Graves v. State

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          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.

         OPINION

         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

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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 ...