               In the Missouri Court of Appeals
                       Eastern District
                                               DIVISION ONE

STATE OF MISSOURI,                                        )       No. ED102962
                                                          )
         Respondent,                                      )       Appeal from the Circuit Court
                                                          )       of Montgomery County
         vs.                                              )       14AU-CR00460-02
                                                          )
RICHARD JOHN WHIPPLE,                                     )       Honorable Wesley C. Dalton
                                                          )
         Appellant.                                       )       Filed: October 18, 2016

         Richard John Whipple (“Defendant”) appeals the judgment entered upon a jury verdict

convicting him of two counts of unlawful use of a weapon, one count of first-degree tampering

with a motor vehicle, and three counts of third-degree assault. We reverse and remand.

                                          I.       BACKGROUND

A.       Evidence Presented at Defendant’s Jury Trial

         Defendant was charged with and convicted of the six counts referenced above, and he

does not challenge the sufficiency of the evidence to support his convictions. Viewed in the light

most favorable to Defendant, 1 the evidence presented at his jury trial revealed the following

facts.




1
 As further explained below, one of the claims Defendant raises on appeal involves whether there was sufficient
evidence adduced at trial to support a self-defense instruction. When determining such an issue, this Court must
view the evidence in the light most favorable to the defendant. State v. Amschler, 477 S.W.3d 10, 13 (Mo. App.
E.D. 2015).
         On June 17, 2014, Defendant and his wife, Stephanie Whipple (“Mrs. Whipple”), along

with three of their children (collectively “the Whipples”), drove to Jason Sanning Sr.’s home

looking for their daughter’s stolen bike. Upon the Whipples’ arrival, Defendant parked his SUV

on the street in front of the Sannings’ property and Mrs. Whipple asked Alyssa Sanning

(“Alyssa”), 2 a fifteen-year-old girl, whether she could look in their backyard for the bike. Alyssa

gave Mrs. Whipple permission, and then went inside to tell her brother, fourteen-year-old Jason

Sanning II. Jason Sanning II came outside as Mrs. Whipple was walking back to her vehicle and

they had a verbal confrontation. Then, Defendant and his family returned to their home, which

was connected to a pawn shop owned by Defendant.

         Following this occurrence, Alyssa and Jason Sanning II went inside the house to inform

Jason Sanning Sr. (“Mr. Sanning”) of the incident between Mrs. Whipple and Jason Sanning II.

After learning that the Whipples were on his property, Mr. Sanning, along with his girlfriend and

daughter Alyssa (collectively “the Sannings”), drove to the Whipples’ property to discuss what

happened.

         Upon the Sannings’ arrival, an argument ensued between Mr. Sanning and Defendant.

While the Sannings and the Whipples were in their respective vehicles, Defendant ordered Mr.

Sanning to leave his property. Mr. Sanning did not comply with Defendant’s request, causing

Defendant to approach the Sannings’ van. Mr. Sanning threatened Defendant with “a lot of

bodily harm,” and then Defendant asked Mr. Sanning to leave again. When Mr. Sanning still

refused to comply, Defendant revealed his gun “to diffuse the situation.” After Mr. Sanning

continued to yell, Defendant told Mr. Sanning to get off his property for the third and final time.




2
 Because Alyssa shares the same last name as her brother and father, we will refer to Alyssa by her first name for
clarity and ease of reference. No disrespect is intended.
                                                         2
         Then, as Defendant was standing between the two vehicles, Mr. Sanning put the van in

reverse to leave the Whipples’ property. As the Sannings’ van backed up, its front end veered

towards Defendant and his vehicle, who became fearful that he, his family, or his vehicle were

going to be struck by the Sannings’ van. In response, Defendant fired a single round into the

hood of the Sannings’ van. Immediately after the shot was fired, Mr. Sanning stopped, put the

van in drive, and drove out of the parking lot. 3

B.       Relevant Procedural Posture

         Based on the events which occurred at the Whipples’ property, Defendant was charged

with six counts. Count I is a class D felony charge for unlawful use of a weapon relating to

Defendant’s brandishing the firearm. Counts II – VI relate to Defendant’s firing the gun at the

Sannings’ van: Count II is a class B felony charge for unlawful use of a weapon; Count III is a

charge for first-degree tampering with a motor vehicle; and Counts IV – VI are third-degree

assault charges relating to Mr. Sanning, Alyssa, and Mr. Sanning’s girlfriend, respectively.

         During the instruction conference, Defendant’s counsel (“Defense Counsel”) requested

the jury be instructed on self-defense as to Count I. Defense Counsel did not tender instructions

or specify which Missouri Approved Instruction (“MAI”) Defendant was requesting. The State

objected to any instruction on self-defense. Following arguments from the parties, the trial court

ruled the evidence was not sufficient to support a self-defense instruction. Defense Counsel

made a “blanket objection” to the lack of instructions on self-defense, defense of others, and duty

to retreat so as to preserve the objections for each count.

