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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 1

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 3

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 6

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 selfdefense 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: 8

"(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 selfdefense. 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.

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