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.
Virden
and Harrison, JJ., agree.
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 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 evidence to support it, even if the
defendant testified that he did not commit the criminal
conduct. He cites Gibson v. State, 135 Ark. 520, 205
S.W. 898 (1918), and Karnes v. State, 159 Ark. 240,
252 S.W. 1 (1923), to support his argument.
The
issue of a justification defense arose during Mr. Gray's
testimony after he testified that he had put his hand on his
hip because Elvester was ...