2015 #20 Self Defense Weekly Law Report

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

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2015 www.lawofselfdefense.com
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2015 #20 (May 4-10, 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.
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 courts 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. Whats 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
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 statespecific online training classes. And, of course, theres always the Law of Self Defense Blog.
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TABLE OF CONTENTS
NORTH CAROLINA
PAGE
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
!
!
11
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
!
! 13
VIRGINIA
Buchanan v. Commonwealth, 2015 Va. App. LEXIS 153 (VA Ct. App. 2015)
Key issues:
Excusable v. justified homicide; admissibility of defendants text messages.
Date:
May 5, 2015
! 16
!
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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
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
B. Jury instructions for lesser included offense
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
In the present case, Robinson complains that the trial
determined by the jury.
court erred by declining to instruct the jury on assault

inflicting serious injury because it did not instruct the
Id. at 643, 239 S.E.2d at 413 (citation omitted). As
jury that the brass knuckle-handled pocketknife that
such, Robinson argues that the trial court's failure to
Robinson admitted to stabbing Pelcher with was a
instruct on the lesser included offense of assault
deadly weapon as a matter of law. By Robinson's
inflicting serious injury deprived the jury of the only
logic, the fact that the trial court did include a jury
option by which it could have concluded that although
instruction on simple assault demonstrates that the
Pelcher's injuries were serious, Robinson acted
issue of whether or not the knife was a deadly
without a deadly weapon.
weapon was a matter for the jury's determination and

also implies that the evidence was sufficient to
There are several reasons why this argument fails.
support a finding by the jury that Pelcher was
First, although our State's appellate courts have long
intentionally cut or stabbed with a weapon that was
acknowledged that "the evidence in each case
not deadly. In support of this argument, Robinson
determines whether a certain kind of knife is properly
cites our Supreme Court's decision in State v. Palmer,
characterized as a lethal device as a matter of law or
293 N.C. 633, 239 S.E.2d 406 (1977), which
whether its nature and manner of use merely raises a
recognized that,
factual issue about its potential for producing death,"

see, e.g., State v. Sturdivant, 304 N.C. 293, 301, 283
[w]here the allegedly deadly weapon and the
S.E.2d 719, 726 (1981) (citations omitted), our prior
manner of its use are of such character as to

decisions have also made clear that "[t]he definition of
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a deadly weapon clearly encompasses a wide variety
When considered collectively, the prior cases from
of knives. For instance, a hunting knife, a kitchen
this Court and our Supreme Court make clear that
knife, and a steak knife have been denominated
when a knife is used in an assault as a knife or in any
deadly weapons per se. . . . A pocketknife is also
other way "likely to produce death or great bodily
unquestionably capable of causing serious bodily
harm," it is proper to instruct the jury that it is a deadly
injury or death." Id. at 301, 283 S.E.2d at 725-26; see
weapon as a matter of law. See, e.g., State v. Torain,
also State v. Collins, 30 N.C. 407, 409, 412 (1848)
316 N.C. 111, 121, 340 S.E.2d 465, 471 (citation
(opining that a pocketknife with a two and a half-inch
omitted), cert. denied, 479 U.S. 836, 107 S. Ct. 133,
blade was a deadly weapon as a matter of law); State
93 L. Ed. 2d 77 (1986). In fact, as our Supreme Court
v. Cox, 11 N.C. App. 377, 380, 181 S.E.2d 205, 207
noted in Torain, where a knife "is of such character as
(1971) (holding that a knife with a three-inch blade
to admit of but one conclusion," the trial court
constitutes a deadly weapon per se when used as a
commits harmless error by leaving the question of its
weapon in an assault). Moreover, "well-established
deadly character for the jury's determination. Id. at
principles of North Carolina law allow the extent to
119, 340 S.E.2d at 470. Indeed, in State v. McKinnon,
which a particular instrument is a deadly weapon to
54 N.C. App. 475, 283 S.E.2d 555 (1981), this Court
be inferred based on the effects resulting from the
rejected a defendant's argument that his conviction
use made of that instrument." State v. Walker, 204
for assault with a deadly weapon resulting in serious
N.C. App. 431, 446, 694 S.E.2d 484, 494 (2010)
bodily injury should be vacated because the trial court
(holding that a small knife was a deadly weapon
had submitted the question of whether the knife he
where the defendant used it to wound the victim's lip,
used on the victim was a deadly weapon to the jury
arm, and back and cause a puncture wound to the
and therefore, according to the defendant, should
victim's lung, resulting in substantial bleeding and
have also been required to instruct the jury on the
inflicting injuries requiring significant medical
lesser included offense of assault inflicting serious
treatment); see also State v. Graham, 186 N.C. App.
injury. Id. at 476-77, 283 S.E.2d at 557. Instead, we
182, 195, 650 S.E.2d 639, 648 (2007) (holding that
reasoned that because the uncontradicted evidence
the serious nature and extent of the victim's injuries
in the record demonstrated that the defendant's
were sufficient for the trial court to instruct the jury
assault caused the victim's lung to collapse, the
that a knife was a deadly weapon as a matter of law
circumstances of the knife's use "admit of but one
where one was used to stab a victim nine times
conclusion," thus making its deadly character a
resulting in a collapsed lung and other life-threatening
question of law for the trial court's determination. Id.
injuries requiring surgery), appeal dismissed and disc.
at 477, 283 S.E.2d at 557. We therefore held that "the
review denied, 362 N.C. 477, 666 S.E.2d 765 (2008);
trial court should have held that the pocketknife as
State v. Smallwood, 78 N.C. App. 365, 369, 337 S.E.
used by [the] defendant was a deadly weapon as a
2d 143, 145 (1985) ("Where the victim has in fact
matter of law. There was, therefore, no error in the
suffered serious bodily injury or death, the courts
court's failure to submit the lesser offense of [assault
have consistently held that a knife is a dangerous or
inflicting serious injury]." Id. at 478, 283 S.E.2d at
deadly weapon per se absent production or detailed
557.
description.").
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Here, we are confronted with virtually the same issue
argument on Robinson's decision to exercise his right
as in McKinnon, and we reach a similar conclusion.
to remain silent. We disagree.
The uncontradicted evidence in the record

