NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

SAM BIRD, JUDGE

DIVISION IV

AMANDA CHASE,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-651

MARCH 21, 2001

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT,

NO. CR98-174,

HON. FLOYD G. ROGERS, JUDGE

REVERSED and REMANDED

On May 9, 1998, Jerrell Littlejohn died of a single shotgun wound after Amanda Chase shot him in the neck. Littlejohn was thirteen years old at the time of his death, and Chase was fifteen. Chase was charged as an adult with first-degree murder, and her subsequent motion for transfer to juvenile court was denied. She was tried before a jury, was convicted of the lesser-included offense of manslaughter, and was sentenced to five years in the Arkansas Department of Correction. Her motion for a new trial was denied.

Chase appeals to this court, contending that the trial court 1) abused its discretion in limiting the examination of jurors on voir dire, 2) abused its discretion in permitting the introduction of a prior bad act, 3) erred by refusing to give a lesser-included-offense instruction of negligent homicide, and 4) erred in refusing to give proffered instructions on the defense of justification. We affirm the first and fourth points, and we reverse and remandthe second and third points.

At trial, the State's witnesses included Chief Deputy Allen Kaylor of the Crawford County Sheriff's Department, Deputy Aaron Beshears, Chase's sisters Samantha and Erica Burgess, her brother Gary Brown, and personnel from the state crime laboratory. In the case put on by the defense, Chase testified in her own behalf that the shooting was an accident. We summarize Kaylor's testimony before addressing the issues raised on appeal.

Deputy Kaylor testified that on May 9, 1998, he responded to a call about a shooting in the Turner Community area of Mulberry. When he arrived at the residence he asked Theresa Burgess, Chase's mother, what had happened. Chase interjected herself into the conversation and told the deputy that she had been babysitting her younger siblings and attempting to keep them out of a horse corral. She said that while she was trying to keep the children from being hurt by the horses, Littlejohn interfered by telling the children that they did not have to listen to her. Chase told Kaylor that Littlejohn handled a knife while he was in the corral, and that he followed her into the residence and refused to leave. She told Kaylor that she retrieved a shotgun, again told Littlejohn to leave, and loaded the weapon. She stated that Littlejohn walked outside, that she instructed two of the children to go into the house, and that the gun went off as she pulled her finger off the trigger.

Kaylor advised Chase of her Miranda rights at this point in her oral statement. However, she continued to speak, telling him that she sent one child to the neighbors to summon help, and that she waited for authorities to arrive. Kaylor received Burgess's consent to search the house. He retrieved a single-shot shotgun from the back bedroom,where he observed that the door had been slammed or shut hard. A spent shell casing was close to the residence.

Chase was taken to the sheriff's office and again advised of her rights. A taped statement she gave, introduced at trial through Kaylor's testimony, revealed her description of events. Littlejohn came to the residence for a visit and started "aggravating" Chase through a window. The youngest child, Brianne, was in the corral with a horse. Chase told the other children to get Brianne out of the corral, which they did, but some of them stayed inside the corral playing with a kitchen knife from her father's cutlery set. Littlejohn told the children that they did not have to do what Chase said, and he threw the knife into the woods. Brianne was in the corral again. Chase picked her up, took her into the house, turned around, and saw Littlejohn right behind her. She insisted that he go home because he caused trouble and the children would not mind her. He refused, and Chase retrieved the shotgun from its hiding place in the closet. Littlejohn looked as if he were not going to move, so she grabbed a shell and put it into the shotgun. Littlejohn then walked outside, where her sisters Erica and Samantha had gone, despite being told by Chase to clean their rooms. Chase told the two girls to go inside. Erica insisted she did not have to, and Samantha ran behind Chase.

Chase's taped statement continued:

I aimed between Jerrell and Erica and she thought I was aiming at her, and ran inside the house. He looked over at Samantha and said, "Don't worry, she won't do it." I didn't intend to. He then started towards the house again, I stopped him at the corner and he said it again, "She's not going to do it, she's not going to do it." When he got by the porch, I pulled back the hammer, and he said he didn't have to go home and whatever else. I thought I was aiming above his head, I heard Samantha crying, turned to see what she was doing, I felt the gun go off, turned around, and seen himdrop to the ground.

