State v. Bellinger

1

No. 105,008

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT L. BELLINGER,
Appellant.

SYLLABUS BY THE COURT


1.
A defendant is entitled to instructions on the law applicable to his or her theory of
defense if there is evidence to support the theory.

2.
When the trial court denies a request to give an instruction, an appellate court must
review the evidence in a light most favorable to the party requesting the instruction. However,
there must be evidence which, viewed in the light most favorable to the defendant, is sufficient
to justify a rational factfinder finding in accordance with the defendant's theory.

3.
K.S.A. 2010 Supp. 21-3211 and K.S.A. 2010 Supp. 21-3214 are discussed and
applied.

4.
To establish the use of force as a justifiable defense, the party claiming immunity
must pass both a subjective and an objective test. Thus, the defendant must show that he
or she believed that the person upon whom force was used posed a threat to the claimant
or a third person, to the claimant's dwelling, or to the claimant's property, and that a
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reasonable person in claimant's circumstances would have believed that a use of force
was necessary.

5.
The same standard of review of the denial to give a requested self-defense
instruction applies to the denial of a defense-of-property instruction. When the trial court
fails to give a requested instruction, an appellate court must review the evidence in a light
most favorable to the party requesting the instruction.

6.
A defendant is entitled to instructions on the law applicable to his or her theory of
defense if there is evidence to support the theory. But there must be evidence which,
viewed in the light most favorable to the defendant, is sufficient to justify a rational
factfinder finding that a defense-of-property instruction should be given.

7.
K.S.A. 2010 Supp. 21-3213 is discussed and applied.

Appeal from Pottawatomie District Court; JEFFREY R. ELDER, judge. Opinion filed June 22,
2012. Affirmed.

Barry A. Clark, of Clark & Kellstrom, Chtd., of Manhattan, for appellant.

Sherri Schuck, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., MARQUARDT, J., and BRAZIL, S.J.

MARQUARDT, J.: Robert Lynn Bellinger (Robert) was convicted of aggravated
assault and criminal threat. On appeal, Robert claims that the district court erred in
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denying his request for jury instructions on self-defense and defense of property. We
affirm.

Brothers Robert and Michael Bellinger owned adjoining farms in Pottawatomie
County, which they used primarily for grazing cattle. The brothers had a contentious
history with each other. Prior to the incident that caused the filing of criminal charges
against Robert, the brothers had a dispute because Katheryn Bellinger (Michael's ex-wife
and current business partner) burned some of Robert's pasture. Another problem occurred
when two of Robert's bulls and a cow wandered into Michael's pasture, and Michael put
them in his catch pen.

At approximately noon on June 4, 2009, Michael, Katheryn, and their son,
Matthew, drove to Robert's farm to retrieve Katheryn's grain truck that she had loaned to
Robert. Michael testified that he did not want to talk with Robert, so he sent Matthew,
who was able to get along with Robert, to find Robert to ask if they could get the truck.
Michael and Katheryn waited in a truck on the public road until they were told that it was
okay with Robert to get the truck. When Matthew located Robert, he asked if "we" could
get the truck. Robert told Michael it was okay. According to Robert, he assumed that the
"we" meant Matthew and Katheryn.

Matthew returned to Michael's truck and the three drove to Robert's hay shed,
where the grain truck was stored. When Robert drove up to the hay shed on his tractor, he
saw Michael and Katheryn sitting in their truck. Robert then proceeded to help Matthew
move a piece of equipment that was blocking access to the grain truck.

After moving the piece of equipment, Robert walked up to the driver's side
window of Michael's truck, where Michael was sitting. Up to that time, there had been no
exchange of any kind that day between Robert and Michael. Robert testified that he
initiated the contact with Michael when he said, "Why did you leave my cows in the
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catch pen?" Michael responded that Robert needed to keep his cattle out of Michael's
pasture. On cross-examination, Michael was asked:

"Q. You agree that you told Bob if his cows got in your pasture again you were
going to take them to the sale barn?
"A. Yeah, that is what you're supposed to do when your cattle or somebody else's
cattle get in your pasture. By law you're supposed to get ahold of the Sheriff, or take them
to the sale barn."

When Robert's cattle got into Michael's pasture, he put them in a catch pen.
Michael testified that he tried to call Robert on his cell phone to tell him about the cattle,
but Robert would not take the call, so he called the sheriff.

After Robert approached Michael, both brothers testified that the argument
escalated from there. Michael testified that it turned into a "yelling match" until Robert
walked away, said "I'll kill you," and got the rifle.

The following exchange took place when Robert was cross-examined:

"Q. Now, when you approached Mike — Let's go back to June 4th, and you
know he's mad and you come up to the truck and you're talking to him about the cows.
What did you think was going to happen when you guys started in and about the cows?
"A. I thought they would tell me why he did that.
"Q. Was there anything in your history that would lead you to believe that he
would do that calmly?
"A. Well, no, but I hoped he would.
"Q. Okay. That's — but — okay.
"And then you go up to him and you — I think you tell me that the whole time
you two are talking, he's yelling and cussing and you're talking with him calmly like you
are now?
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"A. He's not yelling to be yelling, he's belligerent and he was not yelling like
standing up and screaming across the city street, but he's got a strong loud voice that he
was using and it was similar to being belligerent.
"Q. And you would agree your brother does have a pretty booming voice; right?
"A. Yes.
"Q. And that's on a normal level?
"A. No. No. When he talks to people he's more quiet.
"Q. Okay. So then you're saying right now when you guys are discussing the
cows, about taking them to the sale barn, shooting them, stabbing them, he was
belligerent or not angry?
"A. He raised his voice then but he was angry. He wasn't mad. He was just angry.
"Q. Okay. But at some point you say — Okay.
"You testified on direct that he was so angry he was getting angrier, he's yelling
at you, he says, 'I'll shoot the cows', and he says, 'Go get your gun,' and you felt that he
was going to come out of that truck and all of a sudden you felt your personal safety was
in jeopardy; isn't that what you testified to on direct; right?
"A. Yes.
"Q. Okay. But now you're saying, well, he wasn't mad, he was belligerent?
"A. As we were discussing the food [sic] of discussion he heated on up and at the
end of the discussion he was ready to kill me. You could see that he had his jaw set and
he was ready to come get me.
"Q. And yet he never got out of the truck; did he?
"A. I went and got —
"Q. Did he get out of the truck, Mr. Bellinger?
"A. No, sir. No, Ma'am.
"Q. In fact, you were able to turn away from him, walk over to this other truck —
because you can't run apparently, so you walked over to the other truck and you had to
pry the gun out, according to your testimony, and he never got out of the truck; did he?
"A. Because I left the truck. If I had stood there —
"Q. Did he get out of the truck?
"A. No."
Robert testified that he threatened to shoot or kill Michael, to which Michael
responded, "Go ahead." Robert also testified that Michael told him, "Go get your gun."

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Robert testified that Michael was belligerent, and he believed that Michael was
"ready to come out of that cab and beat the hell out of [him]." Robert also testified that he
thought that Michael might set his hay shed on fire, but there is no evidence to support
this assertion. While Michael sat in the truck, Robert walked away and got the .22 caliber
rifle that was on the floor of another truck parked nearby.

Robert came back to the truck where Michael remained, put the rifle within 26 to
28 inches from Michael's head, and ordered Michael to leave his property. Although
Robert testified that he did not believe the rifle was loaded, he moved it slightly, in case
he was wrong, then pulled the trigger. Robert testified that he wanted to scare Michael.
The rifle fired. Miraculously, the bullet missed both Michael and Katheryn but shattered
the back window of the truck cab. Katheryn and Michael testified that Robert fired the
rifle within seconds after telling Michael to leave. Robert did not dispute this fact.

