiming immunity must pass both a subjective and an objective test. Thus, the defendant must show that he or she believed that the person upon whom force was used posed a threat to the claimant or a third person, to the claimant's dwelling, or to the claimant's property, and that a reasonable person in claimant's circumstances would have believed that a use of force was necessary.
5. The same standard of review of the denial to give a requested self-defense instruction applies to the denial of a defense-of-property instruction. When the trial court fails to give a requested instruction, an appellate court must review the evidence in a light most favorable to the party requesting the instruction.
6. A defendant is entitled to instructions on the law applicable to his or her theory of defense if there is evidence to support the theory. But there must be evidence which, viewed in the light most favorable to the defendant, is sufficient to justify a rational factfinder finding that a defense-of-property instruction should be given.
7. K.S.A. 2010 Supp. 21–3213 is discussed and applied.
Barry A. Clark, of Clark & Kellstrom, Chtd., of Manhattan, for appellant.
Sherri Schuck, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., MARQUARDT, J., and BRAZIL, S.J.
Robert Lynn Bellinger (Robert) was convicted of aggravated assault and criminal threat. On appeal, Robert claims that the district court erred in denying his request for jury instructions on self-defense and defense of property. We affirm.
Brothers Robert and Michael Bellinger owned adjoining farms in Pottawatomie County, which they used primarily for grazing cattle. The brothers had a contentious history with each other. Prior to the incident that caused the filing of criminal charges against Robert, the brothers had a dispute because Katheryn Bellinger (Michael's ex-wife and current business partner) burned some of Robert's pasture. Another problem occurred when two of Robert's bulls and a cow wandered into Michael's pasture, and Michael put them in his catch pen.
At approximately noon on June 4, 2009, Michael, Katheryn, and their son, Matthew, drove to Robert's farm to retrieve Katheryn's grain truck that she had loaned to Robert. Michael testified that he did not want to talk with Robert, so he sent Matthew, who was able to get along with Robert, to find Robert to ask if they could get the truck. Michael and Katheryn waited in a truck on the public road until they were told that it was okay with Robert to get the truck. When Matthew located Robert, he asked if “we” could get the truck. Robert told Michael it was okay. According to Robert, he assumed that the “we” meant Matthew and Katheryn.
Matthew returned to Michael's truck and the three drove to Robert's hay shed, where the grain truck was stored. When Robert drove up to the hay shed on his tractor, he saw Michael and Katheryn sitting in their truck. Robert then proceeded to help Matthew move a piece of equipment that was blocking access to the grain truck.
After moving the piece of equipment, Robert walked up to the driver's side window of Michael's truck, where Michael was sitting. Up to that time, there had been no exchange of any kind that day between Robert and Michael. Robert testified that he initiated the contact with Michael when he said, “Why did you leave my cows in the catch pen?” Michael responded that Robert needed to keep his cattle out of Michael's pasture. On cross-examination, Michael was asked:
“
When Robert's cattle got into Michael's pasture, he put them in a catch pen. Michael testified that he tried to call Robert on his cell phone to tell him about the cattle, but Robert would not take the call, so he called the sheriff.
After Robert approached Michael, both brothers testified that the argument escalated from there. Michael testified that it turned into a “yelling match” until Robert walked away, said “I'll kill you,” and got the rifle.
The following exchange took place when Robert was cross-examined:
“And then you go up to him and you—I think you tell me that the whole time you two are talking, he's yelling and cussing and you're talking with him calmly like you are now?
“You testified on direct that he was so angry he was getting angrier, he's yelling at you, he says, ‘I'll shoot the cows', and he says, ‘Go get your gun,’ and you felt that he was going to come out of that truck and all of a sudden you felt your personal safety was in jeopardy; isn't that what you testified to on direct; right?
Robert testified that he threatened to shoot or kill Michael, to which Michael responded, “Go ahead.” Robert also testified that Michael told him, “Go get your gun.”
Robert testified that Michael was belligerent, and he believed that Michael was “ready to come out of that cab and beat the hell out of [him].” Robert also testified that he thought that Michael might set his hay shed on fire, but there is no evidence to support this assertion. While Michael sat in the truck, Robert walked away and got the .22 caliber rifle that was on the floor of another truck parked nearby.
