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Law of Self Defense: Weekly Law Report

2015 #23 (May 25-29, 2015)


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Law of Self Defense: Weekly Law Report


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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. 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:

The Law of Self Defense is well-known for translating the legalese of self-defense law into plain
English easily understood by non-lawyers, as you do in your books, seminars, online training, and
blog posts. Is the same effort made to translate the cases in these Weekly Reports into plain
English?

A:

Im afraid not. Translating legalese into plain English takes a lot of effort, and simply isnt tenable for
weekly reports of this type. Therefore we consider these reports a graduate-level product, for people
who already have a solid understanding of the legal principles of self-defense law. To get up to speed 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 state-specific online training classes. And, of course, theres always the Law of Self Defense Blog.

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. 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.

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Table of Contents
CALIFORNIA

Page

In re Brian, 2015 Cal. App. Unpub. LEXIS 3730 (CA Ct. App. 2015)
Key issues:
Tear gas is a dangerous weapon and its use (except in self-defense) is a
crime and may allow enhancement of a charge or sentence; Threatening to
use a weapon is use of that weapon; Objects whose ordinary intended use
is as a weapon designed to cause death or grave bodily harm are dangerous
or deadly weapons as a matter of law; Objects not designed as weapons but
which are used in a manner intended to cause death or grave bodily harm
are also dangerous or deadly weapons based on the circumstances of their
use; Pepper spray is a dangerous weapon as a matter of law, because it is
intended use causes death or grave bodily harm, to wit, disablement through
difficulty of breathing, burning of eyes, nausea, and temporary incapacitation.
Date:
May 28, 2015

People v. King, 2015 Cal. App. Unpub. LEXIS 3720 (CA Ct. App. 2015)
Key issues:
Burden of production, claim of self-defense not raised until trial; Defense of
Accident with a firearm; Consciousness of guilt evidence: hiding weapon,
lying to 911/police/media; Innocence, provocation, pre-textual self-defense;
Date:
May 28, 2015

TENNESSEE
State v. Montgomery, 2015 Tenn. Crim. App. LEXIS 415 (TN Ct. App. 2015)
Key issues:
Stand-Your-Ground, 39-11-611(b); Statutory prohibition of conviction for
illegal gun possession of gun used in self-defense, 39-17-1322; Being
engaged in an unlawful activity of any sort (including illegal possession of a
gun) strips defendant of Stand-Your-Ground and re-imposes the legal duty to
retreat, but it does not strip the defendant of right to claim self-defense.
Date:
May 28, 2015

11

UTAH
State v. Alzaga, 2015 UT App 133 (UT Ct. App. 2015)
Key issues:
Impermissible to claim of self-defense by person attempting/committing/
fleeing a felony [Utah Code 76-2-402(2)(a)(ii)]; Burden of persuasion on
self-defense is on the State; "Forcible felony" includes "arson, robbery, and
burglary as defined in Title 76, Chapter 6 [of the Utah Code], Offenses
Against Property," as well as "[a]ny other felony offense which involves the
use of force or violence against a person so as to create a substantial danger
of death or serious bodily injury." [Utah Code Ann. 76-2-402(4)(a), (b)]
Date:
May 29, 2015

23

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CALIFORNIA
In re Brian, 2015 Cal. App. Unpub. LEXIS 3730 (CA Ct. App. 2015)
Key issues:

Tear gas is a dangerous weapon and its use (except in self-defense) is a crime and may allow
enhancement of a charge or sentence; Threatening to use a weapon is use of that weapon;
Objects whose ordinary intended use is as a weapon designed to cause death or grave bodily
harm are dangerous or deadly weapons as a matter of law; Objects not designed as weapons but
which are used in a manner intended to cause death or grave bodily harm are also dangerous or
deadly weapons based on the circumstances of their use; Pepper spray is a dangerous weapon
as a matter of law, because it is intended use causes death or grave bodily harm, to wit,
disablement through difficulty of breathing, burning of eyes, nausea, and temporary
incapacitation.

Date:

May 28, 2015

Decision:
When confronted by store loss prevention personnel

designed to be dangerous and appeared to be

after having stolen store merchandise, defendant

capable of carrying out its design, which suffices.

Brian P. brandished but did not discharge a canister


labeled "pepper spray." The trial court sustained

Accordingly, we affirm the judgment.

allegations that defendant committed robbery and


burglary, used tear gas in commission of the offenses,

BACKGROUND

and personally used a dangerous weapon, namely


tear gas. On appeal, defendant contends that

On February 20, 2013, defendant and a companion

brandishing a tear gas canister does not without more

took seven portable Bluetooth speakers from a Wal-

constitute "use" of tear gas, and no evidence

Mart without paying for them. When they were

supported the finding that defendant used a

confronted in the parking lot by Kyle McDaniel, a loss

dangerous weapon. We disagree with both

prevention officer employed by the store, defendant

contentions. Brandishing a weapon constitutes "use"

produced a canister labeled "pepper spray" and said

whether or not the weapon is discharged. And

he would spray McDaniel if he did not get back. After

whether the pepper spray in defendant's canister, if

defendant was subdued, he admitted he threatened

any, was actually dangerous is irrelevant for purposes

McDaniel with the pepper spray to prevent him from

of the enhancement statute, as the weapon was

finding the speakers and said he carried the spray for


protection.

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"Threatening another with any weapon, including a
At trial, the only evidence concerning the contents of

tear gas weapon," constitutes "use" of the weapon.

the pepper spray canister was a photograph of the

(People v. Hamilton (1998) 61 Cal.App.4th 149, 154

canister bearing a label that said, "18% Pepper

[defendant pointed an unloaded tear gas gun at the

Spray" and "Warning: Strong Irritant."

victim and clicked the trigger]; People v. Wims (1995)


10 Cal.4th 293, 302 ["use" includes intentionally

After a contested hearing, the trial court found

displaying a weapon in a menacing manner].) The

defendant violated Penal Code sections 211

weapon need not be discharged or even be capable

(robbery), 459 (burglary), and 22810, subdivision (g)

of discharge, so long as there is evidence it was

(1) (use of tear gas), and found true the allegation

designed to discharge tear gas and gave the

that defendant personally used a dangerous weapon

appearance of the capability to do so. (See People v.

within the meaning of Penal Code section 12022,

Nelums (1982) 31 Cal.3d 355, 359-360 [defendant

subdivision (b)(1). The trial court declared defendant

used an inoperable firearm].)

a ward of the court, placed him on home probation,


and terminated wardship as of the same date.

Here, defendant brandished a pepper spray canister


and told McDaniel he would use it. That constituted

He timely appealed.

use of a tear gas weapon for purposes of Penal Code


section 22810.

DISCUSSION
B. Use of a "Dangerous" Weapon
A. "Use" of Tear Gas
"A person who personally uses a deadly or dangerous
Defendant contends brandishing a pepper spray

weapon in the commission of a felony or attempted

canister without discharging any spray does not

felony shall be" subject to a sentence enhancement.

constitute "use" of the weapon. We disagree.

(Pen. Code, 12022, subd. (b)(1).) Defendant


contends insufficient evidence supported the finding

"[A]ny person who uses tear gas or any tear gas

that he used a deadly or dangerous weapon because

weapon except in self-defense is guilty of a public

there was no evidence his pepper spray canister was

offense." (Pen. Code, 22810, subd. (g)(1).) A tear

loaded, no evidence that any spray it may have

gas weapon is "[a]ny shell, cartridge, or bomb

contained was of sufficient strength to be dangerous,

capable of being discharged or exploded, when the

and no evidence that pepper spray is itself

discharge or explosion will cause or permit the

dangerous.

release or emission of tear gas." (Pen. Code,


17250, subd. (a).) Tear gas is "any liquid, gaseous or

"'In order to find "true" a section 12022(b) allegation, a

solid substance intended to produce temporary

fact finder must conclude that, during the crime or

physical discomfort or permanent injury through being

attempted crime, the defendant himself or herself

vaporized or otherwise dispersed in the air." (Pen.

intentionally displayed in a menacing manner . . . an

Code, 17240, subd. (a).)

instrument capable of inflicting great bodily injury or


death. . . .' . . . In determining whether an object which

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is not inherently deadly or dangerous has been used
as a dangerous or deadly weapon, 'the trier of fact

Pepper spray is a dangerous weapon as a matter of

may consider the nature of the object, the manner in

law, as the ordinary use for which it is designed

which it is used, and all other facts relevant to the

establishes its character as such. (See Pen. Code,

issue.'" (People v. Blake (2004) 117 Cal.App.4th 543,

17250, subd. (a) [tear gas "weapon" is any cartridge

555, fns. omitted.)

capable of being discharged and releasing tear gas];


see, e.g., United States v. Neill (9th Cir. 1999) 166 F.

"'[A] distinction should be made between two classes

3d 943, 949-950.) Although the effects of pepper

of "dangerous or deadly weapons." There are, first,

spray are normally temporary, there is no question

those instrumentalities which are weapons in the strict

that it may disable by causing difficulty breathing,

sense of the word, and, second, those

burning eyes, nausea, and temporary incapacitation.

instrumentalities which are not weapons in the strict

(People v. Blake (2004) 117 Cal.App.4th 543, 558.)

sense of the word, but which may be used as such.

