Opinion
110,773.
04-10-2015
STATE of Kansas, Appellee, v. Dat T. NGUYEN, Appellant.
Carol Longenecker Schmidt and Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Carol Longenecker Schmidt and Johnathan M. Grube, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Dat T. Nguyen appeals his conviction and sentence for reckless involuntary manslaughter in violation of K.S.A.2014 Supp. 21–5405(a)(1). Dat challenges the sufficiency of the evidence, the jury instructions, and his sentencing. Having carefully reviewed the record on appeal, read the parties' briefs, and considered the oral arguments, we affirm.
Factual Background
At the outset, our standard of review regarding the jury instruction issue requires us to consider the evidence in the light most favorable to Dat. State v. Smyser, 297 Kan. 199, Syl. ¶ 4, 299 P.3d 309 (2013). Accordingly, we will state the factual background in that light. Our approach, however, does not affect the analysis of the other two issues.
This case concerns a disturbance involving two groups of men. One group included Dat and his brothers Kevin Nguyen and Danny Nguyen, and a friend Steven Galacgac. The other group included Tan T. Nguyen (who was not related to Dat, Kevin, or Danny), and Tan's brother, Minh Nguyen.
Dat's group had a long-running feud with Tan's group. In particular, Dat had a history of conflict with Minh, who was described as having “a bad temper.” Kevin and Tan were also hostile towards each other. Of note, Danny and Minh got along relatively well, despite the conflict between their respective groups.
On Saturday evening, December 8, 2012, both groups intended to watch a boxing match on television. Dat's group had planned to watch the match at a Hooter's restaurant, but after learning Tan's group would be there, Dat's group decided to go the Fox and Hound Sports Tavern.
The decision by Dat's group was at least partially due to their understanding that Tan's group suspected them of recently slashing the tires on Minh's vehicle. Dat texted Danny before the boxing match: “ ‘If they think it's us, tell them to do something, punk bitches.’ “ Dat said Tan's group should not “ ‘be pointing fingers, I'll break all their fingers.’ “ Finally, Dat told Danny: “ ‘Let's just go to the Fox and Hound because if I bump into them, it's on, no talking.’ “
After the boxing match, both groups went to a party house owned by a Vietnamese man known as “Johnny.” Johnny was at the Fox and Hound with Dat's group, and he invited them over. Dat testified he did not know Tan and Minh would also come to Johnny's and that if he had known, he would not have gone. Dat's group arrived first, at about midnight. Accompanying them was Danny's wife, Lisa Nguyen, and some girlfriends of the other members.
While Dat's group, Johnny, and others were still outside, in front of the house, Tan's group arrived in a vehicle. Unlike Dat's group and Johnny, Tan's group arrived with only men, leaving behind their girlfriends. Eric Phan, a member of Tan's group, testified that he stayed in the vehicle and advised David Nguyen, another member of Tan's group, to also stay in the vehicle. Eric testified, “I didn't want to get involved in anything,” and David similarly testified, “I stayed back because I was on bond, and I didn't want to have nothing to do with” Dat's group.
Danny testified that when he saw Tan's group arrive, he “was just thinking ‘Oh, my God, they're here. They are really here.’ “ Lisa testified that Danny kept asking, “ ‘Who set us up?’ “ Lisa said Dat's group felt ambushed and that she was “honestly scared, because I knew they came to try to start something.”
Tan and Minh had come to Johnny's in the same vehicle, and they walked “together” towards Dat's group. Dat, Steven, and Kevin were standing near each other with Danny somewhat separated from them. Tan approached Dat and Kevin and angrily accused Steven of slashing Minh's tires. Dat denied the accusation, adding that Tan's group had “already got me before, just drop it.” Minh approached Danny in the same manner and asked why they had slashed his tires. Danny testified that “we just kept saying ‘No, we didn't.’ “
Kevin told Tan that his group had not been invited and they should leave. Tan responded by punching Kevin and, according to Dat, “[r]ight after that first punch I heard, ‘Gun, gun, gun.’ “ Minh had drawn a .45 caliber semi-automatic pistol and was attempting to insert a magazine. Several witnesses testified to the calls of “gun” or “[y]ou brought a gun,” along with screaming and chaos generally, when Minh drew the pistol.
