STATE OF MISSOURI,                             )
                                               )
                       Respondent,             )
                                               )
       vs.                                     )       No. SD33982
                                               )       Filed: August 3, 2016
JEFFREY L. BRUNER,                             )
                                               )
                       Appellant.              )

                APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY

                             Honorable Gayle L. Crane, Circuit Judge

AFFIRMED

       A jury convicted Jeffrey L. Bruner (“Bruner”) of first-degree murder and armed criminal

action. Bruner was sentenced to life in prison without parole on the murder conviction, and five

years in prison for the armed criminal action, with the sentences to run concurrently. Bruner

presents one point on appeal asserting the trial court erred in failing to give the jury a self-defense

instruction. Finding no merit to Bruner’s point, we affirm the trial court’s judgment and sentence.

                              Factual and Procedural Background

       In State v. Smith, 456 S.W.3d 849 (Mo. banc 2015), our supreme court considered the

failure of the trial court to submit a self-defense instruction. As it commenced the discussion of

the factual and procedural background, the court reviewed the evidence “in the light most favorable
to the verdict[.]” Id. at 850. We do not do so here because in reviewing whether the trial court

erred in failing to submit a self-defense instruction, we view the evidence in the light most

favorable to the defendant. Id. at 852. This standard of review contemplates focusing on the best

possible evidence for defendant, even where that evidence conflicts with defendant’s own

testimony, to determine whether self-defense was put at issue. Id. We mention contrary evidence

only to provide context for Bruner’s contentions. Gale v. State, No. SD34119, 2016 WL 3569416,

at *2 (Mo.App. S.D. June 30, 2016).

         Bruner and his wife, Michelle Bruner (“Wife”), were estranged and Wife moved out of the

marital home approximately two weeks before November 1, 2013. While Bruner and his daughter

were eating out on the evening of November 1, 2013, Bruner’s daughter showed Bruner a picture

that had been posted on Facebook of Wife and Victim, taken outside of what appeared to be a

nearby movie theater. Bruner was “stunned” when he saw the picture and told his daughter “this

isn’t right. You know, what your mom is doing is not right.” He was also “hurt,” “angry,” and

felt “betrayed.” Bruner decided to go to the theater and confront Wife. Bruner’s daughter did not

want to go with Bruner and asked that he take her home. On the way home, the daughter testified

Bruner told her “he didn’t want [her] to see him kill a man[,]” that she probably would not have a

“mom or a dad by the end of the night[,]” and “he would be going to jail that night[.]” 1

         Upon arriving home, Bruner again viewed the picture of Wife and Victim. He then

retrieved two loaded pistols from the house because of “how big [Victim] was in the picture.”

Bruner returned to his car, one pistol concealed upon his person, the other placed in the passenger




1
 Bruner disputed his daughter’s testimony, testifying instead that he told her, “It’s not like I’m going to kill a guy.”
He also denied telling his daughter that he was going to jail that night, but testified he actually told her, “I wouldn’t
put it past mom to try to put me in jail.”

                                                           2
seat along with an extra ammunition clip. On the way to the theater, Bruner texted Wife asking

“WTF,” and a second text asking her where she was. Wife did not respond.

       Arriving at the theater, Bruner unsuccessfully scoured the parking lot for Wife’s Jeep.

After several laps around the parking lot, Bruner parked in a space facing the theater. Bruner

texted his daughter to determine if she was okay, and then sought to confirm what clothing Wife

was wearing that night. After a significant period of time, Bruner observed Wife emerge from the

theater with Victim. Bruner left his vehicle and approached the two, asking Wife, “[W]hat’s going

on[?]” Wife replied, “We’re on a date.” Bruner responded that “they had not talked about dating,”

and Wife told Bruner she did not need his permission to date. An argument then ensued between

Bruner, Victim, and Wife. Victim asked Bruner who he was and Bruner responded, “This doesn’t

have to do with you. I just want to talk to my wife[.]” Victim stated, “She moved out pal.”

       Bruner observed Victim to be considerably larger than he was—Bruner was 5’11” and

approximately 170 pounds; Victim was approximately 6’5” and “was really big.” As Victim

would approach Bruner during this argument, Bruner would take a few steps back. However,

Bruner continued to remain in front of Victim even when Victim would move forward. Eventually,

the procession reached the street opposite the movie theater entrance. Bruner saw a median

emerging out of his peripheral vision, and not wanting to trip over it, stopped moving backward.

Wife and Victim walked around Bruner to his right, causing Bruner to pivot clockwise toward

Wife and Victim.

       Bruner testified on direct examination that at that point, Victim exclaimed, “I’m not from

here, mother fucker, I’ll have your throat slit in two hours.” Bruner asked why Victim was

threatening him, and Victim indicated he did not play “these redneck games.” Victim stepped onto

the median and said “you don’t know who the fuck you are messing with.” Bruner saw Victim



                                               3
move into a “fighting stance” and move his right arm such that Bruner perceived Victim was going

to grab him. 2 Bruner then pulled the pistol from his jacket and shot Victim several times in the

back, killing him.

         A three-day jury trial commenced on March 23, 2015. At the jury instruction conference,

Bruner’s counsel tendered a self-defense instruction, pursuant to MAI-CR 306.06, Part A –

General Statement of Law, which the State opposed. 3 The trial court refused the instruction.




2
  Several witnesses testified that Bruner, Wife, and Victim were engaged in an argument with Bruner yelling at Wife.
They observed no pushing, shoving or any physical contact between Bruner, Wife, and Victim before Victim was
shot. The only physical contact was after Bruner shot Victim and Bruner was seen kicking Victim in the stomach and
head while he was lying on the ground.
3
                                             INSTRUCTION NUMBER [A]
PART A - GENERAL INSTRUCTIONS
                One of the issues in this case is whether the use of force by the defendant against Derek
      Moore 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 force in self-defense, he must reasonably believe such
      force is necessary to defend himself from what he reasonably 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 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.
      PART B - CASE-SPECIFIC STATEMENT OF LAW
                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 by Derek Moore, 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 Derek Moore, 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 under this instruction, you must find the defendant not guilty under Count I.
                As used in the 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.
      PART C - EVIDENTIARY MATTERS
                Evidence has been introduced of threats made by Derek Moore against defendant. You
      may consider the evidence in determining who was the initial aggressor in the encounter.

