                                Cite as 2014 Ark. App. 624

                 ARKANSAS COURT OF APPEALS
                                      DIVISION IV
                                      No. CR-14-154


                                                 Opinion Delivered   November 5, 2014

HERBERT BENNETT                                  APPEAL FROM THE GARLAND
                               APPELLANT         COUNTY CIRCUIT COURT
                                                 [NO. CR-11-701-1]
V.
                                                 HONORABLE JOHN HOMER
                                                 WRIGHT, JUDGE
STATE OF ARKANSAS
                                 APPELLEE        AFFIRMED



                            KENNETH S. HIXSON, Judge


       Appellant 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 now-
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wife 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.




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         Cornelius 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


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have 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,        S.W.3d       . 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


       1
        Mr. Bennett was convicted under Arkansas Code Annotated section 5-10-
103(a)(2) (Repl. 2013), which provides that a person commits second-degree murder if,
“[w]ith the purpose of causing serious physical injury to another person, the person causes

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his 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 Ark. App. 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. 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.

Mainard, 102 Ark. App. at 214, 283 S.W.3d at 630 (citation omitted).

       Like the appellant in Mainard, Mr. Bennett never mentioned second-degree murder

or any of its elements when seeking a directed verdict. Therefore, he waived his sufficiency




the death of any person.”

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challenge on this lesser-included offense. See also Rasul v. State, 2009 Ark. App. 631; Carter

v. State, 2009 Ark. App. 204.

       Mr. Bennett next argues that the trial court erred in not giving his proffered jury

instruction on the lesser-included offense of negligent homicide. Pursuant to Arkansas Code

Annotated section 5-10-105(b)(1) (Repl. 2013), a person commits negligent homicide if he

negligently causes the death of another person. Arkansas Code Annotated section 5-2-202(4)

(Repl. 2013) defines “negligently”:

         (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.
         (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.

       An instruction on a lesser-included offense is appropriate when it is supported by even

the slightest evidence. Cole v. State, 2013 Ark. App. 492. Once an offense is determined to

be a lesser-included offense, the trial court is obligated to instruct the jury on that offense only

if there is a rational basis for a verdict acquitting the defendant of the offense charged and

convicting him of the lesser-included offense. Id. A trial court’s ruling on whether to submit

a jury instruction will not be reversed absent an abuse of discretion. Id.

       Applying these standards, we hold that the trial court did not abuse its discretion in

refusing to instruct the jury on negligent homicide. Mr. Bennett relies on Worring v. State,

2 Ark. App. 27, 616 S.W.3d 23 (1981), but in that case we held that the trial court erred in

failing to give a negligent-homicide instruction where the appellant testified that she had not


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intentionally fired the weapon that killed the victim. By contrast, in the present case

Mr. Bennett testified that he reached under his car seat, chambered a round, and intentionally

fired the weapon directly at the victim’s chest. That being so, there was no rational basis to

conclude that Mr. Bennett’s actions were merely negligent.

       Mr. Bennett suggests that the jury might have found that he was negligent in forming

his reason to act with deadly physical force, but this argument also fails. Deadly physical force

is justified as self defense if the defendant reasonably feared he was in danger of losing his life

or receiving great bodily injury. Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992)

(emphasis added). However, there is no justification for using deadly physical force if the

defendant negligently feared he was in such danger. The elements of negligent homicide

require that the jury find that the defendant negligently caused the death of another person,

and given Mr. Bennett’s admission that he intentionally fired at the victim this instruction was

properly denied.

       Furthermore, we have held that when a lesser-included offense has been the subject

of an instruction, and the jury convicts of the greater offense, error resulting from the failure

to give an instruction on another still lesser-included offense is cured. Kelly v. State, 80 Ark.

App. 126, 91 S.W.3d 526 (2002). This is commonly referred to as the skip rule. Id. In this

case the jury was instructed on first-degree murder, second-degree murder, and manslaughter.

Because the jury convicted Mr. Bennett of second-degree murder and had been instructed

on the lesser-included offense of manslaughter, any possible error in failing to give an

instruction on the even lesser lesser-included offense of negligent homicide was cured.


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       Mr. Bennett’s remaining argument is that the trial court abused its discretion in failing

to give his proffered jury instruction on third-degree battery. The jury was instructed on first-

degree battery and second-degree battery, and the jury convicted appellant of second-degree

battery committed against Lucas Horsley. Pursuant to Arkansas Code Annotated section 5-

13-202(a)(3)(A) (Repl. 2013), a person commits second-degree battery if he recklessly causes

serious physical injury to another person. Appellant’s proffered instruction on third-degree

battery was consistent with Arkansas Code Annotated section 5-13-203 (Repl. 2013), which

provides that a person commits third-degree battery if: (1) with the purpose of causing

physical injury to another person, the person causes physical injury to any person, (2) the

person recklessly causes physical injury to another person, or (3) the person negligently causes

physical injury to another person by means of a deadly weapon.

       The thrust of Mr. Bennett’s argument focuses on the difference between causing a

“serious physical injury” as required for second-degree battery and only causing a “physical

injury” as required for third-degree battery. Mr. Bennett argues there was an absence of proof

that Lucas suffered a “serious physical injury,” and that there was a rational basis from which

the jury could conclude that he suffered only a “physical injury.” Mr. Bennett asserts that the

evidence relating to Lucas’s injury came from lay witnesses, and that there was no testimony

from medical personnel or Lucas himself to show that his injury was serious. We disagree

with appellant’s argument.

       “Serious physical injury” means physical injury that creates a substantial risk of death

or that causes protracted disfigurement, protracted impairment of health, or loss or protracted


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impairment of the function of any bodily member or organ. Ark. Code Ann. § 5-1-102(25)

(Repl. 2013). “Physical injury” means the impairment of physical condition, infliction of

substantial pain, or infliction of bruising, swelling, or a visible mark associated with physical

trauma. Ark. Code Ann. § 5-1-102(14) (Repl. 2013).

       The testimony relating to Lucas’s injury showed that Lucas suffered a gunshot wound

to the neck and was bleeding from each side of his neck. Beth Bloodsaw testified that Lucas

fell to the ground and was turning purple. Officer Patrick Langley responded to the shooting

and testified that Lucas had a wound to the front of his throat and was gurgling and coughing

up blood. Officer Langley described it as a fairly severe wound, stated that there was a

substantial amount of bleeding, and said that he was concerned that Lucas would die before

the ambulance arrived. The injury resulted in a hospital stay of at least several days. Based

on the evidence presented, we conclude that the only rational conclusion was that Lucas

Horsley sustained a serious physical injury as opposed to just a physical injury. Because there

was no rational basis to acquit Mr. Bennett of second-degree battery and convict him of third-

degree battery, we hold that there was no abuse of discretion in denying a third-degree

battery instruction.

       Affirmed.

       GRUBER and BROWN, JJ., agree.

       Phillip A. McGough, P.A., by: Phillp A. McGough, for appellant.

       Dustin McDaniel, Att’y Gen., by: Ashley Argo Priest, Ass’t Att’y Gen., for appellee.




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