State v. Kenyairra I. Gadson

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 18, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP72-CR Cir. Ct. No. 2018CF2240

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KENYAIRRA I. GADSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Dane County:
CHRIS TAYLOR, Judge. Affirmed.

Before Graham, P.J., Kloppenburg, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2024AP72-CR

¶1 PER CURIAM. Kenyairra Gadson appeals a judgment convicting
her of first-degree reckless homicide and possession of a firearm by an adjudicated
felon. At trial, Gadson’s defense against the homicide charge was that she and her
cousin were attacked by the victim and his associate, and that she shot the victim
in her own and her cousin’s defense. On appeal, Gadson argues that the circuit
court erred by preventing her from introducing evidence of certain incidents of
prior violent conduct by the victim’s associate at trial; by allowing the admission
into evidence of Facebook messages that Gadson sent about her gun in the days
leading up to the shooting; and by not instructing the jury on the privilege of the
defense of others. We reject Gadson’s arguments and affirm the judgment of
conviction.

BACKGROUND

¶2 The events that led to Gadson’s conviction occurred in Madison,
Wisconsin during the early morning hours of October 28, 2018. Gadson and
others including her cousin, Courtney Miller, arrived at a downtown parking ramp
shortly before 2:00 a.m. with the intent to go bar hopping. After exiting the ramp,
they passed another group that included Donivan Lemons and the homicide
victim, Steven Villegas.

¶3 There was a long-running feud between Gadson’s family and
Lemons’ family. Upon seeing Lemons, Gadson and Miller circled back to their
vehicle in the parking ramp, and then exited the ramp and passed Lemons’ group
again. They repeated this route two more times. On the final time that Gadson
and Miller passed Lemons’ group, Lemons and Villegas followed them into the
ramp. An altercation ensued, during which Gadson shot and killed Villegas.

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¶4 Gadson was less than fully forthcoming in an initial interview with
police, but she eventually acknowledged that she fired the shot that killed Villegas.
However, she claimed that she did so to protect Miller and herself. Specifically,
Gadson stated that she fired a gun in order to scare Lemons and Villegas off, and
that “somebody had to stop … [them] hitting my cousin [Miller] and … stop
[them] trying to kill me.”

¶5 The State filed a complaint charging Gadson with first-degree
intentional homicide and possession of a firearm by a person who had been
adjudicated a felon. The first-degree intentional homicide charge was later
amended to first-degree reckless homicide. Prior to the trial, the circuit court
addressed two sets of motions that are relevant to this appeal.1

¶6 First, Gadson moved to admit evidence related to her ongoing feud
with Lemons, and specifically, evidence of Lemons’ prior violent acts towards
Gadson and her family members. As we discuss in more detail below, when the
issue of self-defense is raised at trial and there is a factual basis to support it, the
defendant may move to present so-called McMorris evidence in support of the
defense. Here, Gadson sought to admit twelve prior acts committed by Lemons
and his associates between 2014 and 2018. The circuit court determined that six
of the twelve acts were admissible as McMorris evidence, but that the remaining
six were not admissible because their probative value was substantially
outweighed by other considerations.2 Gadson filed a motion asking the court to
1
The Honorable Jill M. Karofsky presided over the pretrial proceedings and decided the
pretrial motions at issue here. The Honorable Chris Taylor presided over the trial.
2
In its respondent’s brief, the State contends that the circuit court miscounted and that it
actually allowed Gadson to admit evidence of seven of the twelve incidents, but it is the State that
has miscounted.

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No. 2024AP72-CR

reconsider its ruling on five of the six incidents that it excluded, and the court
denied the motion.

¶7 Second, the State moved to admit “other acts” evidence, including
various incidents of Gadson’s prior threatening and violent conduct towards
Lemons and his associates, as well as certain Facebook messages Gadson sent
about a gun she owned. The circuit court determined that some but not all of
Gadson’s prior conduct would be admitted. With respect to the Facebook
messages, which showed that Gadson was persistently attempting to retrieve her
gun from a friend in the days leading up to the shooting, the court said that
“they’re going to be hearsay” and “I don’t know how you’re going to get them in.”
However, the court indicated, the State would be allowed to introduce other
evidence about Gadson’s attempts to retrieve her gun.

¶8 The case proceeded to an eleven-day jury trial in January 2022. The
principal dispute at trial was over Gadson’s defense, and whether she was entitled
to use deadly force in self-defense or in Miller’s defense.