                                                          4
        The jury found Bruner guilty of first-degree murder and armed criminal action, and

recommended life imprisonment without parole on the first-degree murder charge, and five years’

imprisonment on the armed criminal action charge. On June 15, 2015, the trial court took up

Bruner’s motion for new trial asserting trial court error in refusing Bruner’s Instruction A, the self-

defense instruction. After hearing argument, the trial court overruled the motion. The trial court

then imposed sentence pursuant to the jury’s recommendation. This appeal followed.

        In his sole point relied on, Bruner argues that the trial court erred in failing to submit a self-

defense instruction to the jury.

                                            Standard of Review

        We review a trial court’s decision not to submit a self-defense instruction de novo. State

v. Johnson, 470 S.W.3d 767, 768 (Mo.App. E.D. 2015). In so doing, we view the evidence in the

light most favorable to the defendant. Smith, 456 S.W.3d at 852.

                                                   Analysis

        Bruner argues there was sufficient evidence for a self-defense instruction, and that the trial

court therefore erred in failing to submit that instruction to the jury.

        “The circuit court must submit a self-defense instruction when substantial evidence is

adduced to support it, even when that evidence is inconsistent with the defendant’s testimony, and

failure to do so is reversible error.” Smith, 456 S.W.3d at 852 (internal quotation and citation

omitted). “‘Substantial evidence’ is evidence putting a matter in issue.” State v. Avery, 120



                 If any threats against defendant were made by Derek Moore and were known by or had
        been communicated to the defendant, you may consider this evidence in determining whether 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 by Derek Moore.
                 You, however, should consider all of the evidence in the case in determining whether the
        defendant acted in lawful self-defense.
        MAI-CR306.06A
        Submitted by Defendant

                                                       5
S.W.3d 196, 200 (Mo. banc 2003). “Whether the evidence raises the issue of self-defense is a

question of law.” State v. Nunn, 697 S.W.2d 244, 246 (Mo.App. E.D. 1985).

       A defendant may be justified in the use of physical force when he reasonably believes such

force is necessary to defend himself from what he reasonably believes to be the use or imminent

use of unlawful force by another. § 563.031.1, RSMo Cum.Supp. (2013). The use of deadly force,

however, requires he “reasonably believes that such deadly force is necessary to protect himself

. . . or another against death, serious physical injury, or any forcible felony[.]” § 563.031.2(1),

RSMo Cum.Supp. (2013). “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.” MAI–CR 3d 306.06A[6]. “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.” MAI–CR 3d 306.06A[5].

       For a defendant to be entitled to the submission of self-defense instructions in the use of

deadly force, there must be substantial evidence putting in issue four prerequisites:

       (1) an absence of aggression or provocation on the part of the defender, (2) a real
       or apparently real necessity for the defender to kill in order to save himself from an
       immediate danger of serious bodily injury or death, (3) a reasonable cause for the
       defender’s belief in such necessity, and (4) an attempt by the defender to do all
       within his power consistent with his personal safety to avoid the danger and the
       need to take a life.

State v. Thomas, 161 S.W.3d 377, 379 (Mo. banc 2005).

       Here, even when considering the evidence in the light most favorable to Bruner, there was

not substantial evidence of such elements in order to warrant a self-defense jury instruction.

Compiling the facts most favorable to Bruner, there was evidence that Victim cursed at Bruner,

that Victim stepped toward Bruner several times causing Bruner to step back, that Victim was

                                                 6
physically larger than Bruner, that Victim threatened to have Bruner’s throat slit in two hours, and

that Victim stepped up on a median and moved his right arm such that Bruner perceived that Victim

was “trying to grab him.” This is not sufficient evidence for a self-defense instruction.

       The dissent’s portrayal of self-defense evidence (and maybe more importantly, purported

inferences therefrom, few or none of which Bruner ever asserted during trial) overlooks a more

fundamental requirement that there be substantial evidence to support the self-defense instruction.

       There was no substantial evidence from which a reasonable fact-finder could deduce that

there was a real or apparent necessity for Bruner to kill in order to save himself from an immediate

danger of serious bodily harm or death. From the most favorable view, the evidence was that

Victim made a verbal threat to Bruner that, “I will have your throat slit within two hours.” That

threat, coupled with the Victim moving into a fighting stance and “raising his arm,” is not

substantial evidence of “a real or apparently real necessity for [Bruner] to kill in order to save

himself from an immediate danger of serious bodily injury or death.” Id. “Immediate” means

instant, without the passage of time. “[T]he mere possibility that an event may happen in the future

does not create an immediate danger underlying the right to kill in self-defense.” State v. Martin,

666 S.W.2d 895, 899 (Mo.App. E.D. 1984) (emphasis added). There was no evidence that Victim

had a knife. In fact, the only evidence presented was that Victim did not have a knife—and even

more importantly as to self-defense—Bruner never thought Victim had a knife. There is not only

lacking a positive quantum of evidence in support of this element—there is no substantial

evidence. There is not a positive quantum of evidence to meet any of the definitions of “substantial

evidence” set forth in State v. Weems, 840 S.W.2d 222, 226 (Mo. banc 1992).

       In Dorsey v. State, 113 S.W.3d 311, 316 (Mo.App. S.D. 2003), this Court explained that

“[i]n order to be entitled to a self-defense, the defendant may not use more force than what appears



                                                 7
reasonably necessary and mere battery would not justify the use of a weapon against an unarmed

assailant.” Given that there was no evidence that Victim had a knife, or any other deadly weapon

or dangerous instrument (in fact positive evidence that Victim did not), or that Bruner ever thought,

reasonably or otherwise, that Victim had any deadly weapon or dangerous instrument, Dorsey

dictates that there was no real or apparent necessity for Bruner to use deadly force.

       There is no reasonable available inference from this evidence that would create the

immediate danger underlying the right to kill in self-defense. “An inference is a conclusion that

is drawn from established facts and must be both logical and reasonable.” State v. Mickle, 164

S.W.3d 33, 50 (Mo.App. W.D. 2005). It is neither logical nor reasonable to conclude that there

was a real or apparent necessity for Bruner to kill to save himself from an immediate danger of

serious bodily injury or death.

       Mere insults are insufficient provocation to justify an assault, much less a killing. State v.

Wiley, 337 S.W.3d 41, 45 (Mo.App. S.D. 2011). Bruner testified that it appeared to him that

Victim was reaching for him, but even where there is an assault and battery without a weapon,

Missouri courts have obliged the victim to endure the assault without resorting to the use of deadly

force. Id. Further, while Victim said he would have Bruner’s throat slit in two hours, this

amounted to mere threat, which is insufficient for self-defense. Smith, 456 S.W.3d at 852.

