FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION [NO.
60CR-17-1793], HONORABLE BARRY SIMS, JUDGE
R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy
Public Defender, for appellant.
Rutledge, Atty Gen., by: Chris R. Warthen, Asst Atty Gen.,
M. BROWN, Judge
Appellant OTear Graves was convicted of first-degree
domestic battery in the March 18, 2017 shooting of Alvertis
Murry. She was sentenced to five years imprisonment with an
additional consecutive five-year sentence for use of a
firearm. Appellant argues on appeal that the court erred in
denying her motion to dismiss the charge because the State
failed to introduce substantial evidence that when appellant
shot Murry, she did not have a reasonable apprehension that
she was in danger of great bodily harm at the hands of Murry.
March 18, 2017, Murry was driving down Allen Street in North
Little Rock looking for his cousin, Cory Robinson, who
happened to be homeless at the time. He subsequently came in
contact with appellant, his ex-girlfriend, and was involved
in both a verbal and physical altercation with her. The
altercation ended when appellant shot Murry. She was charged
with first-degree domestic battery, and the State included an
enhancement for using a firearm. Appellant waived her right
to a jury trial, and her bench trial took place on May 29,
Martin, appellants aunt, testified that appellant called her
on March 18, 2017, asking if she was home because appellant
was "going to pull up." Martin stated that she was
inside her car eating when appellant pulled up but that she
suddenly heard a commotion. She said that when appellant made
it to the back of appellants truck, Murry was in her face.
She stated that they started cursing at each other and that
she and appellant asked Murry to leave Martins yard. Martin
testified that Murry got in appellants face and
"mugged" her in the face. Martin stated that
appellant "mugged" Murry back and that when Murry
went to push appellant again in the face, appellant
"came up with the gun and shot him." Murry then
told appellant that she had "caught [her] a charge"
and left. Martin said that she did not know what the
altercation between appellant and Murry was about.
testified that as he passed by Martins residence, something
hit his vehicle. He stopped to see what it was and saw
appellant standing there cursing at him. He began to curse
back at appellant, and they had a verbal altercation. They
subsequently came face to face with each other, and the
altercation became physical. Murry testified that appellant
then reached into her purse, pulled out a gun, and cocked it.
He stated that he told appellant that since she pulled her
gun on him, she was going to have to shoot him. He said that
he told appellant that if she did not shoot him, then she was
"pussy with it." He stated that appellant put her
finger in his face and pushed him in the face. He
testified that he told appellant he would "beat [her]
ass" if she put the gun down. However, he denied ever
touching appellant. He stated that appellant backed up and
pointed the gun toward his side and shot him. He said that
Martin then responded, "OTear, you shot that boy."
Murry testified that he walked to his vehicle and drove to
the hospital. He stated that the bullet went straight through
and that the hospital performed a CAT scan then cleaned and
patched the wound. Murry admitted that he has a criminal
history dating back to 1991, including first-degree battery,
second-degree battery, and aggravated assault. He insisted
that he never got physical with appellant that day.
cross-examination, Murry stated that in 2009, he pled nolo
contendere to second-degree battery charges on a North Little
Rock police officer. He said that when appellant found out
about the altercation, she called police and said that he
shot at her. He denied having a long history of following
appellant around. He said that even though there was a 2010
no-contact order against him, he and appellant had slept with
each other on and off and were last intimate with each other
two weeks before the shooting.
Officer Rathey of the North Little Rock Police Department
testified that he had contact with appellant on March 18,
2017, after he responded to a person-shot call. He stated
that appellant informed him that she had been in a verbal and
physical altercation with Murry and that Murry "began to
put his hands on her chest and she feared for her life, and
therefore, she pulled a handgun out and ... shot him."
He said that Murry was not at the scene but that he talked to
other witnesses present. He testified that he arrested
appellant for first-degree battery after completing his
cross, Rathey stated that there was pushing and shoving both
ways and that appellant pulled a gun and shot Murry. He
admitted that at the time of the shooting, appellant had a
valid concealed handgun license and that if a person "is
in fear [for] their personal ...