APPEAL FROM THE INDEPENDENCE COUNTY CIRCUIT COURT. NO. CR-13-139. HONORABLE JOHN DAN KEMP, JUDGE.
Morris Law Firm, P.A., by: Jimmy C. Morris, Jr., for appellant.
Dustin McDaniel, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.
KENNETH S. HIXSON, Judge. GLADWIN, C.J., and WHITEAKER, J., agree.
KENNETH S. HIXSON, Judge
After a jury trial in Independence County Circuit Court, appellant Akeem Allajowuan Lewis was convicted of two counts of second-degree murder in the shooting deaths of John L. Weeams and Omar Scales. Appellant was sentenced to consecutive eight- and twenty-year prison terms, respectively. On appeal, appellant argues (1) that the State failed to negate his justification defense, and (2) that the trial court abused its discretion in running his sentences consecutively instead of concurrently. We affirm.
Appellant's criminal charges were the result of a shootout between John L. Weeams and appellant. The shootout happened at a night-time gathering on July 6, 2013, at Bennie Dodd's residence located at 295 Dry Run Circle in Batesville, Arkansas. Appellant concedes on appeal that he shot both victims, although shooting Omar Scales was accidental because Scales was an innocent bystander. Appellant's first argument is that he raised the defense of justification and that the State failed to carry its burden to disprove that defense beyond a reasonable doubt. We disagree with his argument.
Justification becomes a defense when any evidence tending to support its existence is offered, and once raised, it becomes an element that must be disproved by the State beyond a reasonable doubt. Green v. State, 2011 Ark.App. 700. Whether one is justified is largely a matter of the defendant's intent and is generally a fact question for the jury. Id. A defendant's intent is ordinarily not subject to proof by direct evidence but must usually be established by circumstantial evidence. Id. Critical to this inquiry is the reasonableness of the accused's apprehension that he was in danger of death or of suffering great bodily harm. Id. Also critical is whether the accused used all reasonable means within his power and consistent with his personal safety to avoid the use of deadly force. Id; see also Ark. Code Ann. § 5-2-607 (Repl. 2006).
As requested by defense counsel, the jury was instructed on the justification
defense as to the murder of Weeams based on Arkansas Model Jury Instruction--Criminal 705:
Akeem Lewis asserts as a defense to the charge of second degree murder that deadly physical force was necessary to defend himself. This is a defense only if; First, Akeem Lewis reasonably believed that John Weeams was committing or was using or about to use unlawful deadly physical force; And second, ...