                                         No. 116,937


             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                       STATE OF KANSAS,
                                           Appellee,

                                              v.

                                      KENT D. LINDEMUTH,
                                          Appellant.


                              SYLLABUS BY THE COURT


1.
       The law allows a defendant to present alternate theories of defense and receive
jury instructions on both theories.


2.
       A requested jury instruction should be given when there is sufficient evidence that
a rational fact-finder could use to find for the defendant on that theory.


3.
       Kansas law now explicitly recognizes two types of force—use of force and use of
deadly force.


4.
       Use of force means any or all of the following directed at or upon another person
or thing: words or actions that reasonably convey the threat of force, including threats to
cause death or great bodily harm to a person; the presentation or display of the means of



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force; or the application of physical force, including by a weapon or through the actions
of another. K.S.A. 2017 Supp. 21-5221(a)(1).


5.
        Use of deadly force means the application of any physical force described above
which is likely to cause death or great bodily harm to a person. Any threat to cause death
or great bodily harm, including, but not limited to, by the display or production of a
weapon, shall not constitute use of deadly force, so long as the actor's purpose is limited
to creating an apprehension that the actor will, if necessary, use deadly force in defense
of such actor or another or to affect a lawful arrest. K.S.A. 2017 Supp. 21-5221(a)(2).


6.
        Two types of force can be used by persons to legally defend their workplace: A
person is justified in the use of force against another when and to the extent that it
appears to such person and such person reasonably believes that such use of force is
necessary to prevent or terminate such other's unlawful entry into or attack upon such
person's place of work; a person is justified in the use of deadly force to prevent or
terminate unlawful entry into or attack upon any place of work if such person reasonably
believes that such use of deadly force is necessary to prevent imminent death or great
bodily harm to such person or another; and nothing in this law shall require a person to
retreat if such person is using force to protect such person's place of work. K.S.A. 2017
Supp. 21-5223.


        Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed March 30, 2018.
Reversed and remanded.


        Christopher M. Joseph and Carrie E. Parker, of Joseph, Hollander & Craft LLC, of Topeka, for
appellant.




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        Rachel L. Pickering, assistant district attorney, Michael F. Kagay, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before LEBEN, P.J., HILL, J., and WALKER, S.J.


        HILL, J.: The law allows a defendant to present alternative theories of defense and
receive jury instructions on those theories. Kent D. Lindemuth requested a defense of the
workplace instruction in his trial for making a criminal threat. The trial court denied the
request, ruling the facts did not support giving the instruction. Because now, under
limited circumstances, the Legislature has included making threats of deadly force as a
part of the legitimate use of force, we hold that the trial court erred when it refused to
give the instruction. We reverse and remand for further proceedings.


        After giving a brief review of the facts of the case, we delve into the statutes that
deal with the legitimate use of force. We show how the Legislature now distinguishes
"use of force" and "use of deadly force" and how words and actions, depending on the
seriousness of the circumstances, are considered. Then we look at the law of defense of
the workplace and address the question here about why the jury needed to be instructed
on that law. Finally, we examine the court's ruling and Lindemuth's proposed instruction
and conclude with our holding of error for failing to instruct.


Taking a trailer leads to angry words.


        The facts of this case are straightforward. A truck driver driving a tractor-trailer
rig for Wellco Company based in Dover, Oklahoma, parked his trailer in Topeka in a
parking lot owned by Lindemuth. He detached his tractor and drove off to obtain supplies
for his trip, leaving the trailer and cargo in the lot. Before the driver came back,
Lindemuth parked a vehicle in front of the trailer, effectively preventing it from being
removed from the lot. When the driver eventually returned, Lindemuth confronted him.

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While tapping a holstered gun on his hip, Lindemuth told the driver to leave. But the
driver did not leave and instead called his employer in Oklahoma and then the police.


       Lindemuth then had several telephone conversations with Mike Matthews, the
owner of Wellco who was, at first, in Oklahoma. Matthews and Lindemuth offer different
versions of what was said during the calls.


       According to Matthews, Lindemuth told him that the trailer had damaged his
property and he would return it when he was paid for the damage. After that
conversation, Matthews learned that the trailer had been removed from the lot and was
not even in Topeka anymore. Matthews became angry and the two spoke again. The tone
of their conversation deteriorated. Matthews told Lindemuth that he was going to fly to
Topeka to get his trailer back.