Even if pepper spray were not inherently dangerous,

The instrumentalities falling in the first class, such as

it may be fairly inferred from the evidence here that

guns, dirks and blackjacks, which are weapons in the

defendant intended to use his canister as a

strict sense of the word and are "dangerous or

dangerous weapon, in that he brandished it at

deadly" to others in the ordinary use for which they

McDaniel to dissuade him from carrying out his duty,

are designed, may be said as a matter of law to be

a goal that could have been accomplished only if the

"dangerous or deadly weapons." This is true as the

perceived danger was great enough to overwhelm the

ordinary use for which they are designed establishes

duty.

their character as such. The instrumentalities falling


into the second class, such as ordinary razors,

It is true the only evidence of the degree of danger

pocket-knives, hatpins, canes, hammers, hatchets

posed by defendant's pepper spray canister was that

and other sharp or heavy objects, which are not

it appeared to be such a canister, it was labeled

weapons in the strict sense of the word and are not

"pepper spray," and the label stated the spray was

"dangerous or deadly" to others in the ordinary use

"18% strength" and constituted a "strong irritant." This

for which they are designed, may not be said as a

evidence does not establish the canister was loaded

matter of law to be "dangerous or deadly weapons."

or that any pepper spray it contained was of sufficient

When it appears, however, that an instrumentality

strength to injure McDaniel. But the canister was

other than one falling within the first class is capable

designed to injure and reasonably appeared to be

of being used in a "dangerous or deadly" manner, and

capable of doing so, and defendant depended at least

it may be fairly inferred from the evidence that its

on that appearance to dissuade McDaniel from

possessor intended on a particular occasion to use it

apprehending him. It does not matter whether the

as a weapon should the circumstances require, we

spray itself would have been capable of injuring

believe that its character as a "dangerous or deadly

McDaniel had it been discharged. The legislative

weapon" may be thus established, at least for the

purpose underlying weapons penalty enhancement

purposes of that occasion.'" (People v. Graham

statutes is to deter those engaged in felonies from

(1969) 71 Cal.2d 303, 327-328, disapproved on other

creating a risk of death or injury by having a weapon

grounds in People v. Ray (1975) 14 Cal.3d 20, 32.)

at the scene of the crime. (People v. Bland (1995) 10

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Cal.4th 991, 1001.) The risk arises not only from

reasonable appearance of being able to do so.

potential use of the weapon to protect the defendant

(People v. Nelums, supra, 31 Cal.3d at pp. 359-360.)

or ward off police, but also from potential police


reaction to the weapon itself. The deterrence

DISPOSITION

objective is best fulfilled by imposing an enhanced


penalty whether or not the weapon is functional, so

The judgment is affirmed.

long as it was designed to function and gave the

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CALIFORNIA
People v. King, 2015 Cal. App. Unpub. LEXIS 3720 (CA Ct. App. 2015)
Key issues:

Burden of production, claim of self-defense not raised until trial; Defense of Accident with a
firearm; Consciousness of guilt evidence: hiding weapon, lying to 911/police/media; Innocence,
provocation, pre-textual self-defense;

Date:

May 28, 2015

Decision:
A jury found defendant Jerry Lee King guilty of first

he had gunshot residue on his hand, hid the gun, and

degree murder and found he personally used and

consistently denied shooting Griffin until his trial

intentionally discharged a firearm, causing death.

testimony.

(Pen. Code, 187, 12022.53, subds. (b), (c), (d).)


The trial court sentenced defendant to prison for 50

The defense theory was that Griffin--larger than

years to life and he timely appealed.

defendant, and a drug-user with a violent past-arrived, asked if defendant was going to shoot him,

On appeal, defendant contends the trial court

then charged at defendant, who did not know whether

prejudicially misinstructed the jury regarding self-

the rifle he held was loaded. Defendant brought the

defense, provocation, and lying in wait. Disagreeing,

rifle up and fired it accidentally. Defendant lied about

we shall affirm.

the shooting because he was afraid. The People


argued defendant's claims of accident or self-defense

BACKGROUND

should be rejected, because they were not raised until


trial and also in part argued that defendant lacked

On December 9, 2012, defendant fatally shot his

credibility because of his three prior felony

uncle, Willis Griffin, with a rifle.

convictions.

The People's theory was that defendant, who lived

At trial, defendant testified Griffin outweighed him by

with his mother in a rural area, had been asked to

at least 50 pounds. The day before the killing he

leave, and his mother enlisted Griffin to help evict

overheard his mother talking to Griffin, who said he

him. He had threatened to shoot Griffin the day

would get defendant out of the house the next day,

before, and about a week before the killing threatened

which made him feel bad and "tore [him] up inside."

to beat Griffin because he thought Griffin was seeing

The next day defendant argued with his mother as

defendant's ex-girlfriend. When Griffin arrived at the

she prepared to leave, and threatened to stab the

residence on the day of the murder, defendant walked

tires he had bought for her car. He fell asleep, woke

75 feet from the residence towards him and shot him

up, and heard Griffin's motorcycle. He believed he

through the heart from 10 feet away. After the killing


was going to be kicked out. He armed himself
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because he was afraid of Griffin, having seen him

A. Background

beat his mother's ex-husband with a baseball bat and


"do some pretty mean things" to others. He added

The trial court gave the pattern CALCRIM instructions

about Griffin that "[w]hen he snaps, he snaps."

on self-defense and imperfect self-defense. These

Defendant did not check to see if the rifle was loaded.

instructions required the jury, before returning a


murder verdict, to find that the People had proven

Defendant testified that when Griffin stopped his

beyond a reasonable doubt that defendant had not

motorcycle, he looked at defendant--who was about

acted to defend himself, whether defendant's belief in

10 feet away, holding the rifle with one arm--and said

the need to do so was objectively reasonable or not.

"what are you going to do, fucking shoot me[?]" As

As to each defense, the jury was instructed to

Griffin tried to put the kickstand down, he hit his leg,

consider defendant's knowledge of Griffin's prior

swore, dismounted from the bike, and started toward

threatening or harmful acts in evaluating defendant's

defendant. Defendant described Griffin's advance

belief. As to regular self-defense, the jury was

"Like a football tackle. Like he was going to tackle me.

instructed defendant could stand his ground.

Like he started to run at me." Defendant then "pulled


the gun up and it just went off." It was an accident.

The trial court also gave CALCRIM No. 3472, as

Defendant admitted hiding the gun, and lying to the

follows: "A person does not have the right to self-

911 operator, the police, and the media. He loved his

defense if he or she provokes a fight or quarrel with

uncle, who had practically raised him. Despite this

the intent to create an excuse to use force."

affection, he brought the rifle "because I thought if I


had the gun in my hands that he wouldn't come after

Defense counsel argued in part that because of

me physically. . . . That we could actually just argue

Griffin's size, violent past, and his sudden lunge

this out and then I wouldn't have to leave."

towards defendant, defendant actually believed in the


need to employ deadly force to defend himself.

DISCUSSION

During rebuttal, the prosecutor argued, "A person


doesn't have the right to self-defense if he provokes

the fight or [acts] with an intent to create an excuse to


use force. Well, I'm going to go out there with this

Pretextual Self-Defense

rifle, when Willis sees it [and] says, what are you


going to do, shoot me, then it's going to be okay that I

Defendant contends the trial court should not have

do. That's not the way the law works."

instructed the jury on the concept of pretextual selfdefense. He concedes he did not object to this

B. Analysis

instruction in the trial court, but contends we should


review his claim for various reasons. We elect to

To illustrate the concept of pretextual self-defense,

address the claim on the merits, and reject the claim

counsel cites an unforgettable scene from Shane,

of error.

where Jack Palance's character--a highly experienced


gunfighter--goads Elisha Cook, Jr.'s character--an
ordinary "sodbuster"--into reaching for his revolver,

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whereupon Palance's character shoots him down,

Accordingly, contrary to defendant's view, substantial

having planned the entire scenario to absolve himself

evidence supported the instruction, and therefore the

of liability, because he did not draw first. But,

trial court did not err in giving it to the jury.

Hollywood notwithstanding--and regardless of


whether the film correctly conveyed the extant law in

Moreover, the trial court instructed the jury that not all

19th Century Wyoming--our Supreme Court has held

of the instructions were applicable, depending on its

that "[s]elf-defense is not available as a plea to a

findings about the facts of the case. The prosecutor

defendant who has sought a quarrel with the design

emphasized the trial court's instruction that not all

to force a deadly issue and thus, through his fraud,

instructions would necessarily apply. We presume the

contrivance, or fault, to create a real or apparent

jury would follow the instructions and disregard the

necessity for killing." (People v. Hecker (1895) 109

pretextual self-defense instruction if it did not find the

Cal. 451, 462.)

facts supported it. (See People v. Sanchez (2001) 26


Cal.4th 834, 852.) It did not, as defendant contends,

Defendant contends "nothing remotely similar"

impair the other self-defense instructions, which

happened in this case. We disagree. The jury could

required the People to disprove both the perfect and

plausibly find that defendant carried the rifle with him

imperfect self-defense theories. (See People v. Olguin

to goad Griffin into making a threatening move.

(1994) 31 Cal.App.4th 1355, 1381 [construing similar

Defendant's own testimony shows that after Griffin

instruction, but rejecting claim that it "might have kept

saw the gun, he in effect scoffed at it, taunting

the jury from evaluating [the] self-defense claim"].)

defendant by asking if he was going to "fucking shoot"

This instruction did not negate or weaken those

Griffin. Then, when Griffin got off the motorcycle,

instructions, nor did the prosecutor's argument.

according to defendant, Griffin indeed rushed towards


defendant, whereupon, in defendant's version, the

II

rifle discharged as he brought it up defensively. The


very fact he greeted his uncle with a rifle in hand

[...]

could be viewed by the jury as provocation by


defendant, because the jury was free to disbelieve

DISPOSITION

defendant's testimony that he held the rifle in order to


ensure a peaceful dialogue with Griffin.

