Sullivan v. State

Cite as 2015 Ark. App. 514

ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-15-166

GEORGE SULLIVAN Opinion Delivered: September 23, 2015
APPELLANT
APPEAL FROM THE CONWAY COUNTY
V. CIRCUIT COURT
[NO. 15CR-13-25]
STATE OF ARKANSAS
APPELLEE HONORABLE JERRY DON RAMEY,
JUDGE

AFFIRMED

WAYMOND M. BROWN, Judge

On August 11, 2014, a Conway County jury found George Sullivan (hereinafter

“appellant”) guilty of second-degree murder after he fatally shot Eric Criswell. On appeal,

he argues that the circuit court erred in failing to grant his motion for a directed verdict

and, specifically, that the court erred in denying his motion because the State failed to

negate his justification defense. We affirm.

Morrilton police officers were called to 206 North Hills during the afternoon of

January 28, 2013. There, they found the body of Eric Criswell, who had been shot in the

chest and left buttock, lying in the doorway to the residence. While officers were securing

the scene, they discovered eight spent .45-caliber hulls between the porch and the

driveway. The points of impact of the bullets were primarily located around the porch,

and none impacted above the door-handle level.
Cite as 2015 Ark. App. 514

After interviewing witnesses, officers apprehended appellant as a suspect. He then

gave a statement. Appellant informed police that earlier in the day he and Richard Palma

had purchased fraudulent drugs from Criswell’s girlfriend, Charity King. Palma, who

provided the gun, drove appellant to Criswell’s house to confront King, and began

circling the block. After appellant knocked on the door, Criswell and his friend, Josh

Hardiman, came outside. He stated that, after talking for a moment, Criswell went back

inside and slammed the door in his face. Criswell then came back outside, and the two

began arguing with each other. Soon thereafter, appellant alleges that Criswell, a much

bigger man, lunged at him with one hand apparently behind his back, as if to conceal a

weapon, and he “blacked out,” firing eight warning shots. One of those shots struck

Criswell in the middle of the chest. Criswell said, “Are you serious?” and moved toward

his door. Appellant left with Palma.

On August 11, 2014, in addition to the testimony of multiple witnesses, appellant’s

recorded statement was played for the jury. At the end of the State’s case-in-chief,

appellant moved for a directed verdict, asserting justification as a defense for his use of

deadly force. His motion was denied.

Our court reviews motions for directed verdicts as challenges to the sufficiency of

the evidence, and will affirm the circuit court’s denial of a motion for a directed verdict if

there is substantial evidence, direct or circumstantial, to support the jury’s verdict.1

“Substantial evidence” is evidence that is forceful enough to compel a conclusion one way

1
Williamson v. State, 2009 Ark. 568, 350 S.W.3d 787 (2009); Flowers v. State, 373
Ark. 127, 282 S.W.3d 767 (2008).

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or the other beyond speculation and conjecture.2 In determining whether substantial

evidence supports the finding of the trial court, we do not reweigh evidence. 3 Rather,

evidence is viewed in the light most favorable to the appellee and the conviction is

affirmed if there is substantial evidence to support the verdict.4 Similarly, when reviewing

the sufficiency of the State’s negation of a justification defense, our court employs

substantial evidence as the standard of review.5

“A person commits murder in the second degree if: (1) the person knowingly

causes the death of another person under circumstances manifesting extreme indifference

to the value of human life.”6

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
such circumstances exist. A person acts knowingly with respect to a result of
his conduct when he is aware that it is practically certain that his conduct
will cause such a result.7

For purposes of second degree murder, one acts “under circumstances manifesting

extreme indifference to the value of human life” when he engages in deliberate conduct

2
Price v. State, 373 Ark. 435, 284 S.W.3d 462 (2008).
3
Mauppin v. State, 314 Ark. 566, 865 S.W.2d 270 (1993).
4
Reed v. State, 91 Ark. App. 267, 209 S.W.3d 449 (2005); Stewart v. State, 89 Ark.
App. 86, 200 S.W.3d 465 (2004).
5
Lewis v. State, 2014 Ark. App. 730, 451 S.W.3d 591.
6
Ark. Code Ann. § 5-10-103(a)(1).
7
Ark. Code Ann. § 5-2-202(2).

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which culminates in the death of some person.8 Justification becomes a defense when any

evidence tending to support its existence is offered, and once raised, it becomes an

element that must be disproved by the State.9 Whether one is justified in using deadly

force is an issue for the jury.10 A defendant cannot rely on the defense of justification if the

defendant created the situation necessitating his conduct.11

Appellant sets forth four reasons in arguing that the State did not prove that he

knowingly caused the death of Eric Criswell, or alternatively, that he was justified in

doing so. First, he argues that the evidence at the crime scene shows that he was backing

up while firing. Second, no bullets were fired above the level of the door handle. Third,

there was no blood found in front of the house or on the porch, and therefore, he did not

know Criswell was shot. Fourth, Criswell’s comment “are you serious?” was not

indicative of a person who had been shot.

A jury could find that appellant’s arguments and his defense of justification are

without merit. Appellant intentionally fired eight “warning shots” at Criswell. Two struck

Criswell, including a fatal shot to the center of his chest. The jury found that such conduct

established extreme indifference to human life. Appellant’s argument that the fact that the

bullets were fired below the door handle is indicative that he was without intent was also

found to be meritless. First, the simple act of pointing a loaded gun at Criswell was
8
Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999).
9
Lewis, supra.
10
Id.
11
Peals v. State, 266 Ark. 410, 584 S.W.2d 1 (1979).

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Cite as 2015 Ark. App. 514

enough to satisfy the intent standard of second-degree murder.12 Second, evidence showed

that at least one shot was fired above the door handle as it struck Criswell, a tall man, in

the center of his chest. Third, appellant is incorrect in his assertion that one could not

reasonably anticipate the death of a victim solely because shots were fired below the waist.

Appellant also was not justified in using such force against Criswell. Primarily,

appellant initiated the situation that brought about his use of deadly force. He arrived at

Criswell’s home with a loaded gun and when Criswell went back inside, appellant

remained. Further, evidence at the crime scene did not support appellant’s assertion that

he was backing up when firing shots. Finally, Josh Hardiman, an eyewitness, testified that

Criswell never “charged” at the appellant; that he never left the porch. Even if appellant’s

statements are accurate, a jury could find that firing eight shots in the direction of a person

lunging at him was unreasonable.

We affirm.

ABRAMSON and HARRISON, JJ., agree.

Files & Brasuell, PLLC, by: Toney B. Brasuell, for appellant.

Leslie Rutledge, Att’y Gen., by: Kristen C. Green, Ass’t Att’y Gen., for appellee.

12
Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002).
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