Allen v. State

2015 Ark. App. 360, 465 S.W.3d 9, 2015 Ark. LEXIS 416, 2015 Ark. App. LEXIS 447
CourtCourt of Appeals of Arkansas
DecidedJune 3, 2015
DocketCR-14-746
StatusPublished
Cited by1 cases

This text of 2015 Ark. App. 360 (Allen v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. State, 2015 Ark. App. 360, 465 S.W.3d 9, 2015 Ark. LEXIS 416, 2015 Ark. App. LEXIS 447 (Ark. Ct. App. 2015).

Opinion

BRANDON J. HARRISON, Judge

I,Bryce Allen was convicted by a Pulaski County jury of one count of second-degree murder and two counts of attempted second-degree murder. He now appeals, arguing that the jury should have been instructed on attempted reckless manslaughter as a lesser-included offense of attempted second-degree murder. We affirm.

The facts underlying this criminal case are not in dispute. On 19 March 2012, Allen’s mother, Thelma, was involved in a one-vehicle accident on Highway 161 at approximately 10:30 p.m. Thelma was unhurt, but her vehicle ruptured a gas main on the side of the highway. Thelma called Allen to tell him about the accident, and he indicated that he was on his way there.

Meanwhile, Jacksonville Police Officer Daniel DiMatteo responded to the accident, along with Captain Donald Jones and Engineer Jason Bowmaster from the Jacksonville Fire Department. Both DiMat-teo’s police cruiser and the fire truck were |2parked on the side of the road with lights flashing, and all three men were wearing reflective vests as they worked on scene. Jones and Bowmaster attempted to shut off the gas but were unable to do so, and after determining that the gas company would have to be called, the three men stood in front of their vehicles on the side of the road discussing the situation.

Suddenly, DiMatteo heard the sound of an engine accelerating and turned to see an Oldsmobile van come around the emergency vehicles and turn toward the three men. The van, driven by Allen and traveling approximately twenty-three miles an hour, struck all three men. Captain Jones died at the scene; Bowmaster and DiMat-teo both sustained severe injuries, including multiple broken bones. A video of the impact, captured by the dashcam in DiMatteo’s police cruiser, showed that Allen did not apply the van’s brakes until after he hit the men. DiMatteo also described Allen as “death gripping the steering wheel” right before the impact with a “mean scowl on his face” and stated that “because of where I was standing and the way in which that vehicle was steered and aimed towards the three of us, there’s no doubt in my mind that that was done on purpose.”

In an accident form filled out that night, Allen claimed that the cruise control on the van had malfunctioned, that the áccel-erator went to the floor, and that he lost control of the vehicle. The van was inspected by an automotive mechanic, who testified at trial that there were no problems with the accelerator or the cruise control and that the cruise control would not engage in a vehicle traveling at twenty-three miles per hour. Also at trial, it was undisputed that Allen suffered from bipolar disorder, although expert medical opinions differed on whether that was a contributing factor to the incident.

|aAfter all of the evidence had been presented, jury instructions were selected, and pertinent to this appeal, the parties agreed on attempted first-degree-murder and attempted second-degree-murder instructions regarding DiMatteo and Bow-master. Allen also proffered an instruction for attempted manslaughter, which read as follows:

Criminal Attempt to Commit Manslaughter. A person commits the offense of Manslaughter if he recklessly causes the death of another person. .
To sustain the charge of Criminal Attempt to Commit Manslaughter, the State must prove beyond a reasonable' doubt:
First: Bryce Allen intended to commit the offense of Manslaughter;
Second: The defendant purposely engaged in conduct that was a substantial step in a course of conduct intended to culminate in the commission of Manslaughter; and
Third: The defendant’s conduct was strongly corroborative of the criminal purpose.
Definition
“Recklessly.” — A person acts recklessly with respect to the results of his conduct when he consciously disregards a substantial and unjustifiable risk that the results will occur. The risk must be of a nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the same situation.

Allen argued that attempted manslaughter was a lesser-included offense of attempted first- and second-degree murder and that the instruction for attempted manslaughter was appropriate because

Arkansas [Code] Annotated [§] 5-3-201(B) states that with respect to offenses respecting attendant circumstances were required by the definition, recklessly does have a result element of causing the death. And that is it complied [sic] to both the result and the attendant circumstances. And because it requires proof of a result and proof that Mr. Allen acted recklessly with [sic] disregarding the substantial and unjustifiable risk of his conduct, we argue that he’s entitled to a jury instruction setting forth that he took a substantial step toward that.

|4The State objected to the instruction, arguing that “there’s not an intent on a reckless or negligent conduct if we were going down that far. The intent would be the mens rea of purpose and knowingly. But one can’t attempt to cause what is a reckless offense.” After some discussion, the circuit court agreed with the State, noting that “manslaughter’s a crime because of reckless conduct, not knowing or purpose,” and denied the request to instruct on attempted manslaughter.

The jury found Allen guilty of second-degree murder as to Captain Jones and attempted second-degree murder as to DiMatteo and Bowmaster. The circuit court sentenced Allen to consecutive terms of thirty years’ imprisonment for second-degree murder and twenty years’ imprisonment for each count of attempted second-degree murder, for a total of seventy years’ imprisonment. 1 Allen appealed.

On appeal, he argues that the jury should have been given an instruction on attempted reckless manslaughter. A party is entitled to a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. Vidos v. State, 367 Ark. 296, 239 S.W.3d 467 (2006). An instruction should be excluded when there is no rational basis for giving it. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). A circuit court’s decision whether to give an instruction will not be reversed unless the court abused its discretion. Vidos, supra. Abuse of discretion is ■ a high threshold that does not simply require error in the circuit court’s decision but requires that the circuit court act improvidently, thoughtlessly, or without |fidue consideration. Dixon v. State, 2011 Ark. 450, 385 S.W.3d 164. A party is entitled to an instruction on a defense or a lesser-included offense if there is sufficient evidence to raise a question of fact or if there is any supporting evidence for the instruction. Norris v. State, 2010 Ark. 174, 368 S.W.3d 52.

A person commits manslaughter if the person recklessly causes the death of another person. Ark.Code Ann. § 5-10-104(a)(3) (Repl. 2013).

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Related

Watts v. State
2015 Ark. App. 439 (Court of Appeals of Arkansas, 2015)

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Bluebook (online)
2015 Ark. App. 360, 465 S.W.3d 9, 2015 Ark. LEXIS 416, 2015 Ark. App. LEXIS 447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-state-arkctapp-2015.