Demarco Blackmon v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
WENDELL L. GRIFFEN, JUDGE
DIVISION III
CACR07535
DEMARCO BLACKMON
APPELLANT
December 19, 2007
AN APPEAL FROM GARLAND
COUNTY CIRCUIT COURT
[CR2006425 I]
V.
HON. JOHN HOMER WRIGHT, JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Demarco Blackmon appeals from his conviction for firstdegree battery. He argues
that his conviction should be reversed because the State failed to prove that he acted
purposely. He also argues that the trial court failed to give “due consideration” to his
imperfect justification defense, which he claims would have entitled him to a lesser charge
of seconddegree battery. We hold that appellant’s argument that the State failed to prove
he acted purposely is procedurally barred. We further hold that the trial court properly
rejected appellant’s justification defense. Accordingly, we affirm appellant’s conviction.
I. Facts
Appellant was charged with the firstdegree battery of Corey Webb pursuant to Ark.
Code Ann. § 513201(a)(8) (Supp. 2007), which defines the offense as purposely causing
physical injury to another person by means of a firearm. The incident took place on July 9,
2006, in Hot Springs. The basic facts are undisputed: an argument involving racial
comments preceded the shooting. Appellant admits that he shot Webb but asserts that he did
so in selfdefense and did not act purposely to harm Webb.
The State’s caseinchief was presented through the testimony of Webb, Neva Webb
(Webb’s mother), Kristen Webb (his sister), and Carmen Owen (his girlfriend), who each
lived in Apartment 8 at 2314 Lakeshore Drive. On the day of the incident, Webb, Owen,
Kristen, Webb’s brother, Kevin, and a friend, Jordan (referred to herein as “the Webbs”),
returned to the apartment complex from Lake Ouachita. Webb’s witnesses said that they
pulled into the apartment complex with their windows down, listening to loud music,
singing, and laughing.
Jonese Richie, appellant’s girlfriend, had driven appellant and Phyllis Blackmon
(appellant’s mother) to the apartment complex to drop off appellant’s son to the boy’s
mother. Appellant got out of the car and walked his son to the apartment. Appellant was
still standing outside of that apartment when the Webbs arrived. Appellant’s witnesses
testified that the people inside of the Webb vehicle were using profanity, including the word
“nigger.” Appellant approached the Webb vehicle and asked if they were talking about him.
Kevin got out of the car and he and appellant engaged in a “heated argument” that involved
Kevin and appellant yelling and pushing each other. Kristen admitted that during the
argument, she heard her brothers use the word, “nigger.”
Conflicting testimony was adduced regarding whether the incident defused at that
point and whether the Webbs thereafter went into the Webb apartment. Appellant and Richie
said that the fight never broke up and that the Webbs never went inside of the apartment.
Webb’s mother said that one person (Webb) ran inside the apartment and came “right back”
outside.
The Webb witnesses testified that the fight broke up and that they all went inside the
apartment. They then heard a sound at the front door. Kristen said she opened the door and
saw foam running down the door where someone had apparently hit the door with a beer can.
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According to the Webb witnesses, appellant was standing outside of the apartment and called
Kristen a “bitch”; Webb called appellant a “nigger” and further argument ensued. Webb
admittedly ran toward appellant with the intent to fight him. While backing away from
Webb, appellant shot Webb in the stomach, using Richie’s 380 semiautomatic pistol that
he pulled from his pocket. Appellant and his companions then fled in Richie’s vehicle.
Appellant denied that he ever stood in front of the Webb apartment. Yet, LeeAnn
Clem, the responding officer, testified that there was a trail of blood in the kitchen area,
which was the apartment’s entry point. She further said that a beverage had been spilled in
the very front of the kitchen area and that the bullet casing was found in the parking space
in front of the apartment.
Whether Webb had a weapon was also disputed. Webb’s witnesses testified that he
had no weapon; Richie and appellant testified that Richie called to appellant that Webb had
a knife. She inconsistently testified that after the shot was fired, they ran back to her car and
that appellant shot as they were all “scrambling” back to the car. Richie said that appellant
shot at the ground. She also said that they were only “a few steps away” from her car, and
that appellant “didn’t have to run far at all.”