       There also is no substantial evidence to support the third element under Thomas, that there

be “a reasonable cause for the defender’s belief in such necessity” to use deadly force. 161 S.W.3d

at 379. Victim was larger than Bruner, and stepped onto a median making him appear even taller.

It does not follow from this evidence that Bruner’s belief of having his throat slit was any more

reasonable.   No matter Victim’s size or physical position in relation to Bruner, Bruner

affirmatively testified that Victim did not have a knife with which to carry out his threat. It would



                                                 8
have been, based on the evidence in the light most favorable to Bruner, unreasonable for Bruner

to believe in the need to use deadly force. See Dorsey, 113 S.W.3d at 316.

       Finally, there is no substantial evidence that Bruner did “all within his power consistent

with his personal safety to avoid the danger and the need to take a life,” the fourth element under

Thomas. Bruner indicated that he backed away from Victim, and then stopped in front of a

median. However, even Bruner testified that he should have simply left the scene. Further, the

only evidence presented was that Bruner shot Victim several times in the back, and then when

Victim fell to his knees, Bruner shot Victim several more times. That Bruner backed away from

Victim early in the encounter does not obviate the fact that he shot Victim while Victim’s back

was turned and while Victim was lying on his hands and knees on the ground.

       In State v. Chambers, 714 S.W.2d 527 (Mo. banc 1986), our supreme court examined a

self-defense instruction after a prior conviction was reversed for failure to give such an instruction.

The facts at the second trial demonstrated the defendant entered a bar and verbally confronted the

victim, leading to an argument. Victim told defendant that defendant did not scare him and that

defendant could have a piece of him if defendant wanted. Defendant left the bar. Within seconds

after victim left the bar, witnesses reported defendant hit victim with a pistol, knocked victim to

the ground, and then shot victim when victim got up with his hands raised in the air. Before the

shot, another witness yelled that victim had a knife, but there was no weapon of any kind found

on victim. The supreme court concluded that there was no trial court error in refusing the

instruction at the second trial, explaining:

       Furthermore, the evidence which defendant relies upon to support his theory of self-
       defense is woefully unconvincing that there existed either an apparent or real
       necessity for him to use deadly force to avoid serious bodily injury or death.




                                                  9
       Additionally, defendant’s construction of the facts in this case fails to notice an
       absence on his part to do all within his power consistent with his personal safety to
       avoid the danger and the need to take the victim’s life.

       Instead of immediately leaving the bar, he actively encouraged the victim to
       accompany him outside to settle the argument. And waiting outside the bar was
       the car in which defendant arrived. Rather than avoid any real or apparent danger
       that existed, defendant instead chose to confront the victim. Only after defendant
       knocked the victim to the ground, shot him in the chest, and beat the victim further
       did defendant flee in the waiting vehicle.

       We have conducted a searching examination of the trial transcript and have
       considered the evidence in a light most favorable to defendant, and we are unable
       to conclude that there was sufficient evidence to support an instruction on self-
       defense or to allow the trier of fact to conclude that defendant’s conduct was
       reasonable. Thus, we find no error in the trial court’s refusal to submit defendant’s
       tendered instruction on self-defense.

Chambers, 714 S.W.2d at 531. As in Chambers, the evidence here is woefully unconvincing to

support a self-defense instruction.

       When our supreme court recently examined a case with similar facts in Smith, 456 S.W.3d

849, the court considered the evidence in the light most favorable to defendant and observed:

       [Victim] threatened to fight, yelled at, and came within inches of [Defendant].
       [Victim] neither hit nor exhibited a weapon to [Defendant]. No one, including
       [Defendant], saw a weapon on [Victim] during the incident. [Defendant] testified
       that not until [Victim] had run away and stopped between two dumpsters did he
       ‘figure’ that [Victim] was looking for a gun.

Id. at 852. Based on these facts, our supreme court held that defendant “was not faced with a real

or apparently real necessity to use deadly force to defend himself against [Victim] when he fired

the first gunshot before [Victim] ran away.” Id. On that basis, the court held that the trial court

did not err in refusing to submit a self-defense instruction to the jury below. Id.

       Here, like in Smith, Victim yelled at, threatened, and moved close to Bruner, but there was

no evidence that Victim exhibited or possessed any sort of weapon. Based on these facts, which

the supreme court found decisive in Smith, it would simply be inconsistent to find that the trial



                                                 10
court in the present case erred in not submitting a self-defense instruction. Indeed, it was Smith,

handed down just two weeks earlier, that was discussed at this instruction conference before the

trial court refused Bruner’s tendered self-defense instruction.

       The trial court did not err in failing to submit a self-defense instruction. The judgment and

sentence of the trial court are affirmed.


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

MARY W. SHEFFIELD, C.J. - CONCURS

NANCY STEFFEN RAHMEYER, J. – CONCURS

JEFFREY W. BATES, J. - CONCURS

GARY W. LYNCH, J. – DISSENTS IN SEPARATE OPINION

DANIEL E. SCOTT, J. – CONCURS IN SEPARATE OPINION

DON E. BURRELL, JR., J. – CONCURS IN DISSENTING OPINION




                                                 11
STATE OF MISSOURI,                      )
                                        )
                     Respondent,        )
                                        )
      vs.                               )     No. SD33982
                                        )
JEFFREY L. BRUNER,                      )
                                        )
                     Appellant.         )

             APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY

                           Honorable Gayle L. Crane, Judge

                             CONCURRING OPINION

      Let us assume arguendo that instructional error occurred. Still, prejudice must

be “judicially determined,” Rule 28.02(f), and presumed prejudice is overcome if the

omitted instruction was unlikely to have changed the verdict. Here we do not slant our

view in Bruner’s favor (as on his claim of error) but must consider the whole record:

an avalanche of evidence, plainly believed by the jury, that Bruner deliberately

murdered Derek Moore, including that:

            • Hours before the killing, Bruner told his daughter he did not want her
              to see him kill a man; she probably would not have a mom or dad by the
              end of the night; and that he would go to jail that night.
            • Bruner had his daughter pull up Moore’s photo on her laptop, then
              armed himself with two guns and extra ammunition, drove to the movie
              theater, parked up front, and waited more than an hour.
          • Moore and Mrs. Bruner came out, and after a brief encounter in front of
            the theater, Bruner pulled a gun and shot Moore from behind until
            Moore dropped, his spinal cord severed.
          • Bruner stood over Moore and emptied the gun into his back, then
            kicked Moore’s head and face with heavy boots as he lay dying.
          • Waiting for police to arrive, Bruner said: “They posted it all over
            Facebook. What’s a guy supposed to do?”