       Again, according to Matthews, after hearing this, Lindemuth told him that if
Matthews came to Topeka, Lindemuth "was going to put a bullet in [Matthews and was]
going to riddle [Matthews] up with bullets if [Matthews] came [to Topeka]." Undeterred,
Matthews said he was coming to Topeka to talk about retrieving the trailer and
Lindemuth again said that if Matthews came, then Lindemuth would kill him.


       After hearing this, Matthews grew angrier. Matthews threatened Lindemuth that
he was going to "whip his ass." Matthews testified that he wanted to take "Lindemuth's
gun and shove it up his ass." Matthews testified that he, in fact, still held that sentiment
on the day of trial. Matthews also stated that he had intended to come to Topeka to
recover the trailer even before Lindemuth made any threat.


       Lindemuth offered a different version of the events. He stated that he had found an
abandoned trailer on his property and towed the trailer away. Lindemuth followed the
trailer after it was towed to make sure that it was secure. Lindemuth received a call from

                                              4
Matthews, and Lindemuth claimed that Matthews was very angry about the trailer being
taken. Lindemuth was in his office when he received this call. Lindemuth told Matthews
that before he would return the trailer Matthews would need to pay for "some expense" in
an amount that Lindemuth had not yet determined.


       According to Lindemuth, he received a second call from Matthews. Lindemuth
was in his office in Topeka. He portrayed this call as all about firearms and Matthews
wanting to shove a gun up Lindemuth's ass. Lindemuth denied that he talked about his
own gun or threatened Matthews.


       After these calls, Matthews flew to Topeka. Upon his arrival, he called Lindemuth
and told him that he had arrived. According to Matthews, Lindemuth again threatened to
shoot him. Luckily for both men, Matthews never actually met Lindemuth because after
this telephone conversation, Matthews received a call from a police detective who told
him that the police had recovered his trailer. It seems that after talking with his lawyer,
Lindemuth had decided to return the trailer to Matthews. Criminal charges followed.


       The State eventually charged Lindemuth with two counts of making a criminal
threat: one for the threat made during the telephone call when Matthews was in
Oklahoma, and one for the threat made during the telephone call when Matthews was in
Topeka. A jury heard the evidence.


       After the presentation of evidence, Lindemuth asked the court to give the jury an
instruction on the defense of the workplace. Even though Lindemuth maintained that he
had made no threats, he argued the instruction was appropriate in the event that the jury
determined he had made threats. The trial court denied Lindemuth's request for such a
jury instruction, simply finding that the facts did not support the requested instruction.
We emphasize that Matthews was in Oklahoma for the first call and never physically
approached Lindemuth during the call made in Topeka.

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       The jury found Lindemuth guilty of one count of criminal threat for the threat
made while Matthews was in Oklahoma, but it acquitted him of the other charge. The
court sentenced Lindemuth to a suspended term of confinement and probation. He
appeals to this court, claiming reversible error because the court refused to give the jury
the instruction on defense of the workplace.


The defendant was entitled to a defense of the workplace instruction.


       Here, there is no issue concerning our jurisdiction over this question of law since
Lindemuth preserved the issue for review by requesting such an instruction. See State v.
Louis, 305 Kan. 453, 457, 384 P.3d 1 (2016).


       But first, we must address the apparent inconsistency between a proposed
instruction and the defense offered at trial. Lindemuth maintained at trial that he did not
make any threats. His requested instruction for a lawful use of force in defense of the
workplace simply does not support this defense. These positions seem inconsistent but
Lindemuth is correct—the law allows a defendant to present alternate theories of defense
and receive jury instructions on both theories. See State v. Williams, 303 Kan. 585, 599,
363 P.3d 1101 (2016). The fact that Lindemuth denied making any threat does not
prevent him from raising this defense and requesting such an instruction.


       It is well established that a defendant is entitled to jury instructions on the law
applicable to his or her theory of defense. A requested instruction should be given when
there is sufficient evidence that a rational fact-finder could use to find for the defendant
on that theory. State v. Hilt, 299 Kan. 176, 184, 322 P.3d 367 (2014). This is true even
though Lindemuth had two different theories of defense. We turn now to see if the
instruction he wanted was factually and legally appropriate.


                                               6
       Factually, it is undisputed that the phone calls were made while Lindemuth was in
his office in Topeka. He was at his workplace when the exchanges took place. Clearly
then, there is a basis in fact to give a defense of the workplace instruction.


