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Payne v. State

Court of Appeals of Arkansas, Division II

April 26, 2017

MONTY JAMES PAYNE APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE BOONE COUNTY CIRCUIT COURT [NO. 05CR-15-79] HONORABLE GORDON WEBB, JUDGE

          Potts Law Office, by: Gary W. Potts, for appellant.

          Leslie Rutledge, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.

          KENNETH S. HIXSON, Judge

         Appellant Monty Payne was convicted by a jury of possession of methamphetamine and possession of drug paraphernalia. On appeal, Mr. Payne challenges the sufficiency of the evidence to support his convictions. Alternatively, Mr. Payne contends that the trial court erred in denying his posttrial motion for a new trial. We affirm.

         When sufficiency is challenged on appeal from a criminal conviction, we consider only that proof that supports the verdict. Perez v. State, 2016 Ark.App. 291, 494 S.W.3d 431. We view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the State. Id. We will affirm if the finding of guilt is supported by substantial evidence. Id. Evidence is substantial if it is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Id. The weight of the evidence and credibility of the witnesses are matters for the factfinder. Simpkins v. State, 2010 Ark.App. 723.

         On March 15, 2015, Monty Payne was driving his truck on Highway 7 in Boone County. Donald Miller was riding as a passenger in the front seat of appellant's truck.

         Officer Gene Atwell of the Boone County Sheriff's Department was patrolling that day. Officer Atwell stopped Mr. Payne's truck after he saw the truck swerve left of the center line. During the stop, Officer Atwell found a glass pipe and a baggie containing a white powdery substance on the ground on the passenger's side of the truck. Officer Atwell testified that he field tested the powdery substance and that it was positive for methamphetamine. The baggie was later sent to the crime lab, where a chemical test showed that it contained 0.3448 grams of methamphetamine.

         Officer Atwell was wearing a body camera and the traffic stop was recorded. On the recording, Mr. Payne told Officer Atwell that he did not have any drugs in the truck, and he denied throwing anything out the window. Mr. Miller also denied throwing anything out the window, and he told Officer Atwell that as they were being pulled over Mr. Payne had thrown a pipe out the window.

         With Mr. Payne's consent, Officer Atwell ran his drug dog through the truck and the dog alerted near the front driver's-side door. Officer Atwell conducted an inventory search but did not find any more drugs. However, at the time the truck was being loaded on to the wrecker to be towed, Mr. Miller advised Officer Atwell that Mr. Payne had popped the driver's-side door panel off, shoved something into the door paneling, and then popped it back on.

         Officer Jason Brisco obtained a written waiver from Mr. Payne to search the truck in the impound yard on the following day. During his search of the vehicle, Officer Brisco found two baggies containing white residue and two syringes located in the driver's door between the door panel and the metal outer frame. According to Officer Brisco, one of the syringes appeared to have blood on it and the other appeared to have been just used. Officer Brisco testified that based on his experience the syringes were items of drug paraphernalia. Officer Brisco indicated that the residue in the baggies appeared to be methamphetamine and that it field-tested positive for methamphetamine.

         Donald Miller testified as a defense witness. Mr. Miller stated that, as they were being stopped by the police, Mr. Payne was throwing items out the passenger's window. Mr. Miller stated that he did not throw anything out the window. Mr. Miller also indicated that Mr. Payne had hidden some items in the driver's-side door panel.

         On cross-examination, Mr. Miller testified that he had smoked methamphetamine with Mr. Payne on several occasions using the pipe that was seized by the police. Mr. Miller stated that the pipe was not his, and that he believed that it belonged to Mr. Payne. Mr. Miller testified that he had not been charged in relation to this incident and that he was not promised anything in exchange for his testimony.

         In this appeal, Mr. Payne challenges the sufficiency of the evidence to support his convictions for possession of methamphetamine and possession of drug paraphernalia. Pursuant to Arkansas Code Annotated section 5-64-419(a) and (b)(1)(A) (Repl. 2016), it is a Class D felony to possess less than two grams of a controlled substance that is methamphetamine. Pursuant to Arkansas Code Annotated section 5-64-443(a)(2), it is a Class D felony to possess drug paraphernalia with the purpose to use the drug paraphernalia to inject, ingest, inhale, or otherwise introduce into the human body methamphetamine. Mr. Payne argues that there was insufficient evidence that he committed either of these offenses because there was a lack of proof that he was in possession of methamphetamine or that any of the items seized by the police were drug paraphernalia. Mr. Payne asserts that the only item sent to the crime lab was the baggie of white powder that had been thrown from the truck, and that although the powder was positive for methamphetamine, there was an issue as to its ownership and it was found on the passenger's side as opposed to ...


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