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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED
This  opinion  is  subject  to  further  editing.  If
published, the official version will appear in the
bound volume of the Official Reports.
December 23, 1999
                                                                                                                                                         A  party  may  file  with  the  Supreme  Court  a
                                                                                                                                                         petition  to  review  an  adverse  decision  by  the
                                                                                    Marilyn L. Graves
                                                                                                                                                         Court of Appeals.   See § 808.10 and RULE 809.62,
                                                                                    Clerk, Court of Appeals
                                                                                                                                                         STATS.
                                                                                    of Wisconsin
No.                                                                                 99-0801-CR
                                                                                    STATE OF WISCONSIN
                                                                                                                                                         IN COURT OF APPEALS
                                                                                                                                                         DISTRICT IV
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
OTIS J. BRAXTON,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for Rock
County:  EDWIN C. DAHLBERG, Judge.   Affirmed.
Before Dykman, P.J., Eich and Roggensack, JJ.
¶1                                                                                  PER CURIAM.    Otis   J.   Braxton   appeals   from   a   judgment
convicting him of second-degree reckless endangerment of safety by use of a
dangerous weapon, obstructing an officer and damage to property, all as a repeat
offender, as well as from an order denying him postconviction relief.   He claims




No(s). 99-0801-CR
he was entitled to a jury instruction on self-defense.   However, because the trial
court reasonably determined the facts adduced at trial could not support a finding
that  Braxton’s  actions  were  reasonably  necessary  to  protect  himself  from
imminent danger, we affirm.
BACKGROUND
¶2                                                                                           According  to  Braxton’s  testimony,1  Hywel  Bowman  brought
alcohol, cigarettes and marijuana over to an apartment where Braxton was staying,
and the two of them partied all night into the following day.   Sometime late in the
afternoon, Bowman told Braxton he was missing $50 and some drugs, and accused
Braxton of stealing them.   Braxton denied taking the money or drugs.   Bowman
then suggested that Braxton’s wife might have taken them, and could be hiding
them in her vagina.   Braxton got upset and threw Bowman out of the apartment.
¶3                                                                                           He said he escorted him outside, and the two scuffled a little bit on
the lawn, where Braxton broke the window of the car Bowman had been using.2
Braxton said Bowman went over to his car as if he were going to leave, but then
came back up the apartment stairs with one of his hands behind his back.   Braxton
threw a chair from the landing down the stairs at Bowman, went back into the
apartment, and got a knife.   Bowman went to his car again, then came back up to
the apartment.   When he saw that Braxton had a knife, he turned around and went
back down the stairs.   Braxton followed him outside with the knife.   Bowman told
Braxton he had something in his car for him.   Braxton then threatened Bowman
1  For the purpose of this appeal, we will review the evidence in the light most favorable
to Braxton.  See State v. Coleman, 206 Wis.2d 199, 213, 556 N.W.2d 701, 707 (1996).
2  The car actually belonged to Bowman’s sister.
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No(s). 99-0801-CR
with  the  knife  to  keep  him  from  getting  to  the  car,  because  he  thought  the
“something” in the car might be a gun.    Braxton said he had no intention of
hurting  Bowman;  he  just  wanted  him  to  leave,  and  wanted  to  keep  any
confrontation out of the apartment and the presence of his wife and the children
who were there.
¶4                                                                                         Officers dispatched to the scene found Braxton chasing Bowman
with a knife.   Braxton refused to put the knife down until the officers threatened to
shoot him, and he was forced to the ground to be placed in custody, although he
did  not threaten  the  officers at any time.    No weapons were  recovered from
Bowman’s car.
¶5                                                                                         The trial court refused counsel’s request to give a jury instruction on
self-defense, finding that “this record doesn’t come close to establishing that at
any time that Mr. Braxton was in imminent danger of either death or great bodily
harm or any bodily harm … [and] there isn’t any evidence that the wife was at any
point in imminent danger.”   After Braxton was convicted on all three counts, the
trial court also denied his postconviction motion for relief, and he appeals.