¶9 The State’s theory was that Gadson was antagonistic towards
Lemons because he had purportedly played a role in sending her brother to prison.
It theorized that the shooting occurred not because Gadson was “in fear for her
safety or [the safety of] others,” but rather as part of “a trap” that Gadson had
“laid” for Lemons.

¶10 To support this theory, the State presented evidence that Gadson had
downloaded a picture of Lemons just hours before the shooting, and it played
surveillance footage that depicted the interactions between Gadson’s group and
Lemons’ group shortly before the altercation occurred. According to the State,
this footage showed Gadson baiting Lemons and Villegas to follow her into the

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parking ramp, where she had a gun stashed in the vehicle. The State also
presented evidence that Gadson had been trying to retrieve her gun from a friend,
but consistent with the pretrial ruling, the State did not initially attempt to
introduce the Facebook messages on that topic. It instead presented the testimony
of a detective, who testified that Gadson had made “multiple,” “frantic” efforts
over “many days” to retrieve her gun.

¶11 The State also presented testimony from a number of witnesses to
support its argument that Gadson’s use of deadly force was unreasonable under the
circumstances. Lemons and Miller both testified, and neither stated that anyone
attacked Gadson, nor did they state that Miller was in grave danger. Lemons
testified that he initiated the altercation by punching Miller, but he did not attack
Gadson. For his part, Miller testified that Lemons hit him only once, and that he
successfully held off Lemons and Villegas from attacking him further. An
independent eyewitness who was in the parking ramp when the shooting occurred
testified that he observed Gadson grab a firearm from her waistband, move
towards Villegas, and shoot him.

¶12 Gadson was the first witness for the defense, and throughout her
testimony, she consistently stated that she shot Villegas to protect herself.
Specifically, Gadson testified that she was “deathly afraid” of Lemons, that she
was “scared” when she first saw him that night, and that her “heart dropped” when
he followed her and Miller into the parking ramp. Gadson testified that the
altercation started when Lemons and Villegas attacked Miller, and then Villegas
started to come towards her in a tackling motion. She testified that she grabbed
the gun out of the vehicle and shot Villegas so “he couldn’t get to me.”

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No. 2024AP72-CR

¶13 Gadson testified that she did not have a plan to trap Lemons. When
asked on direct examination why she brought a gun with her that night, Gadson
testified that it was a “new gun” that she wanted to show to Miller. She further
testified that the reason she had a new gun was because a friend had borrowed her
gun to use at a shooting range, and he “brought [back] a different gun” when “it
was time for him to return [it].”

¶14 The State then argued that this testimony “open[ed] the door” for
Gadson’s Facebook messages. Specifically, the State argued, Gadson’s testimony
suggested “that she was totally okay” with her friend returning some “random
gun” when “in reality,” the messages showed that she was “screaming at this
person to get her gun back over and over.” The circuit court concluded that
Gadson had testified “enough about this gun and why she got it back” to “open[]
the door to questions,” and further reasoned that the messages “also … probably
go to credibility … and bias.” The State introduced the messages, which we
describe in greater detail below, on cross-examination.

¶15 The defense also presented testimony from multiple witnesses about
the ongoing feud between Gadson and Lemons, and more specifically, about
certain violent and threatening acts by Lemons and his associates. According to
these witnesses, the feud began in 2014, when Lemons identified Gadson’s brother
as the assailant in a shooting incident. Gadson posted about these events on social
media and called Lemons “a snitch” for implicating her brother. This led to
Lemons having animosity towards Gadson, and a series of violent and threatening
acts followed. Specifically, witnesses testified about multiple occasions between
2014 and 2018 when Lemons and his associates threatened, fought, drew weapons
on, or fired shots at Gadson and her family members and friends. Gadson’s
counsel argued that these acts were relevant to her state of mind at the time of the

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No. 2024AP72-CR

shooting, and that they supported the defense theory that Gadson reasonably
feared for her own life and Miller’s life when she shot Villegas.

¶16 Both sides also presented testimony from use of force experts. The
defense expert opined that it was appropriate for Gadson to use deadly force under
the circumstances, noting that she was “under attack” and “trapped,” and that
“[t]here was a huge disparity of force” between Gadson and her attackers. By
contrast, the State’s expert opined that there were no articulable facts that made
Gadson’s use of deadly force reasonable, noting that there was no evidence of any
weapon being used or threatened against Gadson during the altercation.

