                                 Missouri Court of Appeals
                                       Southern District
                                          Division Two


STATE OF MISSOURI,                                   )
                                                     )
         Plaintiff-Respondent,                       )
                                                     )
vs.                                                  )      No. SD33968
                                                     )
RODMAN L. COMSTOCK,                                  )      Filed June 9, 2016
                                                     )
         Defendant-Appellant.                        )

                APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                                     Honorable J. Dan Conklin

REVERSED AND REMANDED

         Rodman L. Comstock (“Defendant”) was charged with assault in the first degree, see

section 565.050, RSMo 2000, and armed criminal action, see section 571.015, RSMo 2000, for

stabbing Henry Weber. Following a jury trial, Defendant was found guilty on both counts and

sentenced to ten years in the Department of Corrections on the assault charge, plus a concurrent

three-year term for armed criminal action. On appeal, Defendant asserts that the trial court erred

in refusing his tendered self-defense instruction directed toward Weber’s alleged commission of

a forcible felony against him. We agree, reverse his convictions, and remand the case for a new

trial.




                                                1
                                        Standard of Review

       We review the trial court’s refusal to submit Defendant’s self-defense instruction de

novo. State v. Johnson, 470 S.W.3d 767, 768 (Mo.App. 2015). On appeal:

                The Court will reverse due to instructional error if there is error in
       submitting an instruction and prejudice to the defendant. To ascertain whether or
       not the omission of language from an instruction is error, the evidence is viewed
       in the light most favorable to the defendant and the theory propounded by the
       defendant. If the evidence tends to establish the defendant’s theory, or supports
       differing conclusions, the defendant is entitled to an instruction on it.

               The general rule is that an instruction must be based upon substantial
       evidence and the reasonable inferences therefrom. Substantial evidence of self-
       defense requiring instruction may come from the defendant’s testimony alone as
       long as the testimony contains some evidence tending to show that he acted in
       self-defense.

State v. Westfall, 75 S.W.3d 278, 280 (Mo. banc 2002) (internal citations and quotations

omitted).

               Missouri has traditionally placed great emphasis on legally correct
       instructions, and this Court has made it clear that criminal defendants should be
       freely allowed to argue their contentions arising from the facts. . . . Failure to
       provide the required instruction, or give it in accordance with an accompanying
       Note on Use, may . . . adversely influence[] the jury and is reversible error. Such
       errors are presumed to prejudice the defendant unless it is clearly established by
       the State that the error did not result in prejudice.

Id. at 284 (internal citations, quotations, and original brackets omitted).

                            Evidentiary and Procedural Background

       Defendant does not challenge the sufficiency of the evidence supporting his convictions

but rather raises the narrow legal issue of whether a self-defense instruction with specific

language related to Weber’s alleged commission of a forcible felony should have been submitted

to the jury. In accordance with our standard of review, the following evidence favorable to the

Defendant and his self-defense theory was presented at trial.

       Defendant was married to Weber’s mother for twelve or thirteen years and, although they

had divorced, they lived together in the same house. Weber began living with them in that house

                                                  2
in 2013. Weber occupied three of the four upstairs bedrooms, his mother slept on a daybed in

the living room, and Defendant occupied the main bedroom on the first floor. At the time of the

altercation at issue, Defendant weighed 165 pounds; Weber weighed 269 pounds and was 54

years old.

           On July 20, 2013, Defendant was home alone when he heard Weber come home. Weber,

who was no longer happy with Defendant living in the home, came to Defendant’s bedroom and

told Defendant that he “wasn’t wanted.” Defendant did not typically allow Weber access to his

bedroom and asked Weber to leave on this occasion and talk to his mother about his concerns.

Weber then “lowered his hands from the door” and “came at [Defendant].” Defendant stood up

from the bed but Weber “got right up against [Defendant] and shoved him down on the bed.”

