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Mudd v. State

Court of Appeals of Arkansas, Division IV

December 12, 2018

BRIAN D. MUDD APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-17-232] HONORABLE KIRK JOHNSON, JUDGE

          The Potter Law Firm, LLP, by: Thomas A. Potter, for appellant.

          Leslie Rutledge, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.

          KENNETH S. HIXSON, JUDGE

         Appellant Brian D. Mudd was convicted in a jury trial of felony theft by receiving, possession of methamphetamine, and possession of drug paraphernalia with the purpose to inject, ingest, or inhale methamphetamine.[1] Mudd was sentenced as a habitual offender to three consecutive fifteen-year prison terms. Mudd now appeals, and his sole argument is that there was insufficient evidence to support the verdicts. We affirm.

         The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Bohanan v. State, 72 Ark.App. 422, 38 S.W.3d 902 (2001). Substantial evidence is evidence forceful enough to compel a conclusion with reasonable certainty without resort to speculation or conjecture. Breedlove v. State, 62 Ark.App. 219, 970 S.W.2d 313 (1998). We review the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict. Morton v. State, 2011 Ark.App. 432, 384 S.W.3d 585.

         Paul Murphy testified that he has a collection of old gas and oil signs from the 1940s and 1950s. He kept some of these signs under and in front of a shed at his house. One morning Murphy noticed that some of his signs were missing, and he contacted the police. Murphy told the police that an acquaintance had told him that the signs were located at a residence at 6939 McClure Road in Miller County and that there would be a red truck parked in front of the house.

         Several police officers who participated in the investigation testified at trial. One of the officers testified that when Murphy called to report the stolen signs he mentioned the name "Mudd," and that the police were familiar with Mudd from previous encounters.[2]The officer also stated that he knew Mudd lived at the McClure Road address with his roommate, Tobey McCarley.

         Police officers went to the residence and found a red truck belonging to McCarley backed up to the front porch. The police immediately noticed some old gas and oil signs leaning against the front porch and partially covered by a tarp. The police knocked repeatedly on the door but got no answer. Murphy was called to the scene, and he identified the signs as belonging to him.[3] Because some of the missing signs were not found next to the porch, the police obtained a warrant to search the house for the remaining signs.

         When the police executed the search warrant, they initially did not find any occupants. However, one of the officers noticed someone hiding under the bed in a back bedroom and ordered him to come out. This person was Mudd, and he came out from under the bed as directed. The police found a rifle and a handgun under the bed where Mudd had been hiding. A marijuana cigarette was found on the nightstand in the bedroom. Mudd was handcuffed, and he told the police that someone was hiding under the couch in the living room.

         The police looked under the living-room couch and found McCarley hiding there. A small baggie was under the living-room television and was partially visible. After seeing the baggie, the police obtained another warrant to search the residence for narcotics. When executing that search warrant, the police found syringes in the area where McCarley had been hiding. On the living-room coffee table were marijuana pipes, rolling papers, and a spoon containing a white residue. The baggie that was under the television was sent to the crime lab and was found to contain 0.7 grams of methamphetamine. The police did not find any additional stolen signs inside the house.

         One of the police officers testified that there were surveillance cameras outside the residence. The police cars parked in front of the residence were being live-streamed on the living-room television.

         The officers did not find any mail, utility bills, or any other items containing Mudd's name in the residence. The police did, however, find some work shirts bearing McCarley's name.

         Mudd's only argument on appeal is that there was insufficient evidence to support his convictions for theft by receiving, possession of methamphetamine, and possession of drug paraphernalia with the purpose to inject, ingest, or inhale methamphetamine. Specifically, Mudd contends that the State failed to prove he ...


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