      This volume of evidence likely is why the defense did not mention self-defense

in voir dire, opening statement, or otherwise before the jury. The defense theory,

supported by a testifying expert, was that a mental disease or defect caused Bruner to

“snap,” “explode,” and kill Derek Moore. Yet, despite instructions on that defense and

sudden-passion manslaughter and second-degree murder, the jury’s verdict was first-

degree murder, which belies self-defense in that “the element of deliberation serves to

ensure that the jury believes the defendant acted deliberately, consciously and not

reflexively.” State v. Nathan, 404 S.W.3d 253, 266 (Mo. banc 2013). 1

      Perhaps reasonable minds could differ as to error in this case, but not prejudice.

If I am sure of anything, I am sure that a self-defense instruction would not have

changed the verdict; that no reasonable lay or legal mind could review the whole

record and disagree; and that a second trial would needlessly increase pain and grief

for those on both sides of this tragedy. These are not gratuitous observations, but the

product of Rule 28.02(f) review, counseling us to affirm even if the trial court erred.

      That said, I join the majority in finding no error. To lawfully shoot Moore,

Bruner had to reasonably fear imminent death or serious injury at Moore’s hand.


1I cannot do justice to the prosecutor’s certain shredding of Bruner’s credibility on
cross-examination, which doubtlessly contributed to the outcome.

                                           2
State v. Smith, 456 S.W.3d 849, 852 (Mo. banc 2015). This objective standard, id.,

is “based on what a hypothetical ordinary reasonable and prudent person would have

believed and how they would have reacted.” State v. Edwards, 60 S.W.3d 602, 612

(Mo.App. 2001). No “ordinary reasonable and prudent” person would have gunned

down Derek Moore, even if we give credit to Bruner’s every word. 2

      Compare Smith, the latest controlling supreme court decision. It predictably

noted that courts must view the evidence most favorably to the defendant in deciding

whether to instruct on self-defense. 456 S.W.3d at 852. Presumably applying that

standard, our state’s highest judges then unanimously observed that

         the record reveals that Williams threatened to fight, yelled at, and
         came within inches of Smith. Williams neither hit nor exhibited a
         weapon to Smith. No one, including Smith, saw a weapon on
         Williams during the incident. Smith testified that not until Williams
         had run away and stopped between two dumpsters did he “figure”
         that Williams was looking for a gun [i.e., after Smith already had
         “fired his gun three or four times,” id. at 851].

         Accordingly, Smith was not faced with a real or apparently real
         necessity to use deadly force to defend himself against Williams ….
         Accordingly, the circuit court did not err in its refusal to submit a
         self-defense instruction.

Id. at 852. “The record in this case does not establish that Smith reasonably believed

the use of deadly force was necessary.” Id.

      What our supreme court emphasized in Smith strikingly mirrors this case. As

in Smith, Bruner testified that Moore threatened and came within inches of him, but

did not hit him or exhibit a weapon. As in Smith, no one, including Bruner, saw a


2Thus the defense trial theory that Bruner “snapped,” exploded,” and killed Moore
because Bruner had a mental disease or defect, not that any “ordinary reasonable and
prudent person” would have slain Moore likewise.
                                          3
weapon on Moore. Even the one difference cuts against Bruner. Defendant Smith at

some point figured his adversary was looking for a gun, but Bruner expressed no such

concern – not at the scene; not even at trial. It is no wonder that Smith, then freshly

decided, was cited at this instruction conference and seemingly followed by this trial

court in rejecting Bruner’s proposed self-defense instruction.

      I agree with Smith. Being struck (or not), and especially fearing that one’s

adversary has a weapon (or not), seem highly relevant in determining whether one

could lawfully answer with deadly force in Smith or in this case.

      I have carefully considered Bruner’s argument, credited by our dissenting

colleagues, that such considerations may violate our duty to view a self-defense record

most favorably to the defendant. But Smith shows that Bruner’s argument goes too

far. Say a defendant agrees, and never controverts, that he was not struck, saw no

weapon, thought his adversary was unarmed, and that an autopsy showed the victim

had been shot in the back. I cannot see how or why judges would ignore these in

deciding whether the defendant had raised a triable issue as to use of deadly force.

Such considerations may not be decisive in a given case, or the judge may err on the

side of caution and instruct anyway, but those are not the issue now before us.

      The narrow issue raised by Bruner’s argument is whether in weighing the

necessity to instruct on use of deadly force, courts must ignore, e.g., a defendant’s

uncontroverted testimony that he shot a victim who never struck him and who the

defendant knew had no weapon, or uncontroverted medical proof that the victim had




                                          4
been shot in the back. I don’t think our duty to view the record favorably to the

defendant goes that far, and I think Smith confirms this. I concur.


DANIEL E. SCOTT – CONCURRING OPINION AUTHOR




                                         5
                                    Missouri Court of Appeals
                                                 Southern District
                                                         en banc


STATE OF MISSOURI,                                       )
                                                         )
         Plaintiff-Respondent,                           )
                                                         )
vs.                                                      )        No. SD33982
                                                         )
JEFFREY LEE BRUNER,                                      )
                                                         )
         Defendant-Appellant.                            )

                                             DISSENTING OPINION

         I respectfully dissent. When viewed in accordance with our standard of review, the trial

record contains evidence putting self-defense at issue.

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

but rather raises the narrow legal issue of whether his requested self-defense instruction should

have been submitted to the jury. In addressing that issue, we are required by our standard of

review, as established by our supreme court, 1 to view the evidence presented at trial “in the light

most favorable to the defendant and the theory propounded by the defendant.” State v. Westfall,

75 S.W.3d 278, 280 (Mo. banc 2002). In viewing the evidence in this manner, we give the

proponent of the requested instruction the benefit of all reasonable inferences and disregard

evidence to the contrary. Wampler v. Speake, 479 S.W.3d 771, 772 (Mo.App. 2016); French v.