Dat testified that upon hearing the calls of “gun,” he “was looking, like, right, left, right, left” before he saw that Minh had a pistol. Lisa testified to hearing Dat yell out, “ ‘What? You have a gun? Did you come here to shoot me? Just drop it already. You got me before.’ “ Dat testified that when Minh attempted to insert the magazine, “I feared for my life. I was afraid that I was going to die and people around me, you know. It's a gun, you know.” Dat said he had never seen Minh with a firearm before.
Upon seeing the pistol, Danny ran towards Minh. Danny said he “grabbed [Minh] with my right arm over his shoulder, my left hand on the gun, and I told him just to calm down, don't do it.” But Minh reached for his back pocket and Danny heard clicking noises, indicating to Danny that Minh was attempting to insert the magazine. Danny testified “that's when I took action” and he wrested the pistol from Minh after about a minute's struggle. Danny said Minh kept asking for the pistol back but that he refused.
Dat testified to seeing Danny and Minh struggling over the pistol and that he continued “looking left, looking right, looking left, looking right, just to, you know, see if there was other guns that was there.” Dat concluded that Tan was a threat given “[t]he way how he approached and the way how he attacked us.” Dat said that Tan's aggressive, confident manner was not typical of him and that “[w]hen you hear ‘gun,’ you know, it could be anybody.”
At this point, Tan was fighting Steven. Steven weighed 248 pounds and was described as taller than Tan, who weighed 150 pounds and was 5'3? in height. Steven testified Tan had initially grazed his face with a punch but that he then struck Tan several times, and Tan turned his back to him. Steven said he continued “hitting [Tan] inside the face while his back was turned towards me. Then I took him to the ground.” As a consequence, Tan was on his stomach with Steven lying upon him, holding Tan down with his left hand and hitting Tan on the side of the face with his right hand.
Although Tan was under Steven's control and had not displayed a weapon, Dat drew a folding knife with a 4–inch blade and stabbed Tan in the right side of the midback. Dat said he did so in a belief he needed to defend himself and others and that “[i]t just happened so quick ... I was in fear and I just had to react.” Dat testified he did not intend to kill Tan but only intended to “disarm” him by stabbing him in one lung, believing that since a person has two lungs, the injury would not be fatal.
Dat maintained at trial that Tan was still standing when the stabbing occurred. Steven testified that he felt someone brush his right side after he had taken Tan to the ground. Steven later learned that Dat had stabbed Tan, and he told police the stabbing must have occurred at that point. But Steven testified this was an assumption on his part and that he did not know when Dat stabbed Tan.
In any event, Dat testified that after stabbing Tan, he turned his attention to Minh and Danny. Dat said he saw Danny take the pistol from Minh and that Danny told him: “Hey, Bro, I ... got his gun, I got his gun.” Dat testified that since Minh had now been “disarmed,” he did not stab Minh but instead yelled at him “about, like, how he brought a gun and tried to kill me and, like, how he would do me like that, you know.”
Tan's group took him to a hospital where he underwent surgery but died a few hours later. The coroner testified the stab wound was at least 2 1/8 inches deep and had injured the right lung.
Procedural Background
The State charged Dat with one count of reckless second-degree murder in violation of K.S.A.2014 Supp. 21–5403(a)(2). At the jury trial, Dat requested lesser included crime instructions for both reckless involuntary manslaughter in violation of K.S.A.2014 Supp. 21–5405(a)(l) and involuntary manslaughter committed “during the commission of a lawful act in an unlawful manner” in violation of K .S.A.2014 Supp. 21–5405(a)(4). The latter request in essence sought an imperfect self-defense instruction. See State v. Kirkpatrick, 286 Kan. 329, 339, 184 P.3d 247 (2008), abrogated on other grounds State v. Sampson, 297 Kan. 288, 296–97, 301 P.3d 276 (2013). Dat also requested a perfect self-defense instruction.
