                               Cite as 2014 Ark. App. 686

                ARKANSAS COURT OF APPEALS
                                      DIVISION I
                                     No. CR-14-66


ANDREW J. CODY                                 Opinion Delivered   December 3, 2014
                             APPELLANT
                                               APPEAL FROM THE POPE COUNTY
                                               CIRCUIT COURT
V.                                             [NO. CR-12-277]

                                               HONORABLE WILLIAM M.
                                               PEARSON, JUDGE
STATE OF ARKANSAS
                                APPELLEE       AFFIRMED



                         PHILLIP T. WHITEAKER, Judge


      Appellant Andrew J. Cody was charged with one count of first-degree murder of Lee

Britton and one count of aggravated residential burglary. The Pope County Circuit Court

denied Cody’s request to instruct the jury on manslaughter on the murder charge, and the

jury found him guilty of the lesser-included offense of second-degree murder. The jury

acquitted Cody of aggravated residential burglary. He was sentenced to twenty years in the

Arkansas Department of Correction. Cody subsequently filed a motion for new trial, arguing

that the prosecutor had engaged in “reverse vouching” due to inappropriate behavior during

closing arguments and the sentencing phase of the trial. The circuit court denied Cody’s

motion. On appeal, Cody challenges the circuit court’s rejection of his request for a
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manslaughter instruction and the court’s denial of his motion for new trial. We find no error

and affirm.

                                    I. Background Facts

       Cody was married to Sheena Cody. They are the parents of a then five-year-old

daughter, H.C., and a son, B.C. Cody and Sheena separated, and the separation essentially

resulted in Sheena being homeless for some time. Eventually, Sheena rented a room from

Britton in March 2012. Britton, unbeknownst to Sheena or Cody, had previous “true”

findings for sexual assault from the Arkansas Department of Human Services (DHS).

       On May 12, 2012, Latricia Brown, a family service worker specialist with DHS,

responded to a “Priority One” call at Britton’s home. Based upon the previous “true” finding

for sexual assault committed by Britton, DHS was investigating Sheena’s residence at

Britton’s home and the exposure of Sheena and Cody’s children to Britton. DHS instructed

Sheena to remove the children from Britton’s home immediately. At the time of Brown’s

visit, B.C. was with Sheena at Britton’s home, but H.C., who was in Cody’s care, was not

present. Sheena contacted Cody about the DHS involvement, and Cody went to get B.C.

       On the drive to Britton’s house, H.C. told Cody that Britton had molested her. When

Cody arrived at Britton’s house, Cody revealed H.C.’s disclosure to Brown. She explained

to him that he needed to call the Crimes Against Children Division (CACD) to report the

alleged molestation. Enraged, Cody went inside Britton’s house, asking why Britton touched

his daughter. Britton denied the allegation, saying, “I don’t know why she would say that.”

After that, Cody left Britton’s house and called CACD.


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       CACD began its investigation the next day, May 13, 2012, and conducted interviews

with Sheena, Cody, and H.C. CACD also set up a physical exam for H.C. Additionally,

Cody was informed that Britton was scheduled to report to law enforcement with his

attorney on May 18, 2012.

       After DHS became involved on May 12, Sheena began staying at motel rooms paid

for by Britton. Sometimes Cody and the children stayed with her; Cody was aware that

Britton was paying for the rooms. On May 18, Cody, Sheena, and the children had been

swimming at a motel pool. The room had been paid for by Britton. After they checked out,

Cody returned Sheena to Britton’s home because Sheena had nowhere else to go. As the two

argued, Sheena related to Cody that Britton had offered to buy her a trailer and some land

“to just let this go away.” Cody replied that she “could do whatever the hell she wanted to

but there ain’t no damn way [he] was gonna do anything.” Cody dropped Sheena off at

Britton’s house and took the children home with him. Because Britton was not home at the

time, Sheena went across the street to her friend Kristina’s house.

       About twenty minutes later, Cody returned to Britton’s house with the children still

with him. He entered Britton’s house, leaving the children in the vehicle but taking his .12-

gauge shotgun with him. After determining that Sheena was not present, Cody put the gun

down in a bedroom.

       Leaving Britton’s home, Cody found Sheena across the street at Kristina’s house. He

told her that she did not have to stay with Britton. Cody and Sheena got in the truck and

left, but a few hundred yards down the road, Cody “just stopped and got out” because he


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“just had to go talk” to Britton. Cody said that he intended to confront Britton and force

him to confess to molesting H.C. He explained that he was “going to [beat] him up; [he]

didn’t have the intention of killing him.” Cody told Sheena to take the truck and drive to

his father’s house with the children.

       Cody returned to Britton’s house, walking through the woods so he would not be

seen. After he ascertained that Britton was still not home, he got his gun out of the bedroom

and “sat down on a living room chair, lit a cigarette, and waited.” As he waited, he thought

about “what evidence could place [him] in the house,” so he found some plastic bags to

cover his shoes so he would not leave footprints. He also pulled on a long-sleeved shirt so

he “wouldn’t get any blood” on himself.

