# Schnarr v. State/Dissent Wood

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* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Wood Wynne
​RHONDA K. WOOD, Justice, dissenting. After determining that Arkansas Code Annotated section 5-2-614(a) (Repl. 2013) provides for a jury instruction on justification if the evidence supports it, the majority holds that the facts entitle Schnarr to the instruction. I dissent because the facts have not changed since Schnarr v. State, 2017 Ark. 10 (Schnarr I), and the evidence still does not support the justification instruction. I would affirm.

## I. No Evidentiary SupportI. No Evidentiary Support

At the close of evidence, the court's ruling after counsel proffered the jury instructions was simply, "Okay." Ultimately, the proffered instructions were not given. Whether this was based on statutory interpretation or failed evidentiary support, the result was correct.
Although I agree that a defendant can receive a justification jury instruction, the facts here do not support it. Our court has faithfully maintained that "[t]he existence of a defense does not need to be submitted to the jury unless evidence is admitted supporting the defense." Ark. Code Ann. § 5-1-111(c)(1); see, e.g., Humphrey v. State, 332 Ark. 398, 409–10, 966 S.W.2d 213, 219 (1998). Arkansas Code Annotated section 5-2-607(a)(2) states that a person is justified in using deadly physical force if the person reasonably believes that the other person is using or about to use unlawful deadly physical force. A reasonable belief is the belief that an ordinary and prudent person would form under the circumstances. Ark. Code Ann. § 5-1-102. Thus, Schnarr is not entitled to a deadly-force justification instruction unless the evidence establishes that a reasonable person would have believed that the victim was about to use unlawful deadly force.
What is apparent from the record is that the evidence did not materially change from Schnarr I. Although counsel argues otherwise, Schnarr was able to present his evidence of ​self-defense. Schnarr's brief failed to identify any excluded evidence that was relevant to this defense. At oral argument, his counsel could not identify any evidence that was excluded relating to the defense other than that he could not use the specific phrase "self-defense." Schnarr was able to explain his medical condition, that he was afraid, and that the situation prompted his decision to use deadly force. Schnarr presented his full defense on justification. But the facts simply did not support it.
In Schnarr I, this court considered whether there was a rational basis for affording Schnarr an imperfect self-defense instruction. Schnarr I, 2017 Ark. 10, at 18–19. In concluding that there was no rational basis for the instruction, we reasoned that there was "no evidence that Aldridge appeared to be armed or that he had made any threats to indicate that he was armed. Moreover, Schnarr denied that Aldridge had threatened him with bodily harm." Id. These facts have not changed. Here, Schnarr presented the exact same uncompelling facts as he did in Schnarr I, yet he demands an even greater level of justification. Consistent with our reasoning in Schnarr I, I find that Schnarr failed to present any evidence suggesting Mr. Aldridge was about to employ deadly force against him.
Therefore, regardless of the circuit court’s reason for denying the instruction, I would affirm for the same reasons expressed in Schnarr I—that the evidence does not support the jury instruction. The majority takes the exact same facts and holds that Schnarr is entitled to receive a higher level of justification instruction than it held he was not entitled to in Schnarr I. I find this inexplicable.

## II. Statutory InterpretationII. Statutory Interpretation

Had the facts and evidence supported it, the majority would be correct that a defendant is generally entitled to assert justification as a defense and receive an instruction. But I would reach my conclusion differently than the majority.
Generally, "in a prosecution for an offense, justification . . . is a defense." Ark. Code Ann. § 5-2-602. As a limit on this general proposition, Arkansas Code Annotated section 5-2-614 provides that
   [w]hen a person believes that the use of physical force is necessary for any purpose justifying that use of physical force under this subchapter but the person is reckless or negligent either in forming that belief or in employing an excessive degree of physical force, the justification afforded by this subchapter is unavailable in a prosecution for an offense for which recklessness or negligence suffices to establish a culpable mental state.
Ark. Code Ann. § 5-2-614(a).
The argument before the court hinges on the relationship between the two clauses of section 5-2-614(a), both of which must be given meaning. The plain language of the antecedent clause requires finding that "the person is reckless or negligent" before the second clause can take effect. Id. (emphasis added). To interpret it any other way would require a finding that the defendant acted recklessly or negligently before that issue was submitted to the jury. Thus, a defendant is entitled to argue justification until the jury finds him reckless or negligent. Only then is the defendant barred from using justification for acquittal. Under this reading of the statute, the prosecution retains the burden of proof, the defendant retains the presumption of innocence, and the words of the statute are given their plain meaning and full effect.
For these reasons, I dissent.
KEMP, C.J., joins in this dissent.