James Clifton Mainard, II v. State of Arkansas
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DIVISION I
CA CR 07-823
April 30, 2008
JAMES CLIFTON MAINARD, II
APPELLANT
V.
APPEAL FROM THE FRANKLIN
COUNTY CIRCUIT COURT
[NO. CR-2006-125]
STATE OF ARKANSAS
HONORABLE J. MICHAEL FITZHUGH,
CIRCUIT JUDGE
APPELLEE
AFFIRMED
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 extramarital 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, and then she heard a knock
at the door. She testified that her husband came into the bedroom and ripped the covers off
of her. He then took her wedding ring off of her finger and pushed the left side of her face
with his hand. She testified that appellant told her husband to leave, but she and her husband
continued to argue. Amanda testified that the lights went out and she saw the flashes of the
gun and heard the shots. She stated that her husband did not make any movement toward
appellant before the shooting; that her husband had not threatened appellant; and that she saw
no weapon in her husband’s possession, although he did carry a pocketknife. She
acknowledged that her husband had been physically abusive to her in the past and that
appellant was aware of the abuse. She also noted that Darryl did not appear to be intoxicated
at the time.
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
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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 AMCI 2d 705, in which he inserted a
justification defense based on Ark. Code Ann. § 5-2-607 (Repl. 2006).1 The jury found
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
1
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appellant guilty of second-degree murder, and he was sentenced to eighteen years’
imprisonment. Appellant then filed a timely notice of appeal to this court.
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, ___ Ark. ___, ___ S.W.3d ___ (Feb. 7, 2008).
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Tomboli v.
State, 100 Ark. App. 355, ___ S.W.3d ___ (2007). In reviewing a challenge to the sufficiency
of the evidence, we view the evidence in the light most favorable to the State, considering
only the evidence that supports the verdict, and we will affirm a conviction if substantial
evidence exists to support it. Thompson v. State, 99 Ark. App. 422, ___ S.W.3d ___ (2007).
Substantial evidence is that which is of sufficient force and character that it will, with
reasonable certainty, compel a conclusion one way or the other, without mere speculation
or conjecture. Eaton v. State, 98 Ark. App. 39, ___ S.W.3d ___ (2007).
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)(1) (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
other person is … imminently endangering the person’s life or imminently 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….”
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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, 368 Ark. 646, ___ S.W.3d ___ (2007).
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 lesserincluded 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, 353 Ark. 294, 107 S.W.3d 136 (2003). Appellant’s directed verdict motion did
not include the lesser-included offense of second-degree murder, either in name or in
elements; accordingly, we find that appellant’s argument is not preserved for appellate review.
For his second point on appeal, appellant argues that the trial court erred in failing to
instruct the jury using his modified version of AMCI 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
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will not be reversed absent an abuse of discretion. Davis v. State, 97 Ark. App. 6, 242 S.W.3d
630 (2006).
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, 96 Ark. App. 385, 242 S.W.3d 298 (2006). Moreover, the proffered instruction in
this case is an incorrect statement of law. Appellant’s proffered instruction inserts the language
of Ark. Code Ann. § 5-2-607 into the model jury instruction regarding justification, but
section 5-2-607 applies only to self-defense, not the protection of third parties, in the face of
domestic abuse. Because the proffered instruction is an incorrect statement of the law, the trial
court’s refusal to give the instruction was not an abuse of discretion.
Affirmed.
HART and VAUGHT, JJ., agree.
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