Gray v. State

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO. 60CR-16-3605], HONORABLE LEON JOHNSON, JUDGE

         William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

         Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Senior Ass’t Att’y Gen., for appellee.

         OPINION

         RITA W. GRUBER, Chief Judge

          Appellant Arthur Gray was convicted in a bench trial of both aggravated assault on a family member as well as aggravated assault and sentenced to concurrent terms of thirty-six months’ probation for pointing a loaded 9mm pistol at his sister Angela Walker and her husband, Elvester Walker. Mr. Gray appeals claiming that the circuit court erred as a matter of law by refusing to consider his defense of justification. We reverse and remand for a new trial.

          On September 5, 2016, Mr. Gray was staying with his sister Mary Redden when he got into an argument with her four sons while Mary was out. The children called Mary’s brother Gaddius, who went to her home to try to resolve the dispute. After arriving at the house and arguing with Mr. Gray, Gaddius called their older sister Angela Walker to help. When Mary got home, shortly before the Walkers arrived, she asked Mr. Gray to leave the house five or six times. He refused, saying that he was not going anywhere.

          Angela testified that Mr. Gray was in the yard arguing with Mary when she and Elvester arrived. She said that Mr. Gray put a bag in his car and started walking back into Mary’s house when she asked him to "get his stuff and leave." She said that she and Mr. Gray were talking near the back of Mr. Gray’s car. According to Angela’s testimony, Elvester was in the Walkers’ truck. Angela testified that Elvester and Mr. Gray were "exchanging words," and then Mr. Gray "pulled his gun," prompting her to jump in front of the gun to shield Elvester. She testified that she heard the "click" of the 9mm pistol as he was "cocking it back" and that she was probably five to seven feet from

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him. She said he pointed the gun at her for probably a minute and a half. She told Mr. Gray, "Junior, you’re going to jail. We’re not going to tolerate this." She said she asked him to leave because Mary has four small children and she did not want the police at the house causing a commotion. After he pointed the gun at her, she called 911.

          Mary testified that Mr. Gray had been staying with her for a few weeks and that he and her children had "gotten into it" on the evening of September 5 while she was away from the house. Mary said that when she got home, she asked Mr. Gray to leave at least five or six times. He would not leave. She said that eventually the Walkers pulled into the driveway, were upset, and asked Mr. Gray what was going on. Mary testified that she "guessed" Mr. Gray felt "threatened in some type of way" because he told the Walkers not to "walk up on him." She said that Mr. Gray was near his car and he grabbed his side where his gun was holstered. She said it was dark and she did not know if he pulled the gun out, but she heard a lot of clicking like the sound of a gun being cocked. She said that she continued to tell him to leave, he refused, and she called 911. She testified that Mr. Gray and the Walkers were arguing, that no one "took a swing at anybody," and that the Walkers did not "get in his face or anything." She estimated the distance between Mr. Gray and the Walkers as forty feet but then explained to defense counsel during cross-examination that they were closer than "you and I are."

          Mr. Gray also testified, denying that he had pointed a gun at anyone. He said that he had been putting his bag in his car when the Walkers arrived. He said that he felt threatened because Elvester was drunk, irrational, and walking toward him in "an aggressive way." He said that he put his right hand on his right hip, stepped back, and told them, "Don’t walk up on me."

          The court found Mr. Gray guilty of aggravated assault for his actions against Elvester and guilty of aggravated assault on a family member for his actions against Angela. Mr. Gray filed this appeal challenging the court’s refusal to consider his justification defense.

         Mr. Gray was convicted for purposely, "under circumstances manifesting extreme indifference to the value of human life," displaying a firearm "in such a manner that create[d] a substantial danger of death or serious physical injury" to Angela and Elvester. Ark. Code Ann. § 5-13-204(a)(2) & § 5-26-306(a)(2) (Repl. 2013). Justification is a permitted defense under our criminal code. Ark. Code Ann. § 5-2-602 (Repl. 2013).^[1] On appeal, Mr. Gray contends that the circuit court erred as a matter of law for refusing to consider his defense of justification by ruling that he could not present the inconsistent defenses of a general denial ("I did not commit the criminal conduct") and justification ("I was justified in committing the criminal conduct"). Because he argues that the court erred as a matter of law, he claims this court should review the issue de novo. He also argues that the same legal principles governing a jury trial govern a bench trial and therefore that a defendant is entitled to a justification defense if there is any ...