       The more difficult question to answer is whether the instruction was legally
appropriate. At first glance, the trial judge's denial of the requested instruction makes
some sense. After all, Matthews was over 100 miles away in Oklahoma when Lindemuth
made the first threat and then merely in the same city when Lindemuth made the second
threat. We suspect that this issue would not have arisen if Lindemuth had asked for such
an instruction and the facts were that Matthews was pounding on Lindemuth's office
door, demanding admission. A reasonable court would give such an instruction. In such a
scenario, there is an immediacy to the perceived threat with Matthews just outside the
office door, in contrast with two men arguing on the telephone. Because there was no
immediate threat to Lindemuth from Matthews, the State argued successfully to the trial
court that Lindemuth was not entitled to the jury instruction. The State maintains that
same position before us. But a careful reading of the applicable statutes leads us to
conclude that Lindemuth was entitled to the instruction and, thus, the trial court erred
when it refused to give one. Because the question is not about the immediacy of any
threat from Matthews, but it is more about when Lindemuth could legitimately threaten
deadly force.


       To answer this question we must turn to the statutes defining use of force and use
of deadly force and consider them along with the statute permitting the defense of the
workplace. Kansas law now explicitly recognizes two types of force—use of "force" and
use of "deadly force." In response to our Supreme Court's holding in State v. Hendrix,
289 Kan. 859, 218 P.3d 40 (2009), the Legislature amended the use of force statutes to
include the threat of force. Hendrix was convicted of criminal threat and aggravated
assault based upon an incident where he threatened his sister with a knife while he was
visiting his mother. The court held that under the plain language of the use of force

                                              7
statutes, a jury instruction was not warranted unless the defendant had actually used
force. 289 Kan. at 862. In other words, threatening the use of force was not protected
under the statute. This holding prompted change.


       We look first at the changed definitions. "Use of force" means any or all of the
following directed at or upon another person or thing:
             Words or actions that reasonably convey the threat of force, including
              threats to cause death or great bodily harm to a person;
             the presentation or display of the means of force; or
             the application of physical force, including by a weapon or through the
              actions of another. K.S.A. 2017 Supp. 21-5221(a)(1).


Thus, words and threats and symbolic speech through actions and gestures are now a part
of the use of force. The actual application of force is included as well. Simply put, words
and actions are now included in the definition of use of force. But there is also a more
serious level of force contemplated by the changed law.


       "Use of deadly force" means:
             The application of any physical force described in paragraph (1) above
              which is likely to cause death or great bodily harm to a person.
             Any threat to cause death or great bodily harm, including, but not limited
              to, by the display or production of a weapon, shall not constitute use of
              deadly force, so long as the actor's purpose is limited to creating an
              apprehension that the actor will, if necessary, use deadly force in defense of
              such actor or another or to affect a lawful arrest. K.S.A. 2017 Supp. 21-
              5221(a)(2).


The application of force is clearly the main component of use of deadly force. Threats are
excluded from the definition. The way this statute is written means that the threat of
                                             8
deadly force becomes a warning of possible lethal consequences and is permitted in
limited circumstances under the law.


       Then, K.S.A. 2017 Supp. 21-5223 also speaks to the two types of force and sets
out when a person can legally defend his or her workplace:
             A person is justified in the use of force against another when and to the
              extent that it appears to such person and such person reasonably believes
              that such use of force is necessary to prevent or terminate such other's
              unlawful entry into or attack upon such person's place of work.
             A person is justified in the use of deadly force to prevent or terminate
              unlawful entry into or attack upon any place of work if such person
              reasonably believes that such use of deadly force is necessary to prevent
              imminent death or great bodily harm to such person or another.
             Nothing in this statute shall require a person to retreat if such person is
              using force to protect such person's place of work.


Obviously, this means that the Legislature has reserved the more serious use of deadly
force for instances of imminent danger.


       When we apply this statutory matrix to the facts of this case, the answer to our
question becomes manifest. It is clear that Lindemuth threatened deadly force but never
applied deadly force. Lindemuth talked—he never shot. Here, according to the statutes,
making a threat of deadly force is not considered the use of deadly force so long as
Lindemuth's purpose was limited to creating an apprehension in Matthews that he,
Lindemuth, would, if necessary, use deadly force to prevent Matthews' unlawful entry or
attack upon Lindemuth's workplace. In other words, stay away from his Topeka
workplace or there will be lethal consequences.




                                              9
       This means that for a jury to properly determine if Lindemuth's actions complied
with the law, then it needed to be properly instructed on the law of defense of the
workplace as Lindemuth requested. We illustrate our meaning with the following
example.