Robert was somewhat equivocal when asked whether he intended to fire the rifle.
On direct examination, he testified he "touched" the trigger, but on cross-examination he
testified that the rifle accidentally fired when he intended to pull the trigger to make it dry
fire.

That caused Michael to get out of the truck and confront Robert. Although the
details differed depending on who was giving the testimony, Michael was shot during the
struggle. However, Michael did manage to take the rifle away from Robert and hit him at
least once with the butt of the rifle. Matthew got between the two and stopped the fight.
Then, Michael, Katheryn, and Matthew drove away.

Robert called 911 after the shooting. The Riley County Police Department
dispatcher asked if the shooting was accidental, to which Robert replied, "No." Indeed, he
repeatedly told the dispatcher, "I shot my brother." Robert later testified he was terrified
and confused when he called to report the shooting. Also, while police drove Robert to
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the county jail, Robert commented, without being questioned, that he and Michael
constantly argued and never got along.

The State filed a four-count information against Robert, alleging attempted
premeditated murder against Michael, in violation of K.S.A. 21-3301 and 21-3401(a);
aggravated battery against Michael, in violation of K.S.A. 21-3414(a)(1)(A); aggravated
assault against Katheryn, in violation of K.S.A. 21-3410(a); and criminal threat against
Michael, in violation of K.S.A. 21-3419(a)(1).

Robert requested jury instructions on self-defense and defense of property, both of
which the trial court ultimately denied. On May 21, 2010, the jury convicted Robert of
aggravated assault and criminal threat but acquitted him on the other charges. The court
granted Robert 24 months of probation, with underlying sentences of 12 months' and 6
months' incarceration, respectively, for the aggravated assault and criminal threat
convictions. Robert timely appeals the district court's denial of his requested instructions.

SELF-DEFENSE JURY INSTRUCTION

A defendant is entitled to instructions on the law applicable to his or her theory of
defense if there is evidence to support the theory. State v. Hendrix, 289 Kan. 859, 861, 218 P.3d
40 (2009). However, there must be evidence which, viewed in the light most favorable to the
defendant, is sufficient to justify a rational factfinder finding in accordance with the defendant's
theory. 289 Kan. at 861.

When the trial court refuses to give a requested instruction, an appellate court must
review the evidence in the light most favorable to the party requesting the instruction. State v.
Ransom, 288 Kan. 697, 713, 207 P.3d 208 (2009). In arguing that the trial court erred in denying
his request for a self-defense instruction, Robert claimed that since the jury acquitted him of
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attempted first-degree murder, its lesser-included offenses, and aggravated battery, it
demonstrates that the jury concluded he did not intend to shoot Michael.

K.S.A. 2010 Supp. 21-3211, the self-defense statute, was enacted to apply
retroactively and so applies to this crime, see K.S.A. 2010 Supp. 21-3220, and it states:

"(a) A person is justified in the use of force against another when and to the
extent it appears to such person and such person reasonably believes that such use of
force is necessary to defend such person or a third person against such other's imminent
use of unlawful force.
"(b) A person is justified in the use of deadly force under circumstances
described in subsection (a) if such person reasonably believes that such use of deadly
force is necessary to prevent imminent death or great bodily harm to such person or a
third person.
"(c) Nothing in this section shall require a person to retreat if such person is using
force to protect such person or a third person." (Emphasis added.)

At trial, in discussing whether a self-defense jury instruction should be given, the
court stated:

"As defense counsel candidly pointed out . . . [Hendrix requires] there has to be
physical force applied by the defendant in defense of his person before he can claim a self
defense, and the only time when it comes remotely close to an argument being made that
physical force was applied [was] when there was a brief struggle over the firearm. And
the Court's recollection is that there wasn't testimony from the defendant that he was
applying force, trying to grab the gun away from Mr. Michael Bellinger."

When Robert learned of the passage of House Substitute for Senate Bill 381 (L.
2010, ch. 124), he argued in a posttrial motion that the revised legislation permits self-
defense when threats of force are uttered and not only when actual force is used. House
Substitute for Senate Bill 381 became effective on April 29, 2010, and states:
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"(1) 'Use of force' means any or all of the following directed at or upon another
person or thing: (A) Words or actions that reasonably convey the threat of force,
including threats to cause death or great bodily harm to a person; (B) the presentation or
display of the means of force; or (C) the application of physical force, including by a
weapon or through the actions of another." L. 2010, ch. 124, sec. 2; K.S.A. 2010 Supp.
21-3221(a)(1).

Robert claims that under the revised statute, the jury might have found in his
favor, and he should be granted a new trial. The trial court overruled the motion without
explanation.

Although the court did not discuss this revised statute, the court did not err,
because a reasonable juror could not conclude that Robert acted in justifiable self-
defense. First, there is no evidence that any of Michael's words or actions conveyed a
threat of force to cause death or great bodily harm to Robert. There was no evidence of a
means of force displayed by Michael. Finally, Michael displayed no physical force by
actions or by a weapon against Robert.

"To establish that a use of force is a justifiable defense, . . . the party claiming
immunity must pass both a subjective and an objective test." McCracken v. Kohl, 286
Kan. 1114, Syl. ¶ 3, 191 P.3d 313 (2008).

Even though Robert testified that he believed Michael posed a threat to him,
Robert walked away from the truck where Michael remained, returned to the truck with
the rifle, and shot into the truck. Robert's actions were not reasonable and were not the
actions of a reasonable person defending himself against an imminent use of unlawful
force. Robert's actions were neither objectively nor subjectively justified and did not
merit a self-defense instruction. Under McCracken, we are to consider whether a
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reasonable person in the claimant's circumstances would have believed that a use of
force—here using a gun—was necessary. 286 Kan. at 1119-20.

The dissent would have us believe Robert was acting as a reasonable person when
he calmly walked away, got his gun, and shot into Michael's truck. The dissent focuses
only on Robert's subjective belief and ignores the objective facts. The dissent makes
many "presumptions" and "indications" concerning facts that are not in evidence. This
appellate court does not consider presumptions or indications, does not reweigh the
evidence, assess the credibility of the witnesses, or resolve conflicting evidence; we deal
with the facts in the record. State v. Ward, 292 Kan. 541, Syl. ¶ 12, 256 P.3d 801 (2011),
cert. denied 132 S. Ct. 1594 (2012).

Even though the dissent claims that the issue of whether the court erred in failing
to give the self-defense instruction is a legal issue, the dissent mostly discusses and
reweighs the facts and questions the credibility of the witnesses. The dissent focuses on
the physical attributes of the brothers, ignoring the fact that their physical attributes were
obviously before the jury to assess when they testified at trial.

It is disturbing when the dissent implies that only Robert was telling the truth,
stating that Robert took an "oath to tell the truth," while ignoring the fact that all of the
witnesses took an oath to tell the truth. The dissent also states that the sincerity of
Robert's subjective belief should have been left to the jury. Robert's subjective belief was
decided by the jury.

Robert stated that Michael acted violently after Robert shot into Michael's truck,
shattering the back window, while Michael and Katheryn were sitting in the truck.
Arguably, this is a nonissue because Robert had already committed aggravated assault
and criminal threat before Michael ever got out of his truck.
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Other evidence strongly undermines Robert's assertion that Michael posed an
imminent threat to him. Initially, Michael was nonconfrontational when he came to
retrieve the grain truck—he asked Matthew to get Robert's permission while he waited in
the truck off of Robert's property. More importantly, as the State observes, Michael never
left his truck until Robert shot at him. Michael also did not brandish a weapon or threaten
to hurt Robert, verbally or by action. Michael had ample opportunity to exit his truck and
physically confront Robert, but he did not. These facts are evidence that there was no
imminent threat to Robert that would justify Robert's request for a self-defense
instruction. See State v. Brown, 46 Kan. App. 2d 210, 213, 262 P.3d 1055 (2011).