1
 “The supreme court shall be the highest court in the state. . . . Its decisions shall be controlling in all other courts.”
Mo. Const. art. V, § 2.
Missouri Highway & Transp. Comm’n, 908 S.W.2d 146, 150 (Mo.App. 1995). We ignore

contrary evidence even if it comes from the defendant’s testimony, see Westfall, 75 S.W.3d at

281 (favorable evidence may be inconsistent with the defendant’s testimony). Yet, the favorable

evidence “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.” Id. at 280 (emphasis added).

Because the “‘jury may accept part of a witness’s testimony, but disbelieve other parts,’” State v.

Jackson, 433 S.W.3d 390, 399 (Mo. banc 2014) (quoting State v. Williams, 313 S.W.3d 656,

659 (Mo. banc 2010)), only that part of the defendant’s testimony favorable to self-defense

should be considered, and those parts of the defendant’s testimony contrary to that defense

should be disregarded and ignored.

         This standard is constant, regardless of how improbable the favorable evidence may be or

how compelling the contrary evidence may be. 2 Because this standard of review mandates that

we ignore all contrary evidence presented to the jury during the trial, a large amount of evidence

that the jury heard and saw during the trial is not included or mentioned in this dissenting

opinion. This is so because our function is not to determine the facts—what actually happened.

That function is solely assigned to and within the province of the jury to determine from the

totality of the evidence presented during the trial. 3 Rather, our function is to determine whether

the jury was properly instructed as to the applicable law so that once it determined the facts—

what actually happened—those instructions would direct the jury to make the correct legal



2
  To the extent the majority fails to disregard and ignore contrary evidence and relies upon it (1) for “context” to
discount the probative force of favorable evidence, (2) because it came from Defendant’s testimony, (3) because it is
a “fact,” or (4) for support of its conclusion that the favorable evidence “is woefully unconvincing,” it moves into
the prohibited roles of reweighing the evidence and becoming a super juror. See State v. Brinkley, 366 S.W.3d 104,
105 (Mo.App. 2012) (in reviewing the evidence in the light most favorable to the conviction for sufficiency, “[w]e
do not reweigh evidence or act as a ‘super juror’ with veto powers.”)
3
  “Unless waived, the right to trial by jury means that the jury—and only the jury—will decide what the evidence
does and does not prove beyond a reasonable doubt.” State v. Jackson, 433 S.W.3d 390, 402 (Mo. banc 2014).


                                                         2
decision based upon those facts. In that context and in accordance with our standard of review,

the following evidence favorable to Defendant and his self-defense theory was presented at trial.

       Defendant and Michelle Bruner (“Wife”) married in 1992. Over the course of the

marriage, the couple had periods of marital difficulties and separation but had always reconciled.

Around October 15, 2013, Wife moved out of the marital home into an apartment. When she

moved out, Wife denied that she was involved with another man or that she planned on divorcing

Defendant and said she just “needed space.” Defendant believed that no one else knew the

couple had separated, and that he “knew it would be hard for her to come back, if everybody

knew what she was doing.” After Wife moved into the apartment, Defendant visited her “at least

every other day[,]” and “spent two nights there with her.”

       On October 31, 2013, Defendant bought Wife a small gift and arranged to meet her at her

workplace to give it to her. When they met, Wife acted different, “[k]ind of cold and something

didn’t feel right.” Defendant asked her if they could go out the next night, but Wife said she had

to work.

       The next night, however, Wife went on a date with Derek Moore, and a photo of the two

of them was posted on her Facebook page with the caption, “date night.” Defendant’s fourteen-

year-old daughter saw the post and showed the photo to Defendant while they were out having

dinner that evening. Defendant was stunned, hurt, angry, and upset because Wife had told him

she had to work that night. It appeared to Defendant that the photo was taken at the local theater.

Defendant texted Wife asking her where she was. Wife did not reply.

       After Defendant returned home with his daughter, he looked at the picture in the

Facebook post on his daughter’s computer and decided he wanted to find Wife, talk to her, and

save their marriage. Before leaving the house, he put a gun in his pocket “because of how big




                                                 3
the guy was in the picture.” He thought if the man “tried to beat [him] up or something, that [he]

would be able to back him off with it.” Wife had previously “been with [men] that were of the

same build[,]” and once told Defendant “that these guys could crush [him].” Defendant drove to

the theater, parked in front, and waited for Wife to exit the theater. He “just wanted to talk to

[Wife] and help her to see that what she was doing wasn’t right and to come back home

. . . that God is going to punish her for what she’s done . . . [and he] wanted to save her from

that.”

         When Wife exited the front entrance of the theater alongside Moore, Defendant exited his

vehicle and approached Wife near the theater entrance, asking her, “[W]hat’s going on.” Wife

responded that she was on a date. When Defendant told her that they had not talked about

dating, Wife told him, “I don’t need your permission.” Defendant pleaded with her, telling Wife

he just wanted to talk and asked why they couldn’t work things out.

         At that time, Moore told Defendant, “[S]he moved out, pal[,]” and Defendant told Moore,

“this doesn’t have to do with you.” Moore responded, “it f-ing does because we’re on a date.”

Wife intervened, putting her hand to Moore’s chest “like she was holding him back from

[Defendant].” As Defendant continued talking to Wife, Moore kept interfering with their

conversation. Defendant backed up “countless times” as Moore “kept saying over and over,

again, who the fuck are you and every time he would step toward me and I would back up.”

Defendant was 5’10” and estimated that Moore was 6’4” or 6’5” and “really big.” Defendant

had backed up until he was close to tripping over a “sidewalk median.” He stopped there, while

Wife and Moore “started like circling around [him] to [his] right.” As Moore went around

Defendant, Moore told him, “I’m not from here, mother fucker, I will have your throat slit within

two hours.” At that time, Defendant turned his focus completely on Moore because Defendant,




                                                 4
“didn’t know when [Moore] was going to cut my throat” as “within two hours that’s any time

there.” Defendant testified that at that point,

            I got this really sick feeling in my stomach. I felt like I was kind of like
            [spinning]. And it was like the sky was getting darker. Everything is – it’s like
            everything was getting farther, . . . farther away. And sounds were sounding like
            they were farther and farther away. And everything was like closing in on me.
            And by the time he said, you don’t know who the fuck you’re messing with[,] my
            vision was just about gone . . . . like I was [blacking] out or something . . .
            [Moore] was like getting blurry.

            Moore had stepped up onto the median, while Defendant remained on the asphalt.