         The jury found Defendant guilty of all counts. Defendant filed a Motion for New Trial

asserting, inter alia, the trial court erred in refusing to instruct the jury on self-defense, defense



3
  To avoid unnecessary repetition, a more detailed account of the facts will be set out in our analysis in Sections
II.A.4.a. and b. below.
                                                           3
of others, and duty to retreat. Following arguments from the parties, the trial court denied

Defendant’s Motion for New Trial.

       The trial court subsequently entered a judgment in accordance with the jury’s verdict, and

sentenced Defendant as a prior offender to fifteen years of imprisonment as to Count II, over

Defense Counsel’s objection, who argued its imposition violated Defendant’s due process rights.

Defendant was further sentenced to four years of imprisonment for Counts I and III and one year

in the county jail for Counts IV – VI, with all sentences to run concurrently. Defendant appeals.

                                       II.     DISCUSSION

       In Defendant’s first and second points on appeal, he argues the trial court erred in

refusing to submit jury instructions relating to Defendant’s claim of self-defense. Defendant

asserts in his third point that the trial court erred in sentencing him as a prior offender, arguing

that Missouri’s prior offender statute is unconstitutional.

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

       In his first and second points on appeal, Defendant argues the trial court erred in refusing

to submit jury instructions relating to Defendant’s claim of self-defense. Defendant asserts he

was entitled to a self-defense instruction solely because he had no duty to retreat on his property.

Defendant also argues that he was entitled to a self-defense instruction because he presented

substantial evidence that he acted in self-defense or defense of others. We reject Defendant’s

first argument, but agree that Defendant was entitled to a self-defense instruction because he

placed the matter at issue, which amounted to substantial evidence to support submitting a self-

defense or defense-of-others instruction.

       1.      Standard of Review

       This Court reviews a trial court’s refusal to give a requested jury instruction de novo.

State v. Amschler, 477 S.W.3d 10, 13 (Mo. App. E.D. 2015). Even if a self-defense instruction is

                                                  4
not requested or was requested but not in the proper form, the trial court must instruct the jury on

self-defense if there is substantial evidence to support it. State v. Westfall, 75 S.W.3d 278, 280-

81, 281 n. 9 (Mo. banc 2002); State v. Seals, 487 S.W.3d 18, 23 (Mo. App. S.D. 2016).

“Substantial evidence” means evidence putting the matter in issue. State v. Avery, 120 S.W.3d

196, 200 (Mo. banc 2003) (quotations in original). In determining whether there was substantial

evidence to support a self-defense instruction, we view the evidence and reasonable inferences

therefrom in the light most favorable to the defendant and “the theory propounded by

[d]efendant.” Amschler, 477 S.W.3d at 13 (quoting Westfall, 75 S.W.3d at 280). If the evidence

tends to establish the defendant’s theory of self-defense, or supports differing conclusions, the

defendant is entitled to a self-defense instruction. Avery, 120 S.W.3d at 200; Seals, 487 S.W.3d

at 23. It is reversible error to refuse to instruct on self-defense if substantial evidence exists to

support the instruction. State v. Weems, 840 S.W.2d 222, 226 (Mo. banc 1992).

         2.       Defendant’s Argument Relating to Duty to Retreat

         As an initial matter, we will address Defendant’s argument that he was entitled to a self-

defense instruction solely because he had no duty to retreat on his property. In response, the

State asserts that even when a defendant does not have a duty to retreat, his claim of self-defense

still must meet the reasonableness requirements of section 563.031 RSMo Supp. 2011 4 in order

for him to be entitled to a self-defense instruction. For the reasons stated below, we agree with

the State’s position.




4
  Unless otherwise indicated, all further statutory references to section 563.031 are to RSMo Supp. 2011, which
incorporates legislative amendments through 2010 and was the version in effect at the time the events giving rise to
Defendant’s charges occurred. Section 563.031 was subsequently amended, but those amendments do not go into
effect until October 14, 2016 and are not relevant to this appeal.
                                                          5
                  a.      General Law Relating to Statutory Interpretation

          Defendant’s assertion that he was entitled to a self-defense instruction solely because he

had no duty to retreat requires us to interpret section 563.031. Statutory interpretation is a

question of law that this Court reviews de novo. Finnegan v. Old Republic Title Co. of St. Louis,

Inc., 246 S.W.3d 928, 930 (Mo. banc 2008). “The primary rule of statutory interpretation is to

ascertain the intent of the General Assembly from the language used and to give effect to that

intent.” Id. To determine legislative intent, words are to be given their plain and ordinary

meaning. Id. The construction of statutes should not be hyper-technical, but should be

reasonable and logical. Gash v. Lafayette County, 245 S.W.3d 229, 232 (Mo. banc 2008). We

do not read any part of the statute in isolation, but consider the context of the entire statute and

harmonize its provisions. Berra v. Danter, 299 S.W.3d 690, 696 (Mo. App. E.D. 2009).