¶17 After the close of evidence, the parties agreed that the circuit court
should instruct the jury about the privilege of self-defense. Gadson asked the
court to also instruct the jury about the privilege of defense of others. As we
discuss in greater detail below, the court declined to give that instruction,
reasoning that there was not “sufficient evidence” to support the theory that
Gadson was defending Miller when she shot Villegas.

¶18 The jury found Gadson guilty on both counts. Gadson appeals.

DISCUSSION

¶19 Gadson argues that the circuit court erred by not allowing her to
present McMorris evidence about several of Lemons’ prior violent acts at trial; by
determining that the State could introduce Gadson’s Facebook messages about her
gun; and by declining to give the defense-of-others jury instruction. We address
Gadson’s arguments in that order.

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No. 2024AP72-CR

I. McMorris Evidence

¶20 “It is well established that a defendant seeking to support a self-
defense claim may attempt to ‘prove prior specific instances of violence within the
defendant’s knowledge at the time of the incident.’” State v. McClaren, 2009 WI
69, ¶21, 318 Wis. 2d 739, 767 N.W.2d 550 (citations omitted, citation modified).
This type of evidence, commonly referred to as McMorris evidence, is used to
“establish what the defendant believed to be the turbulent and violent character of
the victim.” McMorris v. State, 58 Wis. 2d 144, 152, 205 N.W.2d 559 (1973).
Such evidence can be admitted because it “bears on the reasonableness of the
defendant’s apprehension of danger at the time of the incident,” but cannot be used
“to support an inference about the victim’s actual conduct during the incident.”
State v. Head, 2002 WI 99, ¶128, 255 Wis. 2d 194, 648 N.W.2d 413 (citation
omitted, citation modified).

¶21 Admissibility of McMorris evidence is “not automatic,” id., and is
“within the circuit court’s discretion,” McClaren, 318 Wis. 2d 739, ¶21. “As with
any ‘other acts evidence,’” McMorris evidence is subject to the balancing test
outlined in WIS. STAT. § 904.03 (2023-24),3 which requires a court to weigh the
probative value of the evidence against “the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.” Here, Gadson bears the
burden to demonstrate that the circuit court erroneously exercised its discretion in
excluding evidence. Winters v. Winters, 2005 WI App 94, ¶18, 281 Wis. 2d 798,
699 N.W.2d 229.

3
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2024AP72-CR

¶22 As mentioned, the circuit court determined that Gadson would be
allowed to present evidence about certain prior acts by Lemons and his associates
at trial, but evidence about other incidents would be excluded. More specifically,
Gadson would be allowed to—and did—present evidence about the following
incidents: that Lemons chased a vehicle occupied by Gadson’s brother and sister
and fired shots at the vehicle in 2014; that Lemons shot at Gadson’s brother and
sister in a grocery store parking lot in early 2015, which led to a vehicle chase;
that Lemons and his associates drew their guns on Gadson outside a house party in
2015, and that Lemons shot his gun into the air and fought with Gadson’s cousin;
that Lemons made Gadson leave a different party she was attending in 2015 and
his associate fired shots in the direction of Gadson’s feet; that Lemons approached
Gadson at a bar in 2018 and said he would fight anyone who was with her, and
then did fight with Gadson’s sister’s boyfriend; and that Lemons’ sisters attacked
Gadson at a downtown bar in the fall of 2018. By contrast, Gadson would not be
allowed to present evidence about the following incidents, all of which occurred in
late 2014 and early 2015: that Lemons and his associates attacked Gadson’s
brother with a brick; that Lemons held Gadson’s brother at gunpoint; that Lemons
threatened Gadson’s brother and his friend at a basketball game; that Lemons
attempted to attack Miller at a gas station, when Gadson was present; that Lemons
threatened Miller at a basketball game, when Gadson was present; and that
Lemons attacked Miller and another friend of Gadson and Miller.

¶23 When excluding these latter incidents, the circuit court determined
that their probative value was minimal for a combination of the following reasons:
because the incidents were “too remote” in time; because some of the incidents did
not involve firearms; and because Gadson was not present for some of the
incidents. The court also applied the balancing test in WIS. STAT. § 904.03 and

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No. 2024AP72-CR

reasoned that the probative value of these incidents was substantially outweighed
by the danger of “confusing the jury,” needlessly presenting “cumulative
evidence,” and “undue delay.”