demonstrates that Robinson used his brass knuckle-
"A criminal defendant's right to remain silent is
handled pocketknife to stab Pelcher five times,
guaranteed under the Fifth Amendment to the United
resulting in wounds to his face, chest, back, rib cage,
States Constitution and is made applicable to the
and ear, cuts to several blood vessels, and a
States by the Fourteenth Amendment." State v.
collapsed lung and kidney, which required emergency
Richardson, N.C. App. , , 741 S.E.2d 434, 440 (2013).
surgery and left Pelcher hospitalized for one week,
North Carolina's appellate courts "have consistently
half of which he spent in a coma. Clearly then,
held that the State may not introduce evidence that a
Robinson used his knife in a way that was "likely to
defendant exercised his [F]ifth [A]mendment right to
produce death or great bodily harm." See Torain, 316
remain silent." State v. Moore, 366 N.C. 100, 104, 726
N.C. at 121, 340 S.E.2d at 471. We consequently
S.E.2d 168, 172 (2012) (citations and internal
have no trouble concluding that the trial court should
quotation marks omitted). "If a defendant has been
have instructed the jury that the knife was a deadly
given his Miranda warnings, his silence may not be
weapon as a matter of law. We further conclude that,
used against him." Id. (citations and internal quotation
as recognized in Torain, the trial court's failure to
marks omitted). "The rationale underlying this rule is
properly instruct the jury on this issue constituted
that the value of constitutional privileges is largely
harmless error. See id. at 119, 340 S.E.2d at 470
destroyed if persons can be penalized for relying on
("[A]llowing [the] jury to decide nature of
them." Id. (citation, internal quotation marks, and
instrumentality is error in some cases, but the higher
brackets omitted). As a result, the extent to which "the
burden of proof . . . is advantageous to [the]
State may use a defendant's silence at trial depends
defendant and is therefore harmless error.").
on the circumstances of the defendant's silence and
Moreover, Robinson cites no evidence whatsoever
the purpose for which the State intends to use such
from which a reasonable juror could rationally
silence." State v. Boston, 191 N.C. App. 637, 648, 663
conclude that the brass knuckle-handled pocketknife
S.E.2d 886, 894, appeal dismissed and disc. review
was used in any way other than as a deadly weapon,
denied, 362 N.C. 683, 670 S.E.2d 566 (2008). This
and our review of the record reveals none either. We
Court has previously explained that a defendant's pre-
therefore conclude, as in McKinnon, that the evidence
arrest silence and post-arrest, pre-Miranda warnings
here does not support a jury instruction on the lesser
silence may not be used as substantive evidence of
included offense of assault inflicting serious injury.
guilt, but may be used by the State to impeach the
Accordingly, we hold that the trial court did not err in
defendant by suggesting that the defendant's prior
declining to instruct the jury on this charge.
silence is inconsistent with his present statements at

trial. A defendant's post-arrest, post-Miranda warnings
C. Right to remain silent
silence, however, may not be used for any purpose.

State v. Mendoza, 206 N.C. App. 391, 395, 698 S.E.
Finally, Robinson argues that the trial court committed
2d 170, 174 (2010) (citations and internal quotation
plain error by allowing the State to comment without
marks omitted).
objection during cross-examination and in its closing

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In the present case, Robinson alleges two separate
saying--make sure you tell your attorney, talk to
violations of his right to remain silent. First, he
him.
contends that the State repeatedly and impermissibly
Q: Well, since June the 9th when this happened
commented on his exercise of that right during cross-
how many people have you told this story to
examination based on the following exchange:
about the drugs and being assaulted?

