APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT. NO. CR-11-701-1. HONORABLE JOHN HOMER WRIGHT, JUDGE.
Phillip A. McGough, P.A., bye: Phillp A. McGough, for appellant.
Dustin McDaniel, Att'y Gen., by: Ashley Argo Priest, Ass't Att'y Gen., for appellee.
KENNETH S. HIXSON, Judge. GRUBER and BROWN, JJ., agree.
KENNETH S. HIXSON, Judge
Appellant Herbert Bennett was charged with the first-degree murder of Justin Burkes and first-degree battery committed against Lucas Horsley. After a jury trial, Mr. Bennett was convicted of the lesser-included offenses of second-degree murder and second-degree battery, and he was sentenced to nineteen years in prison.
On appeal, Mr. Bennett argues that the trial court erred in denying his motion for directed verdict on the homicide charge based on his defense of justification. Mr. Bennett also contends that the trial court erred in failing to give his proffered jury instructions on negligent homicide and third-degree battery. We affirm.
On the afternoon of October 22, 2011, Cornelius Bloodsaw was hosting a child's birthday party at his house. Several people were in attendance, including Cornelius's now-wife Beth, Beth's daughter Karen Burkes, and Karen's husband Justin Burkes. The party was for Karen's ten-year-old son.
Herbert Bennett knew all of these people and had been to the Bloodsaw residence many times previously. However, according to Beth Bloodsaw, she had on numerous occasions admonished Mr. Bennett to stay away from her and her family.
Mr. Bennett showed up at the birthday party and went to the back deck where people were gathered. Beth immediately told Mr. Bennett to leave, and Mr. Bennett bumped into her. Justin Burkes then advised Mr. Bennett to leave, and Mr. Bennett asked to talk with Justin. Mr. Bennett and Justin walked down the driveway toward Mr. Bennett's car and engaged in conversation.
Mr. Bennett and Justin got into an argument that quickly became a physical altercation. During the fight, Mr. Bennett's nose and lip were bloodied and his shirt was torn. Lucas Horsley arrived during the fight and tried to stop it, pulling Justin away from Mr. Bennett.
Justin's wife Karen testified that during the fight both Mr. Bennett and Justin were throwing punches, and it appeared that Mr. Bennett was winning the fight despite the fact that Mr. Bennett sustained a bloody nose and lip. Karen said that Mr. Bennett had Justin backed up against a fence. Karen grabbed a small serrated steak knife and ...