The trial court refused to provide the jury with either the imperfect or the perfect self-defense instruction. In particular, the trial court assumed that Dat had shown the subjective basis for giving the perfect self-defense instruction. But the trial court ruled with regard to the objective basis that “the evidence, when fairly looked at, doesn't support the defendant being entitled to argue his actions under the affirmative defense of self-defense.”
The jury returned a guilty verdict on the lesser included crime, reckless involuntary manslaughter. Subsequently, Dat moved for a new trial on several grounds. The trial court rejected the motion, ruling that while the subjective basis for giving a selfdefense instruction was satisfied by Dat's testimony, the evidence did not show an objective basis for the instruction.
Dat had an I criminal history score, placing him in a border box with a sentencing range of 31 to 34 months. He requested probation at sentencing, but the trial court imposed 34 months' imprisonment. Dat appeals.
Sufficiency of the Evidence
For his first issue on appeal, Dat contends the trial evidence was insufficient to convict him of a reckless killing because he acted intentionally in stabbing Tan. The State responds that Dat invited any error by requesting an instruction on the lesser included crime of reckless involuntary manslaughter. Dat does not challenge this lesser included crime instruction on appeal.
Whatever the merit of the State's argument generally, we are not persuaded it is applicable in this case. Both the charged crime and the lesser included crime required proof of a reckless killing. See State v. Brown, 300 Kan. 565, 588, 331 P.3d 797 (2014) (“Reckless involuntary manslaughter differs from unintentional but reckless seconddegree murder ‘only in the degree of recklessness required to prove culpability.’ [Citation omitted.]”). Dat suitably raised the present argument at the end of the State's case-in-chief against the charged crime of reckless second-degree murder. Dat obviously had not invited any error at that point. Dat later requested the lesser included crime instruction, which also required proof of recklessness, but the trial court had rejected his argument regarding the charged crime. We do not believe Dat acquiesced in the ruling merely by preserving his right to an instruction on a lesser included crime. Dat, furthermore, renewed the present argument at the hearing on the motion for new trial, after he had been convicted of the lesser included crime. We conclude Dat raised this issue below and did not invite any error in the State's proof.
We begin the analysis with a summary of our standard of review:
“When sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.” State v. Williams, 299 Kan. 509, Syl. ¶ 1, 324 P.3d 1078 (2014).
“Involuntary manslaughter is the killing of a human being committed: (1) Recklessly.” K.S.A.2014 Supp. 21–5405(a)(1). “A person acts ‘recklessly’ or is ‘reckless,’ when such person consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” K.S.A.2014 Supp. 21–5202(j). Following these statutes, the trial court asked the jury to decide whether Dat “killed Tan Nguyen” and whether “[i]t was done recklessly” under the statutory definition.
Dat maintains “[t]he evidence in the present case established that [he] acted intentionally and consciously rather than recklessly or unintentionally.” Importantly, however, the critical question posed to the jury was whether the killing was reckless, not whether the stabbing was reckless. Thus, in a similar case, the evidence supported a conviction for reckless second-degree murder where a defendant intentionally struck the victim in the head with a tire iron but told police he had not intended to kill the individual. State v. Deal, 293 Kan. 872, 885–86, 269 P.3d 1282 (2012). In Deal, our Supreme Court reasoned that while the defendant “acted deliberately, he denied he intended to kill, and it cannot be said that death, as opposed to serious injury, is a substantially certain result of hitting someone in the head with a metal bar, albeit a risk and even a probable risk.” 293 Kan. at 885.
Similarly, Dat denied that he intended to kill Tan, and it cannot be said that death, as opposed to serious injury, is a substantially certain result of stabbing someone on the right side of the mid-back with a 4–inch blade. See State v. Hall, No. 107,846, 2013 WL 4729532, at *4 (Kan.App.2013) (unpublished opinion), rev. denied 299 Kan. –––– (2014). A jury could reasonably conclude such an act showed a conscious disregard of a substantial and unjustifiable risk that death will follow and that the disregard constituted a gross deviation from the standard of care which a reasonable person would exercise in that situation. In sum, the trial evidence was sufficient to convince a rational factfinder beyond a reasonable doubt that Dat was guilty of reckless involuntary manslaughter.