A: Talked to my attorney.
Q: Mr. Robinson, sir, after [Pelcher] tried to shoot
Q: Who else?
and kill you with a gun, at what point did you
A: That's it.
report this assault on you to the police?
Q: Nobody? Not one other person?
A: Excuse me?
A: That's the only person I'm supposed to talk to
Q: When did you call the police that you'd been
is my attorney anyway--
assaulted with a gun?
Q: You didn't tell Tech?
A: Why didn't I call the police?
A: --situation like this.
Q: Yes.
Q: You didn't tell Tech?
A: He pulled a gun out on me.
A: No, I ain't tell Tech nothing. Tech was with me.
Q: Why didn't you call the police because you had
I don't even talk to Tech.
to stab a man who pulled a gun out on you?
Q: You didn't tell your mother when you went to
A: Shoot--why I call the police? I mean, I'm not
New York?
going to call the police when the man sit there
A: I didn't tell my mother? No, I didn't tell my
and he trying to shoot me.
mother nothing, you know what I'm saying? My
...
mother already knew--it was when I went to New
Q: Well, when you saw a lot of blood from a man
York. Yeah, I told her about--he tried to assault
you had cut, why didn't you call the police and
me with a gun. She knew--yeah, I mean, that's--of
say, Hey, this man tried to shoot me?
course that.
A: I was scared.
Q: So, when you went to New York you did tell
Q: Scared of what?
your mother?
A: Scared--scared--I just stabbed this man. First
A: Yeah, I told my--yeah, I did tell my mother
thing--first--my first reaction is that I'm going to go
about he tried--he tried to shoot me with a gun,
to jail.
yeah.
Q: Well, your story to this jury is that this man was
Q: Well, where's your mother today?
trying to assault you. Why didn't you tell the police
A: She's in New York. She's at work.
that?
Q: Who else besides your mother did you tell this
A: Why would I tell the police that when the police
story to?
trying to look for me for assault with a deadly
A: That's it.
weapon with intent to kill?
Q: Your mother and your lawyer?
Q: So, you had no thought of calling the police
A: Yes, sir.
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

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Robinson contends that the trial court committed plain
credibility on cross-examination does not violate the
error by allowing the State to cross-examine him
Fifth or Fourteenth Amendment to the United States
about his failure to make any statement to law
Constitution." State v. Bishop, 346 N.C. 365, 386, 488
enforcement before trial. In support of this argument,
S.E.2d 769, 780 (1997) (citing Jenkins v. Anderson,
Robinson cites our recent decision in Richardson. In
447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed. 2d 86
Richardson, we granted a new trial to a defendant
(1980)). As this Court has explained,
who had been convicted on two counts of assault with
[w]hen a defendant chooses to testify in his own
a deadly weapon with intent to kill inflicting serious
behalf . . . his [Fifth A]mendment right to remain silent
injury in conjunction with a nightclub shooting based
must give way to the [S]tate's right to seek to
on our determination that it was plain error for the trial
determine, by way of impeachment, whether a
court to allow the State to cross-examine the
defendant's prior silence is inconsistent with his trial
defendant about his post-arrest, post-Miranda
testimony. The test is whether, under the
warning silence--specifically, the fact that his trial
circumstances at the time of arrest, it would have
testimony constituted the first statement he had made
been natural for [the] defendant to have asserted the
to authorities since the night of the shooting--while
same defense asserted at trial.
also stressing the fact that, unlike the defendant,

other witnesses at the crime scene had given
State v. McGinnis, 70 N.C. App. 421, 424, 320 S.E.2d
statements to investigating officers immediately after
297, 300 (1984) (citation omitted). In the present
the shooting. Richardson, at , 741 S.E.2d at 442-43.
case, the State sought to impeach Robinson's

credibility after he testified that he stabbed Pelcher in
Robinson argues that the same logic should apply
self-defense by pointing out that if his testimony were
here, but his reliance on Richardson is misplaced
true, he would have had both the opportunity and the
because Richardson is easily distinguished from the
motive to share his version of the events with police,
present facts insofar as our decision there was based
but instead fled to New York. This conduct, and the
on the State's express references on cross-
silence that accompanied it, all occurred before
examination to the defendant's post-arrest, post-
Robinson was ever arrested, advised of his Miranda
Miranda silence, see id., whereas here, the subject
rights, or had any contact whatsoever with law
matter of the questions to which Robinson now
enforcement regarding the stabbing.
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

