State v. Whipple, ED102962

• Decision Date: 18 October 2016
• Docket Number: No. ED102962,ED102962
• Citation: 501 S.W.3d 507
• Parties: State of Missouri, Respondent, v. Richard John Whipple, Appellant.
• Court: Missouri Court of Appeals

501 S.W.3d 507

State of Missouri, Respondent,

v.Richard John Whipple, Appellant.

No. ED102962

Missouri Court of Appeals, Eastern District, DIVISION ONE .

Filed: October 18, 2016

Andrew S. Garnett, Mexico, MO, for Appellant.

Chris Koster, Attorney General, Christine Lesicko, Asst. Atty. Gen., Jefferson City, MO, for Respondent.

ROBERT M. CLAYTON III, Presiding Judge

Richard John Whipple ("Defendant") appeals the judgment entered upon a jury verdict convicting him of two counts of unlawful use of a weapon, one count of first-degree tampering with a motor vehicle, and three counts of third-degree assault. We reverse and remand.

I. BACKGROUND

A. Evidence Presented at Defendant's Jury Trial

Defendant was charged with and convicted of the six counts referenced above, and he does not challenge the sufficiency of the evidence to support his convictions. Viewed in the light most favorable to Defendant ,¹ the evidence presented at his jury trial revealed the following facts.

On June 17, 2014, Defendant and his wife, Stephanie Whipple ("Mrs. Whipple"), along with three of their children (collectively "the Whipples"), drove to Jason Sanning Sr.'s home looking for their daughter's stolen bike. Upon the Whipples' arrival, Defendant parked his SUV on the street in front of the Sannings' property and Mrs. Whipple asked Alyssa Sanning ("Alyssa"),² a fifteen-year-old girl, whether she could look in their backyard for the bike. Alyssa gave Mrs. Whipple permission, and then went inside to tell her brother, fourteen-year-old Jason Sanning II. Jason Sanning II came outside as Mrs. Whipple was walking back to her vehicle and they had a verbal confrontation. Then, Defendant and his family returned to their home, which was connected to a pawn shop owned by Defendant.

Following this occurrence, Alyssa and Jason Sanning II went inside the house to inform Jason Sanning Sr. ("Mr. Sanning") of the incident between Mrs. Whipple and Jason Sanning II. After learning that the Whipples were on his property, Mr. Sanning, along with his girlfriend and daughter Alyssa (collectively "the Sannings"), drove to the Whipples' property to discuss what happened.

Upon the Sannings' arrival, an argument ensued between Mr. Sanning and Defendant. While the Sannings and the Whipples were in their respective vehicles, Defendant ordered Mr. Sanning to leave his property. Mr. Sanning did not comply with Defendant's request, causing Defendant to approach the Sannings' van. Mr. Sanning threatened Defendant with "a lot of bodily harm," and then Defendant asked Mr. Sanning to leave again. When Mr. Sanning still refused to comply, Defendant revealed his gun "to diffuse the situation." After Mr. Sanning continued to yell, Defendant told Mr. Sanning to get off his property for the third and final time.

Then, as Defendant was standing between the two vehicles, Mr. Sanning put the van in reverse to leave the Whipples' property. As the Sannings' van backed up, its front end veered towards Defendant and his vehicle, who became fearful that he, his family, or his vehicle were going to be struck by the Sannings' van. In response, Defendant fired a single round into the hood of the Sannings' van. Immediately after the shot was fired, Mr. Sanning stopped, put the van in drive, and drove out of the parking lot.³

B. Relevant Procedural Posture

Based on the events which occurred at the Whipples' property, Defendant was charged with six counts. Count I is a class D felony charge for unlawful use of a weapon relating to Defendant's brandishing the firearm. Counts II–VI relate to Defendant's firing the gun at the Sannings' van: Count II is a class B felony charge for unlawful use of a weapon; Count III is a charge for first-degree tampering with a motor vehicle; and Counts IV–VI are third-degree assault charges relating to Mr. Sanning, Alyssa, and Mr. Sanning's girlfriend, respectively.

During the instruction conference, Defendant's counsel ("Defense Counsel") requested the jury be instructed on self-defense as to Count I. Defense Counsel did not tender instructions or specify which Missouri Approved Instruction ("MAI") Defendant was requesting. The State objected to any instruction on self-defense. Following arguments from the parties, the trial court ruled the evidence was not sufficient to support a self-defense instruction. Defense Counsel made a "blanket objection" to the lack of instructions on self-defense, defense of others, and duty to retreat so as to preserve the objections for each count.

The jury found Defendant guilty of all counts. Defendant filed a Motion for New Trial asserting, inter alia , the trial court erred in refusing to instruct the jury on self-defense, defense of others, and duty to retreat. Following arguments from the parties, the trial court denied Defendant's Motion for New Trial.

