Court of Appeals of Missouri, Eastern District, Third Division
Appeal from the Circuit Court of Perry County. 12PR-CR00659-01. Honorable Benjamin F. Lewis.
Ellen H. Flottman, Columbia, MO, for appellant.
Chris Koster, Richard A. Starnes, Jefferson City, MO, for respondent.
Gary M. Gaertner, Jr., Judge. Robert G. Dowd, Jr., J., concurs. Kurt S. Odenwald, P.J., dissents in a separate opinion.
Gary M. Gaertner, Jr., Judge
Aaron Amschler (Defendant) appeals the judgment entered upon his conviction by jury of one count of unlawful use of a weapon for discharging a firearm while intoxicated in violation of Section 571.030.1(5). He argues the trial court erred in refusing to instruct the jury regarding self-defense. Because we agree that the evidence, when viewed in the light most favorable to Defendant, warranted submission of a self-defense instruction, we reverse.
On the morning of December 11, 2012, Defendant was at his father's house. His father, Gary Amschler (Gary), received a phone call that morning from Laura Adams (Adams), who said that Clinton Chandler (Chandler) was on his way over to Gary's house. Adams told Gary that Chandler was enraged and had said Defendant " better not be there" and that he would beat up Defendant.
Gary testified he was concerned about this because he knew Chandler " was a dangerous guy." He explained that two
months earlier, Defendant was standing at the back of a truck and told Chandler not to back up, but Chandler drove backwards and ran over Defendant's leg with the truck. Later that night, Chandler was at Gary's house, and Defendant asked Chandler why he ran over his leg. Chandler responded by punching Defendant in the face, which knocked Defendant to the ground.
So, when Chandler and his wife Barbara Chandler (Barbara) arrived at Gary's house on December 11, 2012, Gary met them outside. He stopped Chandler in the driveway, told him not to come any further, and ordered him to leave. Chandler refused to leave and demanded payment from Gary for landscaping work Chandler had done for Gary, Barbara testified Gary and Chandler were saying " horrible things" to each other, and that Chandler was cussing and threatening to hurt Gary. Chandler said " if I catch you out by yourself, old man, you're going to pay me one way or another" and said he was going to " kick [his] ass." Gary testified that Chandler spent 45 minutes standing in the road bordering Gary's property, and he also made threats toward his family including " I'll kill you. I'll kill your kids. I'll burn both your houses." Then Chandler got into his car and drove halfway up Gary's long driveway. Chandler and Gary continued arguing. Gary testified that Chandler was speaking " over the roof [of his truck] so I didn't know what he had." Chandler said he might have also clenched his fist and waved it at Gary.
At some point during this encounter, Gary went into his house and woke up Defendant, who had been sleeping. Gary told Defendant that Chandler was making threats and that Defendant should get his gun. Defendant emerged briefly from the house and then went back inside. Chandler testified he got into his car and started to back out of the driveway before stopping and continuing to argue with Gary. In the meantime, Defendant came back out of the house with a rifle in his hand. Gary testified that " [Chandler] got out and stepped around the car and started running at [Defendant] at about two hundred and fifty feet and then he stopped and said 'Come over here and fight. I'll kill you. I'll kill your dad. I'll kill your brother. I'll burn your truck.'"
While the yelling continued, Defendant fired a shot from the rifle into the ground. Defendant testified that he was afraid of Chandler because of what Chandler had done to him previously, and he also knew Chandler did some work as a tree-trimmer and would likely have a gas jug in the back of his truck for refueling chainsaws. Defendant said he was scared of Chandler, knew him to be violent, and did not want to take a chance of letting Chandler burn down Gary's house.
The evidence at trial varied as to how far away Chandler was from Defendant when Defendant fired the gun, ranging from 75 to 250 feet, but Barbara testified that Chandler was " definitely on the Amschler property when the gun was fired." Defendant did not see that Chandler had a weapon at any time. Both Defendant and Barbara testified that after Defendant fired the gun, Chandler did not leave but continued yelling at Gary and Defendant and making threats. Eventually, Chandler and Barbara left, and both Chandler and Defendant called the police.
When police arrived, they detected an odor of alcohol on Defendant's breath. Defendant admitted firing the gun. He told ...