Defendant then asked, “[W]hy are you threatening me[,]” to which Moore stated, “I don’t play

these redneck games.” Defendant testified, “I did see some kind of motion right before the shots

were fired. . . . I know there was some kind of motion that he made.” Moore had taken “what

[Defendant] would call a fighting stance[,] . . . sideways looking at [Defendant]” with his right

shoulder closer to Defendant, and Defendant “saw his right arm move.” Defendant sensed that

he was then in danger, “perceived that [Moore] was trying to grab [him,]” backed up, and at the

same time pulled his gun out. Moore told Defendant, “[Y]ou don’t know who the fuck you are

messing with.” At that point, Defendant fired his gun multiple times.

            Defendant could not remember much of what occurred after he shot Moore except that he

was sitting in his car with his hands on the steering wheel, trying to recall what had happened.

When he got out of his car, someone was approaching, and he told them to call 911, saying, “I

think I just shot someone.” Moore died of his wounds, and Defendant was arrested and charged

with first-degree murder and armed criminal action.

            During the instruction conference, defense counsel submitted what the trial court

designated as Instruction A, 4 “an instruction pursuant to 306.06(a) justification, use of force and



4
    The full text of that instruction is set forth in footnote 3 of the majority opinion.


                                                                5
self-defense[,]” with counsel arguing, “It’s our belief that there was in fact substantial evidence

presented at trial from the defendant himself that would justify the giving of this instruction.

And, therefore, it should have been granted.” 5 The State argued, in essence, that there was no

evidence to support that Defendant had “any reasonable belief that he was defending himself

from imminent serious [physical injury] or death.” The trial court refused to submit Defendant’s

proposed instruction to the jury.

         “A self-defense instruction must be submitted ‘when substantial evidence is adduced to

support it[.]’” State v. Avery, 120 S.W.3d 196, 200 (Mo. banc 2003) (quoting Westfall, 75

S.W.3d at 281). Failure to do so is reversible error. Id. “‘Substantial evidence’ is evidence

putting a matter in issue.” 6 Id. (citing State v. Weems, 840 S.W.2d 222, 226 (Mo. banc 1992)).

         Self-defense is codified in 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 upon another person when and to the extent he or she reasonably
         believes such force to be necessary to defend himself or herself . . . from what he
         or she reasonably believes to be the use or imminent use of unlawful force by
         such other person, unless:

                  (1) The actor was the initial aggressor…

         ...

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




5
  Although Instruction A states that it pertains only to Count I (murder), the jury found Defendant guilty of armed
criminal action pursuant to Instruction 10, which states that Defendant is only to be found guilty if Defendant
“committed the offense of murder in the first degree.” Therefore, if Instruction A invalidates Defendant’s
conviction for murder, it necessarily invalidates his conviction for armed criminal action as well.
6
  Self-defense is a special negative defense such that once the defendant meets the burden to inject the issue, the
State bears the burden to prove beyond a reasonable doubt that the killing was not justified. State v. Howard, 896
S.W.2d 471, 482 (Mo.App. 1995); section 556.051. Avery’s definition of “substantial evidence” appears to be
consistent with the requirements in section 563.031.5 that “defendant shall have the burden of injecting the issue of
justification” and in section 556.051(1) that the issue not be “submitted to the trier of fact unless supported by
evidence[,]” without shifting to the defendant the burden of proving that defense.


                                                          6
                  (1) He or she reasonably believes that such deadly force is necessary to
                  protect himself, or herself . . . against death, serious physical injury, or any
                  forcible felony. . . .

         ...

         5. The defendant shall have the burden of injecting the issue of justification under
         this section. . . .

Section 563.031, RSMo Cum.Supp. 2013.

         In accord with the self-defense elements in section 563.031, Defendant’s proposed

Instruction A 7 would have instructed the jury that “a person is not permitted to use deadly force

unless he reasonably believes[ 8] that the use of deadly force is necessary to protect himself

against death or serious physical injury.” The proposed instruction would have then instructed

the jury with the following “case-specific statement of law[:]”

                  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 by Derek Moore, 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
         Derek Moore, then his use of deadly force is justifiable and he acted in lawful self-
         defense.

         In order to find Defendant not guilty by reason of self-defense based on this case-specific

instruction, therefore, the jury would have had to find: (1) Defendant had a reasonable belief that

deadly force was necessary to protect himself (2) from the imminent use of unlawful force by


7
  At oral argument, both Defendant and the State agreed that there was no issue at trial as to the form of the
instruction and the only reason the instruction was denied was the trial court’s belief that it was not warranted by the
evidence. The State does not now make any attempt to contest the contents of the proposed instruction.
8
  “[R]easonably believe” is defined within the instruction as:

         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.

The majority’s determination that Defendant’s beliefs and actions were not reasonable usurps the role of the jury. “All
decisions as to what evidence the jury must believe and what inferences the jury must draw are left to the jury, not to
judges deciding what reasonable jurors must and must not do.” Jackson, 433 S.W.3d at 399 (emphasis added).


                                                           7
Moore (3) that Defendant reasonably believed would have resulted in his death or serious

physical injury. The following evidence put each of those elements at issue:

        First, deadly force is statutorily acceptable if Defendant reasonably believed it necessary

to protect himself against death or serious physical injury. Section 563.031.2. The jury could

have found that Defendant had a reasonable belief that deadly force was necessary based on his

testimony that Moore, a much larger man, backed Defendant up until he was close to tripping

over a sidewalk median, circled around him, told Defendant that he would “have [Defendant’s]

throat slit within two hours[,]”9 assumed a “fighting stance[,]” and then moved his right arm

toward Defendant. In this context, the jury could have found that Defendant reasonably believed

that Moore was about to slit his throat and Defendant needed to use deadly force to prevent that.

         Second, the jury could have found that Defendant had a reasonable belief that Moore

intended the imminent use of unlawful force based on Defendant’s testimony that Wife put her

hand on Moore’s chest “like she was holding him back from [Defendant]” from which the jury

could infer that she was actually holding him back, from Defendant’s testimony that Moore had

threatened to have Defendant’s throat slit within two hours and then assumed a fighting stance,

and from the inference that Moore’s movement of his arm toward Defendant from this fighting

stance was consistent with Moore’s threat to have Defendant’s throat slit within that threatened

time frame.




9
  Although “words alone are insufficient” to support Defendant’s claim of self-defense, Moore’s threats are by no
means irrelevant. State v. Avery, 120 S.W.3d 196, 206 (Mo. banc 2003). MAI-CR 306.06A and the proposed
instruction which, again, the State concedes it had no quarrel with as to form, stated that the threats could be
considered by the jury in determining “who was the initial aggressor in the encounter” and “whether 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 by Derek Moore.” Moore’s threats, though not enough alone to acquit by self-
defense, were sufficient to put certain elements at issue and could be considered by the jury, in conjunction with
other circumstances, to support Defendant’s reasonable beliefs as to each self-defense element.