Failure to Give a Perfect Self–Defense Instruction
At the outset, we note that on appeal Dat does not renew his request for an instruction on imperfect self-defense. Dat's failure to brief the issue is a waiver or abandonment of it on appeal. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).
The issue Dat presents for review is solely whether the trial court erred by refusing to instruct the jury on perfect self-defense because the evidence was sufficient to warrant the instruction. In response, the State argues the evidence was not sufficient to require the giving of the instruction.
In analyzing jury instruction issues, appellate courts employ a multi-step standard of review:
“For jury instruction issues, the analytical progression and corresponding standards of review on appeal are: (a) First, the appellate court considers reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (b) next, the court uses an unlimited review to determine whether the instruction was legally appropriate; (c) then, the court determines whether there was sufficient evidence, viewed in the light most favorable to the party requesting the instruction, that would have supported it; and (d) finally, if the district court erred, the appellate court must determine whether the error was harmless, using the test, degree of certainty, and analysis set forth in State v. Ward, 292 Kan. 541, Syl. ¶ ¶ 5–6, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).” Smyser, 297 Kan. 199, Syl. ¶ 4.
Sequentially applying this standard of review, we first note the State concedes our jurisdiction and that Dat requested the instruction below.
Next, the State contends the perfect self-defense instruction was not legally appropriate, but its rationale is unclear. The State does not argue self-defense was unavailable under the statutes. See K.S.A.2014 Supp. 21–5226 (excluding self-defense for certain aggressors). The State does not argue self-defense was unavailable because of caselaw on mutual combat. See, e.g., State v. McCullough, 293 Kan. 970, 975, 270 P.3d 1142 (2012). Lastly, the State does not argue the isolated Kansas case which held selfdefense is unavailable for reckless crimes, a holding limited in the syllabus to the crime at issue there, reckless aggravated battery. See State v. Bradford, 27 Kan.App.2d 597, Syl. ¶ 5, 3 P.3d 104 (2000), superseded on other grounds by statute as stated in State v. Cordray, 277 Kan. 43, 53–54, 82 P.3d 503 (2004). No other legal grounds for excluding a self-defense instruction are apparent. As a result, we conclude the self-defense instruction was legally appropriate provided the evidence supported it.
Was there sufficient evidence, viewed in the light most favorable to Dat, that would have supported instructing the jury on perfect self-defense? That is the critical question presented on appeal.
Dat's counsel acknowledged at oral arguments that Dat made “ ‘[u]se of deadly force’ “ under K.S.A.2014 Supp. 21–5221(a)(2), meaning “the application of any physical force ... which is likely to cause death or great bodily harm to a person.” We agree with this assessment. See State v. Dubish, 234 Kan. 708, 715, 675 P.2d 877 (1984) ; State v. Rivera, No. 98,501, 2008 WL 5134688, at *5–6 (Kan.App.2008) (unpublished opinion), rev. denied 289 Kan. 1284 (2009). Importantly, given this determination, Dat's stabbing of Tan was justified only if he “reasonably believe[d] that such use of deadly force” was “necessary to prevent imminent death or great bodily harm” to himself or others. K.S.A.2014 Supp. 21–5222(b).
Our Supreme Court derives a “two-prong self-defense test” from the reasonable belief requirement. McCullough, 293 Kan. at 975. The first prong is “subjective and requires a showing that [the defendant] sincerely and honestly believed it was necessary to kill to defend [the defendant] or others.” 293 Kan. at 975. The definition of deadly force cited earlier was enacted in 2010 and does not appear in McCullough and other cases applying prior statutes. See L.2010, ch. 124, sec. 2. Modifying the subjective prong accordingly, the self-defense test required evidence that Dat sincerely and honestly believed it was necessary to use physical force likely to cause death or great bodily harm to defend himself or others.
