FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO.
60CR-16-3605], HONORABLE LEON JOHNSON, JUDGE
R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy
Public Defender, for appellant.
Rutledge, Atty Gen., by: Pamela Rumpz, Senior Asst Atty
Gen., for appellee.
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.
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 Marys 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.
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 Marys 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. Grays car. According to Angelas 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
him. She said he pointed the gun at her for probably a minute
and a half. She told Mr. Gray, "Junior, youre going to
jail. Were 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.
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."
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,
"Dont walk up on me."
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 courts refusal to consider
his justification defense.
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). 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 ...