Appellant appeals his conviction for second-degree murder in the death of Darryl Miller. Appellant contends that (1) the trial court erred in denying his motion for directed verdict, and (2) the trial court erred in failing to adopt his proposed jury instruction regarding justification. We find no error and affirm.
On June 15, 2006, Amanda Miller, the victim’s wife, visited appellant at his home and decided to spend the night. Amanda and appellant had known each other for approximately one year and had previously engaged in a sexual relationship during her marriage to the victim. In the early morning hours of June 16, Darryl Miller went to appellant’s home and demanded to see his wife. Darryl and Amanda argued in appellant’s bedroom, and Darryl forcibly removed Amanda’s wedding ring from her hand. Appellant asked Darryl to leave, and when he did not do so, appellant turned off the lights in the bedroom and used his nine-millimeter pistol to fire five shots at Darryl. Darryl died at the scene.
On July 6, 2006, an information was filed charging appellant with first-degree murder. A jury trial was held on May 16-18, 2007. At trial, Amanda admitted that she had an extra-marital affair with appellant on two occasions prior to the murder. Amanda testified that on the night in question, she was awakened by the phone ringing,
The State also presented the testimony of Ryan Ciampoli, the 911 operator who received a call from appellant after the shooting. Ciampoli testified that appellant stated, “I have just shot a man trying to break into my house.” Dustin Bradshaw, an officer with the Ozark Police Department, testified that when he arrived on the scene, appellant told him, “I shot Darryl Miller because I was fearing for my life.” Investigator David Warren testified that there were no guns, knives, or anything that could have been used as a weapon found around the victim or on his person. Finally, Dr. Charles Kokes testified that there was no alcohol found in the victim’s system, but test results did show the presence of methamphetamine.
At the close of the State’s case, appellant made a motion for directed verdict, arguing that the State had not met its burden of proof with respect to the elements of first-degree murder and that there had been nothing to indicate that the shooting was anything other than self-defense. The motion was denied.
Appellant testified that on the night in question, Darryl shoved his way into appellant’s home, went to the back bedroom, and began slapping Amanda. Appellant stated that he thought Darryl was drunk and smelled alcohol on him. Appellant testified that he repeatedly told Darryl to leave, and when he did not do so, appellant turned off the bedroom light in an attempt to get Darryl to follow him to the front of the house. He testified that he picked up the gun after turning on the light and drew the gun on Darryl, thinking that he would leave then. Appellant testified that Darryl put his hand behind his back and moved slightly toward appellant, and at that point, appellant shot him. According to appellant, Darryl always carried a large hunting knife with him, and appellant feared for his safety and Amanda’s safety. Appellant admitted he did not see the knife that night, but stated he thought Darryl’s untucked shirt could have hidden it.
At the close of the evidence, appellant renewed his motion for directed verdict, which was denied. Appellant also proffered a variation of AMI Crim. 2d 705, in which he inserted a justification defense based on Ark. Code Ann. § 5-2-607 (Repl. 2006).
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The jury found appellant guilty of second-degree murder, and he was sentenced to
Although appellant placed his argument regarding the denial of his motion for directed verdict second in his brief, double jeopardy considerations require this court to review his directed-verdict argument first. Lamb v. State,
A person commits second-degree murder if the person knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-103(a)(l) (Repl. 2006). A person acts knowingly with respect to his conduct or the attendant circumstances when he “is aware that his. . . conduct is of that nature or that the attendant circumstances exist,” and he acts knowingly with respect to the result of his conduct when “he ... is aware that it is practically certain that his . . . conduct will cause the result.” Ark. Code Ann. § 5-2-202(2) (A) & (B) (Repl. 2006). Our supreme court has defined “extreme indifference” as deliberate conduct that culminates in the death of another person. Wyles v. State,
Appellant argues that the State failed to provide sufficient evidence of second-degree murder because he was justified in defending himself and the State failed to negate this defense. In response, the State argues that appellant’s sufficiency argument is not preserved because his directed verdict motion was based on first-degree murder, not second-degree murder, and therefore any argument as to the sufficiency of the evidence on the lesser-included offense has been waived. This court has held that, in order to preserve challenges to the sufficiency of the evidence supporting convictions for lesser-included offenses, defendants must address the lesser-included offenses either by name or by apprising the trial court of the elements of the lesser-included offenses questioned by their motions for directed verdict. Grillot v. State,
For his second point on appeal, appellant argues that the trial court erred in failing to instruct the jury using his modified version of AMI Crim. 2d 705. Appellant’s proffered instruction would have allowed the jury to consider justification as a defense if he “reasonably believed that Darryl Miller was imminently endangering Amanda Miller’s life from the continuation of a pattern of domestic abuse.” A trial court’s ruling on whether to submit jury instructions will not be reversed absent an abuse of discretion. Davis v. State,
Our supreme court has held that a trial court should not use a non-model instruction unless there is a finding that the model instruction does not accurately reflect the law. Ross v. State,
Affirmed.
Notes
Arkansas Code Annotated section 5-2-607 provides: “A person is justified in using deadly physical force upon another person if the person reasonably believes that the other person is... imminendy endangering the person’s life or imminendy about to victimize the person ... from the continuation of a pattern of domestic abuse.” Arkansas Code Annotated section 9-15-103 defines domestic abuse as “physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members.”