The judgment is affirmed.

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TENNESSEE
State v. Montgomery, 2015 Tenn. Crim. App. LEXIS 415 (TN Ct. App. 2015)
Key issues:

Stand-Your-Ground, 39-11-611(b); Statutory prohibition of conviction for illegal gun possession


of gun used in self-defense, 39-17-1322; Being engaged in an unlawful activity of any sort
(including illegal possession of a gun) strips defendant of Stand-Your-Ground and re-imposes the
legal duty to retreat, but it does not strip the defendant of right to claim self-defense.

Date:

May 28, 2015

Decision:
The Defendant, Deanty Montgomery, appeals as of

November 27, 2012, a Knox County grand jury

right from his jury convictions for aggravated assault,

charged the Defendant in a five-count indictment with

unlawful possession of a weapon, and misdemeanor

the following: Count 1 -- attempted first degree

reckless endangerment, which resulted in an effective

murder; Count 2 -- employment of a firearm during

five-year sentence. On appeal, the Defendant raises

the commission of a dangerous felony; Count 3 --

the following issues for our review: (1) whether the

employment of a firearm during the commission of a

trial court properly permitted the State's argument that

dangerous felony by one having a prior conviction for

the Defendant was engaged in unlawful activity and

a dangerous felony; Count 4 -- unlawful possession of

was, therefore, not excused from the duty to retreat

firearm by one having been convicted of a felony drug

under a theory of self-defense; (2) whether the trial

offense; and Count 5 -- aggravated assault. See

court committed error during jury deliberations in its

Tenn. Code Ann. 39-12-101, -13-102, -13-202,

response to a question from the jury about a person's

-17-1307, & -17-1324.

duty to retreat when engaged in an unlawful activity;


and (3) whether the evidence is sufficient to support

Officer Lee Shaw of the Knoxville Police Department

his convictions. Following our review, we affirm the

("KPD") testified that he patrolled the Walter P. Taylor

trial court's judgments. [ . . . ]

Homes area in June 2012 and responded to a call


concerning a shooting in front of the market on June

OPINION

9, 2012. Upon his arrival, he saw the victim lying


behind a van, which was parked approximately fifteen

FACTUAL BACKGROUND

to twenty feet from the front entrance of the market.


Officer Shaw observed that the victim was suffering

This case arises out of a June 9, 2012 confrontation

from multiple gunshot wounds, so he called for an

between the Defendant and Maurice Davis ("the

ambulance and secured the scene.

victim") in front of the Walter P. Taylor Homes' market


in Knoxville, which resulted in the Defendant's

Several shell casings were found on the scene

shooting the victim multiple times. Thereafter, on


leading "from the back of the van towards the
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northeast," and "bullet impacts" were seen on the van

cousin had called him and advised that he had a large

and a nearby newspaper stand, in addition to the

quantity of crack cocaine for sale if the Defendant

victim's wounds. A total of five shell casings were

knew of any interested buyers. Thereafter, the

recovered and sent to the crime lab for testing.

Defendant was contacted by the victim, also a familial


relation, who coincidently was seeking to make just

KPD Investigator Lance Halseth was able to speak

such a purchase. Because it was family, the

with one eyewitness at the scene and later with the

Defendant agreed to facilitate the exchange, referring

victim after his arrival at the University of Tennessee

to himself as the "middleman" in the transaction. The

("UT") Medical Center where he received treatment

Defendant then brokered a deal between the victim

for his injuries. From his investigation, Inv. Halseth

and his cousin for $1,125-worth of crack cocaine,

developed the Defendant as a suspect and prepared

which took place on June 7, 2012. A few hours later,

a photographic array for the victim to view. The victim

the victim contacted the Defendant, advising him that

identified the Defendant as the shooter,1 according to

his customers did not like the taste of the crack

Inv. Halseth, and a warrant was issued for the

cocaine. The Defendant offered to return with the

Defendant's arrest. Inv. Halseth also asked the

victim to the seller's residence, but the victim did not

market's clerk for security footage of the shooting, but

show up.

he was told that the camera was not working at that


time.

The Defendant told Inv. Halseth that, during the early


morning hours of June 9, 2012, the victim, along with

Registered Nurse Dennis Downhour testified that he

the victim's father, Maurice Johnson, confronted the

treated the victim when he arrived at UT Medical

Defendant about the money that they believed was

Center on June 9, 2012, and that he observed

owed to the victim. According to the Defendant, the

multiple gunshot wounds to the victim's shoulder,

victim pulled a TEC-9 semi-automatic pistol on him.

hand, and legs. The victim was immediately taken to

The Defendant claimed that they forced him into the

surgery due to the femoral fracture in his leg, which

car and that they drove to the seller's house to

"can be very dangerous" due to the amount of blood

demand a refund. However, when they arrived at the

loss, according to Nurse Downhour. After reviewing

house, no one answered the door. They later let the

his notes, Nurse Downhour could not definitely say

Defendant go.

whether the Defendant was shot in the back of the

The Defendant maintained that, later that day, he

shoulder or if it was merely an exit wound.

called the victim and offered to reimburse him for half


of the money he paid for the drugs. While en route to

The Defendant was arrested in the weeks that

Walter P. Taylor Homes, the Defendant heard from

followed, and following waiver of his Miranda2 rights,

several people that the victim was with his father at

he spoke with Inv. Halseth on July 18, 2012. The

the Walter P. Taylor Homes complex looking for the

Defendant's statement was played for the jury.

Defendant, was armed, and was threatening to kill


him.

In the statement, the Defendant described the events


as a "drug deal gone bad" and provided the following

Once the Defendant arrived at Walter P. Taylor

details to Inv. Halseth. The Defendant stated that a

Homes, he stopped to speak with L'Amour Sly and

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Tomichael Bennett. While talking, the Defendant saw

to talk with Tomichael Bennett and the Defendant. As

the victim and his father walk past him headed

they were conversing, Mr. Sly saw the victim and the

towards the nearby market. Although they did not stop

victim's father walk past them. According to Mr. Sly,

to speak to him, the Defendant said he could see the

the victim had a TEC-9 in his backpack, and the

outline of the TEC-9 inside the victim's backpack at

victim's father had black gloves and a handgun in his

that time. According to the Defendant, he wanted to

pockets. Mr. Sly, along with Mr. Bennett and the

speak with the victim, so he followed the victim inside

Defendant, proceeded to the neighborhood market,

the market. He stated that he did so in order to

where they went inside and made some purchases.

appease the victim and negotiate an agreeable

When Mr. Sly exited, he saw the victim and his father

outcome.

"standing on the other side of the van" that was


parked in front of the store and the Defendant

Because the victim was with several friends while

"standing with his back against the door." Mr. Sly

inside the store, the Defendant went outside and

heard the victim and the Defendant talking, and the

waited for the victim to exit. Once outside, the

conversation began "getting heated."

Defendant again told the victim that he would give


him half of the cocaine purchase price, but the victim

Mr. Sly saw the victim turn towards the van and walk

was not satisfied with that offer, stating that the

to the opposite side while taking off his backpack. The

Defendant was trying to "play" him. The Defendant

victim's father, who was standing behind a metal

responded that he was only trying the resolve the

newspaper receptacle at this point, started putting his

matter. He then saw the victim walk behind the van,

black gloves on, so Mr. Sly thought "[sjomething fixing

heard him cursing, and he could see that the victim

to go down." According to Mr. Sly, the Defendant

was attempting to retrieve something from inside his

walked around to the front of the van, and then the

backpack. The Defendant then pulled out his weapon

victim "pull[ed] the gun up [and] squeeze[d] off two

and warned the victim not to get the gun out of the

shots"; the Defendant went for his pistol and returned

bag. However, according to the Defendant, the victim

fire. When the victim fell to the ground, his father fired

began to run away while trying to get inside the bag,

"four or five" shots at the Defendant, using the

and he fired at the victim "six or seven" times in self-

newspaper stand "for cover[.]" Mr. Sly saw the

defense.

Defendant leave going one way, and the victim's


father leave going another, but only doing so after he

Although the Defendant said L'Amour Sly and

"picked up the gun from the [victim] and picked up the

Tomichael Bennett witnessed these events, Inv.

backpack[.]" Before the victim's father was able to

Halseth confirmed that he never spoke with these

"cut [the Defendant] off[,]" the Defendant got in a car

individuals following the Defendant's interview to

and rode away, according to Mr. Sly.

confirm the Defendant's story. That concluded the


State's proof.

Mr. Sly was asked if the Defendant had "an


opportunity to safely withdraw from the situation[.]" He

The Defendant presented several witnesses in his

replied, "I mean, he could have walked away, but they

defense. First, L'Amour Sly testified that, on June 9,

was in a-- they was pretty much following him to

2012, he was at Walter P. Taylor Homes and stopped

make sure that he didn't go nowhere." Mr. Sly agreed

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that there were many people present in the Walter P.

Bennett saw the victim and his father walking around

Taylor Homes area that day, including kids playing.

Walter P. Taylor Homes looking for the Defendant.