                                                         8
         Third and finally, the jury could have concluded that Defendant reasonably believed that

death or serious physical injury would have resulted if Moore had been able to make good on his

threat to slit Defendant’s throat. “‘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[.]” Section 556.061. Although no weapon was found on

Moore’s person, the jury could have concluded that Defendant believed that Moore had a knife

(or some other instrument capable of slitting Defendant’s throat) based on his testimony that

Moore had threatened to slit his throat, assumed a fighting stance, and moved his arm toward

Defendant. 10 The jury also could have concluded that Defendant believed that having his throat

slit would expose Defendant to the risk of death and Defendant was entitled to proportionally

respond to the threat of deadly force with deadly force. Therefore, there was evidence putting at

issue all three of the applicable section 563.031 elements of self-defense, as mirrored in

Defendant’s proposed Instruction A, and that instruction should have been submitted to the jury.

         In addition to section 563.031 and MAI-CR 306.06A requirements, however, our existing

case law adds common law factors of self-defense that must be met before a self-defense

instruction is warranted.

         According to the case law interpreting this statute, to support a self-defense
         instruction, the evidence must show: (1) an absence of aggression or provocation
         on the part of the defender; (2) a real or apparently real necessity for the defender
         to kill in order to save himself from an immediate danger of serious bodily injury
         or death; (3) a reasonable cause for the defendant’s belief in such necessity; and
         (4) an attempt by the defender to do all within his power consistent with his
         personal safety to avoid the danger and the need to take a life.




10
  The trier of fact can conclude that a knife constitutes the use of deadly force but does not have to as a matter of
law. Westfall, 75 S.W.3d at 283.


                                                           9
State v. Thomas, 161 S.W.3d 377, 379 (Mo. banc 2005) (citing State v. Chambers, 671 S.W.2d

781, 783 (Mo. banc 1984)). 11

         “Whether the evidence raises the issue of self-defense is a question of law.” State v.

Nunn, 697 S.W.2d 244, 246 (Mo.App. 1985). Once the issue is raised, however, the viability of

the defense is for the jury. For example, it is for the jury to determine whether there was a real

or apparently real necessity for Defendant to kill in order to save himself from an immediate

danger and whether Defendant’s belief in the necessity of using deadly force was reasonable.

Weems, 840 S.W.2d at 227; Chambers, 671 S.W.2d at 783. The physical differences between

Defendant and Moore are also for the jury to consider. Weems, 840 S.W.2d at 227. The

reasonableness of pursuing another course of conduct such that Defendant can be said to have

done all in his power consistent with his personal safety to avoid the danger and the taking of

human life is also within the sound discretion of the jury. Id.; Chambers, 671 S.W.2d at 783-84.

         Viewing the evidence in the light most favorable to giving the requested self-defense

instruction, as we must, substantial evidence—evidence putting these matters in issue—supports



11
   Although I am bound to follow our supreme court’s determination that evidence must put all four of these factors
at issue before a self-defense instruction is warranted, footnote 2 supra, I am concerned by the seeming disconnect
between the section 563.031 self-defense elements and this four-factor test. For example, I find no basis in the
statute or the model instruction that would require evidence of “an attempt by the defender to do all within his power
consistent with his personal safety to avoid the danger and the need to take a life.” Thomas, 161 S.W.3d at 379.
My review of the case law supporting the application of the four-factor test in the context of whether evidence put
self-defense at issue reveals that, as relied upon in Thomas, Chambers does not mention section 563.031 or purport
to explicitly interpret section 563.031 in applying the four-factor test, but rather merely recites it from earlier cases.
Chambers, 671 S.W.2d at 783 (citing State v. Wilson, 645 S.W.2d 372 (Mo.1983), State v. Rash, 221 S.W.2d 124
(Mo. 1949), and State v. Hicks, 438 S.W.2d 215 (Mo.1969)). Wilson, Rash and Hicks all addressed the issue of
whether the defendant was entitled to a directed verdict of acquittal because the evidence was insufficient, as a
matter of law, to show they did not act in self-defense. Wilson, 645 S.W.2d at 373; Rash, 221 S.W.2d at 216-17;
Hicks, 438 S.W.2d at 218. None of these cases addressed whether evidence put self-defense at issue. The first
complete compilation of the four-factor test that I can locate is found in State v. Jackson, 522 S.W.2d 317, 319
(Mo.App. 1975), which was decided four years before section 563.031 first became effective. Once again, Jackson
addressed the defendant’s claim that he was entitled to a judgment of acquittal because the evidence showed he
acted in self-defense. Id. It did not address whether evidence put self-defense at issue. Given these observations
and the complete absence of any case law analysis as to how this four-factor test provides any assistance in
reviewing whether the evidence puts the section 563.031 elements of self-defense at issue, I have substantial
reservations about the four-factor test’s utility and continued applicability.


                                                           10
all four Thomas/Chambers elements. First, there was evidence of “an absence of aggression or

provocation on the part of” Defendant in that although Defendant sought out Wife at the movie

theater and began talking with her, Moore initiated physical aggression by repeatedly moving

toward Defendant, having to be restrained by Wife, threatening to slit Defendant’s throat,

assuming a fighting stance, and raising his hand toward Defendant in a manner consistent with

that threat. Chambers, 671 S.W.2d at 783. Consequently, a jury could infer from these

circumstances that Moore was the initial aggressor, see id., and Defendant was not because he

repeatedly backed up every time Moore came toward him. 12

         Second, there was evidence of “a real or apparently real necessity for [Defendant] to kill

in order to save himself from an immediate danger of serious bodily injury or death[.]” Id.

Moore told Defendant, “I will have your throat slit within two hours[,]” and Defendant believed

him. In the next instant, which was within the threatened two-hour period, Moore assumed a

fighting stance and Defendant saw Moore’s right arm move toward him. Defendant’s belief that

Moore intended to slit his throat combined with Moore’s arm movement toward Defendant from

an aggressive fighting stance consistent with accomplishing Moore’s threat to slit Defendant’s

throat is substantial evidence from which the jury could infer a real or apparently real necessity

for Defendant to kill in order to save himself from an immediate danger of serious bodily injury

or death.