Defendant was scared because he “didn’t know whether [Weber] was going to stop.” Weber had

previously pushed Defendant and had only stopped “because [his mother] was there.” Defendant

knew that Weber had been drinking because he could smell beer on Weber’s breath, 1 and he also

knew that Weber typically carried a knife on his person. After Weber pushed Defendant onto the

bed, Defendant grabbed a knife that he kept on the dresser. Weber backed up a step and

Defendant stood up. Weber “came at” Defendant again, and Defendant believed he stabbed

Weber on his lower left side because Weber backed up. Weber “started coming at” Defendant

again so Defendant stabbed Weber again in Weber’s lower chest. Weber then “grabbed ahold”

of Defendant and “pulled [Defendant] with him toward the door[,]” where they “both went

down[,]” and Weber “came down on top” of Defendant. Defendant “couldn’t get [Weber] off so

[Defendant] stabbed him in the back.” At that point, Weber “rolled off” of Defendant and

Defendant “ran out the back door.”




1
    It was later determined that Weber had a blood alcohol content of 0.346.
                                                           3
         During the instruction conference, defense counsel submitted what was designated as

Instruction D: 2

                                             INSTRUCTION NO. D

                  One of the issues in this case is whether the use of force by the defendant
         against Henry Weber was lawful. In this state, the use of force, including the use
         of deadly force, to protect oneself is lawful in certain situations.
                  In order for a person lawfully to use non-deadly force in self-defense, he
         must reasonably believe such force is necessary to defend himself from what he
         reasonably believes to be the imminent commission of a forcible felony.
                  But a person is not permitted to use deadly force unless he reasonably
         believes that the use of deadly force is necessary to protect himself against the
         commission of a forcible felony.
                  As used in this instruction, “deadly force” means physical force which is
         used with the purpose of causing or which a person knows to create a substantial
         risk of causing death or serious physical injury.
                  As used in this instruction, the term “reasonably believe” means a belief
         based on reasonable grounds, that is, grounds that could lead a reasonable person
         in the same situation to the same belief. This depends upon how the facts reasonably
         appeared. It does not depend upon whether the belief turned out to be true or false.
                  A forcible felony includes domestic assault in the second degree.
                  On the issue of self-defense in this case, you are instructed as follows:
                  First, if the defendant reasonably believed that the use of force was
         necessary to defend himself from what he reasonably believed to be the imminent
         commission of domestic assault in the second degree by Henry Weber, and
                  Second, the defendant reasonably believed that the use of deadly force was
         necessary to protect himself from the commission of domestic assault in the second
         degree by Henry Weber, then his use of deadly force is justifiable and he acted in
         lawful self-defense.
                  The state has the burden of proving beyond a reasonable doubt that the
         defendant did not act in lawful self-defense. Unless you find beyond a reasonable
         doubt that the defendant did not act in lawful self-defense, you must find the
         defendant not guilty.
                  As used in this instruction, the term “domestic assault in the second degree”
         means Henry Weber attempted to cause physical injury to [Defendant] by pushing
         him, and that [Defendant] and Henry Weber resided together.
                  A person attempts to cause physical injury when, for the purpose of causing
         that result, he does an act which is a substantial step toward causing that result. A
         substantial step is conduct which is strongly corroborative of the firmness of the
         person’s purpose to cause that result.


2
  Although Instruction D pertains only to assault, the jury found Defendant guilty of armed criminal action pursuant
to Instruction 9, which states that Defendant is only to be found guilty if Defendant “is guilty of the offense of
assault in the first degree.” Therefore, if Instruction D invalidates Defendant’s conviction for assault, it necessarily
invalidates his conviction for armed criminal action as well.
                                                           4
               As used in this instruction, the term “serious physical injury” means
       physical injury that creates a substantial risk of death or that causes serious
       disfigurement or protracted loss or impairment of the function of any part of the
       body.

       MAI-CR 3d 306.06A
       Submitted by Defendant

(Emphasis added.)

       Discussions with the trial court surrounding the applicability of this instruction largely

concerned whether domestic assault in the second degree was an issue in this case. The parties

agreed that the instruction generally applied to a situation where a defendant and the other

individual involved in an altercation reside together but disagreed as to whether pushing by the

other person could constitute the offense of domestic assault in the second degree. The trial

court refused Defendant’s proposed instruction, and the jury was instructed under an alternate

self-defense instruction submitted by the State:

                                     INSTRUCTION NO. 11

               One of the issues as to Count I is whether the use of force by the defendant
       against Henry Weber was lawful. In this state, the use of force, including the use
       of deadly force, to protect oneself is lawful in certain situations.