STANDARD OF REVIEW
¶6                                                                                         The trial court has wide discretion over the decision whether to give
a requested jury instruction.    See State v. Wilson,  180 Wis.2d  414,  420,  509
N.W.2d 128, 130 (Ct. App. 1993).   We will uphold a discretionary determination
so long as the trial court considered the facts of record under the proper legal
standard and reasoned its way to a rational conclusion.   See Burkes v. Hales, 165
Wis.2d 585, 590, 478 N.W.2d 37, 39 (Ct. App. 1991).
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No(s). 99-0801-CR
ANALYSIS
¶7                                                                                   Wisconsin  law  recognizes  that  certain  conduct,  which  would
otherwise constitute a crime, may be privileged when undertaken in self-defense.
See § 939.45, STATS.  Section 939.48(1), STATS., provides:
A person is privileged to threaten or intentionally
use force against another for the purpose of preventing or
terminating what the person reasonably believes to be an
unlawful interference with his or her person by such other
person.   The actor may intentionally use only such force or
threat thereof as the actor reasonably believes is necessary
to prevent or terminate the interference.   The actor may not
intentionally use force which is intended or likely to cause
death  or  great  bodily  harm  unless  the  actor  reasonably
believes that such force is necessary to prevent imminent
death or great bodily harm to himself or herself.
Wisconsin  Jury Instruction—Criminal  805  explains the  law  of  self-defense       in
Wisconsin as codified in § 939.48(1), and further advises:
[T]he defendant’s beliefs must have been reasonable.    A
belief  may  be  reasonable  even  though  mistaken.     In
determining   whether   the   defendant’s   beliefs   were
reasonable,  the  standard  is  what  a  person  of  ordinary
intelligence  and  prudence  would  have  believed  in  the
defendant’s position under the circumstances that existed at
the time of the alleged offense.   The reasonableness of the
defendant’s beliefs must be determined from the standpoint
of the defendant at the time of his acts and not from the
viewpoint of the jury now.
WIS J I—CRIMINAL  805  (footnotes omitted).    The parties agree that WIS J I—
CRIMINAL 805 is a proper statement of the law in this state.
¶8                                                                                   A defendant is entitled to a timely requested self-defense instruction
when  the  defense  is  supported  by  the  evidence  and  not  covered  by  other
instructions.    See State v. Coleman,  206 Wis.2d 199,  212-13,  556 N.W.2d 701,
706  (1996).    The State does not dispute that Braxton timely requested a self-
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No(s). 99-0801-CR
defense instruction which was not covered by other instructions given to the jury.
The issue we must decide is whether the trial court reasonably determined that the
instruction sought was not supported by the evidence.   See State v. Hilleshiem,
172 Wis.2d 1, 9, 492 N.W.2d 381, 384 (Ct. App. 1992).
¶9                                                                                       Braxton claims the trial court invaded the province of the jury when
it determined that he could not reasonably have believed that he was in imminent
danger,  because  the  jury  could  have  believed  his  testimony  that  he  thought
Bowman had a gun in his car.    We agree that the jury could have found that
Braxton reasonably believed that Bowman had a gun in the car, and that his belief
could have been reasonable even if it was mistaken.   However, it does not follow
that a jury could have found that it was reasonable for Braxton to believe that it
was necessary to chase Bowman with a knife in order to protect himself.
¶10    Braxton himself testified that Bowman turned around and went back
down  the  stairs  when  he  saw  that  Braxton  had  a  knife.    Bowman  had  not
mentioned having any weapons and had not issued any specific threats at that
time.   All Braxton needed to do was step back into the apartment and close the
door.   The trial court did not erroneously exercise its discretion when it determined
that  no  jury  could  properly  conclude  that  Braxton  had  used  only  that  force
reasonably necessary to protect himself when he followed Bowman down the
stairs with a knife.
By the Court.—Judgment and order affirmed.
This opinion will not be published.  See RULE 809.23(1)(b)5, STATS.
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