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State v. Beck7/26/2005
ction, in accordance with section 563.031, are set out in section 563.031.1(1) . Thus, in determining whether MAI-CR 3d 306.06 requires modification in cases of self-defense using physical force, involving multiple assailants, as the appellant claims in this point, we have to determine the required elements of self-defense using physical force, as set forth in section 563.031.1(1).
Statutory interpretation is purely a question of law, which we determine de novo. Pavlica v. Dir. of Revenue, 71 S.W.3d 186, 189 (Mo. App. 2002). When interpreting a statute, we are to determine the intent of the legislature, giving the language used its plain and ordinary meaning, and give effect to that intent, if possible. State ex rel. Riordan v. Dierker,956 S.W.2d 258, 260 (Mo. banc 1997). If the intent of the legislature is clear and unambiguous, giving the language used in the statute its plain and ordinary meaning, then we are bound by that intent and cannot resort to any statutory construction in interpreting the statute. Baxley v. Jarred, 91 S.W.3d 192, 196 (Mo. App. 2002).
We can find no cases interpreting section 563.031.1 in determining the elements of self-defense, using physical force involving multiple assailants. However, giving the language of section 563.031.1 its plain and ordinary meaning, it requires, for the defendant to be entitled to an instruction on self-defense using physical force, that there be evidence establishing that: (1) the defendant had a reasonable belief that the victim was using unlawful force against him or the use of such force was imminent; (2) the defendant had a reasonable belief that the physical force he used against the victim, in response to the use or imminent use of unlawful force by the victim, was necessary to defend himself; and (3) the defendant was not the initial aggressor, or if he was, that one or more of the three exceptions of section 563.031.1(1)(a)-(c) apply. The jury is instructed upon these elements in both the general instructions, part A, and the specific instructions, part B, of MAI-CR 3d 306.06. However, MAI-CR 3d 306.06 does not track the language of section 563.031.1 with respect to the defendant's defending against what he "reasonably believes to be the use or imminent use of unlawful force."
MAI-CR 3d 306.06, rather than speaking in terms of the defendant defending himself against what he "reasonably believes to be the use or imminent use of unlawful force," speaks in terms of the defendant defending himself against what he reasonably believes to be an "imminent danger of harm." For example, in part A , where physical force is used, as opposed to deadly force, MAICR 3d 306.06 mandates the jury to be instructed that: "In order for a person lawfully to use force in self-defense, he must reasonably believe he is in imminent danger of harm from the other person." Similarly, in part B , MAI-CR 3d 306.06 mandates that the jury be instructed that: "(If) the defendant reasonably believed he was in imminent danger of harm from the acts of [name of victim ] and the defendant used only such force as reasonably appeared to be necessary to defend himself, then he acted in lawful self-defense." Thus, while section 563.031.1 clearly mandates that the reasonableness of the defendant's belief concerning the degree of physical force necessary to defend himself against the victim be based on a reasonable belief concerning the "use or imminent use of unlawful force" by the victim, MAI-CR 3d 306.06 mandates that it be predicated on his reasonable belief concerning an "imminent danger of harm from the acts of [victim]." These two concepts, "unlawful force" versus "imminent danger of harm," are distinct in that the former deals with the victim 's acts, while t
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