Moreover, even though Robert claims that he and Michael had a history of
confrontations, our court has stated that a "history of violence between the defendant and
the victim does not transform an incident into a situation of imminent danger." State v.
Rivera, No. 98,501, 2008 WL 5134688, at *5 (Kan. App. 2008) (unpublished opinion).
Therefore, a reasonable person would not find Robert's assertion that Michael posed an
imminent threat to him sufficient to justify Robert threatening to shoot Michael,
retrieving and waiving his rifle, and then, ultimately, shooting into the truck cab where
Michael was sitting. The evidence suggests that all of Robert's actions were not those of
an individual acting in self-defense but were those of an aggressor.

Under K.S.A. 2010 Supp. 21-3214, the self-defense instruction under K.S.A. 2010
Supp. 21-3211 is not available to an individual who:

"(b) Initially provokes the use of any force against such person or another . . . ; or
"(c) Otherwise initially provokes the use of any force against such person or another,
unless:
(1) Such person has reasonable grounds to believe that such person is in imminent danger
of death or great bodily harm, and such person has exhausted every reasonable means to escape
such danger other than the use of deadly force; or
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(2) In good faith, such person withdraws from physical contact with the assailant and
indicates clearly to the assailant that such person desires to withdraw and terminate the use of
such force, but the assailant continues or resumes the use of such force."

Robert's actions fall squarely within the actions proscribed in K.S.A. 2010 Supp.
32-3214 for an individual to whom the self-defense instruction is not available.

Robert suggested that the shooting was an accident, and if believed, this would
undermine Robert's assertion that he acted intentionally in self-defense. See State v.
Stallard, No. 99,365, 2009 WL 596536, at *4 (Kan. App. 2009) (unpublished opinion).
Robert testified he intentionally pulled the trigger of the rifle. Similarly, a Riley County
dispatcher testified that Robert repeatedly told the dispatcher, "I shot my brother," and
when asked whether the shooting was an accident, Robert responded, "No."

The trial court did not err in refusing to give the self-defense instruction.

DEFENSE-OF-PROPERTY INSTRUCTION

The same standard of review of a denial to give a requested self-defense
instruction applies to the denial of a defense-of-property instruction. When the trial court
refuses to give a requested instruction, an appellate court must review the evidence in a
light most favorable to the party requesting the instruction. Ransom, 288 Kan. at 713. A
defendant is entitled to instructions on the law applicable to his or her theory of defense if
there is evidence to support the theory. Hendrix, 289 Kan. at 861. But there must be
evidence which, viewed in the light most favorable to the defendant, is sufficient to
justify a rational factfinder finding that a defense-of-property instruction should be given.
289 Kan. at 861.

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Robert argues the trial court also erred in failing to grant his request for a defense-
of-property jury instruction in accordance with K.S.A. 2010 Supp. 21-3213. Robert
claims the trial court should have allowed him to present more evidence regarding the
pasture burning incident because the evidence was relevant to support his defense-of-
property issue.

Robert claims that the trial court erred by not allowing him to testify further about
the pasture burning incident. Even if Robert had been allowed to testify further, the
exclusion did not prejudice Robert's defense. Michael, Katheryn, and Robert all testified
about the pasture burning incident, suggesting that Katheryn, not Michael, was
responsible for the burning. Robert testified that he had no problem with Katheryn.
Therefore, even if the court erred in sustaining the State's objection, it is not reversible
error. Robert was not prejudiced because the incident did not involve Michael.

K.S.A. 2010 Supp. 21-3213 articulates the justifiable force an individual may use
in defending one's property:

"A person who is lawfully in possession of property other than a dwelling, place of work
or occupied vehicle is justified in the use of force against another for the purpose of preventing or
terminating an unlawful interference with such property. Only such use of force as a reasonable
person would deem necessary to prevent or terminate the interference may intentionally be used."
(Emphasis added.)

The statute for defense of property, like K.S.A. 2010 Supp. 21-3211, is subject to
the provisions of K.S.A. 2010 Supp. 21-3214. Robert's actions fall squarely within the
actions that bar an individual from claiming a defense-of-property defense.

In rejecting Robert's request for a defense-of-property jury instruction, the trial
court assumed that Robert did not initially know Michael was accompanying Matthew
and Katheryn when he gave permission to Matthew to retrieve the grain truck. Assuming
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that Michael did not obtain permission to enter Robert's property, Robert did not order
Michael off of his property when he approached Michael's truck. Robert claims he was
duped into giving Matthew permission to enter his property; therefore, Michael was a
trespasser, and he had an "absolute right" to force Michael to leave. It is interesting to
note that Robert did not tell Michael to leave his property during their argument. It was
not until Robert came back to the truck with the rifle that he told Michael to leave. Robert
shot the rifle within seconds after telling Michael to leave. There is no evidence that
Michael did any act to interfere with any of Robert's property or posed an imminent
threat to Robert's property or cattle.

The questions then are: Was Robert defending his property and, more importantly,
was he acting reasonably when he shot at Michael? The State articulates several
arguments in support of the trial court's ruling that are consistent with our analysis above
on the self-defense instruction issue concerning Robert's lack of a reasonable belief that
he needed to use such force against Michael.

We find that the district court did not err in denying Robert's request for either a
self-defense or a defense-of-property jury instruction.

Affirmed.

***

ATCHESON, J., dissenting: I respectfully dissent. The evidence, viewed in its
entirety and under the proper standard, required the Pottawatomie County District Court
to instruct the jury on self-defense in this case. The district court's error in failing to do so
deprived Defendant Robert L. Bellinger of a fair trial on the aggravated assault and
criminal threat charges on which the jury convicted him. Those convictions should be
reversed, and the case remanded for a new trial.
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I.

The current law of self-defense, which also applied at the time of Robert
Bellinger's trial and on which the jury should have been instructed, is particularly robust.
The law permits a person to threaten or to use markedly forceful means to deter
imminent, unlawful physical contact of a distinctly less aggressive sort. Rather than
walking away, a person—at least in some circumstances—arguably may brandish or
discharge a firearm to avoid a slap in the face. Given the law and considering the facts
favorably to Robert Bellinger, as we must, the jurors should have been allowed to make
the call on self-defense. The majority opinion skirts evidence supporting the defense.

I have no idea what a just verdict in this case would be, and nothing in my analysis
should be construed as reflecting any such suggestion. I did not see or hear the witnesses
as they testified. I have read transcripts of their testimony, but that is no substitute for
having observed them as they related their stories in open court. See State v. Scaife, 286
Kan. 614, 624, 186 P.3d 755 (2008). The judicial process treats an appearance on the
witness stand, with the taking of an oath and the rigor of cross-examination, as perhaps
the most discerning crucible for separating honesty and accuracy from mendacity and
misstatement. What I can say, and what appellate courts do decide, is whether evidence,
if believed by the jurors, would support a particular defense. Here, there was sufficient
evidence to instruct the jurors on self-defense. Those properly instructed jurors might
then evaluate the witnesses along with the physical evidence and come to an informed,
reasoned conclusion about what actually happened and how the law should treat what
happened. Proper jury instructions—those that cover the relevant issues and, in turn,
correctly state the law—are essential gears in the machinery of justice. The machinery
doesn't work right without them. It didn't here.