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

          In 2007, the Missouri General Assembly repealed the statute relating specifically to

defense of premises and incorporated provisions relating to that defense into section 563.031, the

self-defense statute. 5 Subsequent amendments further expanded on the new provisions. 6 The

effect of these amendments was to create the so-called “castle doctrine” and to relieve a defender

of his “duty to retreat” in certain circumstances. State v. Clinch, 335 S.W.3d 579, 587 (Mo. App.

W.D. 2011); see section 563.031.3.

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

We begin with the language of section 563.031, which provides in relevant part:

          1. A person may, subject to the provisions of subsection 2 of this section, use
          physical force when and to the extent he or she reasonably believes such force to
          be necessary to defend himself or herself or a third person from what he or she
          reasonably believes to be the use or imminent use of unlawful force by such other
          person….

5
    Compare section 563.031 RSMo Supp. 2008, with section 563.031 RSMo 2000, and section 563.036 RSMo 2000.
6
    Compare section 563.031 RSMo Supp. 2011, with section 563.031 RSMo Supp. 2008.
                                                      6
                                                 …
       2. A person may not use deadly force upon another person under the circumstances
       specified in subsection 1 of this section unless:
                                                 …
       (2) Such force is used against a person who unlawfully enters, remains after
       unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or
       vehicle lawfully occupied by such person; or

       (3) Such force is used against a person who unlawfully enters, remains after
       unlawfully entering, or attempts to unlawfully enter private property that is owned
       or leased by an individual claiming a justification of using protective force under
       this section.

       3. A person does not have a duty to retreat from a dwelling, residence, or vehicle
       where the person is not unlawfully entering or unlawfully remaining. A person
       does not have a duty to retreat from private property that is owned or leased by such
       individual.

(emphasis added).

       The italicized language in the statute indicates subsections 1 and 2 must be read together

to determine when deadly force may be used in self-defense. Clinch, 335 S.W.3d at 586.

According to the introductory language of subsections 1 and 2, subsection 1 is not always

qualified by subsection 2 because subsection 2 only applies when deadly force is used, but

subsection 2 is always qualified by the reasonableness requirements of subsection 1. Id. Thus,

pursuant to the statute, the lawful occupier of a dwelling, residence, or vehicle (“the occupier”),

or an owner or lessee of private property (“the owner or lessee”) is entitled to use deadly force to

repel an unlawful entry, but only if he meets the requirements of self-defense set out in section

563.031.1. See Clinch, 335 S.W.3d at 586 (“to use deadly force under [section 563.031.2], the

requirements of [section 563.031.1] must also be met; otherwise, deadly force is prohibited”);

see also Amschler, 477 S.W.3d at 13-14 (deadly force requirements are “in addition” to section

563.031.1 requirements).

       While a defender is always required to do all within his power and consistent with his

safety to avoid the danger and the need to use force, see State v. Henderson, 311 S.W.3d 411,

                                                 7
414-15 (Mo. App. W.D. 2010), section 563.031.3 relieves him of his duty to retreat in certain

circumstances while present in a dwelling, residence, vehicle, or on private property. See section

563.031.3. However, unlike subsections 1 and 2, subsection 3 does not state how it operates in

conjunction with other provisions of the statute. Although section 563.031.3 does not explicitly

address how the duty to retreat interacts with the other statutory requirements, the statute does

not state, and it does not follow, that the removal of one’s duty to retreat under certain

circumstances constitutes the removal of the reasonableness requirements of sections 563.031.1

and .2. The legislature did not express its intention that section 563.031.3 circumvent sections

563.031.1 and .2, and we will not imply additional words into a statute. See Vocational Services,

Inc. v. Developmental Disabilities Resource Bd., 5 S.W.3d 625, 631 (Mo. App. W.D. 1999).

Further, the inclusion of “subject to the provisions of subsection 2 of this section” and “under the

circumstances specified in subsection 1 in this section” in sections 563.031.1 and .2 evidences

that the legislature had language referring to other provisions available, and intended not to use

similar language in section 563.031.3. See Schudy v. Cooper, 824 S.W.2d 899, 901 (Mo. banc

1992) (the legislature’s express inclusion of one thing implies exclusion of another).

       Accordingly, considering the entirety of section 563.031 and reading it reasonably and

logically, we find that subsection 3 permits the occupier, owner, or lessee to use physical force,

including deadly force, in self-defense within a dwelling, residence, or vehicle, or on private

property without having a duty to retreat, but only under the circumstances in which physical

force, or deadly force, is allowed under subsections 1 and 2. Thus, we cannot find that

subsection 3 gives the occupier, owner, or lessee authority to stand his ground and use deadly

force without having a reasonable belief that such force is necessary to defend himself or a third

person from what he reasonably believes to be the use or imminent use of unlawful force.