Appellant testified that Webb was approximately fifteentotwenty feet from him
when Webb ran at him; that he “shot low” to scare Webb; and that he never intended to shoot
anyone. Appellant’s witnesses said that three or four people rushed toward them; appellant
said that he did not think they could get back to the car and leave. He further said that his
family was outnumbered, that they did not know the Webbs, that the Webbs were “real
drunk,” and that he did not know what they were going to do to his family.
Appellant’s mother and Richie testified that they were concerned for their safety;
however, appellant’s mother said that “a minute or two” passed between the time Webb went
into the house and when he came out. She said this was not enough time to allow her to get
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into Richie’s twodoor Honda because she was tall and the front seat had to be pushed
forward.
None of appellant’s witnesses telephoned the police. Although appellant and Richie
testified that as they left someone called “Shoot me, nigger,” each of appellant’s witnesses
claimed that they were not certain whether appellant had shot anyone. Appellant admitted
that he called local hospitals but did not call the police. He also admitted that he initially
told the police he did not know anything about the shooting and denied to the police that he
shot anyone.
During the bench trial, appellant requested that the trial court dismiss the firstdegree
battery charge, but failed to challenge the proof of any specific elements of that charge. He
also argued that he acted in selfdefense. Additionally, he asserted that his conduct would
conform with seconddegree battery in recklessly causing serious physical injury by means
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of a deadly weapon. The trial court denied appellant’s directed verdict motion and the
renewal thereof; rejected appellant’s justification defense; and determined that he was not
entitled to the lesser charge. It found appellant guilty of firstdegree battery and sentenced
him to serve eight years in the Arkansas Department of Correction.
II. Motion for a Directed Verdict
Appellant first challenges the trial court’s denial of his motion for a directed verdict.
We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. In
reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most
favorable to the State and consider only the evidence that supports the verdict. See Coggin
v. State, 356 Ark. 424, 156 S.W.3d 712 (2004). We affirm a conviction if substantial
evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and
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See Ark. Code Ann. § 513202(a)(3) (Supp. 2007).
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character that it will, with reasonable certainty, compel a conclusion one way or the other,
without resorting to speculation or conjecture. Id.
Appellant was convicted of firstdegree battery under § 513201(a)(8), which defines
battery as purposely causing physical injury to another person by means of a firearm.
Appellant argues that the trial court erred in denying his motion for a directed verdict
because the State failed to make a prima facie case that he acted purposely. We summarily
affirm appellant’s conviction without reaching the merits of his argument because he failed
to assert below that the State failed to prove that he acted purposely.
A directedverdict motion shall state the specific grounds therefor, and must specify
the respect in which the evidence is deficient. See Ark. R. Crim. P. 33.1(a),(c). A general
motion merely stating that the evidence is insufficient does not preserve for appeal a
challenge to a specific deficiency in the evidence. See Ark. R. Crim. P. 33.1(c). A
defendant’s failure to state the specific grounds for his directedverdict motion or to state the
manner in which the evidence is deficient waives any question pertaining to the sufficiency
of the evidence to support the verdict. See Ark. R. Crim. P. 33.1(c).
Here, appellant requested that the court dismiss the firstdegree battery charge but he
failed to specifically challenge the proof of any elements of that charge. He further asserted
that if he committed firstdegree battery, then he was justified because he acted in self
defense. He also asserted that the charge should be reduced to seconddegree battery.
Clearly, appellant did not argue below, as he does now, that the State failed to prove he acted
purposely. Accordingly, we affirm because appellant failed to preserve his challenge to the
sufficiency of the evidence.
IV. Justification Defense
We further affirm because the trial court did not err in rejecting appellant’s
justification defense. Appellant argues that the trial court erred in failing to give “due
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consideration” to his justification theory. Appellant cites no authority for his apparent
proposition that “due consideration” is a legal standard that a trial court must meet when
ruling on the applicability of a justification defense. In any event, that is not the proper legal
standard. Rather, we examine whether substantial evidence supports the trieroffact’s
conclusion that the justification defense was inapplicable. See Gilliam v. State, 294 Ark.
