This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1502

 

 

State of Minnesota,

Respondent,

 

vs.

 

Patricia Kay Larson,

Appellant.

 

Filed December 20, 2005

Affirmed

Wright, Judge

 

Clay County District Court

File No. K8-03-1753

 

 

Steven M. Light, Larivee & Light, 201 Alerus Financial Bank Building, 15 Broadway, Fargo, ND 58102 (for appellant)

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Kelly OíNeill Moller, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN† 55101-2134; and

 

Lisa Borgen, Clay County Attorney, Clay County Courthouse, 807 North 11th Street, P.O. Box 280, Moorhead, MN† 56561 (for respondent)

 

 

††††††††††† Considered and decided by Hudson, Presiding Judge; Klaphake, Judge; and Wright, Judge.


U N P U B L I S H E D†† O P I N I O N

WRIGHT, Judge

††††††††††† Appellant challenges her conviction of first-degree manslaughter, arguing that the district court abused its discretion by denying her request for jury instructions on self-defense and defense of a dwelling.† We affirm.

FACTS

In the early morning of September 21, 2003, appellant Patricia Larson fatally shot her boyfriend, Greg Bates.† Larson was charged with second-degree murder, in violation of Minn. Stat. ß 609.19, subd. 1(1) (2002).

Larson and Bates had a turbulent relationship.† Several witnesses testified that the couple fought often, especially after consuming alcohol, and that the confrontations involved both verbal and physical abuse.† An order for protection requiring Bates to stay away from Larsonís home was in effect at the time of the shooting.† Bates worked out of town during the week, and despite the order for protection, the couple lived together in Larsonís home on the weekends.†

On the afternoon before the shooting, Larson and Bates argued about Larsonís son moving into the home.† Later that evening, the two went out separately to drink with friends at different bars.† It was later established that Larson and Bates each had an alcohol concentration that was well above .10 that night.† When Larson returned home in the early morning hours, she went to bed.† Larson testified that she awoke to find Bates suffocating her with a pillow and threatening to kill her.† Larson fought back but she went limp after Bates attempted to suffocate her a third time.† Bates left the bedroom; sometime later Larson got up and went into the kitchen.† Larson testified that she picked up a gun sitting outside of the gun cabinet and, without aiming, pulled the trigger.† Larson shot Bates in the back from a distance of 10 to 15 feet.† She ran to a neighborís home to call for help, but Bates died at the scene.

At trial, the district court instructed the jury on lesser-included offenses, but declined Larsonís request to instruct the jury on self-defense and defense of dwelling.† Larson was convicted of first-degree manslaughter, in violation of Minn. Stat. ß 609.20, subd. 1 (2002).† This appeal followed.

D E C I S I O N

A defendant is entitled to a jury instruction on his or her theory of the case only if there is evidence to support that theory.† State v. Kuhnau, 622 N.W.2d 552, 557 (Minn. 2001).† The burden of raising the defense and going forward with evidence to support the claim rests with the defendant.† See State v. Columbus, 258 N.W.2d 122, 123 (Minn. 1977).† We will not reverse the district courtís decision to deny a requested jury instruction absent an abuse of discretion.† State v. Cole, 542 N.W.2d 43, 50 (Minn. 1996).† ††

I.

††††††††††† Larson argues that the district court abused its discretion by declining to instruct the jury on self-defense.† The legal excuse of self-defense is available upon a showing of (1) the absence of aggression or provocation on the defendantís part, (2) the defendantís actual and honest belief that he or she was in imminent danger of death or great bodily harm, (3) the existence of reasonable grounds for that belief, and (4) the absence of a reasonable possibility of retreat to avoid the danger.† State v. Johnson, 277 Minn. 368, 373, 152 N.W.2d 529, 532 (Minn. 1967).† A defendant has met the burden of going forward with evidence to support a self-defense claim when the defendant submits reasonable evidence that the victim was committing an independent assault on the defendant when the defendant fired the gun.† State v. Graham, 371 N.W.2d 204, 209 (Minn. 1985).† A self-defense instruction is not warranted when a defendantís own testimony is inconsistent with the elements of the defense.† State v. Pacholl, 361 N.W.2d 463, 465 (Minn. App. 1985).

