Cite as 2023 Ark. App. 403

ARKANSAS COURT OF APPEALS

DIVISION III

No. CR-22-377

MICHAEL DAVIS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered September 27, 2023

APPEAL FROM THE LONOKE

COUNTY CIRCUIT COURT 

[NO. 43CR-21-489]

HONORABLE BARBARA ELMORE, 

JUDGE

AFFIRMED

BART F. VIRDEN, Judge

A Lonoke County jury convicted appellant Michael Davis of negligent homicide, and 

he was sentenced to serve one year in the county jail and ordered to pay a $1,000 fine. On 

appeal, Davis argues that the trial court erred in refusing to give non-model jury instructions 

on the definition of “negligently” and on the so-called Graham v. Connor standard.1 Davis

also argues that the trial court erred in not admitting all opinions by his expert witness. We 

affirm. 

I. Background

On June 22, 2021, seventeen-year-old Hunter Brittain and two of his friends were 

replacing the transmission in Brittain’s pickup truck at Mahoney’s Body Shop in Cabot.

 

1Graham v. Connor, 490 U.S. 386 (1989).
2

Around 3:00 a.m., Brittain and one of his friends took the truck for a test drive while the 

second friend stayed at the shop. Among other problems, the truck would not shift into 

“park,” which prompted Brittain to place a jug of coolant behind the truck’s tire while they 

added some transmission fluid. They were on their way back to the body shop when Davis, 

then a sergeant with the Lonoke County Sheriff’s Office, noticed that the truck was smoking 

and making a “loud racket.” Davis suspected that the truck might have been stolen, but he 

“ran the plates” and there was no such report. Davis activated his blue lights to conduct a 

stop after an improper lane change. Davis initially thought that Brittain was going to flee 

because he heard the truck’s engine being revved, but then Brittain turned left into 

Mahoney’s driveway. Davis radioed dispatch that he was pulling into Mahoney’s for a traffic 

stop. Twenty-three seconds later, Davis radioed, “Shots fired.” 

According to Davis, before he could put his patrol truck into “park,” Brittain had 

opened the driver’s door and begun reaching into the bed of the truck. Also, Davis saw that 

Brittain’s truck was rolling backward toward his patrol truck. Davis said that he fired one 

shot and that Brittain’s hands flew out of the bed of his truck. Davis then saw that Brittain 

had been holding a blue jug of what was later determined to be coolant. Davis testified that 

he thought Brittain had been reaching for a rifle. Davis also claimed that he had been 

shouting commands that Brittain remain in the truck and then that he show his hands, but 
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that Brittain did not acknowledge his directives. According to the passenger in Brittain’s 

truck, Davis did not yell any commands until after the shot had been fired. 2

The jury was instructed on both manslaughter and negligent homicide as well as on 

the defense of justification with respect to the charge of manslaughter. The jury acquitted 

Davis of manslaughter but found him guilty of negligent homicide. 

II. Discussion

A. Non-Model Jury Instructions

A party is entitled to a jury instruction when it is a correct statement of the law and 

when there is some basis in the evidence to support giving the instruction. Keesee v. State, 

2022 Ark. 68, 641 S.W.3d 628. An appellate court will not reverse the trial court’s decision 

to give or reject an instruction unless the court abused its discretion. Id. When the trial court 

determines that the jury should be instructed on an issue, the model criminal instruction 

must be used unless the court concludes that it does not accurately state the law. Id. A nonAMI Criminal 2d instruction should be given only when the trial court finds that the AMI 

Criminal 2d instruction does not state the law or that AMI Criminal 2d does not contain a 

needed instruction on the subject. Clark v. State, 374 Ark. 292, 287 S.W.3d 567 (2008). Just 

because an appellant’s proffered instructions contain correct statements of the law does not 

mean that the trial court erred in refusing to give them. Id.