“The second prong is an objective standard and requires a showing that a reasonable person in [the defendant]'s circumstances would have perceived the use of deadly force in self-defense as necessary.” McCullough, 293 Kan. at 975. This formulation is consistent with the present statute. The objective prong should be determined “in light of the totality of the circumstances.” State v. Walters, 284 Kan. 1, 16, 159 P.3d 174 (2007) ; State v. Gonzalez, 282 Kan. 73, 112, 145 P.3d 18 (2006). The circumstances at issue are specifically the defendant's circumstances. See McCullough, 293 Kan. at 975 (“a reasonable person in [the defendant's] circumstances”). Stated another way, the question is ultimately “the reasonableness of [the defendant's] belief that self-defense is necessary.” (Emphasis added.) Walters, 284 Kan. at 16.
First, we will briefly consider the subjective prong of the self-defense test as applied to the evidence presented in Dat's trial. Although the State did not appeal, it challenges the trial court's ruling that the subjective prong was met by Dat's testimony.
With regard to the subjective prong, “[a] defendant's own assertions may be sufficient to establish this factor.” Walters, 284 Kan. at 9. In accord with this precedent, the trial court ultimately found that “[t]he reasonable belief has been met by the defendant based on his own testimony. That's commonly called prong one, the subjective prong.”
We agree with the trial court's assessment. In the present case, Dat clearly testified that he believed his use of deadly force was necessary and reasonable. Moreover, there was some evidence suggesting that Dat's subjective belief was not without some basis. The hostility between the two groups was well-established, and viewing the evidence in the light most favorable to Dat, Tan and Minh were the aggressors on that fateful night. Considered together with Tan's initiation of the fight and Minh's display of a pistol during the altercation, Dat made a showing sufficient to support the trial court's finding that Dat honestly believed it was necessary to use physical force likely to cause death or great bodily harm to defend himself or others.
With regard to the objective prong, the trial court extensively reviewed Kansas caselaw and the trial evidence at both the instructions conference and at the conclusion of Dat's motion for new trial. At the instructions conference the trial court concluded “Respectfully, if this is a self-defense case under these facts, then self-defense, basically, doesn't exist in Kansas anymore because every case is self-defense. These facts do not justify the giving of self-defense.” Similarly, at the hearing on Dat's motion for new trial, the trial court emphasized the “complete disconnect” between Dat's claim that he was defending himself and others and the totality of the circumstances presented at trial.
On appeal, Dat challenges the trial court's analysis, asserting the trial court ignored the proper standard of review. Specifically, Dat claims:
“The district court is supposed to view the evidence in the light most favorable to the defense. In this instance, the district court created a standard that is impossible for the defense to meet. The district court applied facts that were learned after the incident occurred, to [Dat's] behavior during the incident.”
In support of this argument, Dat suggests it was only after the altercation that he knew for sure that Tan was unarmed. Under the circumstances, Dat argues:
“To a reasonable, objective factfinder, it is a very logical assumption to believe that Tan could be armed, especially given the fact that his brother was armed, they arrived [at] the party at the same time, and both instigated the confrontation.
“The district court's analysis of objectivity would require citizens in the future have actual knowledge of an aggressor's personal belongings prior to taking action.”
At the outset, the trial court appropriately quoted Kansas law which provides that when considering a defendant's requested instruction, a trial court should consider the evidence viewed in the light most favorable to the defense. See Smyser, 297 Kan. 199, Syl. ¶ 4. The trial judge also cited this standard in concluding, “But prong two, the objective prong, is where I thought the evidence fell woefully short, even in the light most favorable to the defense.” Moreover, the trial court correctly cited to Gonzalez, for the proposition that “ ‘applying the second prong of the Kansas self-defense test involves evaluating the evidence presented by the defendant in light of the totality of the circumstances and making an assessment about the reasonableness of the defendant's belief that self-defense was necessary.’ “ 282 Kan. at 112 (quoting Tyler v. Nelson, 163 F.3d 1222, 1228 [10th Cir.1999] ).
