State v. Thiel

• Decision Date: 28 July 1987
• Docket Number: No. 1212,1212
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Mark THIEL, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 66

411 N.W.2d 66

STATE of North Dakota, Plaintiff and Appellee, v. Mark THIEL, Defendant and Appellant.

Crim. No. 1212.

Supreme Court of North Dakota.

July 28, 1987.

Bruce B. Haskell, Asst. States Atty., Mandan, for plaintiff and appellee.

Webster, Engel & Lee, Bismack, for defendant and appellant; argued by Austin G. Engel, Jr., Bismarck.

ERICKSTAD, Chief Justice.

Mark Thiel appeals from a criminal judgment entered upon a jury verdict finding him guilty of simple assault in violation of Sec. 12.1-17-01, N.D.C.C. We reverse and remand for a new trial.

The evidence, viewed in the light most favorable to the verdict, reveals that in the early morning hours of December 7, 1985, approximately fifteen to twenty people attended a post-wedding dance party at a motel room in New Salem. At 4 a.m., two of the party guests began fighting in the room. Duane Senger, who was not involved in the initial altercation, told the two men who were fighting that " 'if you want to fight you guys take it outside.' " Thiel, who also was not involved in the initial altercation, then approached Senger and told him " 'they don't have to, they can fight right here.' " Senger again asked that they leave the room. Thiel then grabbed Senger's shirt and Senger caught Thiel's wrists to avoid being struck. Thiel pushed Senger away and struck him, knocking him down. As Senger attempted to get up, Thiel struck him again, breaking his nose. Senger received emergency medical treatment the same morning.

Thiel was sentenced to serve 30 days in the Morton County jail and was ordered to pay $1,573 in restitution to cover Senger's medical expenses.

On appeal, Thiel asserts that the trial court committed reversible error in refusing to give his requested jury instructions on self-defense and defense of others. We agree.

A defendant is entitled to an instruction based on a legal defense if there is evidence to support it. E.g., State v. Biby, 366 N.W.2d 460, 465 (N.D.1985); State v. Schimetz, 328 N.W.2d 808, 812 (N.D.1982); State v. Gann, 244 N.W.2d 746, 753 (N.D.1976). Self-defense and defense of others are classified as "defenses" rather than "affirmative defenses." See Secs. 12.1-05-01, 12.1-05-03, and 12.1-05-04, N.D.C.C.; State v. White, 390 N.W.2d 43, 45 n. 1 (N.D.1986). A "defense" is raised when there is evidence in the case "sufficient to raise a reasonable doubt on the issue." Sec. 12.1-01-03(2)(b), N.D.C.C.; see also State v. Leidholm, 334 N.W.2d 811, 823 (N.D.1983); I Working Papers of the National Commission on the Reform of Federal Criminal Laws, at pp. 15 and 16 (1970). Thus, Thiel was entitled to his requested instructions if there was evidence sufficient to raise a reasonable doubt on whether he was justified in using force upon another person to defend himself against danger of imminent unlawful bodily injury [Sec. 12.1-05-03, N.D.C.C.], or whether he was justified in using force upon another person in order to defend anyone else and the person defended would be justified in defending himself [Sec. 12.1-05-04, N.D.C.C.]. In determining on appeal whether the jury should have been charged on a particular defense, we must view the evidence in the light most favorable to the defendant. E.g., United States v. Benavidez, 558 F.2d 308, 309 (5th Cir.1977); State v. Farmer, 212 Kan. 163, 510 P.2d 180, 182 (1973); People v. Moye, 66 N.Y.2d 887, 498 N.Y.S.2d 767, 489 N.E.2d 736, 738 (1985).

Viewed in the light most favorable to the defendant, the evidence presented by defense witnesses reflects that Thiel became involved in a melee while attempting to rescue a friend, Jeff Moltzen, from a fight. According to Thiel, when he entered the motel room, he saw Moltzen "getting beat up" by "at least three" people. Thiel testified that when he "tried to rescue Jeff by just pulling people off the top of him," he was "hit from the side" and was "pushed almost the whole length of the room up against the other side." Thiel stated that "people were swinging ... pushing and yelling and jumping on top of me and telling me to get out." Moltzen testified that when Thiel tried to get him out of the room, "everybody was pushing and shoving and swinging ... [p]ushing and swinging at both of us...." Another defense witness testified that "[t]hey just started beating up on Jeff, and Mark just jumped in to stop it ... Mark was trying to get Jeff away from them guys, then they were jumping on Mark."