       After removing the unnecessary parenthetical options in the pattern instruction and
considering the gender of the defendant, PIK Crim. 4th 52.210 (2016 Supp.) would read:


               "Defendant claims his conduct was permitted as a lawful defense of his place
       of work.
               "Defendant is permitted to threaten by words or actions to use physical force
       against another person, including a threat to cause death or great bodily harm to the
       extent that it appears to him and he reasonably believes that such threat is necessary to
       prevent the other person from unlawfully entering into his place of work. Reasonable
       belief requires both a belief by defendant and the existence of facts that would persuade a
       reasonable person to that belief."


This instruction clearly tracks the statutes we have discussed in K.S.A. 2017 Supp. 21-
5221(a)(1), (a)(2), and K.S.A. 2017 Supp. 21-5223.


       Lindemuth modified the pattern instruction and suggested the following:


       "The defendant is permitted as a lawful defense to threaten by words or actions to use
       physical force against another person, including a threat to cause death or great bodily
       harm, to the extent that it appears to him and he reasonably believes that such threat is
       necessary to prevent the other person from unlawfully entering into his place of work.
       Reasonable belief requires both a belief by defendant and the existence of facts that
       would persuade a reasonable person to that belief."




                                                   10
Obviously, after reading both, the PIK instruction is preferable because it immediately
sets out for the jury the claims of the defendant, where Lindemuth's modification fails to
do so.


         But what Lindemuth offered is not pertinent to our discussion. The law requires
the judge to instruct the jury and not just give instructions proposed by both sides. See
K.S.A. 2017 Supp. 60-251. The judge refused to instruct the jury on this topic and did not
refuse to give Lindemuth's proposed instruction because it failed to follow the pattern
instruction. The error comes in not giving any instruction and thus removing the defense
of the workplace from the jury's consideration entirely.


         Instead, the district court ruled:


                 "Certainly, Mr. Lindemuth clearly said he made no such threat. And what's being
         proposed is unlawful entering into his place of work. There were no facts . . . no facts to
         support that or the fact that the defendant did, in fact, respond to threats of Mr. Matthews
         by making a threat, that—there was no evidence to that effect. So I'm not going to allow
         those two instructions."


         The district court's analysis fails for three reasons. First, the jury heard both
Lindemuth's and Matthews' testimony and could decide, based on that testimony, whether
it was reasonable under these circumstances for Lindemuth to threaten Matthews in order
to prevent an unlawful entry into Lindemuth's workplace. It is important to note that since
Lindemuth requested a defense of the workplace instruction, we must view the evidence
in the light most favorable to the defendant. See State v. Dupree, 304 Kan. 377, 397, 373
P.3d 811 (2016). Thus, even though Lindemuth denied making any threats, had the court
instructed the jury a rational fact-finder could have found that he did make threats (as it
did when it found him guilty) and it was reasonable to do so under these circumstances
based on the threats made by Matthews to come to Topeka. We recall Lindemuth's
testimony that Matthews said he wanted to shove a gun up Lindemuth's ass. This is
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evidence the jury could consider and weigh. Obviously, with no such instruction, the jury
was not aware that the law permits such threats under some circumstances. Thus, the jury
could not consider the claim here because of the court's refusal to instruct.


       Next, there is no restriction in the statute that says a person can only use threats of
force, including a threat to cause death or great bodily harm, in response to a threat from
someone else. That was a requirement imposed by the district court here and not required
by the law. The legal restriction on making these types of threats is solely one of
reasonableness.


       Finally, there is no requirement of an imminent unlawful entering of the
workplace to be legally allowed to make a threat of this type. That limitation of
imminence is applied only in cases where there is an application of deadly force—the
second type of force that we have discussed. Again, the district court imposed such a
requirement here when the law does not.


       We must emphasize that the defense of the workplace statute limits the use of
deadly force only to prevent "imminent death or great bodily harm." There is no such
limitation for the use of force which includes making a threat of the use of deadly force.
Therefore, the lack of an immediate threat to Lindemuth by Matthews is irrelevant here
because that is limited to cases where deadly force is used. This is not such a case.
Matthews did not need to be pounding on Lindemuth's office door in order for Lindemuth
to be legally entitled to a defense of the workplace instruction. But the reasonableness of
making such a threat was a question for a properly instructed jury.


       Because the trial court failed to instruct the jury, we must reverse.


       Reversed and remanded for further proceedings.


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