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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)
the defense of self-defense, the 404(b) evidence was

not admissible to show intent or absence of accident.
In his first argument, defendant contends that the trial
"Assuming arguendo that such evidence was
court committed reversible error by allowing the State
improperly admitted in the present case, we conclude
to introduce, pursuant to North Carolina Rule of
that the defendant has failed to carry his burden
Evidence 404(b), evidence of his assault on Ms.
under N.C.G.S. 15A-1443(a) to establish any
DeVaughn in 2006. Defendant argues that the
resulting prejudice by showing a reasonable
evidence was improperly admitted "for the sole
possibility that a different result would have been
purpose of establishing [defendant's] propensity for
reached at trial had the error not been committed."
aggression." We conclude that the admission of the
State v. Groves, 324 N.C. 360, 371, 378 S.E.2d 763,
404(b) evidence, even if erroneous, did not prejudice
770 (1989).
defendant.
"'The elements of a charge under G.S. 14-32(b) are
A. Standard of Review
(1) an assault (2) with a deadly weapon (3) inflicting

serious injury (4) not resulting in death.'" State v.
N.C. Gen. Stat. 8C-1, Rule 404(b) provides that
Ryder, 196 N.C. App. 56, 66, 674 S.E.2d 805, 812
"[e]vidence of other crimes, wrongs, or acts is not
(2009) (quoting State v. Aytche, 98 N.C. App. 358,
admissible to prove the character of a person in order
366, 391 S.E.2d 43, 47 (1990)). In this case,
to show that he acted in conformity therewith. It may,
defendant admitted to using a deadly weapon to inflict
however, be admissible for other purposes, such as
serious injury on Michael, but relied on a defense of
proof of motive, opportunity, intent, preparation, plan,
self-defense. As a result, the only factual issue for the
knowledge, identity, or absence of mistake,
jury's determination was whether defendant stabbed
entrapment or accident." [ . . . ]
Michael in self-defense.
B. Discussion
Defendant argues that the admission of the 404(b)

evidence compromised his ability to assert self-
On appeal, defendant argues that, because he
defense against the charge of assault with a deadly
admitted intentionally cutting Michael and relied on

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defense entitles an individual to use 'such force as is
fight, and whether the two men engaged in a verbal
necessary or apparently necessary to save himself
dispute before fighting. However, there was no
from death or great bodily harm. . . . A person may
evidence presented from which a reasonable juror
exercise such force if he believes it to be necessary
might infer that Michael was armed, that defendant
and has reasonable grounds for such belief.' Whether
believed the use of deadly force was necessary to
or not the belief was reasonable is a matter to be
save himself from death or serious bodily injury, or
determined by the jury 'from the facts and
that such a belief would have been reasonable. Thus,
circumstances as they appeared to the accused at
even if the jury found that defendant's hand was
the time.'" State v. Moore, 111 N.C. App. 649, 653,
bandaged or that after he and Michael argued,
432 S.E.2d 887, 889 (1993) (quoting State v. Marsh,
Michael struck defendant with his hand, there was still
293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977)). "The
no evidence tending to show that defendant acted in
right of self-defense is only available, however, to 'a
self-defense. We conclude that there is no reasonable
person who is without fault, and if a person voluntarily,
possibility that the admission of the 404(b) evidence
that is aggressively and willingly, enters into a fight,
affected the outcome of the trial. This argument lacks
he cannot invoke the doctrine of self-defense unless
merit.
he first abandons the fight, withdraws from it and

gives notice to his adversary that he has done so.'"
Because we hold that admission of the 404(b)
State v. Allred, 129 N.C. App. 232, 235, 498 S.E.2d
evidence did not prejudice defendant, we do not
204, 206 (1998) (quoting Marsh, 293 N.C. at 354, 237
reach the issues of whether the evidence should have
S.E.2d at 747).
been excluded under North Carolina Rule of Evidence

403, or whether the trial court's instructions allowed
In this case the State presented overwhelming and
the jury to consider the 404(b) evidence as proof of
uncontradicted evidence that: (1) Michael was
issues that were not in dispute.
unarmed when he went to Durrell's house; (2) Michael

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

defendant cut Michael in his abdomen, and; (4) when
We hold that, even assuming, arguendo, that the trial
bystanders separated defendant and Michael,
court erred by admitting the challenged evidence
defendant threatened to kill Michael "next time" and
under North Carolina Rule of Evidence 404(b),
threatened those around him. Defendant argues that
defendant has failed to establish the requisite
there was evidence that his hand was injured on the
prejudice from admission of the evidence.
day of the fight, and that there was conflicting

evidence regarding who struck the first blow in the
[...]
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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:
[...]
Once the defendant does so, the State then bears the
burden of persuasion to disprove the raised defense.
Analysis
Id. The burden of persuasion does not require the

