Tygart v. Kohler

I agree with appellant’s argument that the trial judge’s remarks from the bench show that he based his finding that appellant was the initial' aggressor at least in part on the simple fact that appellant came into appellee’s presence. I also agree that this is not the law; it is provocation and aggressive action, not mere presence, that makes one the initial aggressor. See, e.g., Craig v. State, 70 Ark. App. 71, 14 S.W.3d 893 (2000).

Although I believe it would be permissible for the fact finder to conclude on this record that appellant was in fact the initial aggressor, it is impossible in…