Cite as

Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry Date: 2022.07.29 09:24:58 -05'00' DIVISION I Adobe Acrobat version: No. CR-19-44 2022.001.20169 Opinion Delivered: October 2, 2019 TANISHA GILLARD APPEAL FROM THE CRITTENDEN APPELLANT COUNTY CIRCUIT COURT [NO. 18CR-17-848] V. HONORABLE RANDY F. PHILHOURS, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Tanisha Gillard was convicted in a jury trial of second-degree murder.

The victim was Wesley Booker, who died as a result of multiple stab and cutting wounds.

Tanisha was sentenced to ten years in prison in addition to a five-year enhancement for

committing the crime in the presence of a child.

Tanisha now appeals, arguing that there was insufficient evidence to support her

second-degree murder conviction. Tanisha argues that the State failed to prove that she had

the required mental state to commit the offense. She further argues that the State did not

disprove her claim that she acted in self-defense. We affirm.

Arkansas Code Annotated section 5-10-103(a) (Repl. 2013) provides:

(a) 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; or (2) With the purpose of causing serious physical injury to another person, the person causes the death of any person.

In reviewing a challenge to the sufficiency of the evidence, this court determines

whether the verdict is supported by substantial evidence, direct or circumstantial. Medlock

v. State,

, 493 S.W3d 789. Substantial evidence is evidence forceful

enough to compel a conclusion one way or the other beyond suspicion or conjecture.

We review the evidence in the light most favorable to the State, considering only the

evidence that supports the verdict. Davis v. State,

,

.

Weighing the evidence, reconciling conflicts in the testimony, and assessing credibility are

all matters exclusively for the trier of fact, in this case the jury.

On the morning of September 2, 2017, Tanisha Gillard was at her home taking care

of Wesley Booker’s infant daughter. Frustrated that Wesley had not picked the child up

from her home, Tanisha texted Wesley and informed him that she was taking the child to

Wesley’s mother’s apartment. Wesley was in the area, and he followed Tanisha as she drove

the child there. The two exchanged contentious text messages and continued to argue after

they arrived at the apartment complex. During the argument, Tanisha stabbed Wesley

repeatedly, causing him to drop the child. Wesley was able to remove himself from the

struggle, and he took his daughter and attempted to drive away. Wesley, however, drove

about ninety yards before stopping the vehicle and succumbing to the wounds inflicted by

Tanisha.

After the police arrived, Tanisha spoke to the police about the incident, and she later

gave a custodial statement. Tanisha admitted stabbing Wesley, but she told the police that

she did so because he had attacked her. Tanisha told the police that when Wesley exited

2 his car, he punched her in the left eye. Tanisha further stated that Wesley dragged her across

the pavement while stomping on her and hitting her. Tanisha told the police that while

she was being assaulted by Wesley, she “picked up a piece of glass or something” and stabbed

him with it. Tanisha told the police she did not know where the object was that she had

stabbed Wesley with, and after searching the area the police did not recover any weapon.

Tanisha denied that she had used a knife. Tanisha maintained that she was scared and did

not mean to hurt anyone.

Officer John Lewis, who responded to the scene, testified that Tanisha’s left eye was

a little watery, she had a very small scrape on one of her knuckles, and she had small scratches

on her shin. Other than that, he saw no injuries. Officer Lewis stated that Tanisha did not

have torn clothes or dirt on her to indicate that she had been fighting. Officer Luke Davis,

who was also at the scene, testified that Tanisha kept claiming she was injured and needed

an ambulance but he did not see evidence that she was injured. Officer Bobby Morgan

took Tanisha’s custodial statement, and he saw no evidence that she had been attacked as

she claimed. Mandy Childress, a medical assistant at the county jail, examined Tanisha and

saw a “really tiny” bruise under her left eye with no swelling. Based on her experience as

a medical practitioner, Mandy did not believe Tanisha had been punched in the eye.

Mike Barton testified that he was at the apartment complex and witnessed the

argument between Tanisha and Wesley. Mike saw Wesley carrying the baby and walking

out of the walkway by the stairwell with Tanisha following behind him. They were

constantly arguing. Wesley was trying to get to his car and was telling Tanisha to leave him

alone. Wesley stepped off the sidewalk and Tanisha stepped off behind him. Tanisha

3 reached over the top of Wesley from behind and stabbed him with a knife over his shoulder

and into his chest. Mike stated that as Tanisha was stabbing Wesley, she was yelling and

“talking crazy.” After Wesley was stabbed, he fell to the ground and dropped the baby.

Tanisha got on top of him and “was really going after him with the knife trying to stab

him.” Wesley tried to fend Tanisha off and was eventually able to pick up the baby and get

to his car. Wesley died soon thereafter.

Mike testified that he was positive Tanisha had used a knife to stab Wesley. He

described it as a “long and skinny” black kitchen knife that might be used to fillet fish. Mike

testified that he never saw Wesley hit or even touch Tanisha before Tanisha attacked him

with the knife.