                                                  8
           Although the interaction between subsection 3 and other provisions of section 563.031 is

a matter of first-impression, our interpretation finds support from other Missouri Court decisions

discussing duty to retreat under prior versions of section 563.031. Specifically, the Western

District has declared, “a person who is attacked in his own dwelling has a right to stand his

ground rather than retreat, if this is necessary to save his own life or to protect himself from

serious physical harm.” State v. Abdul-Khaliq, 39 S.W.3d 880, 887 (Mo. App. W.D. 2001)

(quoting State v. Allison, 845 S.W.2d 642, 647 (Mo. App. W.D. 1992)). Additionally, the

Southern District has analyzed the duty to retreat within the context of the reasonableness

requirements for self-defense. State v. Wiley, 337 S.W.3d 41, 45, 45 n.7 (Mo. App. S.D. 2011)

(“[a]side from issues of deadly force under [section] 563.031.2, a person has no duty to retreat

from his residence”). Moreover, the Wiley Court found an occupier’s duty to retreat was not

dispositive of the case because the defendant failed to prove that he met other prerequisites for

using self-defense. Id. We presume the legislature was aware of the Western and Southern

Districts’ interpretations of prior versions of the statute. Clinch, 335 S.W.3d at 587. Thus, the

fact that the legislature has not amended subsection 3 to mention necessity or eliminate the other

prerequisites of self-defense further influences this Court’s conclusion regarding the

interpretation of section 563.031. See id.

           Finally, our reading of section 563.031 is supported by MAI-CR 3d 306.11 (effective

January 1, 2011) 7 regarding self-defense in dwellings, residences, and vehicles, which provides

in relevant part:

           A person who is lawfully occupying a [dwelling, residence, or vehicle] may use
           (force, including) deadly force (,) to defend himself against another who [attempts
           to enter unlawfully, enters unlawfully, or remains after an unlawful entry of] that
           [dwelling, residence, or vehicle] if he reasonably believes the use of some force is
           necessary to defend himself from what he reasonably believes is the (imminent) use
           of unlawful force.

7
    All further references to MAI-CR 3d 306.11 are to the version effective January 1, 2011.
                                                           9
                                                  …
       A person lawfully occupying a [dwelling, residence, or vehicle] is not required to
       retreat before resorting to the use of force to defend himself.

(internal parentheticals modified).

       Based upon this language, which is to be given in all cases where MAI-CR 3d 306.11 is

given, (1) the occupier may lawfully use force, including deadly force, to defend himself against

a person who is attempting to enter unlawfully, does enter unlawfully, or remains after an

unlawful entry; and (2) the occupier is relieved of any duty to retreat before resorting to the use

of force; (3) but for the occupier to claim the privilege of self-defense, he must reasonably

believe the use of force is necessary to defend himself from what he reasonably believes is an

imminent use of force. See id.

               c.      Conclusion as to Defendant’s Argument Relating to Duty to Retreat

       The preceding discussion indicates that even when a defendant does not have a duty to

retreat, he must show he was entitled to use deadly force in self-defense under the reasonableness

requirements of section 563.031.1 in order for him to be entitled to a self-defense instruction.

While the law relieves an occupier, owner, or lessee of his duty to retreat, it does not provide him

a right to stand his ground and use deadly force without the use of force being necessary to save

his own life or protect himself from serious physical harm. See Abdul-Khaliq, 39 S.W.3d at 887.

Based on the foregoing, Defendant’s argument that he was entitled to a self-defense instruction

solely because he had no duty to retreat on his property is without merit.

       3.      General Law Relating to Self-Defense Jury Instructions

       As Defendant’s argument relating to duty to retreat is not dispositive of whether he was

entitled to a self-defense instruction, we now address his primary argument – that he was entitled

to such an instruction because he presented substantial evidence that he acted in self-defense or



                                                 10
defense of others. 8

         A defendant must prove the existence of four prerequisites in order for him to have been

entitled to use force in self-defense. State v. Chambers, 671 S.W.2d 781, 783 (Mo. banc 1984);

State v. Habermann, 93 S.W.3d 835, 837 (Mo. App. E.D. 2002). Specifically, a defendant must

present substantial evidence that, (1) he did not provoke or was not the aggressor; (2) he had

reasonable grounds for believing he was faced with immediate danger of serious bodily harm; (3)

he did not use more force than was reasonably necessary; and (4) he did everything in his power

and consistent with his own safety to avoid the danger. Habermann, 93 S.W.3d at 837; Seals,

487 S.W.3d at 23-24.

         The use of deadly force 9 is justified only when the defender reasonably believes deadly

force is necessary to protect himself or another from immediate danger of death or serious bodily

harm. State v. Crudup, 415 S.W.3d 170, 175-76 (Mo. App. E.D. 2013). A reasonable belief is

“a belief based on reasonable grounds, that is, grounds that could lead a reasonable person in the

same situation to the same belief.” State v. Smith, 456 S.W.3d 849, 852 (Mo. banc 2015)

(quoting MAI-CR 3d 306.06A[6] (effective January 1, 2009)).