State to produce evidence; it requires only that the
Appellant argues that the evidence is legally
State prove its case beyond a reasonable doubt. Id.
insufficient because the trial judge erred in rejecting
A determination of guilt by the fact finder implies a
her self-defense claim. Appellant asserts that she was
finding against the defensive theory. Id.
justified in using self-defense because she was

protecting herself in her own residence. The State
The issue of self-defense is a fact issue to be
responds that the evidence is legally sufficient to
determined by the fact finder, who is free to accept or
support the conviction.
reject the defensive issue. See Saxton v. State, 804

S.W.2d 910, 913--14 (Tex. Crim. App. 1991). As the
In reviewing a challenge to the sufficiency of the
sole judge of the weight and credibility accorded any
evidence, we examine all the evidence in the light
witness's testimony, the fact finder is free to believe or
most favorable to the fact-finding and determine
disbelieve the testimony of all witnesses, and to
whether a rational trier of fact could have found the
accept or reject any or all of the evidence produced
essential elements of the offense beyond a
by the respective parties. See Cleveland v. State, 177
reasonable doubt. See Jackson v. Virginia, 443 U.S.
S.W.3d 374, 380(Tex. Crim. App. 2005).
307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);

Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.
To obtain a conviction for assault, the State had to
2012). We are required to defer to the fact finder's
prove beyond a reasonable doubt that appellant
credibility and weight determinations because the fact
intentionally, knowingly, or recklessly caused bodily
finder is the sole judge of the witnesses' credibility
injury to Susan Shorkey by striking Shorkey's head,
and the weight to be given their testimony. See
face, or body or by pulling Shorkey's hair with
Jackson, 443 U.S. at 326.
defendant's hand. See Tex. Penal Code Ann.

22.01(a)(1) (West Supp. 2014). "Bodily injury" means
A defendant has the burden of producing some
physical pain, illness, or any impairment of physical
evidence to support a claim of self-defense. Zuliani v.
condition. Id.
State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).

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Appellant does not challenge the fact that Shorkey
804 S.W.2d at 913--14. The trial court could have
sustained bodily injuries due to an assault. Rather,
reasonably concluded the evidence did not support
she claims the evidence shows that she was justified
appellant's self-defense claim. See Cleveland, 177
in using force--hitting Shorkey--to prevent Shorkey
S.W.3d at 380. Viewing the evidence under the
from using force against her while she was in her
proper standard, we conclude a rational trier of fact
residence. But there was conflicting evidence as to
could reject appellant's claim of self-defense and find
who was the aggressor. Aragon and Shorkey testified
beyond a reasonable doubt that appellant assaulted
that appellant was the aggressor. Appellant and
Shorkey. Thus, the evidence is sufficient to sustain
Espinoza testified that Shorkey was the aggressor,
the conviction. We overrule appellant's sole issue.
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,
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Page 12 of 17

2015 #20 (May 4-10, 2015)
__________________________________________________________________________________________
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:
[...]
the degree the actor reasonably believes the force is

immediately necessary to prevent or terminate the
Sufficiency of the Evidence
other's trespass on the land or unlawful interference

with the property." Id.
In her second, third, and fourth issues, Wilcut

contends the evidence is legally insufficient to support
Section 9.43 of the Code defines the defensive theory
the jury's implicit rejection of her defensive theories.
of defense of a third person's property. Id. at 9.43.

Under section 9.43, a person is justified in using force
A. Self-Defense, Defense of Property, and Defense
against another to protect land or tangible, movable
of Property of a Third Person
property of a third person if: (1) the actor would be

justified in using force to protect his own land or
Section 9.31(a) of the Texas Penal Code defines the
property under section 9.41; and (2) the actor
defensive theory of self-defense. Tex. Penal Code
reasonably believes: (1) the unlawful interference
Ann. 9.31(a) (West 2011). ] Under section 9.31(a),
constitutes attempted or consummated theft of or
"a person is justified in using force against another
criminal mischief to the tangible, movable personal
when and to the degree the actor reasonably believes
property; or (2) the third person whose land or
force is immediately necessary to protect the actor
property he uses force to protect is the actor's parent.
against the other's use or attempted use of unlawful
Id
force." Id. The use of force against another is not

justified if the actor provoked the other's use of
B. Burden of Proof
unlawful force unless the actor abandons the

encounter. Id. at 9.31(b)(4).
A defendant bears the initial burden of production with

regard to a defensive theory. Zuliani v. State, 97 S.W.
Section 9.41(a) of the Code defines the defensive
3d 589, 594 (Tex. Crim. App. 2003). This requires the
theory of defense of one's own property. Id. at
defendant to produce some evidence that supports
9.41(a). Under section 9.41(a), "a person in lawful
the particular defense. Zuliani, 97 S.W.3d at 594.
possession of land or tangible, movable property is
Once the defendant meets this burden by producing
justified in using force against another when and to

some evidence, the State then bears the burden of
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Page 13 of 17