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My principal disagreement rests with affirming the district court's refusal to give a
self-defense instruction in this case. I do not specifically address the failure to give a
defense-of-property instruction. But I also decline to join in the majority's ruling or
reasoning on that issue, although it may be a closer question, in part, because the law
itself is less than clear. For example, Robert Bellinger may have been acting in defense of
"a place of work"—his ranch—thereby bringing the case under K.S.A. 2010 Supp. 21-
3212 rather than K.S.A. 2010 Supp. 21-3213. The majority doesn't consider that
possibility. If the case were being remanded for a second trial, in which defense of
property likely would again come up as an issue, I would explore it further. See State v.
Wells, 289 Kan. 1219, 1234, 221 P.3d 561 (2009) (although reversing on other grounds,
court addresses points raised on appeal that might arise in retrial). To do so in dissent,
however, would simply extend this opinion by wrestling with an abstraction.

II.

When a defendant has made a timely request for an instruction on a theory of
defense, as Robert Bellinger did here, the appellate courts treat the failure to give the
instruction as a question of law, since no credibility determinations or other weighing of
evidence figures into the analysis. See State v. Simmons, 45 Kan. App. 2d 491, 499, 249
P.3d 15, rev. granted 292 Kan. 968 (2011) (request for lesser-included offense
instruction). The review, therefore, is plenary, and the appellate court owes no particular
deference to the decision at the trial level refusing to instruct. See State v. Gallegos, 286
Kan. 869, 873, 190 P.3d 226 (2008).

In a criminal trial, a defendant is entitled to an instruction on a theory of defense if
the evidence taken in the light most favorable to that position would permit a rational
juror to find in keeping with that theory. State v. Baker, 287 Kan. 345, Syl. ¶ 1, 197 P.3d
421 (2008) (compulsion instruction); State v. Hill, 242 Kan. 68, Syl. ¶ 4, 744 P.2d 1228
(1987) ("The trial court must instruct the jury on self-defense if there is any evidence
17

tending to establish self-defense even though the evidence may be slight . . . ."). That is a
minimal obligation because the defendant bears no particular burden of proof regarding
self-defense. A jury need only conclude that the evidence of self-defense creates a
reasonable doubt as to guilt to render an acquittal. State v. Johnson, 258 Kan. 61, 66, 899
P.2d 1050 (1995). A defendant's own assertions may provide adequate grounds to
warrant an instruction. Hill, 242 Kan. 68, Syl. ¶ 4; see State v. Walters, 284 Kan. 1, 9,
159 P.3d 174 (2007). By the same token, other evidence alone may be enough. A
defendant need not testify in support of a self-defense theory to establish a sufficient
factual basis for an instruction. State v. Heiskell, 8 Kan. App. 2d 667, Syl. ¶ 6, 666 P.2d
207 (1983). In evaluating the evidence for that purpose, the appellate court must resolve
every factual dispute and credibility determination in the defendant's favor. State v. Sims,
265 Kan. 166, 168-69, 960 P.2d 1271 (1998); State v. Childers, 222 Kan. 32, 49, 563
P.2d 999 (1977) (When a court looks at the evidence to decide on giving a self-defense
instruction, "'the test is not how much but is there any[.]'") (quoting State v. Smith, 161
Kan. 230, 237, 167 P.2d 594 [1946]).

The broad facts here show that Robert Bellinger and his brother Michael had a
sour relationship marked by verbal and physical confrontations throughout their adult
lives. At the time of the confrontation giving rise to the charges here, they both were in
their early 60s, Robert being the younger by a couple of years. Robert Bellinger raised
cattle on the family place, while Michael did likewise on an adjacent parcel. The day
before the confrontation, Robert Bellinger thought that Michael had mistreated cattle of
his that had somehow gotten onto his brother's pastureland.

Michael and his ex-wife Katheryn Bellinger had an ongoing business relationship
in, I presume, the ranching operation. Their son Matthew (and, thus, Robert Bellinger's
nephew) worked on their ranch. On June 4, 2009, the day of the confrontation, those
three drove to Robert Bellinger's ranch to retrieve a truck belonging to Katheryn. Only
Matthew spoke with Robert Bellinger to explain the purpose of the visit. Robert Bellinger
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apparently assumed Katheryn accompanied Matthew, but he did not expect to see
Michael.

Robert Bellinger drove a tractor to a pole barn where Katheryn's truck had been
parked. He began assisting Matthew in moving a piece of equipment that had been left in
front of the truck. At some point, Robert Bellinger realized Michael had accompanied
Katheryn and Matthew. He then approached Michael's pickup truck. At that point,
Michael was in the driver's seat and Katheryn was on the passenger's side. Matthew was
still in the pole barn.

Robert Bellinger and his brother got into a vigorous discussion about the treatment
of each other's cattle and what Michael had supposedly done the day before. Depending
who was describing the exchange, it was a loud, profane argument in which both brothers
shouted and cursed. At trial, Robert Bellinger testified that his tone was firm but
composed, while Michael became louder and more hostile as the discussion progressed.
Michael testified that Robert Bellinger raised his voice and eventually said, "I'll kill you."
Robert Bellinger denied saying anything of that sort. I infer that statement forms the basis
of the criminal threat charge in violation of K.S.A. 21-3419(a)(1), although neither the
charging instrument nor the jury instructions are precise. That is one of the charges on
which the jury convicted.

Everybody, however, agrees Robert Bellinger went back to the pole barn and
retrieved an old, rusted, lever-action .22 caliber rifle from an inoperable truck he kept
there. The trial record is unclear about the distance from Michael's pickup truck to the
pole barn. But it couldn't have been too far because Matthew remained in the pole barn
and could hear the argument between his father and Robert Bellinger.

Armed with the rifle, Robert Bellinger returned to the driver's side of Michael's
pickup and pointed the weapon at Michael. Robert Bellinger then told Michael to "get out
19

of here" or "get off my property." Michael refused, saying he would not leave until he got
Katheryn's truck. Robert Bellinger then shifted the rifle so it was pointed through the
open driver's door window toward the back window of the pickup. The rifle then
discharged, shattering the back window. There is conflicting evidence about whether
Robert Bellinger intended to fire or not. He testified on direct examination that he pulled
the trigger without knowing for sure if the gun was loaded but expecting it would "dry
fire"—the hammer would strike the empty chamber rather than a live cartridge. Robert
Bellinger contended he meant to scare Michael into leaving. On cross-examination,
Robert Bellinger suggested the rifle might have discharged without his having pulled the
trigger. I presume either the pointing of the rifle into the cab of Michael's pickup or the
firing of the rifle into the back window precipitated the charge for the aggravated assault
of Katheryn under K.S.A. 21-3410(a). Again, neither the charging instrument nor the jury
instructions were clear on the exact basis. That is the other charge on which the jury
convicted.

At that point, Michael got out of the pickup and charged after Robert Bellinger.
After hearing the shot, Matthew came out of the pole barn and saw what was happening.
The accounts again conflict, but Michael ended up shot in the abdomen. Michael testified
Robert Bellinger shot him when he got out of the truck. Katheryn testified to essentially
the same. But she earlier had told the police Michael was shot while he was sitting in the
truck, something that would have been nearly impossible given the location of the entry
wound. Robert Bellinger testified that Michael grabbed the rifle and the two began
wrestling for control of it. He said the rifle must have gone off during that struggle.
Again, everyone agrees Michael did wrestle the rifle away from Robert Bellinger and
then clubbed him in the head with it at least once. Michael and Matthew then got in the
pickup with Katheryn. They drove to a hospital so Michael could be treated for the
gunshot wound. Robert Bellinger called 911 and told the dispatcher he had shot his
brother. Law enforcement officers promptly arrived at Robert Bellinger's ranch and took
him into custody. They processed the scene and obtained statements.
20


In addition to the aggravated assault of Katheryn and the criminal threat against
Michael, Robert Bellinger was charged with the attempted premeditated murder and
aggravated battery of Michael. The jury found Robert Bellinger not guilty of the
attempted murder and the aggravated battery. The district court gave no jury instructions
related to self-defense.