The trial court refused to instruct on self-defense and defense of others because "[n]one of the defendant's witnesses furnished any evidence that Mr. Senger in any way hit or assaulted Mark Thiel [or] ... Jeff Moltzen." While the defense witnesses were unable to identify Senger and his precise role in the incident, we believe that under the circumstances the trial court required too much by insisting on direct evidence that Senger attacked Thiel or Moltzen. It is apparent from the evidence that the people involved were not acquainted with each other. Moltzen testified that "everybody" was pushing, shoving, and swinging. Given the number of people involved and the inherent confusion, it is reasonable to infer from the defendant's evidence that Senger was one of the people either fighting with Moltzen or pushing and jumping on Thiel.

Relying on State v. Schimetz, 328 N.W.2d 808 (N.D.1982), the state asserts that Thiel was not entitled to the instructions because he refused to unequivocably admit striking Senger. In Schimetz, supra, 328 N.W.2d at 812-813, this court held that the trial court did not err in refusing to give an instruction on excuse where, among other things, the defendant denied stabbing the victim, the defendant testified that if he did it was "accidental," and the record did not establish that the victim was proceeding in a violent or dangerous manner. In the present case, Thiel testified as follows:

"Q [By Mr. Haskell] Now, did you ever see Duane Senger try to hit you?

"A [By the Defendant] I have no idea what Duane Senger looked like before today.

"Q That's not my question. Did you see him try to hit you?

"A No.

"Q Did you see him try to hit anybody else?

"A No.

"Q But, you just walked up to him and popped him one?

"A No.

"Q You never hit him?

"A No."

Thiel further testified:

"Q [By Mr. Engel] Did you hit anyone in the jaw or nose with your fist?

"A [By the Defendant] No, that was in front of me. If, on the back or something when I threw my arms back or something to get them off my back I could have."

We reject the State's contention for two reasons. First, in Schimetz we noted that nothing in the record established that the victim was proceeding in a violent or dangerous manner, one of the elements necessary to establish the defense. As we noted above, it is reasonable to infer from the evidence that Senger was one of the persons either fighting with Moltzen or jumping on Thiel. In addition, Schimetz did not involve a brawl among strangers. Thiel's testimony that he did not hit Senger while he was standing in front of him is not inconsistent with his theory that he may have hit Senger while trying to rescue Moltzen from a fight or to protect himself while doing so. Furthermore, a defense witness at one point testified that Thiel either hit Senger or "kind of pushed him out of the way" while Thiel was trying to help Moltzen.

Second, although it might also be inferred from Thiel's testimony that the blow was accidental, this court long ago adopted the "well-established rule in criminal jurisprudence that a defendant is entitled to have submitted to the jury, with proper instructions, all defenses of which there is any support in the evidence, whether such defenses are consistent or inconsistent." State v. Hazlett, 16 N.D. 426, 432, 113 N.W. 374, 376 (1907). ¹ See, e.g., Womack v. United States, 336 F.2d 959 (D.C.Cir.1964) ["a defendant is entitled to an instruction on any issue fairly raised by the evidence, whether or not consistent with the defendant's testimony or the defense trial theory."]; People v. Veatch, 145 Ill.App.3d 23, 99 Ill.Dec. 227, 495 N.E.2d 674, 678 (1986) ["a defendant is entitled to the benefit of any defense shown by the entire evidence, even if the facts on which the defense is based are inconsistent with defendant's own testimony."]; Pace v. Commonwealth, 561 S.W.2d 664, 666 (Ky.1978) ["The mere fact that (accident and self-protection) are inconsistent ... should not preclude a jury from considering both theories under appropriate circumstances."]; People v. Steele, 26 N.Y.2d 526, 311 N.Y.S.2d 889, 260 N.E.2d 527, 529 (1970) ["Since a jury might disbelieve the alibi and still find, on the prosecution's evidence, that defendant acted justifiably, the prosecution claim of inconsistent defenses is not a bar to the charge requested."]; State v. Burns, 15 Or.App. 552, 516 P.2d 748, 750 (1973) ["The fact that defendant claimed accident ... does not deprive him of the right to an instruction on self-defense if there is also evidence in the record from which the jury could have inferred that defendant was acting in self-defense."]; Booth v. State, 679 S.W.2d 498, 501 (Tex.Ct.Crim.App.1984) ["it is permissible for the accused to have the jury decide inconsistent defensive theories, even when they might directly contradict one another."]. But see United States v. Crowder, 543 F.2d 312, 317-318 (D.C.Cir.1976), cert. denied, 429 U.S. 1062, 97 S.Ct. 788, 50 L.Ed.2d 779 (1977); State v. Zayas, 3 Conn.App. 289, 489 A.2d 380, 383 (1985).

Viewing the evidence in the light most favorable to the defendant, we conclude that the record contains evidence sufficient to raise a reasonable doubt on the issues of self-defense and defense of others. The trial court's refusal to instruct the jury on these defenses was therefore error.

Under the circumstances of this case, where self-defense and defense of others were Thiel's primary defenses to the simple assault charge, we cannot say that the trial court's refusal to...