 

2Davis activated his body camera after the shooting had occurred.
4

Davis first argues that the trial court erred in refusing his proffered definition of 

“negligently” in connection with the charge of negligent homicide. A person commits 

negligent homicide if he negligently causes the death of another person. Ark. Code Ann. §

5-10-105(b)(1) (Repl. 2013). The statutory definition of “negligently” provides that “[a]

person acts negligently with respect to attendant circumstances or a result of his conduct 

when the person should be aware of a substantial and unjustifiable risk that the attendant 

circumstances exist or that the result will occur.” Ark. Code Ann. § 5-2-202(4)(A) (Repl. 

2013). “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.” Ark. Code Ann. § 5-2-202(4)(B). In his proffered 

instruction, Davis substituted the term “a reasonable Law Enforcement Officer” for “a 

reasonable person.”

The model jury instruction on negligent homicide that was read to the jury provides, 

in relevant part, the following:

The term “negligently” as used in this criminal case means more than it does 

in civil cases. To prove negligence in a criminal case the State must show beyond a 

reasonable doubt that Michael Davis should have been aware of a substantial and 

unjustifiable risk that the death would occur. The risk must have been of such a 

nature and degree that his failure to perceive it, considering the nature and purpose 

of his conduct and the circumstances known to him, involved a gross deviation from 

the standard of care that a reasonable person would have observed in his situation. 

Because the model instruction tracked the language of the statute, it was a correct 

statement of the law. We note that there is no special section in the Criminal Code on
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negligent homicide when it is committed by a law enforcement officer and that there is no 

separate definition for the state of mind “negligently” when a law enforcement officer is 

involved. We cannot say that the trial court abused its discretion in refusing to give Davis’s 

proffered instruction when the instruction that was given accurately stated the law.

Second, Davis argues that the trial court erred in rejecting his proffered non-model 

jury instructions with regard to the use of deadly force by law enforcement officers, i.e., the

justification defense. He argues that the trial court’s failure to give his instructions based on 

the Graham v. Connor standard improperly eliminated any consideration of the perspective 

of a law-enforcement officer on the scene.3 Davis’s proposed instructions on the Graham v. 

Connor standard were proffered only in connection with the charge of manslaughter, of 

which Davis was acquitted. Because Davis did not seek a justification instruction with respect 

to negligent homicide, his argument is not preserved for appellate review. Porter v. State, 358 

Ark. 403, 191 S.W.3d 531 (2004).

B. Admission of Expert Testimony

 

3Graham, supra, was a § 1983 civil-rights action, in which the United States Supreme 

Court held that all claims that law enforcement have used excessive force—deadly or not—in 

the course of an arrest, investigatory stop, or other “seizure” of a free citizen are properly 

analyzed under the Fourth Amendment’s “objective reasonableness” standard rather than 

under a substantive-due-process standard. Id. at 395. The Supreme Court also said that “[t]he 

‘reasonableness’ of a particular use of force must be judged from the perspective of a 

reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . The 

calculus of reasonableness must embody allowance for the fact that police officers are often 

forced to make split-second judgments—in circumstances that are tense, uncertain, and 

rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 

396–97. 
6

We review the admission of expert testimony under an abuse-of-discretion standard.

Tiarks v. State, 2021 Ark. App. 325, 633 S.W.3d 788. To qualify as an abuse of discretion, 

the trial court must have acted improvidently, thoughtlessly, or without due consideration.

Id. Moreover, we will not reverse a trial court’s evidentiary ruling absent a showing of 

prejudice. Clark v. State, 2012 Ark. App. 496, 423 S.W.3d 122. The test for admissibility of 

expert testimony is whether it will aid the trier of fact in understanding the evidence or in 

determining a fact in issue. Ark. R. Evid. 702. Where the introduction of expert testimony 

would invade the function of the jury or where it does not help the jury, the testimony is not 

admissible. Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818. 