He further agreed that there was a large open area

The victim was wearing a red backpack that appeared

next to the store that the Defendant "could have

heavy, and the bag "hung[, s]o it had to be a gun or

retreated to[,]" although he would have been turning

something in it," according to Mr. Bennett. Mr. Bennett

his back on two armed men. Mr. Sly confirmed that he

saw a "reflection" of a gun inside the victim's father's

had a felony conviction for possession of marijuana

pants pocket.

with intent to sell.


Later at the market, the Defendant was "on a wall by
James Johnson, an inmate in the county jail, testified

the store" when the victim and his father exited. Mr.

that he worked at the Walter P. Taylor Homes' market

Bennett saw the victim walk towards the Defendant,

in June of 2012 but was off on the day of the

and they had a conversation; he saw the victim's

shooting. According to Mr. Johnson, the security

father go the other way towards the newspaper stand.

surveillance system was operational during that time;

The victim then moved towards the front of the van

when the disk covering that day was full, the owner

and started "fumbling with this red little backpack" and

asked him to clear the disk; and before he deleted it,

pulled out what appeared to be a TEC-9. This was the

he watched the footage of the shooting. On that disk,

first time Mr. Bennett had seen the weapon. The

Mr. Johnson saw a man dressed in black standing in

Defendant then shot the victim. Mr. Bennett also

front of the van, and he saw the Defendant and the

observed the victim's father pick up the red backpack

victim talking while standing toward the back of the

and the victim's handgun after the victim had been

van. Mr. Johnson believed that the man in black was

shot. According to Mr. Bennett, other than himself, the

carrying a pistol. According to Mr. Johnson, he saw

victim, the victim's father, the Defendant, and Mr. Sly,

the man in black "running behind the car," and it

no one else was outside of the market at this time.

appeared that they were "trying to ambush" the


Defendant. Mr. Johnson also saw the victim take his

A private investigator hired by the Defendant, Thomas

backpack off and attempt to get something from

Ham, testified that he interviewed the victim on June

inside. He never actually saw the victim with a

22, 2013. According to Mr. Ham, he asked the victim

weapon. Mr. Johnson believed "all the guns were in

about the shooting, and the victim advised,

play" before the victim fell to the ground. According to


Mr. Johnson, the man in black tried to retrieve

'Cause I tried walking up on him and tried to hit

something from under the van, and he then grabbed

him, and he started reaching . . . . I got myself

the victim's backpack and ran from the scene, never

shot. I wasn't even mad at Fat Cat,3 'cause

to return.

anybody knows you see somebody reaching for a


gun, why would you even reach for a gun, and he

Tomichael Bennett, previously convicted of selling a

telling you, 'Don't do it. Don't do it.' Fat Cat telling

counterfeit controlled substance and of felony

you, 'Don't do it.' It's . . . like I said, I'm new to the

possession of a Schedule III controlled substance,

game. That's why I was going . . . .

testified for the Defendant and gave his recollection of


the events. Prior to the events at the market, Mr.
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Mr. Ham then asked the victim why he pulled the gun,

On appeal, the Defendant contends (1) that the trial

to which the victim replied, "Heat of the moment. I

court erred by allowing the State to argue that the

knew he wasn't going to pay me my money anyway."

Defendant was engaged in unlawful activity and was,

The victim also told Mr. Ham that his father was not

therefore, not excused from the duty to retreat under

with him that day and that he did not see him until

a theory of self-defense; (2) that the trial court's

after he got shot. According to the victim, his father

response to a question from the jury during

came to him while he was lying on the ground and

deliberations about a person's duty to retreat when

asked, "You got a gun?" The victim replied, "It's right

engaged in an unlawful activity was in error; and (3)

there," to which his father responded, "I got you now."

that the evidence is insufficient to support his

Mr. Ham confirmed that the victim meant "new to the

convictions. We will address each in turn.

game" of selling drugs in his statement.


I. Duty to Retreat
The State called Rebecca Byers, an evidence
technician with the KPD, in rebuttal. She stated that

First, the Defendant argues that the trial court erred

five spent shell casings were recovered from one

"in permitting the State to offer proof and argue that

general area at the scene and that they were all .40

the Defendant had a duty to retreat before resorting to

caliber Smith and Wesson casings. She also

deadly force in self-defense because at the time, [the]

identified a photograph of the victim at the hospital

Defendant was engaged in . . . unlawful acts."

and, based upon that photograph, testified that the

Essentially, the Defendant contends that his actions

victim had a bullet wound to his back in the upper

were lawful. According to the Defendant, Tennessee

shoulder area.

Code Annotated section 39-17-1322 bars his


prosecution for unlawful possession of a weapon

Following the conclusion of the proof, the jury found

because he employed a handgun in justifiable self-

the Defendant guilty of misdemeanor reckless

defense, and moreover, the drug sale should have

endangerment as a lesser-included offense of

been viewed as completed two days prior to the

attempted first degree murder; not guilty of

shooting and should not have been considered as

employment of a firearm during the commission of

"ongoing" in nature. Therefore, the Defendant

dangerous felony; guilty as charged of unlawful

surmises that the State should not have been

possession of a weapon; and guilty as charged of

permitted to argue that he was engaged in any

aggravated assault. Thereafter, the trial court imposed

"unlawful activity," thus, requiring a duty to retreat

concurrent terms of eleven-months and twenty-nine

under the self-defense statute, Tennessee Code

days for the misdemeanor reckless endangerment

Annotated section 39-11-611(b). The State responds

conviction; two years for the unlawful possession of a

that the trial court properly declined to limit its

weapon conviction4; and five years for the

argument in this regard, appropriately allowing

aggravated assault conviction. This timely appeal

evidence to be presented that the Defendant was

followed.

engaged in unlawful activity, in the form of either a


drug sale or unlawful possession of a weapon, and

ANALYSIS

that the Defendant, therefore, had a duty to retreat


before acting in self-defense.

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(1) Notwithstanding 39-17-1322, a person
Resolving these arguments involves principles of

who is not engaged in unlawful activity and is

statutory construction. "The most basic principle of

in a place where the person has a right to be

statutory construction is to ascertain and give effect to

has no duty to retreat before threatening or

the legislative intent without unduly restricting or

using force against another person when and

expanding a statute's coverage beyond its intended

to the degree the person reasonably believes

scope." Owens v. State, 908 S.W.2d 923, 926 (Tenn.

the force is immediately necessary to protect

1995) (citing State v. Sliger, 846 S.W.2d 262, 263

against the other's use or attempted use of

(Tenn. 1993)). Where the statute's language is clear

unlawful force.

and unambiguous, we derive the legislative intent


from its plain and ordinary meaning. State v. Collins,

(2) Notwithstanding 39-17-1322, a person

166 S.W.3d 721, 726 (Tenn. 2005) (citing State v.

who is not engaged in unlawful activity and is

Wilson, 132 S.W.3d 340, 341 (Tenn. 2004)). If,

in a place where the person has a right to be

however, "the parties derive different interpretations

has no duty to retreat before threatening or

from the statutory language, an ambiguity exists, and

using force intended or likely to cause death

we must look to the entire statutory scheme in

or serious bodily injury, if:

seeking to ascertain legislative intent." Owens, 908


S.W.2d at 926 (citing Lyons v. Rasar, 872 S.W.2d

(A) The person has a reasonable belief

895, 897 (Tenn. 1994)). In ascertaining the intent of

that there is an imminent danger of death

the legislature, courts "'may look to the language of

or serious bodily injury;

the statute, its subject matter, the object and reach of


the statute, the wrong or evil which it seeks to remedy

(B) The danger creating the belief of

or prevent, and the purpose sought to be

imminent death or serious bodily injury is

accomplished in its enactment.'" Collins, 166 S.W.3d

real, or honestly believed to be real at the

at 726 (quoting State v. Gilliland, 22 S.W.3d 266, 275

time; and

(Tenn. 2000)). "Statutes 'in pari materia'--those


relating to the same subject or having a common

(C) The belief of danger is founded upon

purpose--are to be construed together." Owens, 908

reasonable grounds.

S.W.2d at 926 (citing Lyons, 872 S.W.2d at 897).


Furthermore, the rules of statutory construction direct
courts not to "apply a particular interpretation to a

Tenn. Code Ann. 39-11-611(b). The section

statute if that interpretation would yield an absurd

referenced therein, 39-17-1322, provides as a

result." State v. Sims, 45 S.W.3d 1, 11 (Tenn. 2001).

defense to prosecution,

Tennessee's statute on self-defense provides, in


pertinent part, as follows:

A person shall not be charged with or convicted of a


violation under this part if the person possessed,
displayed or employed a handgun in justifiable self-

(b)

defense or in justifiable defense of another during the

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commission of a crime in which that person or the
other person defended was a victim.

along with others that grant legislative immunity for


actions that ordinarily amount to criminal activity,
"evidence the unambiguous legislative intent to
pronounce the Tennessee public policy of

The words "this part" include all of the criminal

encouraging citizens to rescue a person reasonably

violations in part 13 of Tennessee Code Annotated

believed to be in imminent danger of death or serious

chapter 39, title 17, or more specifically, Tennessee

bodily harm, and to protect a citizen who undertakes

Code Annotated sections 39-17-1001 through

such heroic action from negative repercussions."

