Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of Montgomery County 14AU-CR00460-02
Honorable Wesley C. Dalton
M. CLAYTON III, PRESIDING JUDGE
John Whipple ("Defendant") appeals the judgment
entered upon a jury verdict convicting him of two counts of
unlawful use of a weapon, one count of first-degree tampering
with a motor vehicle, and three counts of third-degree
assault. We reverse and remand.
Evidence Presented at Defendant's Jury Trial
was charged with and convicted of the six counts referenced
above, and he does not challenge the sufficiency of the
evidence to support his convictions. Viewed in the light most
favorable to Defendant,  the evidence presented at his jury trial
revealed the following facts.
17, 2014, Defendant and his wife, Stephanie Whipple
("Mrs. Whipple"), along with three of their
children (collectively "the Whipples"), drove to
Jason Sanning Sr.'s home looking for their daughter's
stolen bike. Upon the Whipples' arrival, Defendant parked
his SUV on the street in front of the Sannings' property
and Mrs. Whipple asked Alyssa Sanning ("Alyssa"),
 a fifteen-year-old girl, whether she
could look in their backyard for the bike. Alyssa gave Mrs.
Whipple permission, and then went inside to tell her brother,
fourteen-year-old Jason Sanning II. Jason Sanning II came
outside as Mrs. Whipple was walking back to her vehicle and
they had a verbal confrontation. Then, Defendant and his
family returned to their home, which was connected to a pawn
shop owned by Defendant.
this occurrence, Alyssa and Jason Sanning II went inside the
house to inform Jason Sanning Sr. ("Mr. Sanning")
of the incident between Mrs. Whipple and Jason Sanning II.
After learning that the Whipples were on his property, Mr.
Sanning, along with his girlfriend and daughter Alyssa
(collectively "the Sannings"), drove to the
Whipples' property to discuss what happened.
the Sannings' arrival, an argument ensued between Mr.
Sanning and Defendant. While the Sannings and the Whipples
were in their respective vehicles, Defendant ordered Mr.
Sanning to leave his property. Mr. Sanning did not comply
with Defendant's request, causing Defendant to approach
the Sannings' van. Mr. Sanning threatened Defendant with
"a lot of bodily harm, " and then Defendant asked
Mr. Sanning to leave again. When Mr. Sanning still refused to
comply, Defendant revealed his gun "to diffuse the
situation." After Mr. Sanning continued to yell,
Defendant told Mr. Sanning to get off his property for the
third and final time.
as Defendant was standing between the two vehicles, Mr.
Sanning put the van in reverse to leave the Whipples'
property. As the Sannings' van backed up, its front end
veered towards Defendant and his vehicle, who became fearful
that he, his family, or his vehicle were going to be struck
by the Sannings' van. In response, Defendant fired a
single round into the hood of the Sannings' van.
Immediately after the shot was fired, Mr. Sanning stopped,
put the van in drive, and drove out of the parking
Relevant Procedural Posture
on the events which occurred at the Whipples' property,
Defendant was charged with six counts. Count I is a class D
felony charge for unlawful use of a weapon relating to
Defendant's brandishing the firearm. Counts II - VI
relate to Defendant's firing the gun at the Sannings'
van: Count II is a class B felony charge for unlawful use of
a weapon; Count III is a charge for first-degree tampering
with a motor vehicle; and Counts IV - VI are third-degree
assault charges relating to Mr. Sanning, Alyssa, and Mr.
Sanning's girlfriend, respectively.
the instruction conference, Defendant's counsel
("Defense Counsel") requested the jury be
instructed on self-defense as to Count I. Defense Counsel did
not tender instructions or specify which Missouri Approved
Instruction ("MAI") Defendant was requesting. The
State objected to any instruction on self-defense. Following
arguments from the parties, the trial court ruled the
evidence was not sufficient to support a self-defense
instruction. Defense Counsel made a "blanket
objection" to the lack of instructions on self-defense,
defense of others, and duty to retreat so as to preserve the
objections for each count.
jury found Defendant guilty of all counts. Defendant filed a
Motion for New Trial asserting, inter alia, the
trial court erred in refusing to instruct the jury on
self-defense, defense of others, and duty to retreat.
Following arguments from the parties, the trial court denied
Defendant's Motion for New Trial.
trial court subsequently entered a judgment in accordance
with the jury's verdict, and sentenced Defendant as a
prior offender to fifteen years of imprisonment as to Count
II, over Defense Counsel's objection, who argued its
imposition violated Defendant's due process rights.
Defendant was further sentenced to four years of imprisonment
for Counts I and III and one year in the county jail for
Counts IV - VI, with all sentences to run concurrently.