       Moments later, Britton arrived home. As he entered the house, Cody stepped out of

the bedroom with the shotgun pointed at Britton. Cody asked Britton why he molested

H.C.; according to Cody, Britton looked at him, smiled, and said, “that fucking little bitch

is lying.” At that moment, Cody “just reacted” and shot Britton in the head. Cody then

made sure Britton was dead, said “a few choice words,” picked up the shotgun shell, and left.

       Cody was arrested shortly thereafter. In his first statement to police, he initially denied

killing Britton. Moments later, however, he told the detective that he was frustrated by the

slow pace of the police investigation into Britton’s abuse of H.C. He also expressed disgust

with Britton’s attempts to “buy” Sheena by offering her money and property to keep from

prosecuting him. Cody explained that when he told Britton that H.C. had accused him of

molesting her, Britton said “that little bitch is lyin’,” and Cody shot him in the head. Cody


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asserted that he really only wanted to talk to Britton and beat him up to make him confess

what he had done to H.C., but when Britton called H.C. a liar, Cody just “drew a bead on

him and . . . pulled the trigger.”

                                     II. Manslaughter Instruction

       In his first argument on appeal, Cody argues that the circuit court erred in refusing

to allow the jury to consider manslaughter as a lesser-included offense. A person commits

manslaughter if the person causes the death of another person under circumstances that

would be murder, except that he or she causes the death under the influence of extreme

emotional disturbance for which there is reasonable excuse. Ark. Code Ann. § 5-10-

104(a)(1)(A) (Repl. 2006). The reasonableness of the excuse is determined from the

viewpoint of a person in the defendant’s situation under the circumstances as he or she

believes them to be. Ark. Code Ann. § 5-10-104(a)(1)(B).

       Cody proffered a jury instruction on manslaughter, arguing that there was evidence

that he had acted under extreme emotional disturbance. A jury instruction on extreme-

emotional-disturbance manslaughter under section 5-10-104(a)(1) requires evidence that the

defendant killed the victim following provocation such as “physical fighting, a threat, or a

brandished weapon.” Pollard v. State, 2009 Ark. 434, 336 S.W.3d 866; Boyle v. State, 363 Ark.

356, 214 S.W.3d 250 (2005); Kail v. State, 341 Ark. 89, 94, 14 S.W.3d 878, 881 (2000).

Moreover, in Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992), the supreme court

examined the level of passion resulting from a provocation that may reduce a homicide from




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murder to manslaughter as follows:

       [M]ere threats or menaces, where the person killed was unarmed and neither
       committing nor attempting to commit violence on the defendant at the time of the
       killing, will not free him of the guilt of murder.

310 Ark. at 423, 837 S.W.2d at 455 (quoting Wootton v. State, 232 Ark. 300, 337 S.W.2d 651

(1960)). The court explained further, however, that “adequate provocation can occur when

the victim is armed or is attempting to commit violence toward the defendant.” Id. at

423–24, 837 S.W.2d at 455–56.

       In the instant case, the circuit court, finding that there was no evidence of the

provocation necessary to give a manslaughter instruction, declined Cody’s proffer. The law

is well settled on lesser-included-offense jury instructions. It is reversible error to refuse to

instruct on a lesser-included offense when there is the slightest evidence to support the

instruction. Morris v. State, 351 Ark. 426, 94 S.W.3d 913 (2003); Taylor v. State, 2009 Ark.

App. 627, 331 S.W.3d 597. The appellate courts have further made it clear that 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 the instruction. Morris, supra. An appellate court will not reverse

a trial court’s decision regarding the submission of such an instruction absent an abuse of

discretion. Davis v. State, 2011 Ark. 433 (per curiam); Boyle v. State, 363 Ark. 356, 214

S.W.3d 250 (2005).

       On appeal, Cody argues that the facts of his case warranted a manslaughter instruction.

Specifically, he contends that, having learned that Britton had sexually molested his five-year-

old daughter, he was reasonably incited to an irresistible passion when Britton smiled and said


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“that fucking little bitch is lying.” He urges that he was in a “heightened state of upset about

his child’s circumstances and the threat that Britton posed to any child, but especially his

own.” Cody asserts that Britton’s smile and his statement that H.C. was a liar were the

actions that provoked him or induced the necessary passion to pull the trigger. We disagree.

       In short, the facts of this case do not give rise to the provocation necessary to warrant

the giving of an extreme-emotional-disturbance-manslaughter instruction. There was no

evidence that Britton was armed; in fact, Cody even conceded that Britton was not carrying

or brandishing a weapon. Cody asserts that Britton’s statement, along with Cody’s

knowledge of Britton’s past, gave rise to the necessary provocation. He further urges that

“whether the excuse is reasonable is determined from the viewpoint of a person in the actor’s

situation under the circumstances as the actor believed them to be.” Ark. Code Ann. § 5-10-

104(a)(1)(B). Therefore, Cody contends that, because a person in his situation would

reasonably be enraged by Britton’s actions and words, the court should have instructed the

jury on extreme-emotional-disturbance manslaughter.