Having found the trial court cited the appropriate legal standards in evaluating this instructional issue, the question remains whether the trial court properly applied the law to the facts of this particular case. In other words, would a reasonable person believe, as Dat claimed to believe, that under the totality of circumstances he or she needed to use physical force likely to cause death or great bodily harm to defend oneself or others?
The trial court identified the key evidence (much of it derived from Dat's trial testimony) which comprised the totality of the circumstances showing that a reasonable person would not have believed it was necessary to use great bodily harm against Tan in Dat's self-defense. Some of that evidence is highlighted below:
• Dat thought the gun displayed by Minh was unloaded because he saw Minh try to put a clip in the gun;
• Dat thought that Danny had then taken the clip from Minh;
• Dat did not attempt to stab Minh because he was disarmed by Danny;
• Tan was about 5'3? tall and weighed about 150 pounds while Steven was quite a bit bigger;
• Dat never had a problem with Tan previously;
• Dat never saw Tan with a gun or knife or other deadly weapon prior to stabbing him;
• Dat was never injured, punched, kicked, struck, or touched by Tan prior to stabbing him;
• No one punched, pushed, or got “physical” with Dat during the incident;
• Although Dat admitted that he told detectives that Steven was on top of Tan punching him at the time Dat stabbed him, he also testified that at the time of the stabbing both men were standing. Moreover, Dat testified that he stabbed Tan when Steven was on top of him hitting him while Tan was “kind of like kneeled down.”
• Dat stabbed Tan in the lung by coming upon Tan from behind him;
• The pathologist testified the knife wound was from Tan's back to front;
• Dat testified he stabbed Tan because “I keep on hearing, you know, ‘Gun, gun, gun,’ and I just reacted because, I was afraid that, you know, there might be other guns there because, you know, I hear like numerous people screaming.... I didn't know who had a gun there or who like would bring more guns, you know. When you hear ‘gun,’ you know, it could be anybody. ” (Emphasis added.)
At the hearing on Dat's motion for new trial, following the extensive recitation of evidence, the trial court summarized its reasoning in support of its finding that there was insufficient evidence to show an objective basis for not submitting a self-defense instruction:
“At its essence, in the light most favorable to the defendant, what occurred in this case is that he walked up—or ran up to a person who was involved in a fight, who had no indications of being armed, had never made any threats. The defendant never—is really the recipient of any types of threat or physical harm per his own testimony. And he stabs a person in the back who can't defend himself. In its essence, that's what occurred here.
“Minh is problematic with the gun, whether it's [loaded] or unloaded. I am not going to make the arguments for appellate counsel. But the real issue, honestly, was between the defendant and Minh as far as the gun. Tan was defenseless, and he was stabbed in the back. And the fact that Tan threw the first punch at Kevin or whomever, it doesn't matter because the defendant's own testimony was that he was never hit. He was never struck. He never was in physical danger. And there [were] no weapons on Tan, so how can the defendant claim he was defending himself, the defendant, against Tan? That's a complete disconnect. And how he can say he was defending others, to me, is a disconnect, factually.”
On appeal, Dat does not challenge the factual basis recited by the trial court. Our review of the record shows there was substantial competent evidence to support the trial court's factual findings.
Given these factual findings, Dat's complaint that he knew for sure that Tan was unarmed only after the stabbing pales in legal significance. Employing the objective standard “requires a showing that a reasonable person in [the defendant's] circumstances would have perceived the use of deadly force in self-defense as necessary.” McCullough, 293 Kan. at 975. Dat's claimed “very logical assumption” that Tan was armed and that Dat was required to defend himself is undercut by a dearth of supporting facts. A reasonable person in Dat's circumstances would know that the fist fight between Tan and Steven did not involve Dat, nor did it involve the use of deadly force. Tan did not threaten Dat with force, either deadly or otherwise, that evening. And there was no history of Tan threatening or using any kind of force against Dat prior to the stabbing. Given the totality of the circumstances, viewed in the light most favorable to Dat, we are persuaded that he failed to objectively show “the reasonableness of [the defendant's] belief that self-defense was necessary.” (Emphasis added.) Walters, 284 Kan. at 16.
