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State v. Lindemuth

Court of Appeals of Kansas

March 30, 2018

State of Kansas, Appellee,
v.
Kent D. Lindemuth, Appellant.

          SYLLABUS BY THE COURT

         1. The law allows a defendant to present alternate theories of defense and receive jury instructions on both theories.

         2. A requested jury instruction should be given when there is sufficient evidence that a rational fact-finder could use to find for the defendant on that theory.

         3. Kansas law now explicitly recognizes two types of force-use of force and use of deadly force. 4.

         4. Use of force means any or all of the following directed at or upon another person or thing: words or actions that reasonably convey the threat of force, including threats to cause death or great bodily harm to a person; the presentation or display of the means of force; or the application of physical force, including by a weapon or through the actions of another. K.S.A. 2017 Supp. 21-5221(a)(1).

         5. Use of deadly force means the application of any physical force described above which is likely to cause death or great bodily harm to a person. Any threat to cause death or great bodily harm, including, but not limited to, by the display or production of a weapon, shall not constitute use of deadly force, so long as the actor's purpose is limited to creating an apprehension that the actor will, if necessary, use deadly force in defense of such actor or another or to affect a lawful arrest. K.S.A. 2017 Supp. 21-5221(a)(2).

         6. Two types of force can be used by persons to legally defend their workplace: A person is justified in the use of force against another when and to the extent that it appears to such person and such person reasonably believes that such use of force is necessary to prevent or terminate such other's unlawful entry into or attack upon such person's place of work; a person is justified in the use of deadly force to prevent or terminate unlawful entry into or attack upon any place of work 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 another; and nothing in this law shall require a person to retreat if such person is using force to protect such person's place of work. K.S.A. 2017 Supp. 21-5223.

          Appeal from Shawnee District Court; Nancy E. Parrish, judge.

          Christopher M. Joseph and Carrie E. Parker, of Joseph, Hollander & Craft LLC, of Topeka, for appellant.

          Rachel L. Pickering, assistant district attorney, Michael F. Kagay, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Leben, P.J., Hill, J., and Walker, S.J.

          Hill, J.

         The law allows a defendant to present alternative theories of defense and receive jury instructions on those theories. Kent D. Lindemuth requested a defense of the workplace instruction in his trial for making a criminal threat. The trial court denied the request, ruling the facts did not support giving the instruction. Because now, under limited circumstances, the Legislature has included making threats of deadly force as a part of the legitimate use of force, we hold that the trial court erred when it refused to give the instruction. We reverse and remand for further proceedings.

         After giving a brief review of the facts of the case, we delve into the statutes that deal with the legitimate use of force. We show how the Legislature now distinguishes "use of force" and "use of deadly force" and how words and actions, depending on the seriousness of the circumstances, are considered. Then we look at the law of defense of the workplace and address the question here about why the jury needed to be instructed on that law. Finally, we examine the court's ruling and Lindemuth's proposed instruction and conclude with our holding of error for failing to instruct.

         Taking a trailer leads to angry words.

         The facts of this case are straightforward. A truck driver driving a tractor-trailer rig for Wellco Company based in Dover, Oklahoma, parked his trailer in Topeka in a parking lot owned by Lindemuth. He detached his tractor and drove off to obtain supplies for his trip, leaving the trailer and cargo in the lot. Before the driver came back, Lindemuth parked a vehicle in front of the trailer, effectively preventing it from being removed from the lot. When the driver eventually returned, Lindemuth confronted him. While tapping a holstered gun on his hip, Lindemuth told the driver to leave. But the driver did not leave and instead called his employer in Oklahoma and then the police.

         Lindemuth then had several telephone conversations with Mike Matthews, the owner of Wellco who was, at first, in Oklahoma. Matthews and Lindemuth offer different versions of what was said during the calls.

         According to Matthews, Lindemuth told him that the trailer had damaged his property and he would return it when he was paid for the damage. After that conversation, Matthews learned that the trailer had been removed from the lot and was not even in Topeka anymore. Matthews became angry and the two spoke again. The tone of their conversation deteriorated. Matthews told Lindemuth that he was going to fly to Topeka to get his trailer back.

         Again, according to Matthews, after hearing this, Lindemuth told him that if Matthews came to Topeka, Lindemuth "was going to put a bullet in [Matthews and was] going to riddle [Matthews] up with bullets if [Matthews] came [to Topeka]." Undeterred, Matthews said he was coming to Topeka to talk about retrieving the ...


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