FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FT. SMITH DISTRICT
[NO. CR-2013-664] HONORABLE STEPHEN TABOR, JUDGE
Golden and Charlotte Aceituno Bogan, for appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
R. BAKER, Associate Justice
November 24, 2014, appellant, Gregory Aaron Kinsey, was
convicted by a Sebastian County Circuit Court jury of one
count of first-degree murder and one count of second-degree
murder. Kinsey was sentenced to forty years and thirty years,
respectively, to be served consecutively. Kinsey timely
appealed and presents three points on appeal: (1) the circuit
court erred in denying Kinsey's motion for a directed
verdict because the State failed to negate his defense of
justification; (2) the circuit court erred in refusing to
instruct the jury as to the appropriate burden of proof on
the defense of justification; and (3) the circuit court erred
in finding that Kinsey opened the door to questions regarding
Kinsey's past behavior.
1, 2013, Kinsey was charged with two counts of capital murder
in the June 26, 2013, deaths of Brandon Prince and Nathan
Young. At trial, Nathan Maynard testified that he lived next
door to Prince and across the street from Young in Fort
Smith. Maynard testified that at around 9:00 p.m., Young
knocked on his door and asked him if he wanted to come
outside and drink a beer. Prince joined them on the porch.
Maynard testified that at approximately 9:30 p.m., the three
men noticed Kinsey squatting down in the alley adjacent to
Young's house and was looking through Young's fence.
Maynard further testified that Prince and Young approached
Kinsey and Young asked Kinsey what he was doing. Maynard
testified that Kinsey was carrying grocery bags, which Kinsey
threw down, and told the men that he was "satan."
Maynard testified that Kinsey then proceeded to pull out a
machete. Maynard testified that he stepped off the porch and
put down his beer, and that when he looked up he witnessed
Kinsey strike Prince with the machete. He further testified
that Kinsey then began striking Young with the machete.
Maynard testified that Prince tried to run but only made it
to the porch where he fell. When Young attempted to run,
Kinsey chased him, struck him and continued striking Young
with the machete while Young was on the ground. Maynard
further testified that he grabbed a piece of wood, a
two-by-four-inch board, and hit Kinsey with it. Maynard
testified that after hitting Kinsey with the board, he threw
the wood at Kinsey and fled.
Prince, Prince's sixteen-year-old son, fifteen years old
at the time of the crimes, also testified. Prince testified
that he was visiting for Father's Day, heard his
father's screams from outside, went outside to help his
father and saw Kinsey. Prince testified that he took his
two-year-old brother next door, grabbed a towel, and tried to
stop his father's bleeding. Prince further testified that
he saw Kinsey as soon as he opened the door, Kinsey was
kneeling to pick up his bags and Prince heard Kinsey say
"I shouldn't have done this."
trial, a recorded statement given by Kinsey to law
enforcement on the night of the murders was played for the
jury. In the statement, Kinsey told the police that he had
been to the Dollar General Store to buy toilet paper, tea,
and sodas and that he was walking through the alleys on his
way back home when he thought he saw a man who used to date
and "have violent altercations" with his mother.
Kinsey stated that he thought it was important to confirm
whether it was the same man so he could alert his mother if
the man was back in Ft. Smith. Kinsey further stated that he
did not want to be seen while he was looking into the yard
and that a man across the street from where he was standing
called out to him and asked him what he was doing. Kinsey
said that the man thought he was possibly urinating on his
house and further stated that "[i]t was clear that they
wanted to start an altercation." According to Kinsey, he
became angry, tossed down his grocery bags, and told the men
that "I don't want to go to prison today."
Kinsey stated that he spoke louder because "I'm too
quiet for most people to hear." Kinsey stated that when
the man asked him why he was creeping around he became angry,
tossed the bags down, yelled at the man, "I don't
want to go to prison today, " and then stated
I can't remember much of what happened. I remember he and
the other guy, they started coming real close to me. I just
told them, please, man, I just want to go home. Don't
make this happen.
further stated "I started picking up my groceries to
walk off. He told me, I know you're trying to sound like
Satan to scare me, but I'm not afraid of you. He and the
other guy got real close to me. I pulled out the machete
because I thought I would scare them off." According to
Kinsey, one of the men said that he was not afraid of the
knife. He said that the men "started hemming me in,
" and got close enough that "I felt their breath on
me, " and that Kinsey "started swinging" the
machete. Kinsey remembered that he cut one of the men's
arms with the first swing and stated:
I remember cutting him. I remember cutting the other boy who
was by me ..... All
I remember seeing is the blood fly and him turn over and move
off from me. So I concentrate on the little guy, the short
one, the one who did most of the talking. I remember he tried
to flee, but I don't think I registered it at the time. I
pursued him. I kept cutting. I wasn't trying to kill him.
