State v. Muns

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Frank Muns, Appellant.

Appellate Case No. 2014-000344

Appeal From Aiken County
Doyet A. Early, III, Circuit Court Judge

Unpublished Opinion No. 2016-UP-314
Heard February 2, 2016 – Filed June 22, 2016

AFFIRMED

Kevin Roger Eberle, of Charleston; Nicholas Anthony
Shalosky, of Philadelphia, PA; and Chief Appellate
Defender Robert Michael Dudek, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General John Benjamin Aplin,
both of Columbia; and Solicitor James Strom Thurmond,
Jr., of Aiken, for Respondent.
PER CURIAM: Frank Muns appeals his attempted murder and possession of a
firearm during the commission of or attempt to commit a violent crime convictions
arguing the trial court erred in refusing to charge the jury on the law of self-defense
and on the law of accident. He further contends, because he must receive a new
trial on the attempted murder charge based upon the trial court's failure to give the
self-defense and/or accident charges, he is likewise entitled to a new trial on the
possession of a firearm charge. We affirm.

1. Muns argues the trial court erred in refusing to issue a self-defense charge
despite evidence he was attempting to prevent Victim from crushing him with her
car. We affirm the trial court's refusal to charge self-defense based upon the
absence of evidence that Muns had no other probable means of avoiding the
danger.

First, we note Muns's argument that he had no obligation to remove himself from
the confrontation because—under the Castle Doctrine—he was defending his
property and, therefore, was under no duty to retreat, is not preserved for appellate
review. Not only did he never specifically raise the Castle Doctrine to the trial
court, he never asserted to the trial court he had no duty to retreat because he was
defending his own property or because the attack occurred on his own property. In
fact, he made no argument whatsoever to the trial court concerning "duty to
retreat." As to his assertion regarding trial counsel's discussion with the court
concerning the real property belonging to his mother, at best, Muns only
referenced ownership of the property in regard to his argument concerning whether
he brought about the difficulty, not in regard to whether he had other probable
means to avoid the danger. Accordingly, this argument is not preserved. See State
v. Freiburger, 366 S.C. 125, 134, 620 S.E.2d 737, 741 (2005) (finding the
argument advanced on appeal was not raised and ruled on below and therefore was
not preserved for review); State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694
(2003) ("A party need not use the exact name of a legal doctrine in order to
preserve it, but it must be clear that the argument has been presented on that
ground."); I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d
716, 724 (2000) (stating imposing preservation requirements on the appellant is
meant to enable the lower court to rule properly after it has considered all relevant
facts, law, and arguments, and noting that the purpose of an appeal is to determine
whether the trial court erroneously acted or failed to act, and when appellant's
contentions are not presented or passed upon by the trial court, such contentions
will not be considered on appeal).
Further, we find no evidence that Muns had no other probable means of avoiding
the danger.

A self-defense charge is not required unless it is
supported by the evidence. To establish self-defense in
South Carolina, four elements must be present: (1) the
defendant must be without fault in bringing on the
difficulty; (2) the defendant must have been in actual
imminent danger of losing his life or sustaining serious
bodily injury, or he must have actually believed he was in
imminent danger of losing his life or sustaining serious
bodily injury; (3) if his defense is based upon his belief
of imminent danger, defendant must show that a
reasonably prudent person of ordinary firmness and
courage would have entertained the belief that he was
actually in imminent danger and that the circumstances
were such as would warrant a person of ordinary
prudence, firmness, and courage to strike the fatal blow
in order to save himself from serious bodily harm or the
loss of his life; and (4) the defendant had no other
probable means of avoiding the danger.

State v. Slater, 373 S.C. 66, 69-70, 644 S.E.2d 50, 52 (2007) (citations omitted).
To raise self-defense, the defendant must produce some evidence from which the
jury could have a reasonable doubt as to guilt. See State v. Wiggins, 330 S.C. 538,
544-45, 500 S.E.2d 489, 493 (1998) ("It is clear that the defendant need not
establish self-defense by a preponderance of the evidence but must merely produce
evidence which causes the jury to have a reasonable doubt regarding his guilt.")
(quoting State v. Bellamy, 293 S.C. 103, 105, 359 S.E.2d 63, 64-65 (1987),
overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315
(1991)).

In order to satisfy the fourth element of self-defense, there must be evidence the
defendant:

had no other probable means of escape except to take the
life of his assailant or stated another way, that he had no
other probable means of avoiding the danger of losing his
own life or sustaining serious bodily harm than to act as
he did in the particular instance; that it is one's duty to
avoid taking human life where it is possible to prevent it
even to the extent of retreating from his adversary unless
by doing so the danger of being killed or suffering
serious bodily harm is increased or it is reasonably
apparent that such danger would be increased.

State v. Jackson, 227 S.C. 271, 279, 87 S.E.2d 681, 685 (1955). "A defendant is
not required to retreat if he has 'no other probable means of avoiding the danger of
losing his own life or sustaining serious bodily injury than to act as he did in [the]
particular instance.'" State v. Dickey, 394 S.C. 491, 502, 716 S.E.2d 97, 102
(2011) (alteration in original) (quoting Wiggins, 330 S.C. at 545, 500 S.E.2d at
493). "The law says if one can give back or step aside, or retreat without
increasing his danger, and thus avoid taking human life, it is his duty to do so, and
unless he has done so, it will not permit his plea of self-defense." State v. Burriss,
334 S.C. 256, 268, 513 S.E.2d 104, 111 (1999) (Burnett, J., dissenting) (quoting
State v. George, 119 S.C. 120, 121, 111 S.E. 880 (1921)).