That much of the factual and procedural history of the case more or less parallels
what the majority opinion recounts and relies on in finding Robert Bellinger had no right
to jury instructions on self-defense and defense of property. But there was considerably
more evidence admitted at trial bearing directly on the propriety of those instructions that
either gets short shrift in the majority's account and analysis or gets left out.

According to Robert Bellinger's testimony, Michael is physically much larger and
more imposing than he. Asked to describe his brother's build, Robert Bellinger testified,
"He's a monster." Robert Bellinger immediately added that Michael was "big, strong,
[and] tough." Although the record generally indicates Robert Bellinger to be somewhat
smaller, the disparity in size between the brothers is not readily apparent, since neither
was asked his height or weight. Based on the available information, the court must
assume for purposes of considering jury instructions that Michael was at least somewhat
bigger than Robert Bellinger. The jurors, of course, saw both men during the trial and
could consider those observations of their physical stature. Cf. Maxwell v. State, 828 So.
2d 347, 359-60 (Ala. App. 2000) (jurors may use their observations of a person in the
courtroom, along with some other additional proof, in determining approximate age when
no testimonial or documentary evidence specifically establishing age has been
introduced) (cases cited); State v. Lauritsen, 199 Neb. 816, 818-20, 261 N.W.2d 755
(1978) (jury may consider defendant's appearance as circumstantial evidence in
conjunction with other evidence in determining his age).

21

Robert Bellinger testified that before June 4, 2009, he had been "involved in
physical fights" with Michael. He told the jury he had never started one of those fights
but had always come out on the losing end and always with injuries. The record contains
no more information about that purportedly turbulent history between the brothers.

Robert Bellinger also testified that as the result of an injury, he has a withered left
arm. He told the jury he is unable to lift more than 15 pounds and cannot grip and hold
more than 4 pounds with his left hand. That, he testified, rendered him effectively "one-
armed" in trying to repel a physical attack. He also said that he has "bad knees" and is
unable to run.

Robert Bellinger described Michael to the jury as "very hotheaded." He said
Michael had "a look of aggression and hate" on his face as the two discussed or argued
over the treatment of their respective cattle. At that point, Michael "was ready to come
out of that cab [of the pickup] and beat the hell out of me," according to what Robert
Bellinger said at trial. Robert Bellinger also told the jury he had "definitely" concluded
Michael intended to physically assault or fight him. Robert Bellinger explained his
actions to the jury this way: "I didn't want to get beat up . . . and so I went and retrieved
the rifle."

During the trial, the district court limited the evidence about the brothers' physical
confrontations to a generic narrative of that relationship and precluded any details about
specific incidents. In doing so, the district court considered the evidence as bearing on
Michael's character. But the district court also recognized the evidence bore on Robert
Bellinger's state of mind related to self-defense. In a strict sense, the evidence probably
should have been offered and received only for Robert Bellinger's subjective belief
regarding self-defense and what a similarly situated reasonable person might believe. See
State v. Ricks, 257 Kan. 435, 439-40, 894 P.2d 191 (1995).

22

The district court has the authority to limit evidence to avoid undue confusion or
consumption of time—avoiding "mini-trials" over the circumstances of the fights
between Robert Bellinger and his brother, let alone their very existence, could be an
appropriate reason to curtail that evidence. Defense counsel did not make a proffer as to
the details of particular confrontations. But the number of the supposed confrontations,
when the most recent one took place, and the nature of Robert Bellinger's injuries might
have been sufficiently relevant to warrant admission. If the last fight were 20 years ago
and the worst injury Robert Bellinger claimed was a split lip, that would be far different
from a fight earlier in 2009 that sent him to the emergency room. Ultimately, however,
the district court could have concluded much of that detail would have created an
inappropriate distraction for the jury. Given the absence of those details from the record
and the majority's decision to affirm the convictions, further discussion of the evidentiary
implications would be another needless abstraction.

III.

If believed by the jurors, the evidence actually admitted at trial would show Robert
Bellinger to be crippled in ways that significantly diminished his ability to protect
himself against physical assault. It would show that Michael was much bigger and
stronger. Michael had repeatedly attacked Robert Bellinger and, in doing so, inflicted
physical injury on him. Michael had a volcanic temperament; he could become suddenly
angry and combative. And on June 4, 2009, Michael argued loudly with Robert Bellinger
in an escalating confrontation on Robert Bellinger's ranch. Robert Bellinger saw Michael
becoming enraged in the same manner that had culminated in the earlier beatings.

Again, if accepted by the jury, those circumstances prompted Robert Bellinger to
enter the nearby pole barn, grab the rifle, go back to Michael's pickup, and order his
brother to leave the property. When Michael refused, Robert Bellinger fired the rifle
between his brother and Katheryn, breaking the back window of the truck.
23


Those circumstances are not inherently implausible and cannot, therefore, simply
be discarded. There were, of course, varying accounts of the circumstances. Michael's
version attributed to Robert Bellinger the statement—"I'll kill you"— that supported the
criminal threat charge. Katheryn admittedly gave conflicting accounts. And Robert
Bellinger's testimony was not wholly consistent. But those differences are for the jurors
to sort out. The substance of the differing accounts or the very existence of differing
accounts does not inform the proper scope of the jury instructions. As I explain, the
circumstances warranted instructing the jurors on self-defense when properly viewed for
that purpose. Whether the jurors would have accepted that defense is an entirely different
matter, and it is not the matter before us.

Likewise, the wisdom of the statutory regimen for self-defense is not a matter of
this court's concern. Whether my conception of sound public policy would embrace even
an arguable claim for self-defense in this case is beside the point. The evidence, however,
supports a colorable defense based on the governing statutes.

As provided in K.S.A. 2010 Supp. 21-3211(a), the statute in effect at the time of
trial, a person "is justified in the use of force" to defend himself or herself "when and to
the extent it appears to such person and such person reasonably believes such use of force
is necessary to defend . . . against . . . [the] imminent use of unlawful force." As I discuss
later," use of force," as defined in K.S.A. 2010 Supp. 21-3221(a)(1), includes threats to
use force, the display of weapons, and "the application of physical force." A legally
sufficient claim of self-defense requires evidence supporting both a subjective belief on
the part of the defendant that the use of force was necessary and an objective
determination that a reasonable person would have come to the same conclusion. Walters,
284 Kan. at 9; City of Wichita v. Cook, 32 Kan. App. 2d 798, Syl. ¶ 1, 89 P.3d 934, rev.
denied 278 Kan. 843 (2004). A defendant claiming self-defense must honestly believe his
or her use of force to be required under the circumstances. But if that honest belief is the
24

product of a delusion or a misperception of a threat—where someone without similarly
impaired cognitive abilities or misapprehensions would sense no danger—a defendant
lacks legal grounds to assert self-defense. The objective determination must be evaluated
from the perspective a reasonable person similarly situated to the defendant. For example,
what a frail 90-year-old reasonably perceives as imperiling may not necessarily be the
same as what a starting linebacker for the Chiefs would so perceive. Both likely would
take the same view of a scrawny 15-year-old pointing a handgun at them. But they might
not if that teenager had no weapons and merely threatened to hit them.

A defendant claiming self-defense must perceive that another person intends an
"imminent use of unlawful force" before resorting to his or her own use of force to
prevent any harm to himself or herself. Imminent means "ready to take place." Merriam-
Webster's Collegiate Dictionary 621 (11th ed. 2003); see The American Heritage
Dictionary 879 (5th ed. 2011) (imminent means "about to occur" or "impending"). The
defendant, therefore, need not await the beginning of an attack before responding. He or
she may act to prevent an attack he or she reasonably senses to be impending.