39-17-1364. "The criminal violations set forth in part


13 of title 39, chapter 17, comprise a diverse group of
offenses involving a wide variety of weapons." State

Id. (quoting Little v. Eastgate of Jackson, LLC, No.

v. Tracey C. Clark, No. M2007-00496-CCA-R3-CD,

W2006-01846-COA-R9-CV, 2007 Tenn. App. LEXIS

2008 Tenn. Crim. App. LEXIS 355, 2008 WL 1699425,

242, 2007 WL 1202431, at *9 (Tenn. Ct. App. Apr. 24,

at *6 (Tenn. Crim. App. Apr. 10, 2008) (Woodall,

2007)). The court continued,

concurring).
If the legislature had intended actions
In State v. Tracey Clark, the defendant made a similar

performed in "self-defense" to operate as an

argument as presented herein, and the trial court

absolute bar to prosecution, then it would have

granted the defendant's motion to dismiss the

been unnecessary to include the language that

indictment for possession of a weapon on school

prohibits conviction in the statute. In other words,

grounds, concluding that the defendant had

if the statute barred indictment, there would be no

established to the court that he was acting in

reason to address a conviction under Tennessee

justifiable self-defense and that, therefore, section

Code Annotated section 39-17-1322, as there can

39-17-1322 barred his prosecution. 2008 Tenn. Crim.

be no prosecution without a valid indictment.

App. LEXIS 355, 2008 WL 1699425, at *1-2. This


court reversed on appeal, rejecting the defendant's

Id. (citing Dykes v. Compton, 978 S.W.2d 528, 529-30

assertion that section 39-17-1322 "operates as a

(Tenn. 1998)).

complete bar to indictment and prosecution for


actions that are performed in 'self- defense.'" 2008

The court in Clark then determined that the trial court

Tenn. Crim. App. LEXIS 355, [WL] at *3. In so holding,

improperly took the role of fact-finder and usurped the

the court reasoned that the "justifiable self-defense"

role of the jury when it dismissed the indictment for

language of section 39-17-1322 served "as a directive

possession of a weapon on school grounds,

to law enforcement and district attorneys that should

concluding from the facts that the defendant acted in

they determine, based upon their investigation and

justifiable self-defense. 2008 Tenn. Crim. App. LEXIS

using their discretion, that a person acted in justifiable

355, 2008 WL 1699425, at *5. In reaching its

self-defense, they shall not seek to indict that

conclusion, this court explained,

individual." Id. This section,


[B]y dismissing the indictment, the trial court
found that the facts of the case would not support
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a conviction for possession of a weapon on

we were to permit the State to argue that a felon in

school grounds because [the defendant] was the

possession of a weapon asserting self-defense,

victim of an assault and displayed his handgun in

without more, could satisfy the definition of "unlawful

self-defense. This amounts, in our view, to a

activity," such an interpretation would nullify the

determination of facts that were "intertwined with

defense set forth in section 39-17-1322, leading to an

the factual evidence of the defendant's conduct at

absurd result. Accordingly, the State should not have

the time of the alleged offense." [State v.]

been permitted to argue that the Defendant's conduct,

Goodman, 90 S.W.3d [557,] 562 [(Tenn. 2002)].

a convicted felon for a drug offense arming himself

The trial court's actions amounted to a grant of

with a weapon prior to the shooting, standing alone,

summary judgment for [the defendant], which

could have formed the basis for the jury to conclude

does not exist in criminal cases. See [State v.]

that the Defendant was engaged in "unlawful activity"

Burrow, 769 S.W.2d [510,] 514 [(Tenn. Crim. App.

for the purposes of the self-defense statute requiring

1989)]. In our view, the facts asserted in the

a duty to retreat.

motion and at the evidentiary hearing could only


rationally bear upon the issue of guilt or

The Defendant also submits that he was not engaged

innocence; therefore, they were improper for

in the "unlawful activity" of selling drugs at the time of

consideration on the motion to dismiss.

the shooting. He reasons that the sale had been

Furthermore, the issue of self-defense is a matter

"completed two days prior when the contraband

for the jury to decide. State v. Ivy, 868 S.W.2d

became the property of the buyer." Accordingly, the

724, 727 (Tenn. Crim. App. 1993).

State should not have been allowed to present such


an argument to the jury, in his opinion. We decline to

Id.

adopt the assertion put forward by the Defendant


because, here, we are dealing with the exchange of

The Defendant argues that "[i]f conduct cannot, by

illegal narcotics, not a transfer of commercial goods.

direct prohibition, be the basis for a charge or

We agree with the trial court that this issue of whether

conviction, how can it logically be considered the

the Defendant was still engaged in a drug deal was

basis of a determination that the felon who has armed

factually driven. The Defendant by his own admission

himself in self-defense is engaged in 'unlawful

was the middleman between the victim and a third

activity?'" In accordance with the rationale espoused

party seller. When the victim became displeased with

by this court in Clark, we agree that section

the product shortly after the sale, he and his father

39-17-1322 does not bar a charge or conviction for

returned to the seller's house to retrieve the victim's

the Defendant's conduct in this case, and any issue in

money--whether the Defendant was forced by the

that regard, i.e., whether he was acting in justifiable

victim to return to the seller's house with them was a

self-defense, was a proper question for the jury.

factual issue to be considered by the jury. They were

However, the issue of whether one was engaged in

unsuccessful at the seller's house, and when the

justifiable self-defense while unlawfully possessing a

Defendant heard the victim was looking for him, he

weapon does not equate to the issue of whether one

sought out the victim while armed. According to the

was engaged in "unlawful activity" for the purposes of

Defendant, he did so to negotiate a satisfactory

the self-defense statute requiring a duty to retreat. If

outcome; however, when negotiations broke down,

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shots were fired. The Defendant was asking the trial

offenses, i.e., dealing drugs and all of his attendant

court to make factual determinations reserved for the

conduct surrounding that transaction, and in light of

jury.

the jury's decision to find the Defendant guilty of


unlawful possession of a weapon with proper

The term "unlawful activity" as used in section

instructions, any error in permitting the State's

39-11-611(b) is not defined. Regardless, "[w]here

argument was certainly harmless. The Defendant is

words and terms are in common use and are such as

not entitled to relief.

can be understood by persons of ordinary


intelligence, it is not necessary, in the absence of

II. Jury Instructions

anything in the charge to obscure their meaning, for


the court to define or explain them." See State v.

The Defendant next contends that the trial court erred

Summers, 692 S.W.2d 439, 445 (Tenn. Crim. App.

by failing to answer a question posed by the jury

1985). We note that the parties seemingly argue both

during its deliberations and instead simply referring

of these theories, unlawful possession of a weapon

them again to the pattern jury instruction on self-

and selling drugs, in a vacuum as to whether they

defense. The State responds that the trial court's

qualify as "unlawful activity" for purposes of the self-

response was proper.

defense statue. However, we feel constrained to note


that the jury was entitled to consider all of the facts

At trial, the court instructed the jury on self-defense as

and circumstances leading up to the Defendant's

follows:

conduct in determining whether the Defendant's use


of force in defending himself was reasonable,

Included in the defendant's plea of not guilty is his

including whether he was engaged in "unlawful

plea of self-defense.

activity" at the time. See T.P.I. Crim. -- 40.06(b)(2).


If a defendant was not engaged in unlawful
Although we conclude that the trial court erred in

activity and was in a place where he or she had a

allowing the State's argument regarding unlawful

right to be, he or she would have no duty to

possession of a weapon alone satisfied the definition

retreat before threatening or using force against

of "unlawful activity," the jury in this case was charged

the alleged victim when and to the degree the

that justifiable self-defense was a defense to the

defendant reasonably believed the force was

possession charge. Moreover, the jury was properly

immediately necessary to protect against the

allowed to consider all of the Defendant's conduct

alleged victim's use of unlawful force.

leading up to the shooting in determining whether he


was engaged in "unlawful activity" and, therefore, had

If a defendant was not engaged in unlawful

a duty to retreat under section 39-11-611(b). Indeed,

activity and was in a place where he or she had a

the question of whether the Defendant's actions were

right to be, he or she would also have no duty to

unlawful at the time of the shooting was a question for

retreat before threatening or using force intended

the jury in their role as fact-finders. Given the

or likely to cause death or serious bodily injury if

overwhelming evidence that the Defendant was

the defendant had a reasonable belief that there

engaged in "unlawful activity" at the time of the

was an imminent danger of death or serious

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bodily injury, the danger creating the belief of

If from all the facts and circumstances you find

imminent death or serious bodily injury was real,

the defendant acted in self-defense, or if you

or honestly believed to be real at the time, and

have a reasonable doubt as to whether the

the belief of danger was founded upon

defendant acted in self-defense, you must find

reasonable grounds.

him not guilty.

In determining whether the defendant's use of

See T.P.I. Crim. -- 40.06(b)(2).

force in defending himself was reasonable, you


may consider not only his use of force but also all

During deliberations, the jury presented a question to

the facts and circumstances surrounding and

the trial court regarding the instructions on self-

leading up to it. Factors to consider in deciding

defense. The question reads: "Does unlawful act

whether there were reasonable grounds for the

preclude act of self-defense as a defense plea?" The

defendant to fear death or serious bodily injury

trial court then discussed with the parties the proper

from the alleged victim include but are not limited

response. Defense counsel asked the court to provide

to any previous threats of the alleged victim made

a supplemental instruction stating that "unlawful act"

known to the defendant; the character of the

only goes to the question of whether the Defendant

alleged victim for violence, when known to the

had a duty to retreat and additionally instruct that the

defendant; the animosity of the alleged victim for

Defendant has no duty to retreat if he cannot do so

the defendant, as revealed to the defendant by

safely. The State requested that the trial court just

previous acts and words of the alleged victim; and

"reread" the instruction on self-defense. The trial court

the manner in which the parties were armed and

then responded to the jury's inquiry as follows: "Dear

their relative strengths and sizes.

