APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION [NO.
60CR-17-1793] HONORABLE BARRY SIMS, JUDGE.
William R. Simpson, Jr., Public Defender, by: Clint Miller,
Deputy Public Defender, for appellant.
Leslie
Rutledge, Att'y Gen., by: Chris R. Warthen, Ass't
Att'y Gen., for appellee.
WAYMOND M. BROWN, JUDGE.
Appellant
O'Tear 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.
We affirm.
On
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,
2018.
Christina
Martin, appellant's 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 appellant's truck, Murry
was in her face. She stated that they started cursing at each
other and that she and appellant asked Murry to leave
Martin's yard. Martin testified that Murry got in
appellant's face and "mugged"[1] 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.
Murry
testified that as he passed by Martin's 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, "O'Tear, 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.
On
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
investigation.
On
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 safety or their life, that is
the purpose of having a concealed permit."
Appellant
unsuccessfully moved for a directed verdict at the conclusion
of the State's case on the basis that Murry was not her
family or household member. Appellant testified that her
relationship with Murry ended in 2009 or 2010 when he shot at
her while her son was standing in the door. She testified
that she had filed several complaints against Murry and had
even tried contacting his parole officer. She stated that she
was constantly harassed by Murry and that her kids were
fearful of him. She said that when she went to her aunt's
house on March 18, she could not tell if she was being
followed. She testified that after she parked and got out of
her truck, Murry rushed her and started "calling [her]
out by name, disrespecting [her]." She stated that Murry
"smushed" her in her face and that she kept telling
him to leave her alone but that he kept harassing and
bothering her. She said that she "smushed" Murry
back in the face and continued to beg him to "quit, to
stop, and he wouldn't. He wouldn't." She further
testified,
I become [sic] very afraid, because he kept on and he kept
walking towards me, and all I kept asking and begging for him
to do, was leave me alone. Leave me alone. Just leave me
alone, Alvertis, just leave me alone and he wouldn't. He
wouldn't leave me alone. And he [drew] ...