Page:Schnarr v. State, 2018 Ark. 333.pdf/11

 R K. W, 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 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