               A person can lawfully use force to protect himself against an unlawful
               attack.

               In order for a person lawfully to use non-deadly force in self-defense, he
               must reasonably believe such force is necessary to defend himself from
               what he believes to be the imminent use of unlawful force.

               But, a person is not permitted to use deadly force unless he reasonably
               believes that the use of deadly force is necessary to protect himself against
               death or serious physical injury.

               As used in this instruction, “deadly force” means physical force which is
               used with the purpose of causing or which a person knows to create a
               substantial risk of death or serious physical injury.

               As used in this instruction, the term “reasonably believe” means a belief
               based on reasonable grounds, that is, grounds that could lead a reasonable
               person in the same situation to the same belief. This depends upon how the
                                                  5
               facts reasonably appeared. It does not depend upon whether the belief
               turned out to be true or false.

               On the issue of self-defense as to Count I, you are instructed as follows:

               First, if the defendant reasonably believed that the use of force was
               necessary to defend himself from what he reasonably believed to be the
               imminent use of unlawful force, and

               Second, the defendant reasonably believed that the use of deadly force was
               necessary to protect himself from death or serious physical injury from the
               acts of Henry Weber, then his use of deadly force is justifiable and he
               acted in lawful self-defense.

              The state has the burden of proving beyond a reasonable doubt that the
       defendant did not act in lawful self-defense. Unless you find beyond a reasonable
       doubt that the defendant did not act in lawful self-defense, you must find the
       defendant not guilty under Count I.

               As used in this instruction, the term “serious physical injury” means
       physical injury that creates a substantial risk of death or that causes serious
       disfigurement or protracted toss or impairment of the function of any part of the
       body.

(Emphasis added.)

       The jury was also instructed, inter alia, on assault in the first degree, assault in the second

degree, and assault in the third degree, in addition to armed criminal action. The jury returned a

guilty verdict for assault in the first degree and armed criminal action. In Defendant’s motion for

new trial, Defendant included a claim that the trial court erred in refusing Defendant’s self-

defense instruction. That motion was denied. Following sentencing, Defendant timely appeals.

                                            Discussion

        In his sole point relied on, Defendant contends the trial court erred in refusing to submit

Instruction D to the jury because “the jury could have found that Henry Weber was committing,

or attempting to commit, the forcible felony of domestic assault in the second degree against

[Defendant] at the time [Defendant] stabbed him, and that [Defendant] reasonably believed that

deadly force was necessary to defend himself[.]”

                                                 6
           Self-defense is codified in section 563.031, 3 which provides in relevant part:

                  2. A person may not use deadly force upon another person under the
           circumstances specified in subsection 1 of this section unless:

                   (1) He or she reasonably believes that such deadly force is necessary to
           protect himself, or herself or her unborn child, or another against death, serious
           physical injury, or any forcible felony[.]

Section 563.031.2(1) (emphasis added). The language in this section is clear and plain. Subject

to the other requirements in this section, a defendant may use deadly force for protection when

confronted with three situations: death, serious physical injury, or any forcible felony.

           A forcible felony is “any felony involving the use or threat of physical force or violence

against any individual, including but not limited to murder, robbery, burglary, arson, kidnapping,

assault, and any forcible sexual offense[.]” Section 563.011.3.

           Domestic assault in the second degree is a type of assault and is defined, in pertinent part,

as:

                   1. A person commits the crime of domestic assault in the second degree if
           the act involves a family or household member, including any child who is a
           member of the family or household, as defined in section 455.010, and he or she:

                  (1) Attempts to cause or knowingly causes physical injury to such family
           or household member by any means, including but not limited to, by use of a
           deadly weapon or dangerous instrument, or by choking or strangulation[.]

Section 565.073.1(1) (emphasis added). “Domestic assault in the second degree is a class C

felony.” Section 565.073.2.

           Defendant contends that “[b]y its plain language, the term ‘forcible felony’ includes the

crime of domestic [assault] in the second degree, because that crime is a ‘felony involving the

use or threat of physical force or violence against any individual.’” The State does not argue or




3
    Statutory references to Chapter 563 and 565 are to RSMo Cum.Supp. 2012.
                                                        7
contend otherwise, but assumes, “arguendo, that a ‘forcible felony’ includes domestic assault in

the second degree[.]”