Here, Robert Bellinger took an oath to tell the truth and then testified that he
retrieved the rifle because he believed Michael was about to physically assault him. There
was no doubt Michael had begun shouting and cursing before Robert Bellinger got the
rifle. There were differing accounts of Robert Bellinger's composure. Just how the
majority concludes that Robert Bellinger's statement under oath failed to create a jury
question about his honest, albeit subjective, belief he needed to defend himself eludes me.
The credibility of witnesses is for the jurors to determine. And the sincerity of Robert
Bellinger's subjective belief should have been left to them. Equally puzzling to me is the
majority's assertion that the jurors hearing the case actually reached a decision on Robert
Bellinger's subjective belief about the need to defend himself in the face of an imminent
threat of bodily harm. I presume that majority concludes the jurors came down against
Robert Bellinger, although the opinion does not say. Nor does the majority explain why
25

or how the jurors would have considered the issue in the absence of any self-defense
instructions informing them of it or the applicable legal standards.

Determination of the objective component also should have been entrusted to the
jurors. Taking the evidence most favorably in support of instructing the jury, we must
conclude Michael was much bigger and stronger than Robert Bellinger. We must
presume Robert Bellinger to have physical limitations that would keep him from
physically defending himself without resorting to weapons of some sort. And we must
accept that Michael had repeatedly beaten up Robert Bellinger. So Robert Bellinger knew
the signs that Michael was about to go into a violent rage. He saw those signs on June 4.
These were not strangers exchanging words in a bar where angry bluster might be just
that and not a prelude to physical assault. We then must ask, assuming the jurors accepted
all of that, could they conclude a reasonable person would have believed a physical attack
to be at hand? The answer must be, "Yes, a jury could." That reasonable person's belief
would rest not merely on a bare opinion but on the objective circumstances of the
physical disparities between the individuals, their history of one-sided abuse, and the
events of June 4. Now, jurors actually weighing the evidence might choose to disbelieve
some or all of those circumstances or might find them insufficient, even if true, to support
an objective belief on Robert Bellinger's part that he faced a physical assault. But a court
could not fairly say that a jury would necessarily reject that evidence or reject the
conclusion that a reasonable person standing where Robert Bellinger stood would have
held a legitimate fear of being beaten.

The same dual evaluation of subjective and objective belief applies to the degree
of force a defendant contends was necessary, so long as the force does not exceed the
statutory bounds. That is, the defendant must honestly believe he or she needed to use the
force actually deployed, and a reasonable person in the same circumstances would have
reacted in a comparable way. See State v. Deal, 293 Kan. 872, 889-90, 269 P.3d 1282
(2012); State v. Gayden, 259 Kan. 69, 83, 910 P.2d 826 (1996) (To determine if giving a
26

requested self-defense instruction is legally appropriate, a court must view the evidence
most favorably toward doing so and decide "whether [the] defendant believed that the
force used was necessary . . . and whether facts exist which would support such a
belief.").

The legislature has defined "use of force" in K.S.A. 2010 Supp. 21-3221(a)(1),
thereby outlining the permissible limits of what a person may do to defend himself or
herself absent an imminent threat of death or great bodily injury. Legally permissible
"use of force" includes: "(A) Words or actions that reasonably convey the threat of force,
including threats to cause death or great bodily harm to a person; (B) the presentation or
display of the means of force; or (C) the application of physical force, including by a
weapon or through the actions of another." K.S.A. 2010 Supp. 21-3221(1). Boiling down
the verbiage, the self-defense statutes permit a person to defend himself or herself by
making threats of force, including deadly force; drawing a firearm or another weapon and
brandishing it in a threatening manner (display of means of force); or discharging a
firearm as a warning (an application of physical force). Any of those actions may be
taken to resist nonlethal force. Deadly force is separately defined in K.S.A. 2010 Supp.
21-3221(a)(2) and entails "the application of any physical force . . . likely to cause death
or great bodily harm." Deadly force may be used to resist if the person reasonably
believes he or she faces death or great bodily harm. K.S.A. 2010 Supp. 21-3211(b). All of
those definitions became effective shortly before Robert Bellinger's trial in May 2010 and
applied in that proceeding. See L. 2010, ch. 124, sec. 1 (legislation containing K.S.A. 21-
3221 went into effect April 29, 2010; provisions of Act to be applied retroactively). This
is not a deadly-force, self-defense case as it pertains to the aggravated assault or criminal
threat charges.

In 2006, the Kansas Legislature amended the central self-defense statute to include
a sweeping no-duty-to-retreat provision. L. 2006, ch. 194, sec. 3. It provided: "Nothing
in this section [establishing self-defense] shall require a person to retreat if such person is
27

using force to protect" himself or herself or a third person. K.S.A. 2006 Supp. 21-
3211(c). The absence of any duty to retreat before using force in self-defense materially
changed Kansas law and substantially expanded what might be considered reasonable
force in many circumstances. This case is illustrative of that expansion.

Before the 2006 change to K.S.A. 21-3211, the Kansas courts recognized an ill-
defined, though comparatively constricted, common-law right of persons threatened in or
around their homes to use force without having to retreat. See Ricks, 257 Kan. at 437
(noting the common-law duty had been little discussed for more than half a century and
finding it applicable when "a nonaggressor . . . [has been] menaced on home ground");
State v. Scobee, 242 Kan. 421, 428-29, 748 P.2d 862 (1988) (reaffirming common-law
rule and its application). The Ricks decision cited Scobee as illustrative of the
circumstances in which a person would have no common-law duty to retreat before
resorting to force in self-defense. In Scobee, two men, one of whom wielded an iron pipe,
accosted the defendant just after he pulled into the driveway of his home. The defendant
drew a handgun and fatally shot one of the men. The Kansas Supreme Court reversed
defendant's conviction for involuntary manslaughter because the trial court had declined
to give a no-duty-to-retreat jury instruction. 242 Kan. at 429. After Scobee and before the
2006 amendment to K.S.A. 21-3211, the Kansas Supreme Court found no error in
refusing to instruct on self-defense in large part because the defendant used force in a
public place when he could have easily retreated. See State v. Gonzales, 282 Kan. 73,
113, 145 P.3d 18 (2006).

But the obligation of a defendant to retreat rather than to use force has been
removed from any legal calculus of the core right of self-defense as the result of the
amendment to K.S.A. 21-3211. The reasoning and result on claims of self-defense in
cases like Gonzales have been superseded by the amendment. The proper inquiry now
must be this: Given a defendant's decision to stand his or her ground, did the defendant
use the amount of force he or she honestly believed necessary and the amount of force a
28

reasonable person, similarly situated, would believe necessary to thwart an imminent
attack? In deciding how to instruct a jury, the district court must answer the question
based on what that jury properly might conclude from the evidence when viewed most
favorably to the defendant.

Turning first to the criminal threat charge, the evidence showed that Robert
Bellinger may have told Michael, "I'll kill you." The statement would have been made
before Robert Bellinger went to the pole barn to get the rifle. The statement, if made in
response to an imminent threat of physical harm, would seem to be a permissible form of
self-defense. It amounts to "words . . . convey[ing] the threat of force, including . . . death
or great bodily harm" and, thus, is a defined and permitted "use of force" for self-defense.
K.S.A. 2010 Supp. 21-3211(a); K.S.A. 2010 Supp. 21-3221(a)(1)(A). The same
circumstances that support Robert Bellinger's subjective belief he faced an imminent
threat of physical harm similarly support such a belief as to the making of that statement
to prevent the threat from becoming a reality. A jury might fairly conclude that a crippled
man attempting to deter an assault from a bigger, stronger man who had beaten him in the
past and was repeating the behaviors that immediately preceded those beatings
reasonably could resort to a threat of death to accomplish that deterrence. Words, even
threatening ones, inflict no physical harm and, thus, represent a fairly restrained form of
self-defense. If Robert Bellinger overstepped the bounds of legally permissible self-
defense in making that statement, the determination rests with a jury based on its studied
consideration of the evidence.