115, 741 S.W.2d 631 (1987); Graham v. State, 2 Ark. App. 266, 621 S.W.2d 4 (1981).
In short, simply because the court ruled against appellant does not mean that it did not
give his argument “due consideration” or that it erred in rejecting appellant’s justification
defense. No justification defense was available to appellant, either because he failed to show
that he could not have safely retreated or because he provoked the situation in which he
purposely used deadly force.
Appellant does not deny that, in shooting Webb, he used deadly physical force. See
Ark. Code Ann. § 52601(2)(Repl. 2006) (defining “deadly physical force” as physical force
that under the circumstances in which is it used is readily capable of causing death or serious
physical injury). A person is justified in using deadly physical force upon another person
if the person reasonably believes that the other person is committing or is about to commit
a felony involving force or is using or about to use unlawful deadly physical force. See Ark.
Code Ann. § 52607(a)(1)(2) (Supp. 2007). However, a person is not permitted to use
deadly physical force in selfdefense if he knows that he can avoid the necessity of using
deadly force with complete safety by retreating. See Ark. Code Ann. § 52607(b)(1)(A);
Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992).
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Appellant also asserts that because he may have been reckless in forming his belief
that his use of deadly physical force was reasonable, he could be found guilty of no more
than seconddegree battery based upon a reckless mental state. See Ark. Code Ann. § 5
2614(a). In essence, he purports to challenge the trial court’s refusal to reduce the
charge to seconddegree battery. However, while he cites to the relevant statutory
provisions, he provides no real argument on this issue. Thus, we do not address it.
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Moreover, a person is not justified in using even mere physical force on another
person if, with the purpose to cause physical injury or death to the other person, the person
provokes the use of unlawful physical force by the other person. See Ark. Code Ann. § 52
606(b) (Supp. 2007). A condition precedent to a plea of selfdefense is an assault upon the
defendant of such a character that it is with murderous intent, or places the defendant in fear
of his life, or great bodily harm; thus, a mere assault is not sufficient to justify the plea of
selfdefense. See Girtman v. State, 285 Ark. 13, 684 S.W.2d 806 (1985). Finally, if the
victim was the original aggressor, and withdraws from an altercation so that the danger has
passed, a person is not justified in pursuing him to continue the fight or to use deadly
physical force upon him. See Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979).
Appellant here was not entitled to a justification defense, first, because the evidence
supports that he could have safely retreated to Richie’s vehicle and left the scene.
Appellant’s mother said that “a minute or two passed” between the time Webb entered the
apartment and when he came back out. Appellant fails to explain why that was not enough
time to retreat to Richie’s car and leave, especially in light of the fact that appellant, his
mother, and Richie were certainly able to run to the car and safely flee after the shooting.
Moreover, Webb was no closer than fifteen feet from appellant when he came out of
the apartment. Appellant was only a few feet from Richie’s car. Even if appellant backed
away as Webb approached him, appellant testified that he did not believe he could retreat to
Richie’s vehicle – thus, he cannot argue that he attempted to retreat. To the contrary,
appellant’s conduct in taking two steps back as Webb approached him allowed the
permissible inference that appellant anticipated the counterattack and was simply buying the
time needed to produce the gun from his pocket and fire it. See Burton v. State, 254 Ark.
673, 495 S.W.2d 841 (1973) (rejecting the defendant’s justification defense where the
defendant armed himself and went to a bar in anticipation that the decedent would be there
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and would attack him).
Second, appellant was not entitled to a justification defense
because he, being armed, provoked the use of unlawful physical force by Webb. The
evidence demonstrated that the original altercation ended when the fight between appellant
and Kevin broke up and the Webbs went into their apartment. By thereafter throwing the
beer can at the apartment door and insulting Kristen and Webb, appellant provoked the
subsequent attack by Webb. Webb admitted that he intended to “fight” appellant; however,
mere assault does not warrant a justification defense. See Girtman, supra.
Affirmed.
HART and GLADWIN, JJ., agree.
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