         4.       Analysis

         Defendant asserts he was entitled to self-defense instructions on each of his six charges.

Therefore, Count I, relating to Defendant’s brandishing of the firearm will be discussed first.




8
  At the instruction conference, Defense Counsel objected to the trial court’s refusal to give a self-defense
instruction and a defense-of-others instruction. However, Defendant’s point relied on only refers to self-defense and
does not refer to defense-of-others. Additionally, the argument section of Defendant’s brief only refers to defense-
of-others in the context of his argument relating to self-defense. Accordingly, and because defense-of-others is
essentially an extension of the self-defense justification, Bolden v. State, 423 S.W.3d 803, 806, 806 n. 4 (Mo. App.
E.D. 2013), our analysis will focus on self-defense, and will only refer to defense-of-others in the context of our
discussion relating to self-defense.
9
  The parties do not dispute that by brandishing and discharging a firearm, Defendant used deadly force against Mr.
Sanning.
                                                         11
Then, Counts II through VI will be discussed together as they all relate to Defendant’s actions in

firing the gun at the Sannings’ van.

               a.      Defendant’s Brandishing of the Firearm

       Viewing the evidence and reasonable inferences therefrom in the light most favorable to

Defendant, which we are required to do, Amschler, 477 S.W.3d at 13, the following transpired.

       After the incident between Mrs. Whipple and Jason Sanning II on the Sannings’ property,

the Whipples returned to their property, believing the encounter was over. Approximately three

minutes after the Whipples left the Sannings’, the Sannings arrived at the Whipples’. The exact

position of the vehicles is disputed, but Defendant and Mrs. Whipple testified that the Sannings’

van pulled into the Whipples’ parking lot at an angle from the street. The vehicles were parked

approximately three feet from each other, and were not perfectly parallel. Both families

remained in their vehicles when Mr. Sanning asked Defendant whether he had threatened Jason

Sanning II. Defendant denied threatening Jason Sanning II, and “cuss words were exchanged”

between Defendant and Mr. Sanning. Mr. Sanning yelled at Defendant and threatened him with

“a lot of bodily harm.”

       While Defendant was still in his vehicle, Defendant asked Mr. Sanning to leave his

property. When Mr. Sanning refused, Defendant got out of his vehicle. Defendant approached

the passenger side window of the Sannings’ van while Mr. Sanning was still yelling at him.

Defendant yelled back and again told Mr. Sanning to leave his property. In an attempt to

“diffuse the situation,” Defendant pulled out his gun, without pointing it at anyone, in an

“overexaggerated” [sic] manner believing, “if [Mr. Sanning] saw the gun [the Sannings] would

go ahead and leave.”

       As explained below, Defendant produced substantial evidence of the four requirements of

self-defense, sufficient to place the matter at issue to warrant a self-defense jury instruction.

                                                  12
         First, Defendant presented substantial evidence of the absence of provocation or

aggression on his part. See Habermann, 93 S.W.3d at 837. The parties dispute whether the

argument on the Whipples’ parking lot was an isolated incident or whether it began with Mrs.

Whipple entering the Sannings’ property. Defendant testified that upon leaving the Sannings’

property, he drove around the block to avoid driving past the Sannings’ property on his way

home and to avoid further confrontation, and that he believed the incident was over when he

arrived at his house. Accordingly, Defendant asserts that the confrontation on his property was

an isolated incident, and that Mr. Sanning became the aggressor when he arrived on the

Whipples’ parking lot uninvited and remained after Defendant asked him to leave. Where, as in

this case, there were arguably acts of aggression or provocation by both Defendant and Mr.

Sanning, and it is for the jury to determine which party had been the initial aggressor. See

Chambers, 671 S.W.2d at 783.