Robert Bellinger's actions in brandishing the rifle at Michael while he sat in the
cab of his pickup and then firing a bullet through the back window present a more
complex call. Those actions resulted in a charge of and conviction for aggravated assault
of Katheryn on the theory of transferred intent. In other words, the State argued that
Robert Bellinger used a deadly weapon to place Michael "in reasonable apprehension of
immediate bodily harm." See K.S.A. 21-3408; K.S.A. 21-3410 (defining crime of
29

aggravated assault); K.S.A. 21-3408 (defining crime of assault). And, according to the
State, Robert Bellinger's criminal intent also applied or transferred to Katheryn because
she was sitting next to Michael in the pickup and those actions reasonably placed in her
in fear of harm. Whether analyzed as a matter of transferred intent or simply an
application of the definition of the crime of aggravated assault, Robert Bellinger could be
criminally accountable for an aggravated assault of Katheryn if his actions were not
otherwise legally excused or justified. Self-defense, however, would furnish a legal
justification.

The law recognizes that a person acting in self-defense lacks the requisite bad
intent to be found guilty of crimes charged based on those actions, and that is true
whether the purported victim of the crime is the person the defendant feared or a
bystander in the wrong place. If a defendant legitimately acts in self-defense, he or she is
commonly not criminally responsible for harm to third parties. State v. Clifton, 32 Ohio
App. 2d 284, 286-87, 290 N.E.2d 921 (1972) (The court recognizes that "one who kills in
self-defense does so without the mens rea that otherwise would render him culpable of
the homicide" and concludes that the absence of criminal intent also shields the
individual from criminal liability for harm done to a third party as a result those actions.);
LaFave, Substantive Criminal Law § 10.4(g) (2nd ed. 2003) ("If A in proper self-defense
aims at his adversary B but misses B and unintentionally strikes innocent bystander C, he
is not liable for C's injury or death."). The principle, often couched in terms of transferred
intent, is well established. Nelson v. State, 853 So. 2d 563, 565 (Fla. Dist. App. 2003)
(conviction reversed for failing to give jury instruction on transferred self-defense);
People v. Blue, 343 Ill. App. 3d 927, 936, 799 N.E.2d 804 (2003) ("Under the doctrine of
transferred intent, defendant can be exonerated if he shoots an assailant in self-defense
but injures another; defendant's intent to shoot his assailant in self-defense is transferred
to the unintended victim."); Rogers v. State, 994 So. 2d 792, 802 (Miss. App. 2008)
(defendant could not be found guilty of aggravated assault of bystanders in bar when he
fired handgun in self-defense and struck them while shooting at the person menacing him
30

with a handgun); Clifton, 32 Ohio App. 2d at 287 (conviction reversed for failing to give
jury instruction on transferred self-defense); Holloman v. State, 51 P.3d 214, 221 (Wyo.
2002) ("The general rule is that if a person acting in necessary self-defense
unintentionally injures or kills a third person, he is not guilty of homicide or assault and
battery."). The Kansas appellate courts apparently have not addressed self-defense in that
context or, at least, in those terms. The doctrine, however, is entirely compatible with the
current statutory scheme of self-defense.

Robert Bellinger's action in pointing the rifle at Michael and, thus, very near
Katheryn amounted to a use of force authorized in K.S.A. 2010 Supp. 21-3221(a)(1)(B)
as the "display of the means of force." That is true even if the weapon may readily inflict
lethal injury. K.S.A. 2010 Supp. 21-3221(a)(2). The discharge of the rifle at the rear
window of the pickup also reflects a statutorily allowed "use of force" under K.S.A. 2010
Supp. 21-3221(a)(1)(C) (permitting the "application of physical force"). The application
of force does not constitute "deadly force" under the self-defense statutes unless it "is
likely to cause death or great bodily harm." K.S.A. 2010 Supp. 21-3221(a)(2). Robert
Bellinger testified he pointed the rifle at the rear window before he pulled the trigger
precisely because he wanted to avoid shooting Michael, as opposed to scaring him into
leaving the ranch. We must accept that representation in weighing the propriety of the
jury instructions. The majority suggests that "miraculously" neither Katheryn nor
Michael was injured. But the bullet went exactly where Robert Bellinger said he aimed
the rifle and struck neither of them.

Without belaboring the point, Robert Bellinger's testimony created a jury question
about his honestly held belief that he had to resort to a level of force reflected in pointing
the rifle in the vicinity of Michael and Katheryn or in firing it near them to deter what he
perceived as Michael's impending attack. He testified to that effect. While Robert
Bellinger hedged some about whether he was sure the rifle was loaded, he understood
that it might have been. Either way, however, his actions fell within the permitted "use of
31

force" under the self-defense statutes. The sincerity of his belief that the level of force
was necessary should have been for the jury.

As to the objective reasonableness of pointing and firing the rifle, I again want to
avoid undue repetition. But a reasonable person in the same position as Robert
Bellinger—with the same physical impairments, the same knowledge of Michael's
volatile behavior, and the same observation of his rising agitation on June 4—could have
concluded getting the rifle and then firing it was necessary to stave off a significant
beating. The discharge of the rifle was, in effect, a warning shot.

Two additional circumstances bolster that determination. First, Robert Bellinger
had no duty to retreat, so that cannot be weighed against the reasonableness of the force
used. On a favorable reading of the evidence, it is debatable whether he could have
retreated because his knee problems prevented him from traveling any faster than a walk.
Second, after he retrieved the rifle, Robert Bellinger told Michael to leave the property.
Michael adamantly refused. Coupled with the rest of the facts as the defense portrays
them, the exchange would objectively support a reasonable perception that Michael's
belligerence and bellicosity had not abated but were, if anything, more pronounced. In
that light, a jury could find Robert Bellinger's use of force comported with what a
reasonable person would have done in his position. He fired a single shot with the intent
to scare Michael, not to injure or kill. As I have said, a jury could well reject some of
those factual representations or could well reject self-defense on the aggravated assault
charge even crediting all of them. But that would not be the inexorable outcome and,
rather, demonstrates that the issue should have been for the jurors. The district court erred
in taking it from them by not instructing on self-defense.

32

IV.

To bolster its conclusion that no self-defense instruction should have been given in
this case, the majority cobbles together several arguments that are unavailing singly or
collectively. The majority "suggests" Robert Bellinger acted as the aggressor and gussies
that up with an argument that he retreated to get the rifle. The majority then suggests
Robert Bellinger fired the rifle accidentally and, therefore, gets no self-defense
instruction. I take those points up in order.

Someone provoking a confrontation enjoys only a very limited right of self-
defense should the affray turn to his or her disadvantage. K.S.A. 2010 Supp. 21-3214.
The majority says the "evidence suggests" Robert Bellinger acted as the initial aggressor
and his "actions fall squarely within" the conduct described in K.S.A. 2010 Supp. 21-
3214 depriving a person of the right of self-defense on that basis. But the majority never
identifies Robert Bellinger's initial provocation of Michael.

If the initial provocation were Robert Bellinger's actions in getting the rifle,
brandishing it, or firing it—on the theory that he wanted to goad Michael into attacking
him so he could then shoot Michael—the argument simply reflects the other side of the
self-defense coin. Had Robert Bellinger acted in that way to provoke Michael so that he
might then respond with force in the guise of defending himself, he could not claim a
right to self-defense. See K.S.A. 2010 Supp. 21-3214(b). But recasting the legal argument
as one over Robert Bellinger's status as an initial aggressor doesn't change the evidence,
when viewed most favorably to him, and doesn't change the trial court's obligation to
instruct on self-defense. If the jurors were to discredit Robert Bellinger's version or they
were to find that version insufficient to create a reasonable doubt about his guilt, they
necessarily would conclude he did not act in self-defense and was, therefore, an unlawful
aggressor. That argument might well have entitled the State to an initial-aggressor
instruction to complement the other self-defense instructions that should have been given
33

to the jury. But it does not preclude Robert Bellinger's theory of self-defense as a matter
of law, depriving him of any jury instructions.