Robert came back to the truck where Michael remained, put the rifle within 26 to 28 inches from Michael's head, and ordered Michael to leave his property. Although Robert testified that he did not believe the rifle was loaded, he moved it slightly, in case he was wrong, then pulled the trigger. Robert testified that he wanted to scare Michael. The rifle fired. Miraculously, the bullet missed both Michael and Katheryn but shattered the back window of the truck cab. Katheryn and Michael testified that Robert fired the rifle within seconds after telling Michael to leave. Robert did not dispute this fact.
Robert was somewhat equivocal when asked whether he intended to fire the rifle. On direct examination, he testified he “touched” the trigger, but on cross-examination he testified that the rifle accidentally fired when he intended to pull the trigger to make it dry fire.
That caused Michael to get out of the truck and confront Robert. Although the details differed depending on who was giving the testimony, Michael was shot during the struggle. However, Michael did manage to take the rifle away from Robert and hit him at least once with the butt of the rifle. Matthew got between the two and stopped the fight. Then, Michael, Katheryn, and Matthew drove away.
Robert called 911 after the shooting. The Riley County Police Department dispatcher asked if the shooting was accidental, to which Robert replied, “No.” Indeed, he repeatedly told the dispatcher, “I shot my brother.” Robert later testified he was terrified and confused when he called to report the shooting. Also, while police drove Robert to the county jail, Robert commented, without being questioned, that he and Michael constantly argued and never got along.
The State filed a four-count...
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...issues upon which the court so largely depends for illumination of difficult ... questions.” ’ ”); State v. Bellinger, 47 Kan.App.2d 776, 787, 278 P.3d 975 (2012) (Atcheson, J., dissenting) (“The judicial process treats an appearance on the witness stand, with the taking of an oath and the ......
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State v. Haygood
...v. Gayden , 259 Kan. 69, 84, 910 P.2d 826 (1996) ; State v. Childers , 222 Kan. 32, 49, 563 P.2d 999 (1977) ; State v. Bellinger , 47 Kan. App. 2d 776, 782-83, 278 P.3d 975 (2012) ; State v. Alvarez , No. 109675, 2014 WL 5611618, at *5-7 (Kan. App. 2014)(unpublished opinion). Those cases co......
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State v. Franco
...as perhaps the most discerning crucible for separating honesty and accuracy from mendacity and misstatement.” State v. Bellinger, 47 Kan.App.2d 776, 787, 278 P.3d 975 (2012), rev. denied 298 Kan. –––– (2013) (Atcheson, J., dissenting). The ability of the jurors to observe witnesses as they ......
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Sola-Morales v. State, 118,451
...crucible for separating honesty and accuracy from mendacity and misstatement.’ ") (quoting State v. Bellinger , 47 Kan. App. 2d 776, 787, 278 P.3d 975 [2012] [Atcheson, J., dissenting] ). Appellate courts have no comparable vantage point when they read a trial transcript, and that is precis......
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§ 20.02 DEFENSE OF PROPERTY
...to request desistance may constitute evidence in a given case that subsequent use of force was unnecessary. E.g., State v. Bellinger, 278 P.3d 975 (Kan. Ct. App. 2012) (D only ordered X off his rural property seconds before he used force against X, who had not otherwise interfered with D's ......
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§ 20.02 Defense of Property
...to request desistance may constitute evidence in a given case that subsequent use of force was unnecessary. E.g., State v. Bellinger, 278 P.3d 975 (Kan. Ct. App. 2012) (D only ordered X off his rural property seconds before he used force against X, who had not otherwise interfered with D's ......
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TABLE OF CASES
...537 Bellcourt v. State, 390 N.W.2d 269 (Minn. 1986), 214 Bellevue, City of, v. Miller, 536 P.2d 603 (Wash. 1975), 46 Bellinger, State v., 278 P.3d 975 (Kan. Ct. App. 2012), 248 Beltran v. State, 472 S.W.3d 283 (Tex. Crim. App. 2015), 459 Beltran, People v., 301 P.3d 1120 (Cal. 2013), 503 Be......