Our conclusion is bolstered by State v. Gayden, 259 Kan. 69, 910 P.2d 826 (1996). In Gayden, a victim approached the defendant “in an angry, violent-looking manner” during a fight at a dance club, and the defendant shot the unarmed victim. 259 Kan. at 70. Our Supreme Court affirmed the trial court's refusal to instruct on self-defense despite evidence the victim regularly carried a firearm and had previously threatened to kill the defendant. 259 Kan. at 84. Our Supreme Court concluded:
“Even viewed in the light most favorable to defendant, evidence which would support a reasonable belief that deadly force was necessary to defend himself against [the victim's] imminent use of unlawful force is missing. There was no evidence that [the victim] verbally threatened to seriously harm defendant, nor was there any evidence that [the victim] might be inclined to or able to make good on such a threat. There was no evidence that [the victim] was armed or displayed a weapon. There was no evidence that [the victim] did more than strike one blow against defendant with his hand.” 259 Kan. at 84.
In both Gayden and this case, the victims used fists and did not display deadly weapons. Unlike Gayden, in this case the victim did not even strike the defendant, nor did he previously threaten him. Gayden would, therefore, control our analysis absent other facts. One fact differentiating Gayden from this case is the presence on the scene of an individual who did draw a pistol. However, Minh did not directly threaten Dat, and to the extent that Minh was armed with a pistol, Dat thought it was unloaded and he testified that he did not stab Minh because the weapon was taken from him by Danny.
In the present case, the evidence did not show that Tan posed a threat of imminent death or great bodily harm. Dat needed to show it was necessary to use physical force likely to cause death or great bodily harm to defend himself or others. The threat posed by Tan was simply too speculative to justify the deadly action Dat took. See State v. White, 284 Kan. 333, Syl. ¶ 9, 161 P.3d 208 (2007) (An “ ‘imminent’ “ danger “must be near at hand.”). Dat therefore failed to satisfy the objective prong of the self-defense test.
Lastly, we address the condition of the record on appeal. The State obtained the admission of well over 200 trial exhibits, and Dat obtained the admission of 13. Among the trial exhibits were photographs and a map of the crime scene area used by witnesses during their testimony. These exhibits were not included in the record on appeal. This poses a dilemma. Dat wishes us to consider the evidence under the proper legal standard, but we do not have some of the evidence to which the standard applied. We affirm the trial court based on the existing record, but since the trial court had more evidence to consider, we would resolve any doubts about its ruling against Dat. See State v. Bridges, 297 Kan. 989, 1001, 306 P.3d 244 (2013) (appellant has a duty to designate a record affirmatively showing error).
Sentencing
For his final issue on appeal, Dat contends the trial court erred by denying his motion for a downward departure at sentencing. The State contends we lack jurisdiction to consider the argument. Jurisdiction is a question of law subject to unlimited review. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014).
The prison sentence imposed in the present case was the presumptive sentence. See K.S.A.2014 Supp. 21–6804(f) ; State v. Whitlock, 36 Kan.App.2d 556, 559, 142 P.3d 334, rev. denied 282 Kan. 796 (2006). Dat's request for probation was technically a motion for departure because he did not request the “ ‘optional nonprison sentence’ “ allowed in border-box cases under K.S.A.2014 Supp. 21–6804(1) and (q). Since Dat received the presumptive sentence, we lack jurisdiction to consider his argument. See K.S.A.2014 Supp. 21–6820(c)(1) ; State v. Graham, 27 Kan.App.2d 603, Syl. ¶ 6, 6 P.3d 928, rev. denied 269 Kan. 936 (2000); see also K.S.A.2014 Supp. 21–6804(q) (decision on optional nonprison sentence “shall not be subject to appeal”).
Affirmed.