       The supreme court rejected a similar argument in Pollard v. State, 2009 Ark. 434, 336

S.W.3d 866. There, Pollard killed the victim with a sawed-off shotgun. Pollard argued

entitlement to an extreme-emotional-disturbance-manslaughter instruction because he was

aware of the victim’s violent reputation and feared him. He also urged that the victim

showed him a gun in the waistband of his pants on the night of the killing. At the time of

the shooting, Pollard believed the victim was armed and intended to kill him. The victim,

however, was unarmed. The supreme court rejected Pollard’s argument that the court erred


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in refusing to give the manslaughter instruction. The court acknowledged that Pollard was

afraid of the victim and believed he had a gun, but there was “no testimony or other

evidence that [the victim] actually threatened Pollard with a gun at the time of the killing.”

Id. at 7–8; 336 S.W.3d at 870. The court concluded that the victim’s alleged threats did not

provide a rational basis for the manslaughter instruction, because “mere threats or menaces,

where the person killed was unarmed and neither committing nor attempting to commit

violence on the defendant at the time of the murder, will not free him of the guilt of

murder.” Id. at 10, 336 S.W.3d at 871.

       Here, even assuming that Britton’s admittedly crude and taunting words about Cody’s

child constituted a threat, Pollard holds that “mere threats or menaces” are insufficiently

provocative when the person killed was not armed and was not committing a violent act

against the defendant. The circuit court therefore did not abuse its discretion in refusing to

give the instruction.

                                    III. Motion for New Trial

       In his second point on appeal, Cody challenges the circuit court’s denial of his motion

for new trial. The decision whether to grant or deny a new trial lies within the sound

discretion of the trial court, and this court will reverse that decision only if there is a manifest

abuse of discretion. Smart v. State, 352 Ark. 522, 104 S.W.3d 386 (2003); Henderson v. State,

349 Ark. 701, 80 S.W.3d 374 (2002). A trial court’s factual determinations on a motion for

a new trial will not be reversed unless clearly erroneous, and the issue of witness credibility




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is for the trial court to weigh and assess. Campbell v. State, 2014 Ark. App. 171, 432 S.W.3d

673.

       Cody sought a new trial based on allegations that he was denied a fair trial due to the

deputy prosecuting attorney’s “impermissible commentary on the credibility of defense

witnesses.” That “commentary” consisted of her “grinning, laughing, and rolling her eyes

to indicate the defense witnesses’ testimony was not credible.” Cody attached several

affidavits to his motion in which various witnesses asserted that they had observed the

prosecutor’s actions and felt that her behavior had distracted the jurors.

       The circuit court held a hearing on the motion. The testimony of appellant’s witnesses

essentially reiterated the averments contained in the affidavits attached to the motion. The

circuit court also heard from court security personnel who testified there had been no jury

distraction throughout the proceedings.

       The circuit court denied Cody’s motion for new trial, first noting that nothing

happened during the course of the trial that was serious enough to require the court to

intervene. The court further found that there was no evidence that jurors could have been

or were influenced by the alleged behavior. The court noted that the jurors were presumed

to have followed the court’s instructions, and it said that it was unwilling to make the

assumption that the jurors did not do so. Finally, the court noted discrepancies between the

witnesses’ testimony at the hearing and found that their statements were not credible. The

court concluded:

       I will emphasize that in the court’s observance of this trial and the jury, they were
       focused on the witnesses in this case. Their attention was not distracted from that.

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       They were not influenced by anything extraneous to what their role and function was
       in this trial, and there’s not been any evidence presented to indicate otherwise.

       On appeal, Cody argues that the prosecutor’s actions amounted to “reverse

vouching,” or negatively opining on the credibility of the defense’s witnesses, and the circuit

court therefore erred in denying his motion for new trial. We disagree. Here, the evidence

offered at the new-trial hearing was that the prosecuting attorney rolled her eyes and made

faces during the questioning of defense witnesses. There was, however, no evidence, such

as testimony from a juror, that Patton’s actions distracted the jury, let alone swayed its

decision making.

       This court has noted that, although it is within a trial court’s discretion to grant a new

trial when a verdict is rendered against a defendant by which his substantial rights have been

prejudiced, there must be a showing of the prejudice suffered and that the defendant did not

receive a fair and impartial trial. Dail v. State, 2013 Ark. App. 184. Here, the circuit court

made factual findings that the jury was not distracted or influenced by the prosecuting

attorney’s actions, and those findings were supported by the evidence introduced at the new-

trial hearing. Cody failed to point to a single juror whose decision was swayed by the

prosecutor’s conduct. In the absence of a demonstration of prejudice, we cannot say that the

circuit court abused its discretion in denying Cody’s motion for new trial.

       Affirmed.

       PITTMAN and GLOVER , JJ., agree.

       Debra J. Reece, for appellant.

       Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.

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