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State v. Beck7/26/2005
which could lead a reasonable person in the same situation to the same belief. This is upon how the facts reasonably appeared.'
The instruction talks about a reasonable person in the 'same situation.' Use of the word 'situation' connotes something more than the mere actions of the victim. Under this definition the jury was not restricted to consider only the victim's actions, but was permitted to consider the actions of all persons and the totality of the circumstances in determining whether Appellant had a reasonable belief of imminent danger.
In other words, the State concedes that under the law of self-defense and the evidence in this case, the jury should have been allowed to consider the actions of the victim's friends in determining if the appellant acted in lawful self-defense by stabbing the victim, but contends that Instruction No. 11, patterned after MAI-CR 3d 306.06, permitted the jury to do just that so that the appellant's claim in Point II is without merit.
The appellant claims that paragraph 5 of Instruction No. 11, patterned after MAI-CR 3d 306.06, should have been modified by the trial court, sua sponte, to read:
If the [appellant] was not the initial aggressor in the encounter with Matthew Snarr, and if the [appellant] reasonably believed he was in imminent danger of harm from the acts of Matthew Snarr and those whom the defendant reasonably believed were acting in concert with Matthew Snarr and the [appellant] used only such force as reasonably appeared to be necessary to defend himself, then he acted in lawful self defense.
In claiming that Instruction No. 11 should have been modified in this fashion, the appellant is essentially claiming that, under the law and facts of this case, the jury, in considering whether he "used only such force as reasonably appeared to be necessary to defend himself," should have been instructed expressly that it was allowed to consider not only the imminent danger of harm presented by the acts of the victim, but the acts of his friends. He claims that the instruction, as given, confused the jury by misleading it into believing that in determining whether he believed he was in "imminent danger of harm," an essential element in the instruction to find that he acted in lawful self-defense, it could only consider the acts of the victim, which precluded its consideration of the acts of the victim's friends, which, he contends was a relevant consideration under the law of self-defense in cases of multiple assailants.
Section 563.031.1, governing self-defense using physical force, reads, in pertinent part: "A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he reasonably believes such force to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force by such other person . . . ." Giving this language its plain and ordinary meaning, it is clear that the legislature intended that the victim, the person against whom the defendant uses physical force -"another person," must be the same person against whose unlawful acts of force the defendant is defending - "such other person." This is so in that the qualifying term, "such," directs us back to the "another person" or victim. "Such" is defined in the dictionary as "the person or thing mentioned or implied." WEBSTER ' S NEW WORLD COLLEGE DICTIONARY 1337 (3rd ed. 1997). Hence, the self-defense instruction must refer to the unlawful acts of force of the victim against the defendant as the justification for the defendant's using physical force against the victim. State v. Howard, 896 S.W.2d 471, 481 (Mo. A
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