I wasn't trying to incapacitate him. It's just once I
started swinging, I just kept swinging. At one point, he went
to the ground, his hands over the back of his neck like he
went into a submissive position. That's when I first
really came to, consciously again. I remember him looking at
me and saying, I give up, you win. I remember the watery
gurgle in his voice made me think I might have hit his
throat. I - - - that's when I decided I should stop.
Before then, there was no thought of stopping because I
wasn't thinking. I was just doing.
. . .
I guess in the end, there's no justifying. Of course, I
can say it was self defense. I felt they were going to jump
me, but ultimately I swung first. I used a machete. It just
occurred to me while sitting in the waiting room twenty
minutes ago that I could have left after I cut them the first
couple of times because they were running. But it was just -
- - it was instinct.
also stated that he could have left the men, but he pursued
them. Finally, Kinsey stated that a third man, who was
standing by the porch, hit him with a two- by-four-inch board
during the fight - "it just bounced off and I ignored
Daniel Dye, the medical examiner, testified that Prince had
been struck once and that the "chop wound" cut
through the artery, which was "rapidly fatal." Dye
further testified that Young was essentially hacked to death.
Young sustained between eight and eleven blows, and the cause
of death was multiple chop wounds. The jury convicted Kinsey
as set forth above and this appeal followed.
Points on Appeal
Sufficiency of the Evidence
treat a motion for a directed verdict as a challenge to the
sufficiency of the evidence. Whitt v. State, 365
Ark. 580, 232 S.W.3d 459 (2006). In reviewing a challenge to
the sufficiency of the evidence, this court assesses the
evidence in the light most favorable to the State and
considers only the evidence that supports the verdict.
Tillman v. State, 364 Ark. 143, 217 S.W.3d 773
(2005). This court will affirm a judgment of conviction if
substantial evidence exists to support it. Id.
Substantial evidence is evidence which is of sufficient force
and character that it will, with reasonable certainty, compel
a conclusion one way or the other, without resorting to
speculation or conjecture. Id. Finally, the
credibility of witnesses is an issue for the jury.
Id. The trier of fact is free to believe all or part
of any witness's testimony and may resolve questions of
conflicting testimony and inconsistent evidence. Id.
these standards in mind, we turn to Kinsey's first point
on appeal. Kinsey's challenge to the sufficiency of the
evidence supporting his convictions contends that the State
failed to negate his defense of justification. Kinsey asserts
that the State failed entirely to address his claim of
self-defense: "The State did not offer any evidence
disproving that Prince and Young were the aggressors."
Kinsey also contends that any evidence that the State did
present was not of sufficient force and character to compel
reasonable minds to reach a conclusion and pass beyond
suspicion and conjecture. The State responds that
Kinsey's argument is not preserved for review, but
further argues that Kinsey's convictions are supported by
to reaching the merits of Kinsey's first point on appeal,
we must address the State's position that Kinsey failed
to preserve the issue for review because Kinsey failed to
address any specific deficiencies of State's proof in his
motion below. The applicable statute is Ark. Code Ann. §
5-2-607, "Use of deadly physical force in defense of a
person, " which provides:
(a) A person is justified in using deadly physical force upon
another person if the person reasonably believes that the
other person is:
(1)Committing or about to commit a felony involving force or
(2)Using or about to use unlawful deadly physical force; or
(3)Imminently endangering the person's life or imminently
about to victimize the person as described in § 9-15-103
from the continuation of a pattern of domestic abuse.
(b)A person may not use deadly physical force in self-defense
if the person knows that he or she can avoid the necessity of
using deadly physical force:
(1)(A) By retreating.
(B) However, a person is not required to retreat if the