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Click here for the full text of this decision FACTS:While at Bezaley Vernon Lewis Jackson’s home, Jackson and his friend Johnny Scurlock got into an argument regarding the money that Scurlock owed Jackson. Scurlock asked Jackson’s neighbor to take him home, stating that Jackson was “acting crazy.” The neighbor backed his SUV into Jackson’s driveway. The neighbor and Surlock loaded Scurlock’s belongings into the vehicle. As they prepared to leave, Jackson approached Scurlock outside the vehicle. Jackson had a .22 caliber pistol in his hand. Two shots were fired. Scurlock died within minutes from a gunshot wound to his chest. Jackson told the officer who arrived at the scene that he and Scurlock had been arguing and that Scurlock had hit Jackson in the head, knocking him to the ground. Jackson stated that he then pulled a gun from his pocket. Jackson told the officer that he and Scurlock struggled over the gun and that the gun fired during the struggle. The next day Jackson gave a recorded statement to another police officer. In the statement, Jackson recounted that he and Scurlock had argued over money that Scurlock owed him. Jackson denied that Scurlock had hit him before Jackson pulled the gun from his pocket. Instead, Jackson stated that he had pulled the gun from his back pocket after Scurlock had verbally threatened to “put somthin’ on [Jackson's] butt.” Jackson told the officer that, after drawing the weapon, he told Scurlock “to git on way from here.” According to Jackson, Scurlock grabbed the gun in Jackson’s hand, the two men struggled, and the gun fired. Jackson claimed that the shooting was accidental. Several witnesses to the incident testified at trial. According to at least one account, Jackson came out of his home as Scurlock was preparing to leave in the neighbor’s SUV. Jackson pulled out a gun as he approached the vehicle. The witnesses saw Jackson approach Scurlock and point the gun directly at Scurlock at close range. One of the witnesses testified that he heard Scurlock say to Jackson, “[D]on’t do this.” The same witness heard Jackson demand that Scurlock pay the money that Scurlock owed before Scurlock left. Scurlock told Jackson that he could not pay all of the money that he owed at that time but would pay Jackson later. All of the witnesses testified that they did not see Scurlock hit Jackson, and no one saw Scurlock and Jackson struggling over the gun. One of the witnesses did testify that he saw Scurlock try to push the gun away. That same witness acknowledged that he had told police that he saw the men struggling over the gun before it went off, but clarified at trial that he had seen the men push the gun up before it fired, but had not seen an actual struggle over the gun. Authorities charged Jackson with the offense of murder. At the charge conference, Jackson requested that the lesser-included offenses of manslaughter and criminally negligent homicide be included in the jury charge. The trial court granted Jackson’s request regarding the manslaughter instruction but denied Jackson’s request that the jury be instructed regarding criminally negligent homicide. The jury found Jackson guilty of manslaughter. On appeal, Jackson contended that the trial court erred by refusing to instruct the jury on the lesser-included offense of criminally negligent homicide. HOLDING:Affirmed. A defendant, the court stated, is entitled to an instruction on a lesser-included offense if: 1. the lesser offense is a lesser-included offense of the charged offense; and 2. there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Criminally negligent homicide, the court stated, is a lesser included offense of murder. Thus, the dispute centered on whether there was some evidence from which the jury rationally could have found that, if Jackson was guilty, he was guilty only of the lesser offense of criminally negligent homicide. Criminally negligent homicide, the court stated, involves causing the death of another by criminal negligence. Criminal negligence involves inattentive risk creation. The key to criminal negligence is the failure of the actor to perceive the risk created by his conduct. Before a charge on criminally negligent homicide is required, the record must contain evidence showing an unawareness of the risk. The court stated that it had to determine whether the record contained some evidence that would permit a jury rationally to find that Jackson did not appreciate the risk that, as a result of Jackson’s taking the gun from his pocket and pointing it at Scurlock, the gun could discharge and Scurlock could be killed. Because Jackson did not present evidence to show that he failed to perceive the risk created by his conduct, and some evidence at trial actually indicated the opposite, the court found that the trial court did not err by refusing to instruct the jury on criminally negligent homicide. OPINION:Carter, J.; Taft, Hanks and Higley, JJ.

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