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holding that there was no rational basis on which to instruct the jury to consider negligent homicide where there was evidence of a stab wound to a vital area of the victim's body, because such action went beyond the mere failure to perceive the risk that the victim would suffer serious injury or death and “affirmatively sought one of those results”
Summary of this case from Albretsen v. StateOpinion
No. CACR12-302
01-30-2013
ERIC MASON APPELLANT v. STATE OF ARKANSAS APPELLEE
Gary J. Barrett, for appellant. Dustin McDaniel, Att'y Gen., by: Lauren Elizabeth Heil, Ass't Att'y Gen., for appellee.
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[NO. CR 2011-602]
HONORABLE STEPHEN TABOR,
JUDGE
AFFIRMED
RITA W. GRUBER , Judge
Eric Mason was charged as a habitual offender with second-degree murder in the stabbing death of Joshua Walters. Mason was convicted by a jury and was sentenced to forty-five years' imprisonment. He contends on appeal that the circuit court erred (1) in denying his motion for a directed verdict on second-degree murder, and (2) in refusing his proffered jury instructions for negligent homicide. We affirm.
Motion for a Directed Verdict
A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Norris v. State, 2010 Ark. 174, at 1-2, 368 S.W.3d 52, 53. A person commits second-degree murder if (1) the person knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life, or (2) with the purpose of causing serious physical injury to another person, the person causes the death of any person. Ark. Code Ann. § 5-10-103(a) (Repl. 2006).
Arguments that were not made to the trial court in support of a motion for directed verdict are not preserved for appellate review. Ingle v. State, 2010 Ark. App. 410, 379 S.W.3d 32. In his trial motion for a directed verdict, Mason challenged only the element of causation. He argues on appeal, however, that the State did not present substantial evidence to support the requisite mental state. Because he did not present this argument to the circuit court, it is not preserved for our review.
Proffered Instruction
We will affirm a trial court's decision not to give an instruction on a lesser-included offense if there is no rational basis for giving it. Thomas v. State, 2012 Ark. App. 466, at 7 ___ S.W.3d ___, ___. "Where there is no evidence calling into doubt an element of the greater offense, a trial court is not required to instruct the jury on a lesser-included offense." Id. at 2, ___ S.W.3d at ___. We will not reverse a trial court's decision regarding the submission of such an instruction absent an abuse of discretion. Id. at 2-3, ___ S.W.3d at ___.
The jury in the present case was instructed on second-degree murder and the lesser-included offense of manslaughter, but the circuit court refused to give Norris's proffered instruction on negligent homicide. "A person commits negligent homicide if he or she negligently causes the death of another person." Ark. Code Ann. § 5-10-105(b)(1) (Supp. 2011). "Negligently" is defined as follows:
(A) A person acts negligently with respect to attendant circumstances or a result of his or her conduct when the person should be aware of a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.Ark. Code Ann. § 5-2-202(4)(A) (Repl. 2006).
(B) The risk must be of such a nature and degree that the actor's failure to perceive the risk involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation considering the nature and purpose of the actor's conduct and the circumstances known to the actor.
At Mason's trial, the State introduced evidence about events that began when Joshua Walters and Tara Sellers intervened in an argument between Mason and his girlfriend. Sellers —who "had a broke ankle" and wore "a black boot"—and Walters asked the couple to stop arguing. Mason kicked Sellers on the boot and began fighting with Walters. Mason got Walters onto the ground, where he lay until a third man picked Mason up off of Walters and slammed Mason against a fence. Walters said, "I've been stabbed," and blood soon gushed from a wound to his throat. According to Dr. Daniel Dye, a medical examiner for the State of Arkansas, death was caused by a single stab wound to the right lung. He said that the wound went downward through the neck and into the right chest cavity, where it pierced the lung's upper lobe and caused death within a minute. He opined that the wound was inflicted by a single-edged knife.
Evidence of a stab wound to a vital area of Walters's body describes action by the perpetrator that went beyond the mere failure to perceive the risk that the victim would suffer serious injury or death. Instead, the action affirmatively sought one of those results. Cf. Norris v. State, 2010 Ark. 174, at 10, 368 S.W.3d at 58 (holding that there was no evidence appellant was unaware that his conduct—swinging a two-by-four at the victim's head with force that sounded like swinging a baseball bat—or the risk of his conduct would result in death). There was no rational basis to instruct the jury to consider negligent homicide, and the circuit court did not abuse its discretion in refusing to do so. Accordingly, we affirm.
Affirmed.
HARRISON and WYNNE, JJ., agree.
Gary J. Barrett, for appellant.
Dustin McDaniel, Att'y Gen., by: Lauren Elizabeth Heil, Ass't Att'y Gen., for appellee.