¶24 We conclude that this was a reasonable application of the law to the
facts. See Martindale v. Ripp, 2001 WI 113, ¶28, 246 Wis. 2d 67, 629 N.W.2d
698 (we will “uphold a decision to … exclude evidence if the circuit court
examined the relevant facts, applied a proper legal standard, and, using a
demonstrated rational process, reached a reasonable conclusion”). The purpose of
McMorris evidence is to help the jury evaluate the defendant’s “state of mind at
the time of” the incident, McMorris, 58 Wis. 2d at 152, and to assist the jury in
determining whether the “defendant’s apprehension of danger” was reasonable,
Head, 255 Wis. 2d 194, ¶128. Here, the circuit court allowed Gadson to present
what it considered to be the most probative evidence regarding Gadson’s state of
mind and her apprehension of danger at the time of the shooting, and it reasonably
excluded the incidents that it determined were less probative on those points. The
court was also reasonably concerned about the potential for confusion of the issues
if the trial focused too much on past acts, rather than on what took place on the
night Gadson shot Villegas, and also that evidence of the excluded incidents
would be cumulative and cause undue delay.

¶25 Gadson argues that this reasoning is erroneous. She contends that all
of the incidents were relevant to her state of mind and what she reasonably
believed when she shot Villegas because she knew about the prior incidents on the
day in question, when she and Miller were attacked. Yet, as stated, the
admissibility of McMorris evidence is “not automatic,” see McClaren, 318
Wis. 2d 739, ¶21, and a court is required to balance its probative value against the
considerations outlined in WIS. STAT. § 904.03. Thus, even though it is true that

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No. 2024AP72-CR

these incidents might have had some relevance to the disputed issues, the circuit
court was not required to admit them based on its reasoned application of
§ 904.03. In other words, although the court could reasonably have determined
that the balance tipped in the other direction, that does not mean that its decision to
exclude these incidents was erroneous.

¶26 Gadson makes another claim with respect to the circuit court’s
exclusion of the McMorris evidence, which we now address. She argues that the
exclusion of the aforementioned incidents violated her constitutional right to
present a defense. For reasons we now explain, we disagree.

¶27 The federal and state constitutions guarantee criminal defendants the
right to present evidence in their defense. See State v. Sarfraz, 2014 WI 78, ¶37,
356 Wis. 2d 460, 851 N.W.2d 235 (citing U.S. CONST. amend. VI; WIS. CONST.
art. I, § 7). Yet, “the right to admit favorable testimony” is “not absolute.” See
State v. St. George, 2002 WI 50, ¶¶14-15, 252 Wis. 2d 499, 643 N.W.2d 777
(citation omitted). In some circumstances, evidence “may be so relevant and
probative that the defendant’s right to present it is constitutionally protected.” Id.,
¶15. However, the constitutional right to present favorable evidence extends “only
[to] relevant evidence that is not substantially outweighed by its prejudicial
effects.” State v. Stutesman, 221 Wis. 2d 178, 182, 585 N.W.2d 181 (Ct. App.
1998). We review de novo whether a defendant has been denied the constitutional
right to present a defense. State v. Kraemer, 2006 WI App 133, ¶22, 294 Wis. 2d
780, 720 N.W.2d 459.

¶28 Here, Gadson argues that the excluded incidents were “critical” to
her defense because without them, the jury did not have an understanding about
how the feud between her family and Lemons began. That is, the jury was

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No. 2024AP72-CR

unaware that Lemons initiated the feud in 2014, when he attacked Gadson’s
brother with a brick. Without this evidence, Gadson argues, the jury was “left to
believe” that the feud started when Gadson’s brother shot Lemons’ associate.
Gadson further posits that, without the excluded evidence, the jury would have
been left with the wrong impression that Gadson and her family “were the
aggressors” and “not the ones being attacked.”

¶29 We disagree that evidence about the genesis of the feud between the
families was critical to the defense. To prevail in her defense, Gadson needed to
persuade the jury that she reasonably believed that Villegas posed an imminent
threat of death or great bodily harm at the time she shot him. See WIS. STAT.
§ 939.48(1). Gadson fails to explain why the purported fact that Lemons
instigated the long-simmering feud more than four years prior is “so probative” of
and “relevant” to Gadson’s belief about the threat she faced that night such that
she had a constitutional right to present it. See St. George, 252 Wis. 2d 499, ¶15.