2015 #20 (May 4-10, 2015)
__________________________________________________________________________________________
persuasion to disprove the raised defense. Zuliani, 97
bumping and pushing Laurie, Lisa, and Troy, and
S.W.3d at 594; Saxton v. State, 804 S.W.2d 910, 913
attempting to hit them with a three-foot tree limb.
(Tex. Crim. App. 2001). The burden of persuasion is
Although Wilcut denied taking these actions, the jury
not one that requires the production of evidence, so
is the sole judge of the credibility of the witnesses.
the State is not required to affirmatively produce
See Brooks, 323 S.W.3d at 899. Because the jury
evidence refuting the defensive claim. Saxton, 804
could have found Wilcut provoked the use of force
S.W.2d at 913. Instead, the State is required only to
against her, the jury could have rejected her self-
prove its case beyond a reasonable doubt. Zuliani, 97
defense theory on that basis. See Tex. Penal Code.
S.W.3d at 594; Saxton, 804 S.W.2d at 913. When the
9.31(b)(4).
defendant is found guilty, there is an implicit finding

against the defensive theory. Zuliani, 97 S.W.3d at
In addition, Wilcut testified she struck Laurie with the
594; Saxton, 804 S.W.2d at 914.
glass because she was unable to breathe. Wilcut did

not testify she struck Laurie with the glass to "prevent
C. Legal Sufficiency Standard of Review
or terminate [her and] the other's trespass on the land

or the unlawful interference with the property." Tex.
In evaluating the legal sufficiency of the evidence, "we
Penal Code Ann. 9.41(a); see also Tidmore v. State,
consider all the evidence in the light most favorable to
976 S.W.2d 724, 731 (Tex. App.--Tyler 1998, pet.
the verdict and determine whether, based on that
ref'd) (holding trial court did not err in failing to instruct
evidence and reasonable inferences therefrom, a
jury regarding defense of property when evidence
rational juror could have found the essential elements
established appellant discharged gun in rage or to
of the crime beyond a reasonable doubt." Hooper v.
protect himself). Also, the jury could have determined
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
the use of force to protect any property was not
"Viewing the evidence 'in the light most favorable to
"immediately necessary" in view of Wilcut's testimony
the verdict' under a legal-sufficiency standard means
that she had phoned 911 and believed law
that the reviewing court is required to defer to the
enforcement should have arrived before she did.
jury's credibility and weight determinations because
Accordingly, the jury could have implicitly rejected
the jury is the sole judge of the witnesses' credibility
Wilcut's defensive theories of defense of property and
and the weight to be given their testimony." Brooks v.
defense of third person's property.
State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010)

(emphasis in original). The jury can choose to believe
Wilcut's second, third, and fourth issues are
all, some or none of the testimony presented by the
overruled.
parties. Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991).
Jury Charge
D. Analysis
In her first issue, Wilcut asserts the jury charge

included an erroneous instruction with regard to
In view of the testimony presented, the jury could
defense of a third person's property, and the error
have chosen to believe Wilcut provoked the use of
resulted in egregious harm. The portion of the jury
force against her by entering the mobile home,

__________________________________________________________________________________________
Page 14 of 17

2015 #20 (May 4-10, 2015)
__________________________________________________________________________________________
charge about which Wilcut complains is the following
erroneous.
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,
As previously noted, the jury could have found from
moveable property of a third person if, under the
Wilcut's testimony that she was not acting in defense
circumstances as she reasonably believes them
of property when she struck Laurie, but was only
to be, the actor would be justified in using force or
acting to defend herself. See Tidmore, 976 S.W.2d at
deadly force to protect her own land or property
731. Moreover, the jury could have found Wilcut's use
and the actor reasonably believes the unlawful
of force was not "immediately necessary" given her
interference constitutes attempted or
testimony that she previously contacted law
consummated theft of or criminal mischief to the
enforcement and only wanted Laurie, Lisa, and Troy
tangible, moveable property, and a third person
to exit the mobile home until law enforcement arrived.
whose land or property she uses force or deadly
During closing argument, the prosecutor emphasized
force to protect is the actor's spouse, parent, or
this testimony, asserting, "Why -- if you called the
child, resides with the actor, or is under the
police, if you were really worried that someone was
actor's care.
trespassing and destroying your father's property, why

didn't you stay out by your truck and wait for law
(emphasis added). As previously noted, under section
enforcement to arrive?" Although Wilcut notes the
9.43 of the Code, a person is justified in using force
words "constitutes attempted or consummated theft of
against another to protect land or tangible, movable
or criminal mischief to the tangible" were underlined in
property of a third person if: (1) the actor would be
the jury charge by a pen or pencil, any theory or
justified in using force to protect his own land under
conclusion about the reason or by whom those words
section 9.41(a); and (2) the actor reasonably believes:
were underlined would be pure speculation. Having
(1) the unlawful interference constitutes attempted or
reviewed the record as a whole, we conclude the
consummated theft of or criminal mischief to the
record does not establish actual as opposed to
tangible, movable personal property; or (2) the third
theoretical harm or show that Wilcut was deprived of
person whose land or property he uses force to
a fair and impartial trial.
protect is the actor's parent. See Tex. Penal Code.