Glyn Corbitt, Davis’s expert, a use-of-force analyst and law enforcement 

instructor/consultant, submitted an initial report in which he stated his opinion that Davis 

did not commit the offense of manslaughter. The State filed a motion in limine to exclude 

Corbitt’s initial report and anticipated testimony because his opinion would invade the 

province of the jury. Corbitt then submitted a supplemental report in which he again 

referred to the charge of manslaughter, but his report also discussed Davis’s training with 

respect to approaching a stopped vehicle, the use of force, and the objective-reasonableness 

standard outlined in Graham. The supplemental report was limited to Corbitt’s opinion that 

Davis had adhered to the training that he had received.

The trial court permitted Davis to introduce Corbitt’s supplemental report but would 

not allow him to introduce Corbitt’s initial report because it went beyond his opinion 

whether Davis had followed the proper procedure and, instead, touched on the ultimate 
7

issues of reasonableness and the appropriateness of the charges. Davis argues that the trial 

court erred in not admitting all of Corbitt’s opinions. Because Corbitt’s initial report and 

his anticipated testimony mandated a legal conclusion and told the jury how to resolve 

factual questions, we hold that the trial court did not abuse its discretion in excluding them. 

If the opinion testimony mandates a legal conclusion or “tells the jury what to do,” the 

testimony should be excluded. Rodgers v. State, 2022 Ark. App. 388, 654 S.W.3d 68. In any 

event, Davis cannot show prejudice from the ruling excluding Corbitt’s initial report and 

anticipated testimony given that he was ultimately acquitted of manslaughter. See Carr v. 

State, 2023 Ark. App. 345, 669 S.W.3d 854.

Affirmed.

ABRAMSON, J., agrees.

HIXSON, J., concurs.

KENNETH S. HIXSON, Judge, concurring. I agree with the majority that this case 

must be affirmed based on the applicable laws enacted by our legislature and the Arkansas 

Model Jury Instructions that track the language of those statutes. I write this concurring 

opinion to express my position that the legislation could, and perhaps should, be more fully 

developed to account for the situation—as is the case here—of a law enforcement officer acting 

in the line of duty making split-second life-changing decisions.

I acknowledge that Davis’s arguments regarding the jury instructions rely on Graham 

v. Connor, 490 U.S. 386 (1989), which was a civil case brought under 42 U.S.C. § 1983 for 

the alleged deprivation of constitutional rights due to excessive police force. In Graham, the 
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Supreme Court held that a civil constitutional excessive-force claim arising from an arrest or 

investigatory stop is properly characterized as one invoking the protections of the Fourth 

Amendment, which guarantees citizens the right to be secure in their persons against 

unreasonable seizures of the person. The Graham court went on to state that the 

“reasonableness” of a particular use of force must be judged from the perspective of a 

reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The 

Supreme Court wrote further:

The calculus of reasonableness must embody allowance for the fact that police officers 

are often forced to make split-second judgments—in circumstances that are tense, 

uncertain, and rapidly evolving—about the amount of force that is necessary in a 

particular situation.

Graham, 490 U.S. at 396–97.

Davis asserts that Graham differentiates between when a police officer is justified in 

using force as opposed to a normal citizen. Davis, however, acknowledges that state law 

governs criminal prosecutions and that Graham involved an officer’s civil liability for 

deprivation of Constitutional rights. But Davis asserts that, along the lines of the Supreme 

Court’s reasoning in Graham, the reasonableness of the conduct in a criminal prosecution 

of a police officer should be evaluated not from the prospect of a reasonable civilian but 

rather from the prospect of a reasonable police officer similarly situated. Davis makes a valid 

point: If an officer’s conduct is judged from the perspective of a reasonable officer in a civil 

case where only money damages are involved, should this standard not apply equally in a 

criminal case when an officer’s liberty is at stake?
9

The jury convicted Davis of negligent homicide, and as the majority opinion states, 

the model instruction given by the trial court was a correct statement of the law. The jury 

instruction, AMI Crim. 2d 1005, is structured from the definition of “negligently” as defined 