¶30 We also disagree that the jury would have been given the impression
that Gadson and her family members were always the aggressors in the conflict.
As shown above, the jury was presented with testimony about a variety of
incidents in which Lemons and his associates were aggressors and attacked
Gadson and members of her family—specifically, that Lemons and his associates
drew their guns on Gadson and fired shots in the air and in her direction; that
Lemons chased and shot at vehicles occupied by Gadson’s siblings on more than
one occasion; and that Lemons told Gadson he would fight anyone who was with
her. There was also testimony that, the week before the shooting, Lemons told
Gadson’s friend to tell Gadson that Lemons had “something for her next time he
[saw] her,” and that Lemons threatened to “whoop [Gadson’s] ass.” To be sure,
the excluded evidence would have provided additional support for the idea that

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No. 2024AP72-CR

Lemons had exhibited violent and threatening behavior, but the circuit court
appropriately determined that the excluded evidence was cumulative on this point.
See State v. Heft, 178 Wis. 2d 823, 830-32, 505 N.W.2d 437 (Ct. App. 1993) (the
defendant was not “deprived of a fair opportunity to present a defense” because
she was able to present other evidence on the critical issues).

¶31 Accordingly, for all these reasons, we reject Gadson’s argument that
the circuit court improperly excluded McMorris evidence, including her argument
that its exclusion violated her constitutional right to present a defense.

II. Gun Communications

¶32 Gadson argues that the circuit court erred when at trial, it allowed
the State to introduce Facebook messages that Gadson sent in the days before the
shooting, in which Gadson demanded that her friend return a gun that belonged to
her. More specifically, the evidence showed that on October 26 and 27, 2018, less
than two days before the shooting, Gadson sent her friend a series of messages that
included the following: “Where you at with my shit?”; “And I’m done [fucking
with you] I don’t do games nor have time for them”; “Bring me my shit & my
money”; “[Motherfucker] told me it took a day to get that back I needs my shit
[where you at] you finna make me show u something.” On cross-examination,
Gadson appeared to agree that the references to her “shit” were to her gun, and
that she was upset when her friend did not return the gun as promised.

¶33 As mentioned, during the pretrial proceedings, the circuit court
determined that the Facebook messages were hearsay. However, later at trial, the
court determined that the messages could be admitted because Gadson had
“opened the door” to them during her trial testimony. See State v. Dunlap, 2002
WI 19, ¶¶14-15, 250 Wis. 2d 466, 640 N.W.2d 112 (the “curative admissibility

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No. 2024AP72-CR

doctrine, commonly referred to as ‘opening the door’” allows a party “to introduce
otherwise inadmissible evidence” if the other party “accidentally or purposefully”
takes advantage of that evidence and if it is necessary to “prevent unfair
prejudice”).

¶34 On appeal, Gadson contends that the circuit court erred in admitting
the messages on the basis that she “opened the door.” We need not resolve
whether the court’s determination in this respect was correct because we conclude
that Gadson’s messages were admissible on other grounds. Glendenning’s
Limestone & Ready-Mix Co., Inc. v. Reimer, 2006 WI App 161, ¶14, 295 Wis. 2d
556, 721 N.W.2d 704 (providing that the court of appeals “may affirm the circuit
court on an alternative ground”). Specifically, we conclude that Gadson’s
messages were admissible as an “[a]dmission by a party opponent” under WIS.
STAT. § 908.01(4)(b)1, which allows for the admission of out-of-court statements
from a “party opponent” if the statements are the party’s “own statement[s]” and
are “offered against” the party.

¶35 Gadson challenges the admissibility of the messages on two other
grounds, but neither is persuasive. She first argues that the messages should not
have been admitted because they were not relevant. See WIS. STAT. § 904.02
(“Evidence which is not relevant is not admissible.”). Specifically, Gadson argues
that her messages about retrieving her gun were not relevant because she admitted
that she had a gun and used it to kill Villegas. Accordingly, she contends,
“[w]hether or not she was swearing at the person who would not return her gun …
does not make any difference to her self-defense or defense of others theory in this
case.”