9.43. In its brief, the State concedes that the use of
[...]
the conjunctive term "and" in the jury charge was

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Page 15 of 17

2015 #20 (May 4-10, 2015)
__________________________________________________________________________________________
VIRGINIA
Buchanan v. Commonwealth, 2015 Va. App. LEXIS 153 (VA Ct. App. 2015)
Key issues:
Excusable v. justified homicide; admissibility of defendants text messages.
Date:
May 5, 2015
Decision:
[...]
"'In Virginia, every unlawful homicide is presumed to

be murder of the second degree.'" Tizon v.
B. SUFFICIENT EVIDENCE SUPPORTED
Commonwealth, 60 Va. App. 1, 10-11, 723 S.E.2d
BUCHANAN'S CONVICTIONS
260, 264 (2012) (quoting Pugh v. Commonwealth,

223 Va. 663, 667, 292 S.E.2d 339, 341 (1982)).
When considering the sufficiency of the evidence on
"'Murder . . . is a homicide committed with malice,
appeal, we "presume the judgment of the trial court to
either express or implied.'" Id. at 11, 723 S.E.2d at
be correct" and reverse only if the trial court's
264 (quoting Pugh, 223 Va. at 667, 292 S.E.2d at
decision is "plainly wrong or without evidence to
341). "Malice inheres in the 'doing of a wrongful act
support it." Davis v. Commonwealth, 39 Va. App. 96,
intentionally, or without just cause or excuse, or as a
99, 570 S.E.2d 875, 876-77 (2002); see also McGee
result of ill will,'" and may be inferred from the
v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.
deliberate use of a deadly weapon. Id. at 11, 723 S.E.
2d 259, 261 (1997) (en banc). Under this standard, "a
2d at 265 (quoting Dawkins v. Commonwealth, 186
reviewing court does not 'ask itself whether it believes
Va. 55, 61, 41 S.E.2d 500, 503 (1947)). Killing in self-
that the evidence at the trial established guilt beyond
defense, however, may be either justifiable or
a reasonable doubt.'" Crowder v. Commonwealth, 41
excusable homicide.
Va. App. 658, 662, 588 S.E.2d 384, 387 (2003)

(quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99
"Justifiable homicide in self-defense occurs where a
S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). It asks instead
person, without any fault on his part in provoking or
whether "'any rational trier of fact could have found
bringing on the difficulty, kills another under
the essential elements of the crime beyond a
reasonable apprehension of death or great bodily
reasonable doubt.'" Kelly v. Commonwealth, 41 Va.
harm to himself." Bailey v. Commonwealth, 200 Va.
App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)
92, 96, 104 S.E.2d 28, 31 (1958); Dodson v.
(quoting Jackson, 443 U.S. at 319). We do not
Commonwealth, 159 Va. 976, 167 S.E. 260 (1933).
"substitute our judgment for that of the trier of fact"
"Excusable homicide in self-defense occurs where the
even if our opinion were to differ. Wactor v.
accused, although in some fault in the first instance in
Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d
provoking or bringing on the difficulty, when attacked
160, 162 (2002).
retreats as far as possible, announces his desire for
peace, and kills his adversary from a reasonably

__________________________________________________________________________________________
Page 16 of 17

2015 #20 (May 4-10, 2015)
__________________________________________________________________________________________
apparent necessity to preserve his own life or save
Robbins if he filed a criminal trespassing complaint
himself from great bodily harm." Bailey, 200 Va. at 96,
against him, Buchanan refused to do so. Instead, he
104 S.E.2d at 31.
allowed Robbins to remain in the area and spend the

night in a nearby ditch. He then approached Robbins
Yarborough v. Commonwealth, 217 Va. 971, 975, 234
armed with a gun and a piece of metal rebar and told
S.E.2d 286, 290 (1977).
him to leave the area.6 While Buchanan testified that