         Third, there was evidence of “a reasonable cause for [Defendant’s] belief in such

necessity[.]” Id. In addition to Moore’s conduct described above, Defendant testified that

Moore was much larger than him. Defendant was 5’10” and estimated that Moore was 6’4” or



12
  Indeed, this factor is not at issue in this appeal. The State concedes that Instruction A was in proper form,
footnote 8 supra, and Part B of that instruction omits the defendant as the initial aggressor element and language as
provided in MAI-CR 306.06A, when “there is no evidence that the defendant was the initial aggressor[.]”


                                                         11
6’5” and “really big.” This size differential was exaggerated by Moore stepping up on the

median and towering even higher over Defendant standing on the asphalt. Defendant was not

required to submit to a public assault because he was physically inferior; the use of a weapon

could have been found to be reasonable on this basis. Id. Whether shooting Moore was a

reasonable action given Moore’s size and conduct was for the jury to determine.

         Finally, there was evidence of “an attempt by [Defendant] to do all within his power

consistent with his personal safety to avoid the danger and the need to take a life.” 13 Id.

Defendant testified that he backed up “countless times” as Moore continued to come toward him

until Defendant was close to tripping over a “sidewalk median.” Defendant’s testimony supports

that he attempted to take some action to avoid taking Moore’s life. Whether it was “all within

his power” (emphasis added) was for the jury to decide.

         The State argues that “[t]his was not substantial evidence that [Moore] put Defendant in

an immediate danger of serious bodily injury or death, nor was it substantial evidence that

Defendant’s belief that he needed to kill [Moore] to save himself was reasonable” based on State

v. Smith, 456 S.W.3d 849, 852 (Mo. banc. 2015). In Smith, our supreme court in one paragraph

stated the evidence in the light most favorable to giving a self-defense instruction and held:

                 The record in this case does not establish that Smith reasonably believed
         the use of deadly force was necessary. Rather, the record reveals that Williams
         threatened to fight, yelled at, and came within inches of Smith. Williams neither
         hit nor exhibited a weapon to Smith. No one, including Smith, saw a weapon on
         Williams during the incident. Smith testified that not until Williams had run away
         and stopped between two dumpsters did he “figure” that Williams was looking for
         a gun. Accordingly, Smith was not faced with a real or apparently real necessity
         to use deadly force to defend himself against Williams when he fired the first

13
  Jackson, 522 S.W.2d at 319, cites State v. Sherrill, 496 S.W.2d 321, 325 (Mo.App. 1973) as the origin of this
fourth factor. Sherrill states that “[s]elf-defense is a last resort and in order to justify a homicide on such grounds
the doer of the homicidal act must have done everything in his power, consistent with his own safety, to avoid the
danger and avert the necessity, and he must retreat, if retreat be practicable.” Sherrill, 496 S.W.2d at 325-26. Based
on Sherrill, it seems the fourth factor is premised on a duty to retreat that may no longer exist in Missouri under
section 563.031 after its effective date. See State v. Jordan, 646 S.W.2d 747, 751-52 (Mo. banc 1983); State v.
Morley, 748 S.W.2d 66, 68-69 (Mo.App. 1988).


                                                         12
       gunshot before Williams ran away. Accordingly, the circuit court did not err in its
       refusal to submit a self-defense instruction.

Id.

       Unlike in Smith, where there was no evidence of the potential use of a deadly weapon at

the time of the defendant’s first shot, there is evidence here that just immediately before

Defendant’s first shot, Moore had repeatedly kept moving toward Defendant, threatened to have

Defendant’s throat slit, assumed a fighting stance, and raised his hand toward Defendant in a

manner consistent with that threat. Based upon these factual differences in the evidence, Smith

is distinguishable.

       Were Smith not so distinguishable, it would be necessary to consider whether the section

556.051(1) definition of “supported by evidence” for injecting the issue of self-defense is

essentially the same as “a basis in the evidence to acquit the defendant,” in section 556.046.3

(emphasis added), and “a basis for a verdict acquitting the defendant,” in section 556.046.2

(emphasis added), for giving a lesser-included offense instruction, as considered and addressed

in Jackson, 433 S.W.3d at 395-396 and 402. If so, then, in accordance with the dictates of

Jackson, it appears that the Smith court and the majority here may have become overpowered by

the strong evidence and obvious inferences against giving a self-defense instruction, see

Jackson, 433 S.W.3d at 400 (giving instruction in the face of such evidence and inferences

“seems almost to beg of jury nullification”), ignored the principle that “no evidence ever proves

an element of a criminal case until all 12 jurors believe it, and no inference ever is drawn in a

criminal case until all 12 jurors draw it[,]” id., and yielded to the temptation to decide “what a

‘reasonable juror’ in a criminal case must or must not find[,]” id.

       The favorable evidence here, however, more closely resembles that in Avery. There, the

favorable evidence came from a statement given by Avery that “when [decedent] returned to her



                                                 13
home on the evening of the shooting, she pointed the revolver at him and told him to leave, that

[decedent] said to Ms. Avery that she should drop the revolver or he would ‘kick her a--,’ and

that when Ms. Avery refused, [decedent] ‘made a movement towards her. She backed away, and

fired one shot.’” Avery, 120 S.W.3d at 203. Our supreme court held that this evidence put self-

defense at issue. Id.

         Defendant’s account of the events here, however improbable when considered in light of

the contrary evidence presented by the State, see Weems, 840 S.W.2d at 227, was nevertheless

evidence that put each of the section 563.031 self-defense elements at issue, as set out in

Defendant’s proffered self-defense Instruction A, and that put the four Thomas/Chambers

factors at issue. By definition, therefore, substantial evidence supported Defendant’s self-

defense theory. I would hold that the failure to instruct the jury on self-defense was error.

                 Failure to provide the required instruction, or give it in accordance with an
         accompanying Note on Use, may have adversely influenced 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.

Westfall, 75 S.W.3d at 284 (internal quotation marks and footnotes omitted). In its respondent’s

brief, the State does not use the word “prejudice,” much less make any argument that Defendant

was not prejudiced by the erroneous rejection of Instruction A. Confronted with this omission, I

cannot become an advocate for the State and craft such an argument for it or conclude that the

State has clearly established that the trial court’s refusal of Instruction A did not result in

prejudice to the Defendant.

         I would grant Defendant’s point, reverse his convictions, and remand the case for a new

trial.


GARY W. LYNCH, J., dissenting opinion author




                                                  14