Jurors, I will refer you back to the instructions,


specifically page 16, which explains the law of self-

"Force" means compulsion by the use of physical

defense." This was the "safest and most accurate

power or violence.

response" in the trial court's opinion because to do


otherwise may have "run the danger of improperly

"Violence" means evidence of physical force

influencing their verdict."

unlawfully exercised so as to damage, injure or


abuse. Physical contact is not required to prove

Under Tennessee law, a trial court has a duty to

violence. Unlawfully pointing a deadly weapon at

provide "a complete charge of the law applicable to

an alleged victim is physical force directed toward

the facts of the case." State v. James, 315 S.W.3d

the body of the victim. "Imminent" means near at

440, 446 (Tenn. 2010) (quoting State v. Harbison, 704

hand; on the point of happening.

S.W.2d 314, 319 (Tenn. 1986)); see also Tenn. R.


Crim. P. 30(d)(2). A charge "should not contain

If evidence is introduced supporting self-defense,

inaccurate or inapplicable statements of legal

the burden is on the state to prove beyond a

principles that might tend to confuse the jury." State v.

reasonable doubt that the defendant did not act in

Hatcher, 310 S.W.3d 788, 812 (Tenn. 2010) (citations

self-defense.

omitted). Tennessee law, however, does not mandate


that any particular jury instructions be given so long

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as the trial court gives a complete charge on the

law" constituted reversible error). However. on

applicable law. See State v. West, 844 S.W.2d 144,

appeal. the Defendant does not argue that the jury

151 (Tenn. 1992). A charge is prejudicial error "if it

instruction on self-defense was erroneous. Instead.

fails to fairly submit the legal issues or if it misleads

the Defendant argues that "[a] certain way to assure

the jury as to the applicable law." State v. Hodges,

that the jury understood that 'unlawful activity' is only

944 S.W.2d 346, 352 (Tenn. 1997) (citing State v.

a consideration as to a duty to retreat is to tell them

Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App.

so directly and answer the question directly."

1995); Graham v. State, 547 S.W.2d 531 (Tenn.

According to the Defendant. the trial court's response

1977)). As a mixed question of law and fact, our

did not address the jury's misunderstanding. The

standard of review for questions concerning the

Defendant also requested that the trial court clarify for

propriety of jury instructions is de novo with no

the jury that there is no duty to retreat if such cannot

presumption of correctness. State v. Smiley, 38 S.W.

be accomplished safely.

3d 521, 524 (Tenn. 2001).


"Under the 'true man' doctrine, one need not retreat
Trial courts have "the authority to respond to jury

from the threatened attack of another even though

questions with a supplemental instruction." Forbes,

one may safely do so. Neither must one pause and

918 S.W.2d at 451. However, the Defendant has not

consider whether a reasonable person might think it

cited to any authority which states that a trial court is

possible to safely flee rather than to attack and

obligated to answer the jury's questions during

disable or kill the assailant." State v. Renner, 912

deliberations or give a supplemental instruction in

S.W.2d 701. 704 (Tenn. 1995). Tennessee's law of

light of the jury's question. See, e.g., State v. Jim

self-defense in the use of deadly force. Tennessee

Gerhardt, No. W2006-02589-CCA-R3-CD, 2009 Tenn.

Code Annotated section 39-11-611(b). adheres to the

Crim. App. LEXIS 523, 2009 WL 160930, at *13

true man doctrine. The statute also requires that one

(Tenn. Crim. App. Jan. 23, 2009) (finding that no clear

be in a place where he has a right to be and not be

or unequivocal rule of law had been breached when

engaged in any unlawful activity before there is no

the trial court simply referred the jury back to the

duty to retreat. See State v. Hawkins, 406 S.W.3d

initial charge in response to the jury's note: "Please

121. 128 (Tenn. 2013) ("To prevail on a theory of self-

define a criminal intent attempt of child abuse and

defense, a defendant must show that he or she was

neglect. Does it matter if he (defendant) knew what

'not engaged in unlawful activity' and was 'in a place

he did would cause harm?"; and the word "intent" was

where the person has a right to be.'"); State v.

struck through). We are aware that this court has

Zachary Carlisle, No. W2012-00291-CCA-MR3-CD.

previously reversed a defendant's conviction for

2013 Tenn. Crim. App. LEXIS 878, 2013 WL 5561480

failure to issue a supplemental instruction in light of

at *18-19 (Tenn. Crim. App. Oct. 7, 2013) (concluding

an erroneous jury instruction. See. e.g., State v.

that the defendant was not entitled to a self-defense

Robinson, 239 S.W.3d 211. 226-28 (Tenn. Crim. App.

instruction because he was engaged in illegal activity.

2006) (trial court's failure to answer jury question and

i.e., a drug deal with the victim at the time of the

issue supplemental instruction regarding inability of

murder, and because no evidence in the record

accomplices to corroborate each other where initial

suggested the victim threatened the defendant with a

jury instruction did not inform jury of this "well-settled

deadly weapon or force). As discussed in the section

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above. the State was properly allowed to argue, and

choose not to issue a supplemental instruction for

the jury was correctly allowed to consider, that the

fear such instruction would be "unduly emphatic upon

Defendant was engaged in unlawful activity and.

certain portions of the law to the exclusion of other

therefore. had a duty to retreat pursuant to the self-

parts equally applicable to the area of jury

defense statute.

misunderstanding or confusion." The trial court also


noted that the instruction on self-defense was an

The trial court's instruction on self-defense was a

accurate statement of the law and that the defense

proper statement of the law. The instruction tracks the

was permitted to argue to the jury "that someone

language of the relevant statute, see Tennessee

shouldn't have to retreat if they can't do so safely." We

Code Annotated section 39-11-611(b), and it follows

find no error in this regard.

the pattern jury instruction, as provided in the


Tennessee Pattern Jury Instructions. Additionally,

We conclude that the trial court's jury instruction on

when a court chooses to repeat instructions or give

self-defense fairly submitted the legal issues,

supplemental instructions, the instructions must be:

including that one only has a duty to retreat if


engaged in unlawful activity, and did not mislead the

(1) appropriately indicated by questions or

jury as to the applicable law. As such, the trial court's

statements from jurors, or from the circumstances

referring the jury to its charge without giving an

surrounding the deliberative and decisional

additional instruction was an appropriate response.

process, (2) comprehensively fair to all parties,

The Defendant is therefore denied relief on this issue.

and (3) not unduly emphatic upon certain portions


of the law to the exclusion of other parts equally

[...]

applicable to the area of jury misunderstanding or


confusion.

CONCLUSION

Berry v. Conover, 673 S.W.2d 541, 545 (Tenn. Ct.

Based upon the foregoing reasoning and authorities,

App. 1984). The trial court's ruling indicates that it

we affirm the judgments of the trial court.

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UTAH
State v. Alzaga, 2015 UT App 133 (UT Ct. App. 2015)
Key issues:

Impermissible to claim of self-defense by person attempting/committing/fleeing a felony [Utah


Code 76-2-402(2)(a)(ii)]; Burden of persuasion on self-defense is on the State; "Forcible felony"
includes "arson, robbery, and burglary as defined in Title 76, Chapter 6 [of the Utah Code],
Offenses Against Property," as well as "[a]ny other felony offense which involves the use of force
or violence against a person so as to create a substantial danger of death or serious bodily
injury." [Utah Code Ann. 76-2-402(4)(a), (b)]

Date:

May 29, 2015

Decision:
marijuana. Hannah and Mark agreed to meet the
Cristian A. Alzaga was convicted of murder,

customer for the sale at a spot where they had met

aggravated assault, and aggravated robbery. All the

before, on a footbridge by the Jordan River near 3900

crimes occurred in connection with a drug deal under

South (the Footbridge). When Mark and Hannah

a bridge on the Jordan Parkway. The State claimed

arrived for the sale, they crossed the Footbridge and

that the victims were at the bridge to sell marijuana;

spotted the customer. With him was "a bigger guy"

Alzaga claimed they were there to buy heroin. On

who acted as a lookout. Mark also spotted a third

appeal Alzaga challenges certain of the trial court's

man talking on a cell phone and pacing back and

evidentiary rulings, its instructions to the jury on self-

forth on a larger bridge spanning the Jordan River

defense, and its denial of his motion for a new trial.

nearby (the Jordan River Bridge). Mark described this

He also contends that his trial counsel rendered

third man, the defendant, as having spiked black hair,

constitutionally ineffective assistance. We affirm.

"kind of crown shaped," and wearing a white shirt.


Mark did not immediately connect Alzaga with the

BACKGROUND1

customer and the lookout. However, Mark felt


concerned that the lookout had accompanied the

The Drug Deal

customer to the drug deal; Mark and the customer


"had kind of an agreement that you didn't bring

Hannah and her boyfriend, Mark,2 lived together in a

anybody with you when you came to buy marijuana,"

tent near the Jordan River Parkway Trail in Midvale,

because "anything could happen when you meet new

Utah. The two scraped by; each sold marijuana, while

people." But Hannah felt comfortable because she

Mark received food stamps and donated his blood

had known the customer for "[p]retty much her entire

plasma.

life."