Robbins attacked him, he was not injured during the
Buchanan admitted that he shot and killed Robbins
alleged assault. Edwards testified that Robbins was
on November 18, 2012. He explained to the jury that
not belligerent during their interactions that evening
he shot Robbins in self-defense after Robbins
and that he did not appear to be intoxicated.
attacked him. Buchanan claimed that he shot Robbins
Moreover, the testimony of the medical examiner that
while Robbins was on top of him hitting him in the
performed an autopsy on Robbins also cast doubt on
head with a two-liter bottle and his fists. The jury,
Buchanan's description of the attack. The downward
however, rejected Buchanan's version of the events
trajectory of the bullet that killed Robbins suggested
and concluded that he killed Robbins with malice.5
that he was not shot by someone who was pinned
Ample evidence supported the jury's decision.
underneath him.
Buchanan's animosity towards Robbins was well-
Under these circumstances, the jury reasonably
documented and clearly established. On the night that
concluded that Buchanan's version of the shooting
he shot Robbins, Buchanan sent text messages to
was not credible. The jury was "at liberty to discount
Pickle expressing his desire to shoot and kill Robbins.
[Buchanan's] self-serving statements as little more
He sent similar messages to Pickle and Jones nearly
than lying to conceal [his] guilt, and could treat such
a week before the killing. He also told the 911
prevarications as affirmative evidence of guilt."
dispatcher that answered one of his calls that he was
Armstead v. Commonwealth, 56 Va. App. 569, 581,
going to shoot Robbins and "feel good about it."
695 S.E.2d 561, 567 (2010) (citation and internal
Buchanan was frustrated and angry at Robbins, and
quotation marks omitted). Based on Buchanan's
he had physically wrestled him out of the apartment
animosity towards Robbins, evidenced by numerous
before he called the police. Couch testified that
statements in which he expressed a desire to shoot
Buchanan pointed a gun at Robbins's head during
and kill him, the jury could infer that Buchanan killed
this altercation, and Robbins told the police that
Robbins with malice. Accordingly, we conclude that
Buchanan had held something against his head that
the evidence presented supported both of Buchanan's
felt like a gun.
convictions.
Although the police officers that responded to
[...]
Buchanan's 911 calls told him that they would arrest

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__________________________________________________________________________________________
__________________________________________________________________________________________
Page 17 of 17

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Law of Self Defense: Weekly Law Report

2015 #20 (May 4-10, 2015)

Law of Self Defense: Weekly Law Report

Frequently Asked Questions

What is the Law of Self Defense: Law Report Weekly?

Do you recount each of the cases in their entirety?

What if I want to read the entire case?

Law of Self Defense: Weekly Law Report

Law of Self Defense: Weekly Law Report

admit of but one conclusion, the question as to

definition is one of law, and the [trial c]ourt must

B. Jury instructions for lesser included offense

where it may or may not be likely to produce fatal

part of the body at which the blow is aimed, its

In the present case, Robinson complains that the trial

determined by the jury.

court erred by declining to instruct the jury on assault

Id. at 643, 239 S.E.2d at 413 (citation omitted). As

jury that the brass knuckle-handled pocketknife that

such, Robinson argues that the trial court's failure to

Robinson admitted to stabbing Pelcher with was a

instruct on the lesser included offense of assault

deadly weapon as a matter of law. By Robinson's

inflicting serious injury deprived the jury of the only

option by which it could have concluded that although

instruction on simple assault demonstrates that the

Pelcher's injuries were serious, Robinson acted

issue of whether or not the knife was a deadly

without a deadly weapon.

weapon was a matter for the jury's determination and

There are several reasons why this argument fails.

support a finding by the jury that Pelcher was

First, although our State's appellate courts have long

intentionally cut or stabbed with a weapon that was

acknowledged that "the evidence in each case

not deadly. In support of this argument, Robinson

determines whether a certain kind of knife is properly

cites our Supreme Court's decision in State v. Palmer,

characterized as a lethal device as a matter of law or

293 N.C. 633, 239 S.E.2d 406 (1977), which

whether its nature and manner of use merely raises a

factual issue about its potential for producing death,"

[w]here the allegedly deadly weapon and the

S.E.2d 719, 726 (1981) (citations omitted), our prior

manner of its use are of such character as to

Law of Self Defense: Weekly Law Report

When considered collectively, the prior cases from

of knives. For instance, a hunting knife, a kitchen

this Court and our Supreme Court make clear that

knife, and a steak knife have been denominated

when a knife is used in an assault as a knife or in any

deadly weapons per se. . . . A pocketknife is also

other way "likely to produce death or great bodily

unquestionably capable of causing serious bodily

harm," it is proper to instruct the jury that it is a deadly

injury or death." Id. at 301, 283 S.E.2d at 725-26; see

weapon as a matter of law. See, e.g., State v. Torain,

also State v. Collins, 30 N.C. 407, 409, 412 (1848)

316 N.C. 111, 121, 340 S.E.2d 465, 471 (citation

(opining that a pocketknife with a two and a half-inch

omitted), cert. denied, 479 U.S. 836, 107 S. Ct. 133,

blade was a deadly weapon as a matter of law); State

93 L. Ed. 2d 77 (1986). In fact, as our Supreme Court

v. Cox, 11 N.C. App. 377, 380, 181 S.E.2d 205, 207