Another theory would have Robert Bellinger becoming an initial aggressor at the
point he returned from the pole barn with the rifle on the grounds he had retreated from
the confrontation only to reengage Michael after he had obtained a deadly weapon. While
a person has no duty to retreat under Kansas law, a person may choose to do so. And,
having done so, the person may well be considered an aggressor unable to lay claim to
self-defense if he or she rejoins or reignites the confrontation. But the retreat must be to a
place of safety. See People v. Flax, 147 Ill. App. 3d 943, 951, 498 N.E.2d 667 (1986);
People v. Lenkevich, 394 Mich. 117, 121, 229 N.W.2d 298 (1975); LaFave, Substantive
Criminal Law 10.4(f) (2nd ed. 2003) ("[E]ven in those jurisdictions which require retreat,
the defender need not retreat unless he knows he can do so in complete safety[.]").The
facts here, however, do not depict so clear a scenario. As I have noted, the pole barn was
close to Michael's pickup, so Robert Bellinger's movement there could not be considered
an obvious retreat so much as an effort to obtain a means of self-defense. A lone
individual outnumbered and accosted in a parking lot in an aggressive, threatening
manner would have a right under Kansas law to go to his or her car, perhaps some
distance away, to get a handgun from the glove box. That would not turn the individual
into an initial aggressor as a matter of law. Depending on how the events unfolded, there
might be jury issues. Here, too, Robert Bellinger did not arrive at a place of safety by
going into the pole barn. It was not an enclosed, secured structure that would have
afforded protection against an assailant.

Perhaps the majority means to say that Robert Bellenger became the aggressor
when he first approached Michael's pickup and questioned his brother about the treatment
of his cattle the day before, thereby hoping to instigate a physical confrontation as an
excuse to shoot. But that seems even less plausible. Robert Bellinger was not armed when
he first engaged Michael on June 4 and only got the rifle after the discussion escalated
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into a heated argument—perhaps only on one side, perhaps mutually. The rifle itself was
rusted and, if we accept Robert Bellinger's testimony, possibly dysfunctional or unloaded.
It would not have been the obvious weapon of choice for an aggressor attempting to turn
a spat into a shooting. The argument would make more sense and carry considerably
more legal weight had Robert Bellinger initially come up to Michael with a handgun
concealed in the back of his waistband. See Ricks, 257 Kan. at 437-38 (refusal of no-
duty-to-retreat instruction proper when defendant "took his gun with him before anything
occurred").

In short, under the facts, the State might have been entitled to an initial-aggressor
jury instruction to accompany the others outlining the law of self-defense. I offer no
conclusive determination, not having seen the witnesses testify. But the evidence was not
so clearly the State's way that Robert Bellinger must have been deemed an aggressor,
thereby depriving him of the opportunity to argue self-defense to a properly instructed
jury. The majority's position to that effect is undone by its own characterization that the
"evidence suggests" Robert Bellinger acted as the initial aggressor. Assuming the
circumstances do so suggest, the criminal justice system entrusts jurors with the task of
deciding if suggestions conform to reality.

The majority also holds that Robert Bellinger's equivocal testimony about whether
the rifle discharged accidentally precludes a self-defense instruction. As I have pointed
out, Robert Bellinger also testified he purposefully pulled the trigger while the rifle was
pointed at the rear window of Michael's pickup. The majority acknowledges both the
discrepancy and other evidence supporting the view that the discharge of the weapon was
intentional rather than accidental. The majority concludes that "if believed," Robert
Bellinger's testimony suggesting the firing of the rifle was accidental would preclude
self-defense. That might be correct, but it proves too little. The jurors should have
determined what was to be believed. They could then have applied the law, as contained
in the instructions, to those determinations. But, of course, the jurors were unable to
35

properly complete that task because they had not been instructed on all of the appropriate
law.

Far from precluding an instruction on self-defense, the majority's argument more
properly supports giving instructions on self-defense and, in the alternative, accident.
See, e.g., Holmes v. State, 292 Kan. 271, 276-77, 252 P.3d 573 (2011) (defense counsel
performed effectively in arguing to jury shooting was accidental or, alternatively, self-
defense, especially "[g]iven the conflicting facts"); State v. Farley, 225 Kan. 127, 132-34,
587 P.2d 337 (1978) (in fatal shooting, instructions given on self-defense, defense of
others, defense of dwelling, and accident). An accidental firing of the rifle would have
been inconsistent with the intent element necessary for aggravated assault and, thus, a
defense.

The unpublished Court of Appeals decision the majority cites State v. Stallard,
No. 99,365, 2009 WL 596536 (Kan. App. 2009), fails to support its contention. In that
case, Stallard, an inmate in the El Dorado prison, contended he struck a correctional
officer by accident rather than intentionally and, therefore, should not be found guilty of
battery of the officer. He denied any contact whatsoever with a second officer. At trial,
Stallard presented no evidence and never argued that he struck either officer in self-
defense. He unequivocally testified the only physical contact he had was accidental. 2009
WL 596536, at *3. Accordingly, this court rejected Stallard's argument that his trial
counsel had been ineffective by failing to request an instruction on self-defense. See State
v. Sims, 265 Kan. 166, 960 P.2d 1271 (1998) (no error in refusing self-defense instruction
when defendant denies any involvement in shooting giving rise to criminal charge); State
v. Sims, 262 Kan. 165, 172-73, 936 P.2d 779 (1997) (same).

The accident argument does not relate to or preclude Robert Bellinger's right to a
self-defense instruction on the criminal threat charge.

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Finally, the majority tries to unhinge my position by saying I have looked at the
evidence in a way that favors Robert Bellinger and that discounts contrary or conflicting
evidence in the record. But in deciding whether a trial judge has erred in failing to give a
requested jury instruction, this court must consider the evidence just that way. The
majority characterizes my review as impermissible "reweighing" of facts and
"questioning" of witness credibility. To the contrary, I have taken the evidence most
favorably to Robert Bellinger's request for self-defense instructions. To the extent that is
a one-sided view of the evidence—and it most assuredly is—that is the view the law
requires. The weighing of facts and questioning of credibility must be left for the
properly instructed jurors.

The majority also cites State v. Ward, 292 Kan. 541, Syl. ¶ 12, 256 P.3d 801
(2011), cert. denied 132 S. Ct. 1594 (2012), as reflecting the proper review of the
evidence. But that point comes from a discussion in Ward describing how appellate
courts should review the record when a criminal defendant challenges the sufficiency of
the evidence to support a jury verdict of guilty. 292 Kan. at 581-82. In that instance, the
record must be construed favorably to the State and against the defendant. Here, the
review is supposed to be exactly the reverse.

V.

Human endeavors are often messy, perhaps no more so than when they turn
violent and people wind up seriously injured or dead. The trauma of witnessing those
sorts of events can confuse and confound recollections. This is a case in which the facts
surrounding a few minutes in the lives of the Bellinger clan on June 4, 2009, are messy.
Taking those facts most favorably to Robert Bellinger, he has presented circumstances
permitting him to advance a claim of self-defense. We have juries to clean up those
messes by weighing evidence, evaluating credibility, and finding facts. But juries then
must be fully instructed on the relevant law to know what to do with those facts. The jury
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in Robert Bellinger's trial was not so instructed. And as a result, he was deprived of a fair
hearing on his claim of self-defense. He is, in my view, entitled to another trial.