         Next, Defendant produced substantial evidence that he had reasonable grounds for

believing he or his family was facing an immediate danger of death or serious bodily harm. See

Habermann, 93 S.W.3d at 837; see also Crudup, 415 S.W.3d at 175-76. The reasonableness of

Defendant’s belief itself is a question of fact for the jury to determine. Amschler, 477 S.W.3d at

14; Chambers, 671 S.W.2d at 783. Viewing the whole record in the light most favorable to

Defendant, we find the testimony that Mr. Sanning was on the Whipples’ property uninvited,

refused to leave upon two requests, and threatened Defendant with bodily harm 10 was substantial

evidence from which a jury could find that Defendant reasonably believed he or his family was

facing an immediate danger of death or serious bodily harm. See Amschler, 477 S.W.3d at 14;


10
   This Court is aware that, generally, insults or verbal threats alone are not sufficient to justify deadly force, see
Wiley, 337 S.W.3d at 45 (insults are not sufficient provocation to justify an assault, and even a simple assault and
battery does not justify the use of deadly force), and nothing in this opinion should be read to suggest otherwise.
However, because we do not know the exact substance of Mr. Sannings’ threats and we must take the facts in the
light most favorable to Defendant, Amschler, 477 S.W.3d at 13, we consider the alleged threats as one of several
factors leading to Defendant’s belief that the use of deadly force was necessary.
                                                           13
Chambers, 671 S.W.2d at 782 (where evidence is conflicting, it is a question of fact for the jury

to determine whether the defendant acted in self-defense).

        Further, Defendant’s testimony amounted to substantial evidence that he used no more

force than reasonably necessary to protect himself and his family and that he did everything

within his power and consistent with his and his family’s safety to avoid the danger. See

Habermann, 93 S.W.3d at 837. As there was conflicting evidence concerning these two

elements, the determination of whether they are met lies within the sound discretion of the jury.

See State v. Miller, 91 S.W.3d 630, 635 (Mo. App. W.D. 2002) (when conflicting evidence

existed as to one of the prerequisites of self-defense, the issue was within the sound discretion of

the jury).

        Accordingly, we find that Defendant presented substantial evidence that he acted in self-

defense or defense of others in brandishing his firearm in response to the encounter with Mr.

Sanning. Based on the foregoing, the trial court erred in refusing to instruct the jury on self-

defense as to Count I.

               b.        Defendant’s Discharging the Firearm at the Sannings’ Van

        We now turn to whether Defendant was entitled to a self-defense instruction on Counts

II – VI, which all relate to Defendant’s actions in discharging his firearm at the Sannings’ van.

The remainder of the incident happened as follows.

        After Defendant showed his gun to the Sannings, he put the gun back at his hip. Mr.

Sanning continued to yell and scream at Defendant. For the third and final time, Defendant told

Mr. Sanning to “get the f--- off [Defendant’s] property now,” and Mr. Sanning responded, “you

had it [sic].” Then, Mr. Sanning shifted his van into gear and began to back up at a rapid pace.

According to Defendant’s testimony, the van’s front end veered towards where Defendant was

standing. Defendant believed he was about a foot away from being hit by the Sannings’ van.

                                                 14
Allegedly to avoid being hit by the van, Defendant stepped back. Defendant thought the

Sannings’ van was going to hit Defendant’s vehicle, where his family was located, so he shot the

hood of the Sannings’ van. The Sannings’ van stopped immediately, and Defendant moved in

front of his vehicle. Then, the Sannings’ van proceeded forward and out of the Whipples’

parking lot, onto a busy street. Defendant called the police as the Sannings’ van was exiting his

parking lot.

       At this point, we find it important to note that there is a dispute as to the events occurring

between Defendant’s brandishing his firearm and discharging it, specifically as to the location

and movement of the Sannings’ van. However, “[w]here there is conflicting evidence

concerning the issue of self-defense, the instruction must be given.” Id. at 636 (citing Weems,

840 S.W.2d at 227 and Allison, 845 S.W.2d at 646). Moreover, we find that Defendant produced

substantial evidence, sufficient to put the four requirements of self-defense in issue to warrant a

self-defense jury instruction. See Avery, 120 S.W.3d at 200.

       First, Defendant presented substantial evidence to show the absence of provocation or

aggression on his part. See Habermann, 93 S.W.3d at 837. As previously explained, Defendant

presented evidence that, regardless of whether there were one or two incidents involved, he was

not the initial aggressor in the incident on his property. The credibility of this evidence,

specifically, Defendant’s testimony, is for the jury to determine. See id. at 838.

       Next, Defendant produced substantial evidence that he had reasonable grounds for

believing he or his family was facing an immediate danger of death or serious bodily harm. See

id. at 837; see also Crudup, 415 S.W.3d at 175-76. There was substantial evidence adduced at

Defendant’s trial from which a jury could find that a reasonable person in Defendant’s position

could have believed that he or his family were facing a threat of death or serious bodily harm

from Mr. Sanning’s threats combined with the movement of the Sannings’ van. See Smith, 456

                                                 15
S.W.3d at 852; see also State v. Edwards, 60 S.W.3d 602, 612 (Mo. App. W.D. 2001) (the facts

are viewed as they appeared to the defendant, but the defendant’s conduct is measured against

what an ordinary, reasonably prudent person would have believed and how they would have

reacted). Although there was much dispute at trial over the location and movement of the two

vehicles, self-defense was placed at issue before the jury because of the conflicting evidence or

differing inferences that could reasonably be drawn from that evidence. Wiley, 337 S.W.3d at

46, 46 n.8. As Defendant testified that he feared for his safety and his family’s safety when the

Sannings’ van reversed in a rapid pace veering towards Defendant and his vehicle which had his

family inside, the reasonableness of this belief is a question of fact to be decided by a jury. See

Amschler, 477 S.W.3d at 14.

