Appeal goes well for Cairns: All but one charge reversed

By From page A1 | July 23, 2014

Kevin Cairns owner of Dante's restaurant. Democrat photo by Pat Dollins

Kevin Cairns

The Third District Court of Appeals reversed all but one conviction in a 2012 case of a restaurateur encountering multiple incidents of people vomiting in his parking lot.

The appellate court found that the trial court erred in failing to instruct on self-defense and not allowing evidence of previous assaults on the defendant, Kevin Cairns. As such, charges of misdemeanor assault, vandalism and brandishing were reversed, as well as an enhancement.

“For reasons not revealed by the record, the parking lot of (the) defendant’s restaurant, situated along Highway 50, became a rest stop for travelers made ill no doubt by the highway’s twists, turns and altitude,” wrote Presiding Justice Vance W. Raye said of Dante’s On the River restaurant, with Justices George Nicholson and Ronald B. Robie concurring. “Defendant objected vehemently to the deposit of vomit in the parking lot, believing that it reduced the appeal of his restaurant to his customers, and on the three occasions charged became involved in altercations with the unwelcome travelers.”

The three incidents “combine elements of tragedy and comedy, though the ultimate outcome for defendant is pure tragedy.” As Cairns, on appeal, focused on self-defense, the appellate judges did as well.

“The failure to instruct was prejudicial. Instructions that omit an element of a charged offense violate a defendant’s federal and state constitutional rights to a jury trial,” the judges found. “We cannot conclude the trial court’s failure to instruct that the People were required to prove defendant did not act in self-defense or defense of another was harmless beyond a reasonable doubt.” Had the jury been instructed, Vance wrote, Cairns may have been acquitted of the charges — especially as the jury acquitted Cairns of a felony assault charge in favor of the misdemeanor included charge.

“There was substantial evidence of self-defense and defense of another admitted at trial,” Vance wrote. “Without jury instructions on self-defense, the jury was left with the instruction on the right of an owner to eject a trespasser,” which only applied to one of the three incidents the case involved. Explanation of Cairns’ right to self-defense was not explained to the jury.

The appellate court concluded that, “In view of the absence of any instruction on the element concerning self-defense and the prosecutor’s insistence that it did not apply, it is clear that the erroneous instructions contributed to the jury’s verdict on the two counts of simple assault” in regards to two incidents.

For the brandishing charge, the appellate court found another instructional error for which they believed the jury would have found Cairns not guilty, and again with a vandalism charge. “As with the assault offenses and brandishing, the instructional error was not harmless beyond a reasonable doubt and reversal is required.”

Cairns also argued that evidence of his being assaulted by previous travelers along Highway 50, where his restaurant is situated near Kyburz, contributed to his actions. He contended that he was assaulted the day before one of the incidents. The appellate judges ruled that Cairns should have been able to include this in evidence.

The higher court did, however, find sufficient evidence to affirm a misdemeanor charge of disturbing the peace for yelling obscenities at Marques and Thy Bartice.

As Cairns had not been convicted of a felony, the appellate judges struck an enhancement that had been found true.

“Mr. Cairns is ecstatic that the California Court of Appeal provided a fair and thorough review of his trial,” a statement from the office of attorney Michael Wise to the Mountain Democrat read. “He is grateful for the ruling of that court and looks forward to resuming a peaceful life in El Dorado County, pursuing his passion for creating delicious meals for his customers and spending time with his close-knit family. He is also appreciative of the efforts of his appellate attorneys Janelle Caywood and Michael Wise and their dedication to him and his matter.”

Cole Mayer

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