by Ark. Code Ann. § 5-2-202(4) (Repl. 2013). And that definition makes no differentiation 

between the conduct of a normal citizen and the conduct of a police officer. Davis asked to 

have the language in the model instruction modified from “a gross deviation from the 

standard of care that a reasonable person would have observed in his situation,” to “a gross 

deviation from the standard of care that a reasonable law enforcement officer would have 

observed in his situation.” I cannot conclude that the trial court abused its discretion in 

denying Davis’s requested modification because the model instruction given by the trial 

court accurately stated the law, and the modification would have added a provision not 

found in the instruction. 

The State argues that Davis’s proposed modification is a moot point because the 

model instruction states that the standard of care is judged from what a “reasonable person 

would have observed in his situation,” and in this case, Davis’s situation was that of a police 

officer making a traffic stop. However, I beg to disagree. There are two contrasting jury 

instructions that come into play here. First, the jury is instructed that the jury is “to apply 

the law as contained in these instructions to the facts and render your verdict upon the 

evidence and the law.” See AMI Crim. 2d 101(c). Then, in virtually the next breath, the jury 

is instructed that arguments of counsel “are not evidence but are made only to help you in 

understanding the evidence and the appliable law.” See AMI Crim. 2d 101(f). The appellant’s 
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closing argument that the jury should view the defendant’s conduct as “a reasonable person 

would have observed in his situation” (which the jury could ignore) does not carry the same 

weight as the judge instructing the jury to view the defendant’s conduct—as a matter of law—

as “a reasonable law enforcement officer would have observed in his situation.” Those are 

strikingly different statements that could affect a jury of his peers in deliberations.

I further agree with the majority’s holding that Davis’s proposed jury instruction on 

justification is not preserved for review because, although justification was raised as a defense 

to manslaughter, it was not raised as a defense to negligent homicide. However, I submit 

that, even had this issue been preserved, we would likely be constrained to affirm on this 

issue as well. The model jury instruction, AMI Crim. 2d 708, derives directly from Ark. 

Code Ann. § 5-2-610(b)(2) (Repl. 2013) and states that a law enforcement officer may use 

deadly physical force upon another person when he reasonably believes that it is necessary 

to defend himself from what he reasonably believes to be the use or immediate use of deadly 

force. Although Davis contends that language should be added to this model instruction to 

the effect that the reasonableness of an officer’s actions must be judged from the perspective 

of a reasonable officer, he is again asking for an additional provision that is simply not 

included in the statute as enacted.

Our supreme court has stated that there is no better settled rule in criminal 

jurisprudence than that criminal statutes must be strictly construed and pursued. Smith v. 

State, 352 Ark. 92, 98 S.W.3d 433 (2003). The courts cannot, by construction or 

intendment, create offenses under statutes that are not in express terms created by the 
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legislature. Id. Nothing is taken as intended that is not clearly expressed, and it would violate 

the accepted canons of interpretation to declare an act to come within the criminal laws of 

the State merely by implication. Id.

Because the statutes relevant to this case, as written, do not specifically contemplate 

the perspective of a reasonable police officer in assessing the conduct of the officer charged 

with a homicide committed when the officer was acting in the line of duty, I invite the 

legislature to revisit its legislation in this regard. There can be no doubt that a police officer 

is in a markedly different position of heightened awareness than that of the normal citizen 

when the officer is carrying out his or her duties to investigate suspicious activity and 

confront those who may pose an immediate danger to the officer’s personal safety as well as 

the safety of others. However, because the jury instructions given by the trial court in this 

case are accurate model instructions based on the law as it currently stands, I agree there was 

no error committed by the trial court. For these reasons, I concur in the affirmance of 

Davis’s conviction for negligent homicide.

Robert A. Newcomb, for appellant.

Tim Griffin, Att’y Gen., by: Joseph Karl Luebke, Ass’t Att’y Gen., for appellee.