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No. 2024AP72-CR

¶36 It is true that Gadson’s messages about the gun were not probative of
Gadson’s defense. That is, the messages do not help show that Gadson reasonably
believed she needed to use deadly force against Villegas at the moment she shot
him. WIS. STAT. § 939.48(1). However, the State had the burden to prove that
Gadson did not shoot Villegas in self-defense, see Head, 255 Wis. 2d 194, ¶103,
and its theory, at least in part, was that Gadson set a “trap” for Lemons and “was
ready and in fact eager” to use a weapon “if the opportunity arose.” The fact that
Gadson was persistently attempting to retrieve her gun in the days leading up to
the shooting made the State’s theory at least somewhat “more probable,” WIS.
STAT. § 904.01, and therefore, the messages were relevant.

¶37 Gadson next argues that the messages should have been excluded
because “any possible relevance to these communications was outweighed by the
substantial prejudice” to Gadson. However, as the State points out, the pertinent
inquiry is not whether the evidence might be substantially prejudicial to a party,
but whether the evidence is unfairly prejudicial. See WIS. STAT. § 904.03; State v.
Mordica, 168 Wis. 2d 593, 605, 484 N.W.2d 352 (Ct. App. 1992) (“‘Unfair
prejudice’ does not mean damage to a party’s cause, since such damage will
always result from the introduction of evidence contrary to the party’s
contentions” (citation omitted)); State v. Sullivan, 216 Wis. 2d 768, 790, 576
N.W.2d 30 (1998) (evidence is unfairly prejudicial when it has “a tendency to
influence the outcome by improper means,” “appeals to the jury’s sympathies,”
“arouses [a] sense of horror,” “provokes [the] instinct to punish,” or “otherwise
causes a jury to base its decision on something other than the established
propositions in the case”). We have explained why the messages were at least
somewhat probative of the State’s theory of the case, and Gadson does not develop
any argument to explain why any prejudice to her was unfair. Accordingly, we are

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No. 2024AP72-CR

not persuaded that the circuit court was required to exclude these messages
pursuant to § 904.03.

III. Defense-of-Others Instruction

¶38 Gadson argues that the circuit court erred when it declined to give a
jury instruction on the defense-of-others privilege. Whether the evidence
establishes a sufficient basis for a particular jury instruction is a question of law
that we review de novo. See State v. Dundon, 226 Wis. 2d 654, 662, 594 N.W.2d
780 (1999). In making this determination, we view the evidence in the light most
favorable to the defendant and the giving of the instruction. State v. Stietz, 2017
WI 58, ¶13, 375 Wis. 2d 572, 895 N.W.2d 796.

¶39 The privilege to use force to defend others is found in WIS. STAT.
§ 939.48(4). That statute provides that a person is privileged to use force in
defense of a third person if “the person reasonably believes that the facts are such
that the 3rd person would be privileged to act in self-defense and that the person’s
intervention is necessary for the protection of the 3rd person.” § 939.48(4). A
defendant claiming the defense-of-others privilege must satisfy two components:
“(1) subjective—the defendant must have actually believed he or she was acting to
prevent or terminate an unlawful interference [with the third person]; and
(2) objective—the belief must be reasonable.” State v. Giminski, 2001 WI App
211, ¶13, 247 Wis. 2d 750, 634 N.W.2d 604.4

4
Under the standard jury instruction for defense of others, a defendant is privileged to
act in defense of others only if the defendant: “believed that there was an actual or imminent
unlawful interference with” a specific person; “believed that [the person under attack] was
entitled to use or threaten to use force in self-defense”; “believed that the amount of force used or
threatened by the defendant was necessary for the protection of [the person]”; and “the
defendant’s beliefs were reasonable.” WIS JI—CRIMINAL 830 (2005).

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No. 2024AP72-CR

¶40 The burden of production required to receive a particular jury
instruction is low, and here, Gadson must specifically show that there is “some
evidence” in the record that supports the subjective and objective components of
the defense-of-others privilege. See id.; see also State v. Schulz, 102 Wis. 2d 423,
430, 307 N.W.2d 151 (1981). Although evidence may satisfy the “some
evidence” standard even if it is “weak, insufficient, inconsistent, or of doubtful
credibility or slight,” a circuit court may deny a requested instruction for a defense
if “no reasonable basis” exists in the record for the defense. Stietz, 375 Wis. 2d
572, ¶¶15-17 (citations omitted).