Defendant's first and second points on appeal, he argues
the trial court erred in refusing to submit jury instructions
relating to Defendant's claim of self-defense. Defendant
asserts in his third point that the trial court erred in
sentencing him as a prior offender, arguing that
Missouri's prior offender statute is unconstitutional.
Whether the Trial Court Erred in Refusing to Submit a
first and second points on appeal, Defendant argues the trial
court erred in refusing to submit jury instructions relating
to Defendant's claim of self-defense. Defendant asserts
he was entitled to a self-defense instruction solely because
he had no duty to retreat on his property. Defendant also
argues that he was entitled to a self-defense instruction
because he presented substantial evidence that he acted in
self-defense or defense of others. We reject Defendant's
first argument, but agree that Defendant was entitled to a
self-defense instruction because he placed the matter at
issue, which amounted to substantial evidence to support
submitting a self-defense or defense-of-others instruction.
Standard of Review
Court reviews a trial court's refusal to give a requested
jury instruction de novo. State v. Amschler, 477
S.W.3d 10, 13 (Mo. App. E.D. 2015). Even if a self-defense
instruction is not requested or was requested but not in the
proper form, the trial court must instruct the jury on
self-defense if there is substantial evidence to support it.
State v. Westfall, 75 S.W.3d 278, 280-81, 281 n. 9
(Mo. banc 2002); State v. Seals, 487 S.W.3d 18, 23
(Mo. App. S.D. 2016). "Substantial evidence" means
evidence putting the matter in issue. State v.
Avery, 120 S.W.3d 196, 200 (Mo. banc 2003) (quotations
in original). In determining whether there was substantial
evidence to support a self-defense instruction, we view the
evidence and reasonable inferences therefrom in the light
most favorable to the defendant and "the theory
propounded by [d]efendant." Amschler, 477
S.W.3d at 13 (quoting Westfall, 75 S.W.3d at 280).
If the evidence tends to establish the defendant's theory
of self-defense, or supports differing conclusions, the
defendant is entitled to a self-defense instruction.
Avery, 120 S.W.3d at 200; Seals, 487 S.W.3d
at 23. It is reversible error to refuse to instruct on
self-defense if substantial evidence exists to support the
instruction. State v. Weems, 840 S.W.2d 222, 226
(Mo. banc 1992).
Defendant's Argument Relating to Duty to
initial matter, we will address Defendant's argument that
he was entitled to a self-defense instruction solely because
he had no duty to retreat on his property. In response, the
State asserts that even when a defendant does not have a duty
to retreat, his claim of self-defense still must meet the
reasonableness requirements of section 563.031 RSMo Supp.
2011 in order for him to be entitled
to a self-defense instruction. For the reasons stated below,
we agree with the State's position.
General Law Relating to Statutory Interpretation
assertion that he was entitled to a self-defense instruction
solely because he had no duty to retreat requires us to
interpret section 563.031. Statutory interpretation is a
question of law that this Court reviews de novo. Finnegan
v. Old Republic Title Co. of St. Louis, Inc., 246 S.W.3d
928, 930 (Mo. banc 2008). "The primary rule of statutory
interpretation is to ascertain the intent of the General
Assembly from the language used and to give effect to that
intent." Id. To determine legislative intent,
words are to be given their plain and ordinary meaning.
Id. The construction of statutes should not be
hyper-technical, but should be reasonable and logical.
Gash v. Lafayette County, 245 S.W.3d 229, 232 (Mo.
banc 2008). We do not read any part of the statute in
isolation, but consider the context of the entire statute and
harmonize its provisions. Berra v. Danter, 299
S.W.3d 690, 696 (Mo. App. E.D. 2009).
General Law Relating to the "Castle Doctrine" and
Duty to Retreat
2007, the Missouri General Assembly repealed the statute
relating specifically to defense of premises and incorporated
provisions relating to that defense into section 563.031, the
self-defense statute. Subsequent
amendments further expanded on the new
provisions. The effect of these
amendments was to create the so-called "castle
doctrine" and to relieve a defender of his "duty to
retreat" in certain circumstances. State v.
Clinch, 335 S.W.3d 579, 587 (Mo. App. W.D. 2011);
see section 563.031.3.
this Court finds it necessary to clarify how the statute
operates in its current form. We begin with the language of
section 563.031, which provides in relevant part:
1. A person may, subject to the provisions of subsection
2 of this section, use physical force when and to the
extent he or she reasonably believes such force to be
necessary to defend himself or herself or a third person from
what he or she reasonably believes to be the use or imminent
use of unlawful force by such other person….
2.A person may not use deadly force upon another person
under the circumstances specified in subsection 1 of ...