In May 2010, one of the couple's regular customers

Mark and Hannah decided to go ahead with the deal.

contacted Hannah to purchase an ounce of


The customer asked Mark and Hannah to weigh the
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marijuana, and Hannah climbed down onto a ledge

could not breathe. Mark then relinquished the purse

under the Footbridge to do so. The customer stood

to help Hannah, and Alzaga took off running. Hannah

against a post above Hannah, and the lookout made

threw away the marijuana she had in her pocket and

"sure that nobody was coming while [Hannah]

lay down on the ground, struggling to breathe. Mark

weighed the marijuana." Alzaga approached, still

grabbed Hannah's phone and dialed 911. Hannah,

talking on his cell phone. When he and the customer

eighteen years old, died at the hospital of a stab

argued briefly, Alzaga pulled what appeared to be a

wound to the abdomen.

gun and pointed it at the customer. The customer


looked under the Footbridge at Hannah; Alzaga then

Alzaga's Version of Events

pointed the gun at her and said, "You give me all your
shit."

Alzaga described quite a different encounter. He


maintained that he did not kill Hannah and that he

The Stabbings

stabbed Mark in self-defense. Alzaga testified that he,


the customer, and the lookout agreed to meet Mark

Hannah backed up under the Footbridge. Alzaga

and Hannah at the Footbridge to sell them a large

jumped down after her, and Mark followed. Mark saw

amount--fifty-two grams--of heroin. The three drove

that Alzaga and Hannah "were kind of close together"

together to the Jordan River Parkway Trail, walked to

and saw Hannah jump back from Alzaga "like she

the Footbridge, and after meeting up with Mark and

was trying to get away from something." Mark then

Hannah, Alzaga weighed a plastic-wrapped package

grabbed Alzaga by the shoulder from behind. Alzaga

of heroin the size of a tennis ball and worth $6,000.

wheeled around, pointed the gun at Mark, and said,

After Alzaga confirmed its weight, he claimed that

"You can give me all your shit, too." Mark thought that

Mark suddenly "just grab[bed] the ball of heroin" and

the gun looked fake and batted it away from Alzaga.3

handed it to Hannah, who "start[ed] running."

But Alzaga also had a knife. Alzaga slashed at Mark,


who jumped back and yelled at Hannah to run.

Alzaga then testified that Mark began punching him

Hannah walked slowly up the hill and said that she

on the left side of his face and neck. As Mark

had been stabbed. Both Alzaga and Mark ran toward

assaulted him, Alzaga observed the customer running

Hannah. Mark then heard the customer yell, "Forget

across the Footbridge and "noticed [the lookout]

it. It's done. Let's go. Let's go. Let's go." The customer

chasing after [Hannah]." Alzaga told the jury that he

and the lookout fled the scene toward 3900 South.

was "high on [e]cstasy" and "just felt terrified" by


Mark's assault. Alzaga absorbed Mark's punches for a

Alzaga reached Hannah before Mark did and began

time but then started to fall over, and "that's when"

pulling at her purse. Mark caught up to Hannah and

Alzaga "felt the knife" in his pocket. Alzaga then

Alzaga and stepped between them to shield Hannah

pulled the knife out of his pocket, and as Mark

from Alzaga. Mark told Hannah to let go of the purse.

punched him, he "countered back with a right hook"

As Mark and Alzaga "struggled over the purse"

and slashed Mark in the eye. Mark backed away

Alzaga slashed at Mark and struck him in the eye.

while the lookout returned with Hannah's purse in

Alzaga had wounded both Mark and Hannah; Mark's

hand. The lookout gave the purse to Alzaga, and both

eye was swollen shut, and Hannah told Mark that she

fled the scene.

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question of self-defense creates a reasonable
Alzaga was convicted of murder, a first-degree felony,

doubt in your mind whether he is guilty of

Utah Code Ann. 76-5-203(3) (LexisNexis Supp.

Aggravated Assault . . . , you are to find him not

2010); aggravated robbery, a first-degree felony, id.

guilty of that count. If the evidence of self-defense

76-6-302 (LexisNexis 2008); and aggravated assault,

creates a reasonable doubt in your mind about

a second-degree felony, id. 76-5-103. He appeals.

his guilt, he is entitled to an acquittal on [the


Aggravated Assault count].

ISSUES
Defense counsel approved this instruction.
[...]
The court orally supplemented the initial instruction by
Fifth, Alzaga contends that the trial court erroneously

telling the jury that "distribution of a controlled

instructed the jury on the standard for self-defense.

substance, heroin, is a felony." Defense counsel


objected to the supplemental instruction at sidebar

[...]

but stated no legal basis for the objection on the


record. After closing arguments, and after the jury

ANALYSIS

began deliberations, counsel stated on the record a


rationale for her objection: the supplemental

[...]

instruction allowed the jury to find that Alzaga


committed a felony offense--distribution of heroin--

V. Self-Defense Jury Instructions

without first finding the elements of that offense


beyond a reasonable doubt. The prosecutor

Alzaga contends that the trial court instructed the jury

countered that the instruction was a correct statement

erroneously on self-defense relating to the

of the law and that Alzaga had testified to distributing

aggravated assault against Mark. The trial court

heroin. The trial court overruled the objection.

instructed the jury that a person may use force


reasonably necessary to defend against another's

Alzaga challenges the jury instructions on four

imminent use of unlawful force. The court then

grounds. First, he argues that the oral instruction

explained that a person may not lawfully use

violated his right to self-defense under Article I,

defensive force when "attempting to commit,

section 1 of the Utah Constitution. "All men," that

committing, or fleeing after the commission, or the

provision declares, "have the inherent and inalienable

attempted commission of a felony." The court also

right to enjoy and defend their lives and liberties . . . ."

instructed the jury that Alzaga did not have to prove

Utah Const. art. 1, 1. Alzaga contends that the

self-defense but that if any evidence created a

court's oral instruction abridged his right to defend his

reasonable doubt as to his guilt, the jury should

life in two respects. First, it precluded self-defense

acquit:

even if the felony he was committing at the time of the


aggravated assault--distribution of heroin--was

Defendant does not have to prove he acted in


self-defense but if any evidence shown on the

nonviolent. Second, the instruction drew no causal


connection between the distribution of heroin and the

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victim's use of force. The State responds that Alzaga

felony. A "forcible felony" includes "arson, robbery,

did not preserve his constitutional claim, and in that

and burglary as defined in Title 76, Chapter 6 [of the

any event, any error was harmless.

Utah Code], Offenses Against Property," as well as


"[a]ny other felony offense which involves the use of

Under Utah's self-defense statute, a person is justified

force or violence against a person so as to create a

in using lethal force "only if the person reasonably

substantial danger of death or serious bodily injury."

believes that force is necessary to prevent death or

Utah Code Ann. 76-2-402(4)(a), (b). Title 76,

serious bodily injury to the person or a third person as

Chapter 6 includes the crime of aggravated robbery.

a result of another person's imminent use of unlawful

The jury convicted Alzaga of aggravated robbery, and

force, or to prevent the commission of a forcible

he does not argue on appeal that the facts presented

felony." Utah Code Ann. 76-2-402(1)(b) (LexisNexis

at trial were insufficient to support that conviction. We

Supp. 2010). But a person "is not justified" in using

have previously held that a defendant who kills

any defensive force "if the person is attempting to

another while committing an aggravated robbery

commit, committing, or fleeing after the commission

cannot avail himself of the self-defense statute. State

or attempted commission of a felony." Id.

v. Soules, 2012 UT App 238, 4, 286 P.3d 25.6 Thus,

76-2-402(2)(a)(ii).

Alzaga's first self-defense claim fails under any


applicable standard of review.

Alzaga does not dispute that he was dealing heroin at


the time of the aggravated assault. Nor does he

Second, Alzaga argues that instructing the jury that

dispute that dealing heroin qualifies as a felony.

distribution of heroin is a felony allowed the jury to

Rather, he argues that it is not a forcible felony and

find him ineligible for self-defense without first

that only attempting to commit, committing, or fleeing

requiring the jury to find all of the elements of heroin

after committing forcible felonies should bar a

distribution, an uncharged offense, beyond a

defendant from invoking self-defense. He

reasonable doubt. The trial court orally instructed the

acknowledges that the statutory text does not contain

jury, "I'm instructing you further that distribution of a

this limitation but argues that failure to read "felony"

controlled substance, heroin, is a felony." The State

as "forcible felony" produces absurd results. Cf. In re

responds that Alzaga did not timely preserve this

Z.C., 2007 UT 54, 11, 165 P.3d 1206 ("[A] court

claim and that he fails to assert any exception to the

should not follow the literal language of a statute if its

preservation rule on appeal. And even if Alzaga timely

plain meaning works an absurd result." (citation and

preserved his claim, the State argues, any error was

internal quotation marks omitted)). "If the statute were

harmless.

read literally," Alzaga reasons, "a man guilty of theft of


utility services could not defend himself in his own

This claim fails for the same reason that Alzaga's first

home."

challenge to the instruction failed: any possible error


was harmless. "Any error, defect, irregularity or

We agree with the State that any possible error in the

variance which does not affect the substantial rights

oral jury instruction was harmless. See Utah R. Crim.

of a party shall be disregarded." Utah R. Crim. P.