I heard Samantha and Erica screaming and told Sam to go get some help. Then I looked over and seen Erica and told her to go with Samantha. I also told one of the little children that was standing in the doorway to go back to the back room. When I seen him drop, I dropped the gun where it was, and I just waited for them to get back after I had taken the gun, and tried to put it into its hiding place. I heard the gun drop, turned around and looked at it, didn't think too much of it, went back outside in case anybody had shown, was about to show up. I seen the shell casing laying on the ground, mad at what I had just done, picked it up, and threw it at the house.

1.) Whether the trial court abused its discretion in limiting the examination of jurors on voir dire

Chase argues that the issues of self-defense and lesser-included offenses were primary considerations at trial, and that a cornerstone of her defense was that the homicide was justifiable. She contends that the trial court's refusal to allow use of the term "aggressor" was prejudicial to her ability to tie evidence to AMI Crim. 705 and 706, which state that a person is not required to retreat "if he is in his dwelling and was not the original aggressor."

During voir dire at trial, defense counsel asked the sixth potential juror whether he "would expect the aggressor to stop being aggressive" when asked to leave; when questioning the eighth potential juror, counsel again used the term "aggressor." The prosecutor objected that nothing indicated that the victim had used violence, but that the term indicated otherwise. Counsel argued that the victim was the aggressor when he approached the house after Chase asked him to leave. The trial court ruled that counsel could state that the victim was asked to leave, but that the term "aggressor" could not be used.

One who claims self-defense must show not only that the person killed was the aggressor, but that the accused used all reasonable means within his power and consistent with his safety to avoid the killing. Humphrey v. State, 332 Ark. 398, 966 S.W.2d 213 (1998). Evidence of specific acts of violence that were directed at an accused or were within his knowledge are probative of what the accused reasonably believed at the time and thus are relevant to his plea of self-defense. Id. The defense of justification is a matter of intent and a question of fact for the jury. Id. The extent and scope of voir dire is left to the sound discretion of the trial court, and the trial court's ruling will not be disturbed on appeal, absent an abuse of discretion. Christopher v. State, 340 Ark. 404, 10 S.W.3d 852 (2000). In directing the process of voir dire, the trial court must ensure that no undue advantage is gained. Id.

The State argues that the trial court could well have concluded that reference to the victim as the aggressor during voir dire would have given appellant an undue advantage by implying that his status was not in dispute. We agree with the State, and we hold that the trial court did not abuse its discretion in disallowing further use of the term "aggressor" during voir dire. See id.

2.) Whether the trial court abused its discretion in permitting the introduction of a prior bad act

Chase challenges the trial court's ruling that allowed her brother Gary Brown to testify regarding an incident that occurred about a year before Littlejohn's death. Brown testified that he was "picking on" Chase, that she said that she would get the shotgun from thebedroom, and that she did so. Brown further testified that the gun was not loaded, that Chase did not know how to use the gun at the time of the incident, and that he simply took it from her and returned it to the bedroom.

Defense counsel objected that the testimony had "no similarities" to the situation that was being examined at trial. The court ruled:

[O]ther crimes or evidence of other crimes may be introduced to show intent, lack of mistake, and any number or other things that may be pertinent in the particular case at hand. You will only consider this testimony for the limited purpose of deciding whether or not on this occasion the intent may have been present in the defendant, or lack of mistake may have been there, as opposed to finding her, and you will not have any punishment for this other crime.

Defense counsel then objected to the court's charge on the basis that the court was telling the jury that Chase had committed another crime.

Arkansas Rule of Evidence 404(b) provides:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

If the evidence of prior bad acts is relevant to show the offense of which the appellant was accused occurred, and is thus not introduced to show only bad character, it should not be excluded. Sullivan v. State, 289 Ark. 323, 711 S.W.2d 469 (1986). A trial court's decision to admit evidence under Rule 404(b) is discretionary and will not be reversed on appeal absent an abuse of that discretion. Sasser v. State, 321 Ark. 438, 902 S.W.2d 773 (1995).

In Rowdean v. State, 280 Ark. 146, 655 S.W.2d 413 (1983), and Lincoln v. State, 12Ark. App. 46, 670 S.W.2d 819 (1984), a conviction for first-degree murder and attempted first-degree murder, respectively, were reversed because prior acts of misconduct that had been admitted into evidence were found not relevant to the charges against the appellants. In Rowdean, where the murder charge arose from an early-morning shooting outside of a nightclub, the supreme court found that testimony of appellant's pulling a gun on another person at a drive-in earlier the same night was inadmissable under 404(b). Likewise, in Lincoln, evidence of appellant's waving a pistol while arguing with another man earlier the same night of the crime was found not to be related to the shooting for which appellant was charged and tried.

