SYLLABUS BY THE COURT
law allows a defendant to present alternate theories of
defense and receive jury instructions on both theories.
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.
Kansas law now explicitly recognizes two types of force-use
of force and use of deadly force. 4.
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.
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).
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
from Shawnee District Court; Nancy E. Parrish, judge.
Christopher M. Joseph and Carrie E. Parker, of Joseph,
Hollander & Craft LLC, of Topeka, for appellant.
L. Pickering, assistant district attorney, Michael F. Kagay,
district attorney, and Derek Schmidt, attorney general, for
Leben, P.J., Hill, J., and Walker, S.J.
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.
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.
a trailer leads to angry words.
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.
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.
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
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 ...