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Bradley v. State

Court of Appeals of Arkansas, Division IV

December 5, 2018

ALLEN DALE BRADLEY APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION [NO. 60CR-17-923] HONORABLE WENDELL GRIFFEN, JUDGE

          Terrence Cain and Jimmy C. Morris, Jr., for appellant.

          Leslie Rutledge, Att'y Gen., by: Rachel Kemp, Ass't Att'y Gen., for appellee.

          BRANDON J. HARRISON, JUDGE

         This case turns on whether the State proved that Allen Bradley, who was already a felon, constructively possessed a Glock semiautomatic 9 mm pistol on 16 February 2017 in violation of Ark. Code Ann. § 5-73-103(c)(1)(A) (Repl. 2016). A police officer found a gun inside a cardboard box that was either near or within a shed approximately twenty yards from where Bradley was arrested in the backyard of a jointly occupied house. After a bench trial, the circuit court convicted Bradley of being a felon in possession of a firearm. The court sentenced Bradley to twenty years' imprisonment in the Arkansas Department of Correction and four years' suspended imposition of sentence. Bradley appeals the conviction and argues that the record does not sufficiently support it. We agree that the State did not sufficiently prove that Bradley constructively possessed a firearm in violation of the law and therefore reverse the conviction.

         I.

         An alleged domestic disturbance at a house in Little Rock, to which police officers were dispatched, ended with Bradley's arrest and the State charging him with six offenses: a felon possessing a firearm; felony aggravated assault on household or family member; felony aggravated assault (two counts); felony third-degree battery; and a criminal-mischief misdemeanor.

         We pick up the story with the on-scene police officers telling the circuit court about finding Bradley in the backyard of the house to which they had been called. And we confine our summary of the evidence to the firearm-possession charge for reasons that will become clear in due course.

         During the bench trial, Little Rock police officer Timothy Pope testified that Bradley did not have a gun on his person when he was arrested in the backyard. According to Officer Pope, Bradley was arrested "probably 25 feet from the back door-25 yards or so from the back door of [the] house." The 9 mm handgun, according to Officer Pope, "was found in the backyard right outside the back door" by Officer McGuire.

         On cross-examination, Officer Pope said that he had talked to two people in the front yard, but he did not speak with people who were inside the house. He said an older teenager, a preteen, and a "younger baby" were inside the house. When asked, the officer agreed that other people could have been in the backyard before he arrested Bradley. When asked by defense counsel where Officer McGuire found the gun, Officer Pope said, "I don't know where he found it. There was-once you go out the back door, there's a small shed. I did see the small shed in the backyard[.]" Officer Pope could not say how far the shed was from the back door of the house. Officer Pope said that he did not see Bradley with the gun, did not see anyone find the gun, and did not test the gun to see if Bradley had touched it. Bradley, according to Officer Pope, was "exiting the area" but was not running when he was arrested in the backyard.

         Little Rock police officer Steve McGuire said that he found a Glock pistol "in a metal storage building behind the residence and it was inside of a cardboard box." He agreed that "it was visible from outside that building" and "in the backyard of the residence." Officer McGuire identified State's exhibit no. 4 as a picture of the gun inside an open cardboard box. When Officer McGuire found the gun, there was a round in the chamber and a loaded magazine in it. Photographs of the magazine were admitted as State's exhibit nos. 5 and 6. The officer also identified the open cardboard box in which the gun was found as State's exhibit no. 7; and the gun itself was marked State's exhibit no. 8. Officer McGuire did not participate in taking Bradley into physical custody because he was "across the yard" at the time. According to Officer McGuire, Bradley's arrest occurred twenty yards from where the gun was located.

         On cross-examination Officer McGuire said that he never saw Bradley touch the weapon, that there were several people in the house when the police arrived, that he did not know the nature of the relationship Bradley had with the residents, and that the gun he recovered was never tested for fingerprints.

         Officer Tony Nativi testified too. He said he did not know the number of people in the house or their ages, but there were some children "in their teenage years." He did not see Bradley possess a gun or hurt anyone while he was there.

         Detective Aaron Oncaen was the fourth law-enforcement officer to testify. He filled out an arrest-disposition form for Bradley on 16 February 2017. The detective said that he had completed a Miranda rights form the same day on Bradley's behalf. When asked, he agreed that Bradley had indicated that his address was the same one as the house ...


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