         Rather, the State argues that Weber’s conduct does not constitute domestic assault in the

second degree because Defendant’s testimony that Weber pushed him was not “‘substantial

evidence’ that [Weber] attempted to cause or knowingly caused ‘physical injury’ to Defendant

‘by any means, including but not limited to, by use of a deadly weapon or dangerous instrument,

or by choking or strangulation[,]’” citing section 565.073.1(1). 4 We disagree.

         In State v. Shelton, 363 S.W.3d 183 (Mo.App. 2012), the defendant used his fists to beat

his wife’s face and argued on appeal that ejusdem generis 5 should apply to section 565.073.1(1),

such that “by any means” would be limited to means similar to deadly weapons, dangerous

instruments, choking, or strangulation. Id. at 183-84. This court held that the defendant’s

suggested limitations were not well-suited to statutes containing the language “by any means,

including but not limited to[,]” especially section 565.073, given our legislature’s concern with

domestic violence and the failure of other remedies (peace bonds, regular criminal process, and

tort law) to aid those impacted by domestic assault and to prevent further abuse. Id. at 184; State

ex rel. Williams v. Marsh, 626 S.W.2d 223, 226 (Mo. banc 1982). The State’s argument here

resembles the defendant’s argument in Shelton, and we will not depart from Shelton simply

because it is Weber’s conduct at issue here and not Defendant’s.

         The statute plainly states that physical injury 6 may be attempted “by any means.” “Any”

means “all.” Alack v. Vic Tanny Int’l of Missouri, Inc., 923 S.W.2d 330, 337 (Mo. banc 1996)

(citing Webster’s Third New Int’l Dictionary 54, 97 (1976)). In the context of Weber’s 100-



4
  The State does not argue that Defendant and Weber do not meet the familial or residency requirement of domestic
assault in the second degree. See section 565.073.1.
5
  “[T]he concept that specific enumeration is useful in determining the scope and extent of general words[.]”
Shelton, 363 S.W.3d at 184.
6
   “‘Physical injury’ means physical pain, illness, or any impairment of physical condition[.]” Section 556.061(20).
                                                         8
pound weight advantage over Defendant, a jury could have reasonably inferred that Weber’s

pushing of Defendant as described in the evidence was the means by which Weber attempted to

cause physical injury to Defendant. This evidence constitutes substantial evidence to support

domestic assault in the second degree, and the trial court should have submitted to the jury

Defendant’s proffered self-defense instruction premised upon this forcible felony. 7

         The State also argues that Instruction 11, nevertheless, adequately instructed the jury

concerning Weber’s assaultive conduct toward Defendant because the jury was instructed

concerning the “use or imminent use of unlawful force,” citing State v. Allred, 338 S.W.3d 375

(Mo.App. 2011).

         In Allred, the defendant hit his wife with a knife after she stabbed him with the knife. Id.

at 379. On appeal, the defendant argued that the trial court should have sua sponte modified the

self-defense instruction to include language noting that the defendant could use deadly force if he

reasonably believed it was necessary to protect himself from the commission of any forcible

felony. Id. at 380. This court did not find plain error because

         MAI–CR3d 306.06A authorizes the court, in instructing on the issue of self-
         defense, to choose from several alternative phrases as the facts of the case
         require. The trial court instructed the jury that Appellant was lawfully entitled to
         use force in self-defense if he reasonably believed such force was necessary to
         defend himself from what he reasonably believed to be the imminent use of
         unlawful force. The jury was told that Appellant must have reasonably believed
         that force was necessary to protect himself from death or serious physical injury.