The trial court subsequently entered a judgment in accordance with the jury's verdict, and sentenced Defendant as a prior offender to fifteen years of imprisonment as to Count II, over Defense Counsel's objection, who argued its imposition violated Defendant's due process rights. Defendant was further sentenced to four years of imprisonment for Counts I and III and one year in the county jail for Counts IV–VI, with all sentences to run concurrently. Defendant appeals.

II. DISCUSSION

In Defendant's first and second points on appeal, he argues the trial court erred in refusing to submit jury instructions relating to Defendant's claim of self-defense. Defendant asserts in his third point that the trial court erred in sentencing him as a prior offender, arguing that Missouri's prior offender statute is unconstitutional.

A. Whether the Trial Court Erred in Refusing to Submit a Self-Defense Instruction

In his first and second points on appeal, Defendant argues the trial court erred in refusing to submit jury instructions relating to Defendant's claim of self-defense. Defendant asserts he was entitled to a self-defense instruction solely because he had no duty to retreat on his property. Defendant also argues that he was entitled to a self-defense instruction because he presented substantial evidence that he acted in self-defense or defense of others. We reject Defendant's first argument, but agree that Defendant was entitled to a self-defense instruction because he placed the matter at issue, which amounted to substantial evidence to support submitting a self-defense or defense-of-others instruction.

1. Standard of Review

This Court reviews a trial court's refusal to give a requested jury instruction de novo. State v. Amschler , 477 S.W.3d 10, 13 (Mo. App. E.D. 2015). Even if a self-defense instruction is not requested or was requested but not in the proper form, the trial court must instruct the jury on self-defense if there is substantial evidence to support it. State v. Westfall , 75 S.W.3d 278, 280–81, 281 n. 9 (Mo. banc 2002) ; State v. Seals , 487 S.W.3d 18, 23 (Mo. App. S.D. 2016). "Substantial evidence" means evidence putting the matter in issue. State v. Avery , 120 S.W.3d 196, 200 (Mo. banc 2003) (quotations in original). In determining whether there was substantial evidence to support a self-defense instruction, we view the evidence and reasonable inferences therefrom in the light most favorable to the defendant and "the theory propounded by [d]efendant." Amschler , 477 S.W.3d at 13 (quoting Westfall , 75 S.W.3d at 280 ). If the evidence tends to establish the defendant's theory of self-defense, or supports differing conclusions, the defendant is entitled to a self-defense instruction. Avery , 120 S.W.3d at 200 ; Seals , 487 S.W.3d at 23. It is reversible error to refuse to instruct on self-defense if substantial evidence exists to support the instruction. State v. Weems , 840 S.W.2d 222, 226 (Mo. banc 1992).

2. Defendant's Argument Relating to Duty to Retreat

As an initial matter, we will address Defendant's argument that he was entitled to a self-defense instruction solely because he had no duty to retreat on his property. In response, the State asserts that even when a defendant does not have a duty to retreat, his claim of self-defense still must meet the reasonableness requirements of section 563.031 RSMo Supp. 2011⁴ in order for him to be entitled to a self-defense instruction. For the reasons stated below, we agree with the State's position.

a. General Law Relating to Statutory Interpretation

Defendant's assertion that he was entitled to a self-defense instruction solely because he had no duty to retreat requires us to interpret section 563.031. Statutory interpretation is a question of law that this Court reviews de novo. Finnegan v. Old Republic Title Co. of St. Louis, Inc. , 246 S.W.3d 928, 930 (Mo. banc 2008). "The primary rule of statutory interpretation is to ascertain the intent of the General Assembly from the language used and to give effect to that intent." Id. To determine legislative intent, words are to be given their plain and ordinary meaning. Id. The construction of statutes should not be hyper-technical, but should be reasonable and logical. Gash v. Lafayette County , 245 S.W.3d 229, 232 (Mo. banc 2008). We do not read any part of the statute in isolation, but consider the context of the entire statute and harmonize its provisions. Berra v. Danter , 299 S.W.3d 690, 696 (Mo. App. E.D. 2009).

b. General Law Relating to the "Castle Doctrine" and Duty to Retreat

In 2007, the Missouri General Assembly repealed the statute relating specifically to defense of premises and incorporated provisions relating to that defense into section 563.031, the self-defense statute.⁵ Subsequent amendments further expanded on the new provisions.⁶ The effect of these amendments was to create the so-called "castle doctrine" and to relieve a defender of his "duty to retreat" in certain circumstances. State v. Clinch , 335 S.W.3d 579, 587 (Mo. App. W.D. 2011) ; see section 563.031.3.

Today, this Court finds it necessary to clarify how the statute operates in its current form. We begin with the...