††††††††††† Our review of the record establishes that Larson did not meet her burden to come forward with evidence of an honest and actual belief that she was in imminent danger of death or great bodily harm when she shot Bates.† There were significant gaps in Larsonís recollection of the night of the shooting.† But Larson consistently stated to police and testified at trial that Bates had stopped assaulting her and had left the bedroom prior to the shooting.† Larson stated that as many as ten minutes could have passed between the end of the assault in the bedroom and the shooting.† Although a reasonable juror could have found that Larson was in fear of imminent harm when Bates was attempting to suffocate her, Larson presented no evidence that there was an ongoing assault at the time she pulled the trigger.†††

††††††††††† Larson also testified that, although Bates kept his guns in a cabinet at her home, she never allowed him to leave them loaded.† When Larson called 911 after the shooting, she repeatedly told the dispatcher that she did not think the gun she picked up would be loaded because the guns in the house were never loaded.† Larsonís trial testimony reiterated that she was surprised when the gun went off because she did not think it was loaded.† Additionally, Larson testified that she neither aimed the gun at Bates nor intended to shoot or kill him.† Moreover, she testified that she did not see Bates in the room when she pulled the trigger.† Based on our review of the record, we agree with the district courtís determination that Larsonís testimony was inconsistent with a self-defense theory.

††††††††††† Physical evidence presented at trial also supports the district courtís determination that a self-defense instruction was unwarranted in this case.† Bates was shot in the back from a distance of 10 to 15 feet.† Blood-splatter evidence suggests that Bates may have been kneeling.† There is no evidence in the record that Bates was armed.† We have held that, when a defendant who has control of a gun shoots an unarmed victim, it is not an abuse of discretion for the district court to decline to give a self-defense instruction.† State v. Vazquez, 644 N.W.2d 97, 99-100 (Minn. App. 2002); see also Columbus, 258 N.W.2d at 125 (noting that imminent danger element was not met when defendant had a gun and the victim was unarmed).† Because Larson did not come forward with evidence sufficient to support a claim of self-defense, the district courtís denial of Larsonís request for a jury instruction on that theory was not an abuse of discretion.

II.

††††††††††† Larson also argues that the district court abused its discretion by declining to instruct the jury on defense of dwelling.† In order to support a defense-of-dwelling claim, a defendant must come forward with evidence to show that (1) the killing was done to prevent the commission of a felony in the dwelling, (2) the defendantís judgment as to the gravity of the situation was reasonable under the circumstances, and (3) the defendantís election to defend his or her dwelling was such as a reasonable person would have made in light of the danger to be apprehended.† State v. Carothers, 594 N.W.2d 897, 904 (Minn. 1999).† Although the elements of self-defense and defense of dwelling are not identical, ďself-defense in the home and defense of dwelling are often intertwined.Ē† State v. Glowacki, 630 N.W.2d 392, 401 (Minn. 2001).† In considering the elements of defense of dwelling, we examine Minn. Stat. ß 609.06, which authorizes use of reasonable force in self-defense, in conjunction with Minn. Stat. ß 609.065, which allows the justifiable taking of a life in self-defense.† State v. Hare, 575 N.W.2d 828, 831 (Minn. 1998).† In combination, these statutes establish that defense of dwelling applies ďwhen a person reasonably believes that he or she is resisting an offense against a person or a trespass upon lawfully held property.Ē† Id. at 832 (quoting State v. Pendleton, 567 N.W.2d 265, 268 (Minn. 1997)).†

† Larson argues that the felony that she was trying to prevent was her own imminent bodily harm or death.† Our review of the record, particularly Larsonís testimony, demonstrates that, when she shot Bates, Larson did not believe that she was resisting an offense or trespass.† With Larsonís consent, Bates was living in Larsonís home; and Larson testified that he had been coming and going throughout the day.† There is no evidence that Larson demanded that Bates leave once she had control of the gun.† And at the time of the shooting, Bates was several feet away with his back to Larson.† The district court correctly concluded that a reasonable juror could not have found that Larson was defending her dwelling in light of her testimony that she thought the gun was unloaded when she picked it up and she pulled the trigger without aiming.†

Based on the facts and circumstances of this case, we conclude that the district court did not abuse its discretion by denying Larsonís request for jury instructions on self-defense and defense of dwelling.

Affirmed.