7
  The State also argues that “Defendant’s contention that deadly force is authorized to any person who is merely
pushed by an unarmed individual would obviously produce absurd and dangerous results.” The State
misunderstands the issue before this court and the trial court. The only question before this court is “[w]hether the
evidence raises the issue of self-defense[,] a question of law.” State v. Nunn, 697 S.W.2d 244, 246 (Mo.App.
1985). Once the issue is raised by the evidence, the existence of the facts establishing that defense is a
determination for the jury. See State v. Jackson, 433 S.W.3d 390, 400 (Mo. banc 2014) (“no evidence ever proves
an element of a criminal case until all [twelve] jurors believe it, and no inference ever is drawn in a criminal case
until all [twelve] jurors draw it”). We do not hold that Defendant’s use of force was factually authorized here, only
that the jury was entitled to determine whether it was authorized. The jury may conclude, as the State speculates,
that Defendant’s response (stabbing Weber) was not proportional to Weber’s conduct (pushing). MAI–CR3d
306.06A, Notes on Use 6 contemplates that the proportionality of the defendant’s conduct to the other person’s
conduct will be taken into account by the jury and therefore, “deference should be given to the defendant’s
preference on the choice of the forcible felony [for example, first or second degree assault] that describes [the other
person’s] conduct.”
                                                           9
       . . . Pursuant to the instruction’s notes on use, when the alleged “forcible felony”
       is assault, the court may simply choose to use the “use or imminent use of
       unlawful force” language. MAI–CR3d 306.06A, Notes on Use 6.

Id. (emphasis added).

       Using “use or imminent use of unlawful force” interchangeably with “forcible felony”

was appropriate in Allred because Allred’s theory of self-defense and the self-defense evidence

supported that the other party to the altercation used deadly force (stabbing with a knife) against

him and the jury was instructed that he was authorized to protect himself from death or serious

physical injury. Id. at 379-80. Under its facts, Allred’s self-defense theory and evidence were

premised upon a forcible felony that involved the attempted infliction of serious physical injury

or death upon him.

       Here, the jury was instructed regarding both Defendant’s use of deadly and non-deadly

force (as required by MAI-CR3d 306.06A), but only the provision concerning Defendant’s use

of non-deadly force employed the language “use or imminent use of unlawful force[.]” The jury

was instructed, however, that Defendant was only permitted to use deadly force if he reasonably

believed such force was necessary “to protect himself against death or serious physical injury.”

The jury here could have found that Defendant used deadly force to protect himself from a

forcible felony that involved Weber’s attempt to inflict only physical injury upon him, not

serious physical injury or death. Unlike in Allred, under the facts of this case and Defendant’s

theory of self-defense where the forcible felony of domestic assault in the second degree

(pushing) was not likely to result in death or serious physical injury, the trial court should have

given Defendant’s proposed instruction, which stated that he was “not permitted to use deadly

force unless he reasonably believes that the use of deadly force is necessary to protect himself

against the commission of a forcible felony.” The failure, therefore, to instruct the jury on self-

defense as Defendant requested was reversible error. Defendant’s point is granted.

                                                 10
                                         Conclusion

      Defendant’s convictions are reversed, and the case is remanded for a new trial.



GARY W. LYNCH, J., OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J., concurs

WILLIAM W. FRANCIS, JR., J., concurs in separate concurring opinion




                                              11
                               Missouri Court of Appeals
                                        Southern District
                                           Division Two

STATE OF MISSOURI,                                    )
                                                      )
       Plaintiff-Respondent,                          )
                                                      )
vs.                                                   )       No. SD33968
                                                      )
RODMAN L. COMSTOCK,                                   )       Filed June 9, 2016
                                                      )
       Defendant-Appellant.                           )

               APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                             Honorable J. Dan Conklin, Circuit Judge

CONCURRING OPINION

       I concur. I write separately to emphasize that based upon the specific record before us, the

potential offense of domestic assault was one of the fact issues for the jury to consider. By refusing

Instruction D, the trial court erred because it concluded there was no substantial evidence for the

jury to find that there was a forcible felony of domestic assault in the second degree.

       Although there was just barely enough evidence to qualify as substantial, the principal

opinion recites that evidence and our review is in the light most favorable to the defendant in

considering a self-defense instruction. State v. Smith, 456 S.W.3d 849, 852 (Mo. banc 2015).

       The State’s argument includes evidence that is not viewed in the light most favorable to

the defendant, which is inconsistent with our standard of review. Reversal is required on the record

before us.

WILLIAM W. FRANCIS, JR., J. – CONCURRING OPINION AUTHOR
                                     1
