Bennett v. State

2014 Ark. App. 624, 447 S.W.3d 602, 2014 Ark. App. LEXIS 893
CourtCourt of Appeals of Arkansas
DecidedNovember 5, 2014
DocketCR-14-154
StatusPublished

This text of 2014 Ark. App. 624 (Bennett 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
Bennett v. State, 2014 Ark. App. 624, 447 S.W.3d 602, 2014 Ark. App. LEXIS 893 (Ark. Ct. App. 2014).

Opinion

KENNETH S. HIXSON, Judge.

| lAppellant ’ Herbert Bennett was charged with the first-degree murder of Justin Burkes and first-degree battery committed against Lucas Horsley. After a jury trial, Mr. Bennett was convicted of the lesser-included offenses of second-degree murder and second-degree battery, and he was sentenced to nineteen years in prison.

On appeal, Mr. Bennett argues that the trial court erred in denying his motion for directed verdict on the homicide charge based on his defense of justification. Mr. Bennett also contends that the trial court erred in failing to give his proffered jury instructions on negligent homicide and third-degree battery. We affirm.

On the afternoon of October 22, 2011, Cornelius Bloodsaw was hosting a child’s birthday party at his house. Several people were in attendance, including Cornelius’s nowjwife2 Beth, Beth’s daughter Karen Burkes, and Karen’s husband Justin Burkes. The party was for Karen’s ten-year-old son.

Herbert Bennett knew all of these people and had been to the Bloodsaw residence many times previously. However, according to Beth Bloodsaw, she had on numerous occasions admonished Mr. Bennett to stay away from her and her family.

Mr. Bennett showed up at the birthday party and went to the back deck where people were gathered. Beth immediately told Mr. Bennett to leave, and Mr. Bennett bumped into her. Justin Burkes then advised Mr. Bennett to leave, and Mr. Bennett asked to talk with Justin. Mr. Bennett and Justin walked down the driveway toward Mr. Bennett’s car and engaged in conversation.

Mr. Bennett and Justin got into an argument that quickly became a physical altercation. During the fight, Mr. Bennett’s nose and lip were bloodied and his shirt was torn. Lucas Horsley arrived during the fight and tried to stop it, pulling Justin away from Mr. Bennett.

Justin’s wife Karen testified that during the fight both Mr. Bennett and Justin were throwing punches, and it appeared that Mr. Bennett was winning the fight despite the fact that Mr. Bennett sustained a bloody nose and lip. Karen said that Mr. Bennett had Justin backed up against a fence. Karen grabbed a small serrated steak knife and attempted to stab Mr. Bennett, but she was unsuccessful and , dropped the knife to the ground and backed away. After the fight broke up, Mr. Bennett returned to his car.

laCornelius Bloodsaw testified that Mr. Bennett was in his car for two or three minutes and that he handed Mr. Bennett his hat and other items that had fallen to the ground during the fight. According to Beth Bloodsaw, she told Justin to give Mr. Bennett his cell phone so he would leave, and Justin flipped him his phone. According to Karen, Justin was standing outside the car and told Mr. Bennett to leave before there was another fight.

At that time Mr. Bennett reached under the driver’s seat and grabbed a handgun. Mr. Bennett chambered a round and fatally shot Justin in the chest. There was some discrepancy in the testimony as to whether Mr. Bennett had fired one or two rounds, but a bullet struck Lucas Horsley in the neck. An ambulance arrived and medical personnel were able to save Lucas’s life. Cornelius Bloodsaw testified that Lucas spent a matter of days in the hospital before being released, but Karen Burkes stated that she thought it was more like four weeks.

After the incident Mr. Bennett fled the scene and abandoned his car in some woods, and later that night the police found him and arrested him. Mr. Bennett gave a statement to the police, stating that he had shot Justin in self defense and that the bullet had gone through Justin and struck Lucas. Mr. Bennett told the police that he did not mean to shoot Lucas, and he said that after he left the scene he tossed the gun outside somewhere.

Dr. Daniel Dye performed an autopsy on Justin Burkes. Because there was no soot or stippling on the body, Dr. Dye concluded that the bullet that struck Justin’s chest was fired from more than three feet away. The bullet exited through Justin’s back, and Dr. Dye indicated that the exit wound was “shored.” Dr. Dye explained that another person could |4have easily been struck by the bullet, and that the shored nature of the wound indicated that someone may have been behind Justin holding onto him.

Mr. Bennett testified on his own behalf, and he stated that Justin Burkes was in a rage that day and repeatedly attacked him. He said that he was in fear for his life and shot Justin in self defense after Justin came at him aggressively for the third time. The State’s witnesses contradicted appellant’s account, stating that the altercation had ended in the driveway several minutes before Mr. Bennett fired the gun from his car. Moreover, Mr. Bennett himself testified that he never saw Justin with a weapon and that after the initial round of fighting he had time to drive away from the situation.

Mr. Bennett’s first argument on appeal is that the trial court erred in failing to grant his motion for directed verdict on the homicide charge based on his justification defense. A motion for directed verdict is a challenge to the sufficiency of the evidence, and the test on appeal is whether there was substantial evidence to support the verdict. Fowler v. State, 2014 Ark. App. 460, 441 S.W.3d 41. Mr. Bennett contends that his second-degree murder conviction should be reversed because he acted in self defense and that the State’s evidence was insufficient to negate his defense of justification.

We do not address Mr. Bennett’s challenge to the sufficiency of the evidence because it is not preserved for review. Mr. Bennett was charged with first-degree murder, but he was convicted of the lesser-included offense of second-degree murder. 1 When Mr. Bennett made | fihis motions for directed verdict at the close of the State’s case and at the close of the evidence, he only referenced first-degree murder and did not mention second-degree murder either by name or elements. Our supreme court has long held that a defendant making motions for directed verdict must anticipate an instruction on any lesser-included offenses and must specifically address the elements of the lesser-included offense on which he wishes to challenge the State’s proof. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003).

In Mainard v. State, 102 ArkApp. 210, 283 S.W.3d 627 (2008), we held that the appellant had not preserved his argument that the State had failed to present sufficient evidence of second-degree murder because the State had not negated appellant’s defense that he was justified in defending himself. We explained that, because appellant’s directed-verdict motion was based exclusively on first-degree murder, any argument as to the sufficiency of the evidence on the lesser-included offense had been waived:

[I]n 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.

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Related

Cole v. State
2013 Ark. App. 492 (Court of Appeals of Arkansas, 2013)
Kelly v. State
91 S.W.3d 526 (Court of Appeals of Arkansas, 2002)
Grillot v. State
107 S.W.3d 136 (Supreme Court of Arkansas, 2003)
Mainard v. State
283 S.W.3d 627 (Court of Appeals of Arkansas, 2008)
Heinze v. State
827 S.W.2d 658 (Supreme Court of Arkansas, 1992)
Fowler v. State
2014 Ark. App. 460 (Court of Appeals of Arkansas, 2014)
Worring v. State
616 S.W.2d 23 (Court of Appeals of Arkansas, 1981)

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Bluebook (online)
2014 Ark. App. 624, 447 S.W.3d 602, 2014 Ark. App. LEXIS 893, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bennett-v-state-arkctapp-2014.