          Further, Defendant presented substantial evidence to show that he used no more force

than reasonably necessary to protect himself and his family. See Habermann, 93 S.W.3d at 837.

In this case, where the Sannings’ van was just one foot away from Defendant and three feet from

Defendant’s vehicle, a jury could find it reasonable that Defendant believed Mr. Sanning would

use his van as a potential weapon, and “one that could quickly close the distance gap” between

Defendant or his family and the Sannings’ van. See Amschler, 477 S.W.3d at 14. Therefore, a

jury could find that Defendant was justified in meeting this apparent threat with deadly force.

See id.

          Finally, substantial evidence existed that Defendant did everything within his own power

and consistent with his and his family’s safety to avoid the danger. See Habermann, 93 S.W.3d

at 837. In this case, Defendant testified that he asked Mr. Sanning to leave his property three

times prior to shooting at the Sannings’ van. Mr. Sanning continued to yell and threaten

Defendant. Although it is possible Defendant could have chosen a different course of conduct

than discharging his firearm, “the reasonableness of such other conduct would be within the

                                                 16
sound discretion of the jury.” Chambers, 671 S.W.2d at 783-84. From Defendant’s testimony,

there was substantial evidence from which a jury could conclude that the actions taken by

Defendant were all that were required of him to avoid the danger before he was permitted to use

deadly force. See Miller, 91 S.W.3d at 636 (although improbable, there was evidence to support

the defendant’s theory of self-defense and it was for the jury to determine whether the defendant

did all that was within his power to avoid the danger).

         Accordingly, we find that Defendant presented substantial evidence that he acted in self-

defense or defense of others in discharging his firearm at the Sannings’ van. Based on the

foregoing, the trial court erred in refusing to instruct the jury on self-defense as to Counts II – VI.

Points one and two are granted. 11

B.       Whether the Trial Court Erred in Sentencing Defendant Pursuant to Missouri’s
         Prior Offender Statute

         In his third and final point on appeal, Defendant argues the trial court erred in sentencing

him as a prior offender. Defendant specifically maintains section 558.016 RSMo Supp. 2006, 12

Missouri’s prior offender statute, is unconstitutional because it allows an individual to be

sentenced as a prior offender based on a previous finding of guilt and suspended imposition of

sentence (“SIS”). We consider the merits of this point because it involves a matter which may

arise on retrial.




11
   We note that in Defendant’s point two, Defendant alternatively seems to argue he was entitled to a separate jury
instruction regarding duty to retreat even though there is not an MAI instruction solely for duty to retreat. We find
this argument has no merit because, consistent with our interpretation of section 563.031 set out in Section II.A.2.
above, the appropriate jury instruction to be given on remand of this case would be a modified version of MAI-CR
3d 306.11, which encompasses both self-defense and duty to retreat. A modification would be necessary because
MAI-CR 3d 306.11 covers self-defense in dwellings, residences, and vehicles, and has not been updated to comply
with the 2011 amendments to section 563.031 relating to private property. See Edwards, 60 S.W.3d at 612 (where
the law covered by an MAI has been materially altered by statute, the trial court must modify the MAI instruction to
follow the change in the law).
12
   All further statutory references to section 558.016 are to RSMo Supp. 2006, which incorporates legislative
amendments through 2005 and is the latest version of the statute.
                                                         17
        1.      Jurisdiction

        This Court has a duty of examining our jurisdiction in every case. Sharp v. Curators of

University of Missouri, 138 S.W.3d 735, 737 (Mo. App. E.D. 2003). Under article V, section 3

of the Missouri Constitution, the Missouri Supreme Court has exclusive appellate jurisdiction

over all cases challenging the validity of a statute. Glass v. First Nat. Bank of St. Louis, N.A.,

186 S.W.3d 766, 766 (Mo. banc 2005). However, a mere assertion that a statute is

unconstitutional will not divest this Court of jurisdiction. Id. If the constitutional claim is

merely colorable, not real and substantial, we may review it. Dubinsky v. St. Louis Blues Hockey

Club, 229 S.W.3d 126, 131 (Mo. App. E.D. 2007). To determine whether a constitutional claim

is real and substantial, this Court must make a preliminary inquiry as to whether it presents a

contested matter of right involving a fair doubt and reasonable room for disagreement. Id. A

claim is merely colorable if our inquiry reveals the claim is so legally and factually insubstantial

that it is plainly without merit. Id.