Here, the incident in which Chase fetched the unloaded shotgun after telling her brother that she would do so occurred a year before the shooting for which she was tried, it did not involve the victim of the crime that was the subject of trial, and the trial court's admonishment to the jury incorrectly referred to the incident as a crime. For these reasons, we find that testimony of this alleged prior misconduct was not relevant to Chase's act of shooting Littlejohn. We hold that such testimony was inadmissible under Ark. R. Evid. 404 (b) to prove lack of accident or for any other purpose, and that the trial court abused its discretion in failing to exclude the evidence. Thus, we reverse and remand on this point.

3.) Whether the trial court erred by refusing to give a lesser-included offense instruction of negligent homicide

As previously mentioned, Chase told Chief Deputy Kaylor that she thought she was aiming over the victim's head, and that the shotgun went off when she heard her sisterSamantha crying and turned to see what she was doing. Additionally, Samantha testified at trial that when she fell and scraped her knee, Chase turned to look at her and that the gun went off; that after the shooting, Chase dropped the gun and screamed, "Oh, my God, I didn't mean to shoot him!"; and that she sent Samantha and Erica to get help. Erica testified that while Chase was pointing the gun between or above Littlejohn and the two girls, Chase said, "Don't worry, I'm not gonna shoot it. I'm not gonna shoot anybody." Erica further testified that she went inside but ran back out when she heard a bang, and that when Littlejohn was lying on the ground, Chase was crying and saying, "Oh, my God, Jerrell, I'm sorry."

Under Ark. Code Ann. § 5-10-104(a)(3) (Repl. 1997), a person commits manslaughter if he recklessly causes the death of another person. Under Ark. Code Ann. § 5-10-105(b)(1) (Supp. 1999), a person commits negligent homicide if he negligently causes the death of another person. In Lowe v. State, 264 Ark. 205, 570 S.W.2d 253 (1978), the supreme court held that negligent homicide was a lesser-included offense of manslaughter. Its opinion, focusing upon the culpable mental states recognized in Arkansas' criminal code, included the following discussion regarding "recklessly" and "negligently":

[T]he respective statutory test is whether the actor perceived the substantial risk of death and disregarded it (reckless conduct) or failed to perceive the risk of death in the first place (negligent conduct). Thus, the only difference between manslaughter and negligent homicide is the mental state of the actor. Therefore, negligent homicide, which requires a lesser culpable mental state than manslaughter, is a lesser included offense of manslaughter.

264 Ark. at 208, 570 S.W.2d at 255.

The appellant in Worring v. State, 2 Ark. App. 27, 616 S.W.2d 23 (1981), was convicted of manslaughter after being tried before a jury trial for first-degree murder. Theevidence showed that she followed her husband's truck to a darkened area, found him in a parked car with another woman, walked around the car, opened the door, verbally accosted him, and shot him once with a .22 caliber pistol. The two women assisted in getting him to the hospital where he died. At her jury trial, the appellant testified that she had not intentionally fired the weapon. The trial court instructed the jury on murder in the first and second degrees and on manslaughter, but it refused to give a requested instruction on negligent homicide. The supreme court held that the jury, as the finder of fact, should have been instructed on negligent homicide so that it could determine whether the defendant should have been aware of the risk in pointing the gun at the victim.

In this case, as in Worring, id., the accused testified that she did not intend to shoot her victim. We hold that Chase's jury should have been instructed on negligent homicide so that they could determine whether she should have been aware of the risk of pointing the shotgun at Littlejohn. We therefore reverse and remand for the jury instruction on negligent homicide to be given.

4.) Whether the trial court erred in refusing to give proffered instructions on the defense of justification

Chase proffered two model jury instructions and one non-model instruction on the defense of justification, all of which were refused by the trial court. She argues on appeal that this refusal was error because the use of force and the homicide were justified. Chase contended throughout the trial, however, that Littlejohn was killed by an accidental discharge of the shotgun. A claim of accidental discharge of a weapon does not entitle oneto an instruction on a deliberate act of self-defense. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983). Thus, the trial court did not err in refusing to give the proffered instructions on justification.

Reversed and remanded.

Robbins, J., agrees.

Roaf, J., concurs.