P. 30(a). Any possible error here was harmless

30(a). As explained above, because Alzaga

because the jury found Alzaga guilty of a forcible

committed a forcible felony--aggravated robbery--he

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was "not justified in using force" against Mark. See

omitted). Therefore, any ambiguities or deficiencies in

Utah Code Ann. 76-2-402(2)(a). Accordingly, any

the appellate record "simply will be construed in favor

error in instructing the jury that distribution of heroin is

of a finding that counsel performed effectively." State

a felony was harmless.

v. Litherland, 2000 UT 76, 17, 12 P.3d 92. "[P]roof of


ineffective assistance of counsel cannot be a

Third, Alzaga argues that the court's written self-

speculative matter but must be a demonstrable

defense instruction did not adequately convey the

reality." Allen v. Friel, 2008 UT 56, 21, 194 P.3d 903

State's burden to disprove self-defense beyond a

(alteration in original) (citation and internal quotation

reasonable doubt. He argues that counsel performed

marks omitted).

ineffectively for failing to correct this error. The State


responds that Alzaga has inadequately briefed this

The trial court's instruction explained that Alzaga had

claim and that he has therefore not satisfied his

no burden to prove self-defense and that the

burden of persuasion on his ineffective-assistance-of-

existence of reasonable doubt concerning whether he

counsel claim. "In determining a claim of ineffective

acted in self-defense required acquittal:

assistance of counsel raised for the first time on


appeal, we must decide whether [the] defendant was

Defendant does not have to prove he acted in

deprived of the effective assistance of counsel as a

self-defense but if any evidence shown on the

matter of law." State v. Aguirre-Juarez, 2014 UT App

question of self-defense creates a reasonable

212, 6, 335 P.3d 896 (alteration in original) (citation

doubt in your mind whether he is guilty of

and internal quotation marks omitted); see also State

Aggravated Assault . . . , you are to find him not

v. Clark, 2004 UT 25, 6, 89 P.3d 162.

guilty of that count. If the evidence of self-defense


creates a reasonable doubt in your mind about

To succeed on an ineffective-assistance-of-counsel

his guilt, he is entitled to an acquittal on [the

claim, an appellant must show that (1) "counsel's

Aggravated Assault count].

performance was deficient in that it 'fell below an


objective standard of reasonableness'" and (2)

Alzaga complains on appeal that this instruction does

"counsel's performance was prejudicial in that 'there

not state explicitly that the State bore the burden of

is a reasonable probability that but for counsel's

disproving self-defense beyond a reasonable doubt.

unprofessional errors, the result of the proceeding


would have been different.'" Menzies v. Galetka, 2006

"[T]he failure of counsel to make motions or

UT 81, 87, 150 P.3d 480 (quoting Strickland v.

objections which would be futile if raised does not

Washington, 466 U.S. 668, 688, 694 (1984)). An

constitute ineffective assistance." Codianna v.

appellant must rebut "a strong presumption that

Morris, 660 P.2d 1101, 1109 (Utah 1983) (citation

counsel's conduct falls within the wide range of

and internal quotation marks omitted). Here, a

reasonable professional assistance; that is, the

trial objection would have been futile because the

defendant must overcome the presumption that,

jury instructions adequately instructed the jury on

under the circumstances, the challenged action might

the burden of proof.

be considered sound trial strategy." Strickland, 466


U.S. at 689 (citation and internal quotation marks
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Our supreme court's decision in State v. Knoll

because the instruction correctly allocated the burden

supports this conclusion. 712 P.2d 211 (Utah

of proof under controlling precedent, counsel did not

1985). In Knoll, the trial court approved an

perform deficiently in not objecting to it.

instruction that did not state explicitly that the


State retained the burden of disproving self-

Finally, Alzaga argues that the verdict form did not

defense beyond a reasonable doubt:

identify the State's burden of proving aggravated


assault, and disproving self-defense, beyond a

[I]f upon the whole of the evidence, including

reasonable doubt. Because this claim is unpreserved,

that produced by the defendant, . . . or otherwise

he argues that the trial court plainly erred and that his

shown in evidence, the jury entertains a

trial counsel ineffectively failed to correct this error.

reasonable doubt as to the defendant's guilt of

The State responds that Alzaga has inadequately

any element necessary to constitute the charged

briefed his claim and thus has not met his burden of

[offense] or one included therein, the defendant is

persuasion on appeal.

entitled to an acquittal.
"We review the jury instructions, including the jury
Id. at 215. The court held that even though "the trial

verdict forms, for correctness." State v. Johnson,

court did not give an instruction that stated that the

2014 UT App 161, 11, 330 P.3d 743, cert. granted,

prosecution had to prove the absence of self-defense

343 P.3d 708 (Utah 2015); cf. State v. Houskeeper,

beyond a reasonable doubt," the instruction

2002 UT 118, 11, 62 P.3d 444. To demonstrate plain

nevertheless "constituted a correct statement of the

error, a defendant must establish that (1) an error

law." Id. The instruction clearly conveyed that the jury

exists, (2) the error should have been obvious to the

should consider any evidence of self-defense, that the

trial court, and (3) the error was harmful; that is,

burden of proof remained with the State at all stages

"absent the error, there is a reasonable likelihood of a

of the trial, and that "if the jury entertained a

more favorable outcome for the appellant, or phrased

reasonable doubt about whether defendant acted in

differently, our confidence in the verdict is

self-defense, it should acquit." Id.

undermined." State v. Dunn, 850 P.2d 1201, 1208-09


(Utah 1993). "In determining a claim of ineffective

Here, as in Knoll, even though the instruction did not

assistance of counsel raised for the first time on

expressly state that the prosecution had to prove the

appeal, we must decide whether [the] defendant was

absence of self-defense beyond a reasonable doubt,

deprived of the effective assistance of counsel as a

it made clear that the jury must consider the defense,

matter of law." State v. Aguirre-Juarez, 2014 UT App

that the burden of proof remained with the State, and

212, 6, 335 P.3d 896 (alteration in original) (citation

that Alzaga did "not have to prove he acted in self-

and internal quotation marks omitted); see also State

defense." And in stating that "if any evidence shown

v. Clark, 2004 UT 25, 6, 89 P.3d 162.

on the question of self-defense creates a reasonable


doubt in your mind" Alzaga was "entitled to an

"[F]ailure to adequately instruct the jury 'concerning

acquittal," the instruction correctly conveyed that the

the burden of proof as to self-defense,' is reversible

State retained the burden of proof of disproving self-

error and requires a new trial." State v. Garcia, 2001

defense beyond a reasonable doubt. Accordingly,

UT App 19, 18, 18 P.3d 1123 (quoting State v.

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Torres, 619 P.2d 694, 696 (Utah 1980)). "The duty to
properly instruct the jury applies to the verdict form."

YES

State v. Campos, 2013 UT App 213, 42, 309 P.3d

NO

1160. "[W]hen reviewing an alleged error in the jury


instructions, 'we look at the jury instructions in their

Alzaga cites State v. Campos in support of his

entirety.'" Id. 64 (quoting State v. Maestas, 2012 UT

contention that the trial court plainly erred in

46, 148, 299 P.3d 892). "[I]f taken as a whole the[]

approving the instruction and that counsel

[jury instructions] fairly instruct the jury on the law

ineffectively failed to correct the error. 2013 UT App

applicable to the case, the fact that one of the

213, 309 P.3d 1160. In Campos, we held that the

instructions, standing alone, is not as accurate as it

verdict form at issue affirmatively, but erroneously,

might have been is not reversible error." Id. (first

instructed the jury on the burden of proof for self-

alteration in original) (citation and internal quotation

defense. Id. 43. The instructions stated that if the

marks omitted).

jury found Campos guilty of attempted murder with


resulting injury, they should then decide whether

Here, the verdict form read in isolation did not explain

"beyond a reasonable doubt, . . . the defense of

the State's burden of disproving self-defense beyond

Imperfect Self Defense applies in this case." Id. 39.

a reasonable doubt:

We explained that "[t]he fundamental problem with


the verdict form" was "that it require[d] an affirmative

We, the jury . . . unanimously find the

defense to be established beyond a reasonable

defendant . . . [a]s to Count 3, AGGRAVATED

doubt." Id. 41. But under Utah law, "[a] defendant

ASSAULT:

need only produce enough evidence to raise a


reasonable basis for the affirmative defense." Id.

NOT GUILTY

"Once that initial showing is made, the burden shifts

GUILTY

to the [S]tate to prove to the jury, beyond a


reasonable doubt, that the defense lacks merit." Id.

If you find the defendant Guilty, by finding he

(citation and internal quotation marks omitted).

committed the assault . . . answer these


questions:

Here, unlike in Campos, the verdict form did not

Did the State prove beyond a reasonable doubt

convey that an affirmative defense requires the

that defendant intentionally inflicted serious bodily

defendant to prove self-defense beyond a reasonable

injury on [Mark]? If YES, stop and sign the verdict

doubt. Indeed, the verdict form did not address the

form. If NO, answer the next question.

burden of proof with respect to self-defense at all.


But, as explained above, the jury instructions

YES

elsewhere adequately conveyed the State's burden

NO

with respect to Alzaga's claim of self-defense. The


verdict form instructed the jury to decide "yes" or "no"

Did the State prove beyond a reasonable doubt

only as to whether "the State proved beyond a

that defendant assaulted [Mark] and used a

reasonable doubt" that Alzaga committed aggravated

dangerous weapon:

assault with a dangerous weapon. That statement

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incorporates the State's burden of proof pertaining to

[...]

self-defense because the jury could have found


Alzaga guilty beyond a reasonable doubt only after

CONCLUSION

concluding that his evidence of self-defense did not


create a reasonable doubt as to this guilt.

In sum, Alzaga has failed to carry the burden of


persuasion on the claims he has raised on appeal.

Accordingly, the trial court did not plainly err in

We therefore affirm his convictions.

approving the verdict form, nor did counsel perform


ineffectively by not objecting to it.

[...]

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