        After completing a preliminary inquiry into Defendant’s constitutional challenge to

section 558.016, we find the claim is merely colorable, because it is so legally and factually

insubstantial that it is plainly without merit. See id. Accordingly, this Court has jurisdiction

over Defendant’s claim that section 558.016 is unconstitutional.

        2.      Standard of Review

        Defendant asks this Court to grant plain error review over his claim that section 558.016

is unconstitutional. Plain error review is appropriate here because the Defendant failed to bring

this challenge in his Motion for New Trial. See State v. Walter, 479 S.W.3d 118, 123 (Mo. banc

2016) (to preserve a claim of error for appeal, the appellant must both object to the alleged error

at trial and to raise the objection in his motion for new trial). Where an appellant fails to

preserve a constitutional challenge, this Court may still hear such a claim pursuant to Rule

                                                  18
30.20. 13 In Interest of J.T., 447 S.W.3d 212, 215 (Mo. App. E.D. 2014). Rule 30.20 grants this

Court authority to consider “plain errors” by a trial court affecting a party’s substantial rights.

Id.

           Under plain error review, we will only grant a defendant relief if we find an error

occurred, which affected his rights so substantially that a manifest injustice or miscarriage of

justice resulted. State v. McKay, 411 S.W.3d 295, 304 (Mo. App. E.D. 2013). Plain errors are

those which are evident, obvious, and clear, and our Court determines whether such errors exist

based on the circumstances of each case. Id. at 304-05. The defendant has the burden of

demonstrating a manifest injustice or miscarriage of justice resulted from the alleged error. Id. at

304. A claim that a statute is unconstitutional is reviewed de novo. Rentschler v. Nixon, 311

S.W.3d 783, 786 (Mo. banc 2010). A statute is presumed valid and will not be invalidated unless

it clearly contravenes a constitutional provision. Id.

           3.       General Law Relating to Defendant’s Claim and Analysis

           As an initial matter, Defendant was properly charged as a prior offender under section

558.016. Pursuant to the statute, “a prior offender is one who has pleaded guilty to or has been

found guilty of one felony.” Section 558.016.2 (internal quotations omitted). A final judgment

or conviction is not required for a defendant to be sentenced as a prior offender under the statute.

State v. Pond, 131 S.W.3d 792, 795 (Mo. banc 2004); State v. Talkington, 25 S.W.3d 657, 658

(Mo. App. S.D. 2000). After a jury trial in 2002, Defendant was found guilty of the class C

felony of second-degree assault. The trial court judge suspended imposition of sentence and

placed Defendant on probation, which he subsequently completed. Based on this previous

finding of guilt, Defendant fell within the definition of a “prior offender.” See section 558.016.2;

see also Talkington, 25 S.W.3d at 658.


13
     All further references to Rules are to Missouri Supreme Court Rules (2016).
                                                          19
       Turning now to the merits of Defendant’s claim, he argues that section 558.016 is

unconstitutional because it allows sentencing as a prior offender based on a previous finding of

guilt and SIS. Defendant asserts he has been deprived of due process of law because there may

have been an error in his previous finding of guilt, which he had no recourse against because an

SIS is not an appealable final judgment. For the reasons discussed below, we disagree.

       Missouri Courts adhere to the final judgment rule, which provides for a right of appeal

only from final judgments. State v. Dunn, 438 S.W.3d 533, 534 (Mo. App. E.D. 2014). In a

criminal case, the judgment becomes final when a judgment and sentence are entered. Id. Thus,

where imposition of sentence is not entered, but is suspended, there is no final judgment and the

defendant may not appeal. Id. In that case, the defendant’s only remedy is by extraordinary

writ. State v. Moore, 352 S.W.3d 392, 398 (Mo. App. E.D. 2011); State v. Hotze, 250 S.W.3d

745, 746-47 (Mo. App. E.D. 2008).

       This Court is not persuaded by Defendant’s seemingly hypothetical argument that there

may have been error in his previous finding of guilt. We find it important to note that Defendant

has failed to allege any actual error or meritorious challenge to his prior finding of guilt.

Moreover, Defendant’s assertion that he would have had no recourse if there had been an error

with his previous finding of guilt is incorrect. Defendant has not provided case law supporting

this proposition, and our precedent reveals Defendant could have sought relief from his SIS

through an extraordinary writ. See id. Accordingly, we find that Defendant’s argument that

section 558.016 is unconstitutional is plainly without merit.

       Based on the foregoing, the trial court did not err in sentencing Defendant as a prior

offender. Point three is denied.




                                                  20
                                   III.   CONCLUSION

       The trial court’s judgment is reversed and remanded.




                                            ROBERT M. CLAYTON III, Presiding Judge

Mary K. Hoff, J., and
Lisa P. Page, J., concur.




                                              21