Dr. Frank Peretti, a medical examiner and forensic pathologist, performed an autopsy

on Wesley. Dr. Peretti determined that Wesley’s cause of death was multiple stab and

cutting wounds. Dr. Peretti documented a four- to five-inch stab wound below the left

clavicle, two stab wounds to the left leg, and multiple cutting wounds to the back, torso,

and extremities. Dr. Peretti referred to the stab wound below Wesley’s clavicle as the “fatal

wound,” which penetrated the left lung and brachiocephalic vein and resulted in internal

bleeding.

Dr. Peretti testified that there was no doubt Wesley had been stabbed with a knife

due to the margins being clean as opposed to irregularly jagged (as with a shank or piece of

glass). He stated that the four- to five-inch stab went through a rib bone, which takes a

sharp knife and a lot of force. Dr. Peretti testified:

I’ve been doing this a long time and I see a lot of these cases, and looking at the directionality of the wound path, he was stabbed from the back. So somebody was

4 standing behind him when that wound was made. I can tell that because of the way it travels down and back and the physical characteristics of the wound.

Dr. Peretti stated that Wesley’s hands were clean and that there was no evidence that he

had punched anyone.

Tanisha argues on appeal that there was insufficient evidence to support her second-

degree murder conviction. Under this point, Tanisha first asserts that the State failed to

prove that she had the requisite mental state, and she next argues that the State failed to

disprove that she acted in self-defense.

We hold that Tanisha’s argument that she lacked the requisite mental state is not

preserved for review due to a deficiency in her directed-verdict motion below. The jury

rendered a general verdict of guilty after being instructed that to sustain the charge of

second-degree murder, the State must prove either that (1) Tanisha knowingly caused the

death of Wesley under circumstances manifesting extreme indifference to the value of

human life or (2) Tanisha, with the purpose of causing serious physical injury to Wesley,

caused his death. See

(a). When Tanisha made her directed-

verdict motion, she challenged only the proof supporting the second prong above and made

no argument with respect to the first prong.

Arkansas Rule of Criminal Procedure 33.1(a) provides that in a jury trial, if a motion

for directed verdict is to be made, it shall be made at the close of the evidence offered by

the prosecution and at the close of all the evidence. A motion for directed verdict shall state

the specific grounds therefor. Ark. R. Crim. P. 33.1(a). Pursuant to Rule 33.1(c), the

failure of a defendant to challenge the sufficiency of the evidence at the time and manner

5 required in subsection (a) above will constitute a waiver pertaining to the sufficiency of the

evidence to support the verdict.

On appeal, Tanisha argues that the evidence was insufficient to support a finding that

she knowingly caused Wesley’s death under circumstances manifesting an extreme

indifference to the value of human life. However, Tanisha raised no such argument when

making her motion for directed verdict. Therefore, her first argument is not preserved and

we need not address it.

Tanisha’s remaining argument is that the State failed to disprove her claim that she

acted in self-defense. Tanisha raised the issue of justification as a defense below, and she

specifically argued self-defense in her directed-verdict motion. Therefore, this sufficiency

argument is preserved.

Arkansas Code Annotated section 5-2-607(a)(2) (Supp. 2017) provides that a person

is justified in using deadly force upon another person if the person reasonably believes that

the person is using or is about to use unlawful deadly physical force. The State must prove

each element of an offense,

(a)(1) (Repl. 2013), and whether

circumstances negate a defendant’s excuse or justification for the conduct is an element of

the offense.

(5)(c) (Repl. 2013). When reviewing the sufficiency

of the State’s negation of a justification defense, we employ the substantial-evidence standard

of review. Jones v. State,

.

Tanisha argues that while she clearly used force sufficient to kill Wesley, the State

did not disprove that she was justified in using such force. Tanisha asserts that there was

evidence of an argument, that she told the police she was punched by Wesley, and that she

6 sustained injuries including a bruised and watery eye that were indicative of a scuffle.

Tanisha further notes that she did not flee after she stabbed Wesley, but rather remained at

the scene and spoke to law enforcement. Tanisha submits that she was afraid and never

intended to hurt Wesley and that because the State failed to negate her justification defense,

her conviction should be reversed.

We hold that there was substantial evidence to refute Tanisha’s claim that she was

justified in using deadly physical force. Although Tanisha argues that she reasonably

believed Wesley was using or was about to use unlawful deadly force, there was ample

evidence to the contrary. The only eyewitness to testify, Mike Barton, testified that Wesley

never struck or even touched Tanisha before she attacked him from behind with a knife as

Wesley was walking away from her holding his infant daughter. Although Tanisha claimed

to have been punched in the face and dragged on the ground by Wesley, she had no injuries

to substantiate these claims. Finally, the medical examiner testified that Wesley died as a

result of being forcefully stabbed over the shoulder with a knife from behind and that, in

addition to this fatal wound, Wesley had been stabbed or cut multiple more times with the

knife. Justification is a question of fact for the jury to resolve, Moody v. State,

,

, and here the jury could reasonably reject Tanisha’s justification

defense on the basis of the evidence presented at trial.

Affirmed.

KLAPPENBACH and BROWN, JJ., agree.

Dusti Standridge, for appellant.

Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.

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