The trial court did not err in ruling Muns could not meet the fourth element of self-
defense—that the defendant had no other probable means of avoiding the danger—
as Muns presented no evidence that he had no other probable means of avoiding
the danger of losing his own life or sustaining serious bodily injury than to act as
he did. Muns argues on appeal that he was trapped between Victim's car and his
open truck door; however, Muns never testified that he was "trapped" or that his
only exit was blocked by his open truck door, with no ability to retreat from the
area of the vehicles. The only evidence is Victim was attempting to maneuver her
car around Muns and his truck without hitting either. There is nothing to suggest
Victim was using her car as a weapon to attack Muns or that Muns was in
immediate danger from Victim's car from which he could not remove himself.
Rather, the undisputed evidence reveals Victim made several maneuvers with her
car in an attempt to get around Muns and his truck. Though Muns may have been
afraid he could ultimately be harmed if he were to maintain his position between
the vehicles in order to stop Victim as she continued to attempt to get around him
and his truck, there is nothing to show he could not have removed himself from the
area and the possible harm that he perceived could occur. Even assuming
arguendo, as Muns contends on appeal, that he was stationed in an area between
Victim's car, his truck, and his truck door as Victim attempted to maneuver around
him, there is nothing to suggest he could not have simply shut his truck door and
walked away, or shut his truck door and reopened it once on the other side and then
entered his truck, or merely climbed over his truck. In short, there is nothing in the
evidence presented to show he attempted to leave or that he was unable to safely
remove himself from the situation. Rather, under his own testimony, he chose to
use a loaded gun to beat on the driver's side car window as Victim sat in the
driver's seat in an attempt to make Victim stop her car. Viewing the evidence in
the light most favorable to Muns, he chose to maintain a position he perceived as
potentially dangerous in an attempt to stop Victim, rather than remove himself
from the situation. See State v. Santiago, 370 S.C. 153, 160-61, 634 S.E.2d 23, 27-
28 (Ct. App. 2006) (holding, in face of testimony, that after the victim looked at a
shotgun in the trunk of the appellant's car, looked at the appellant, and looked at
the shotgun again, and the appellant thought the victim was about to grab the
shotgun so the appellant grabbed the gun first and, believing the victim was
reaching for the gun, shot the victim, the evidence taken in the light most favorable
to the appellant indicated, given the distance between the two men, the appellant
could have retreated with his shotgun rather than shooting the victim, and
"[m]oreover, [the appellant] simply could have avoided the danger by closing his
trunk").

2. Muns next argues the trial court erred in refusing to issue an accident charge
despite evidence Muns's gun discharged unintentionally while being used to pound
on Victim's window in order to get her to stop her car. We affirm the trial court's
determination that Muns was not entitled to a charge on accident because he failed
to exercise due care by using a loaded pistol to beat the window of Victim's car.

"[T]o be excusable on the ground of accident, it must be shown the [attempted
murder] was unintentional, the defendant was acting lawfully, and due care was
exercised in the handling of the weapon." State v. Smith, 391 S.C. 408, 415, 706
S.E.2d 12, 16 (2011) (emphasis added). Viewing the evidence in the light most
favorable to Muns, he used a loaded gun to beat on the driver's side window of
Victim's car as she sat in the driver's seat, hitting the loaded gun against the
window at least three times before it discharged and struck Victim. We therefore
find, as a matter of law, Muns was not entitled to an accident charge because he
failed to use due care in the handling of the weapon. See id. at 412, 415 n.3, 706
S.E.2d at 14, 16 n.3 (holding the appellant was not entitled to an accident charge
and finding, as a matter of law, there was no evidence the appellant exercised due
care in the handling of a gun from evidence that, during a drug transaction, after
the victim threatened to take the appellant's drugs and approached the appellant
with a "real serious demeanor," the appellant pulled a gun on the victim, the victim
grabbed the appellant and tried to knock the gun from the appellant's hand, the
appellant struck the victim in the face with the gun, the appellant and the victim
struggled and "the gun went off," striking the victim).

3. Muns lastly contends, should this court set aside his attempted murder
conviction, he is entitled to a new trial on his possession of a weapon during the
commission or attempt to commit a violent crime charge. See S.C. Code Ann. §
16-23-490(A) (2015) ("If a person is in possession of a firearm or visibly displays
what appears to be a firearm . . . during the commission of a violent crime and is
convicted of committing or attempting to commit a violent crime as defined in
section 16-1-60, he must be imprisoned five years, in addition to the punishment
provided for the principal crime."(emphasis added)). Because we find the trial
court properly refused to charge self-defense and accident and Muns, therefore, is
not entitled to a new trial on his attempted murder charge, there is no basis for
granting him a new trial on the weapons possession charge.

For the foregoing reasons, Muns's convictions are

AFFIRMED.

HUFF, KONDUROS, and GEATHERS, JJ., concur.