¶41 Here, the circuit court determined that there was not “sufficient
evidence” in the record to warrant the defense-of-others instruction. The court
explained that it was “looking for evidence” that could support giving the
instruction, but that there was “almost nothing that [the court] could find.” The
court specifically considered the testimony from Gadson and Miller and it
concluded that, although it was undisputed that Miller had been punched, there
was no testimony elicited that suggested that Miller was under threat of anything
approaching great bodily harm or death. The court further stated that the “only
reference” in the record that could support an instruction was a statement that
Gadson made in her police interview, but that this reference was not sufficient on
its own “to get this instruction.”

¶42 We agree with the circuit court’s analysis. As stated, to be entitled
to a defense-of-others instruction, Gadson was required to produce some evidence
to satisfy the subjective and objective components of the defense. See Giminski,
247 Wis. 2d 750, ¶13. That is, Gadson was required to produce some evidence
that she “actually believed … she was acting to prevent or terminate an unlawful
interference [with Miller]” and that that belief was “reasonable.” Id. Even

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No. 2024AP72-CR

viewing the evidence in the light most favorable to Gadson, there is no evidence
that could satisfy either component here.

¶43 Regarding the subjective component, the record shows that Gadson
was asked several times during trial why she shot Villegas, and each time she
testified that it was to protect herself. Although Gadson testified that she saw
Villegas hit Miller, she never testified that she thought Miller was under threat of
imminent death or great bodily harm, nor did she testify that she shot Villegas to
protect Miller.

¶44 Turning to the objective component, the record does not support that
it was reasonable for Gadson to believe that Miller “faced imminent death or great
bodily harm.” See State v. Jones, 147 Wis. 2d 806, 815, 434 N.W.2d 380 (1989).
Miller testified that he was “only hit once” and then was able to “hold off” his
attackers. And according to Gadson’s own account, Villegas was not attacking,
using force against, or threatening Miller at the time when she used the gun to
purportedly defend Miller from Villegas. As Gadson described it, Villegas had
moved away from Miller and started to come after her when she grabbed the gun
from the glove compartment and shot it. Under these circumstances, we agree
with the circuit court that there is not sufficient evidence to show that it would be
reasonable to believe that Miller faced imminent death or great bodily harm.

¶45 Gadson disputes this conclusion. She first cites to our supreme
court’s decision in Jones, 147 Wis. 2d at 815, which provides that “the key
question” in a defense-of-others case is whether “the defendant reasonably
believed that [the third person] faced imminent death or great bodily harm or
whether … the threat of imminent death or great bodily harm to the [the third
person] had passed by the time of the [use of deadly force].” Gadson argues that

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No. 2024AP72-CR

here, the threat of imminent death or great bodily harm to Miller was “ongoing”
because Lemons was still attempting to fight Miller and the attack on him
“continued until the gunshot was fired.”

¶46 We disagree with this argument for two reasons. First, we question
Gadson’s assertion that she could be privileged to shoot Villegas in order to
protect Miller from an ongoing threat posed by Lemons. But even if the privilege
could apply under these facts, there is nothing in the trial record that suggests that
it was reasonable to believe that the threat Lemons posed to Miller was of
imminent death or great bodily harm. Again, Miller testified that he was hit once,
after which he was able to hold Lemons off so that he “couldn’t hit me no more.”

¶47 Gadson also contends that her police interview, which was played
for the jury, constitutes “some evidence” in the record to support giving the
defense-of-others instruction. In that interview, Gadson told the police that she
“was hoping” that the bullet she shot would go to “the ground or something, like
so they could start running because somebody had to stop … [them] hitting
[Miller] and … stop [them] trying to kill me.” We agree with the circuit court that
this statement by itself is not sufficient to satisfy Gadson’s burden of production to
receive the defense-of-others instruction. Although it may provide some marginal
support for the subjective component of the defense—that Gadson actually
believed she was defending Miller when she fired the gun—the statement does not
show that Gadson believed that she was protecting him from imminent death or
great bodily harm, or that any such belief would have been objectively reasonable.

¶48 For all these reasons, we conclude that the circuit court did not err
when it declined to give the defense-of-others instruction.

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No. 2024AP72-CR

CONCLUSION

¶49 For the reasons explained above, we reject Gadson’s arguments and
affirm the judgment of conviction.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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