FROM THE BAXTER COUNTY CIRCUIT COURT [NO. 03CR-17-299]
HONORABLE JOHN R. PUTMAN, JUDGE
Law Office, by: Gary W. Potts, for appellant.
Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't
Att'y Gen., and Brad Aldridge, Law Student Admitted to
Practice Pursuant to Rule XV of the Rules Governing Admission
to the Bar of the Supreme Court under the Supervision of
Darnisa Evans Johnson, Deputy Att'y Gen., for appellee.
WAYMOND M. BROWN, JUDGE
sole point on appeal is that the circuit court erred and
abused its discretion in denying his timely motions for
directed verdict due to insufficiency of the evidence. We
amended information was filed on August 8, 2017, charging
appellant with possession of firearm by certain persons,
criminal use of a prohibited weapon, and habitual offender.
The affidavit of probable cause for arrest described the
events leading to the filing of the information as follows:
On July 24, 2017 officers took a report from a female
regarding James Andrew Caple, aka "Andy'',
making threatening comments. She stated that [appellant] had
threatened to kill her and she was afraid for her life. She
stated that [appellant] believed that she was working with
law enforcement and sent her pictures with him holding guns.
She also received a video of him shooting one of the guns.
On July 25, 2017 officers were called out to a local tire
shop where the employee had located a gun on their property.
While the employee was speaking to another employee an
unknown male walked up claiming the gun was his and he wanted
it back. The two men would not allow the unknown male to take
it, and when they started to call 911, the unknown male ran
away. The unknown male was described as tall and skinny with
tear drop tattoos around his eyes. It was discovered that
[appellant], was [the] male in question, and the gun matched
the ones from the pictures the female had showed officers
July 24, 2017. [Appellant] is a current Parolee on active
supervision and not allowed to possess firearms. The gun in
question is a sawed off .22 caliber rifle. [Appellant] has
been charged with nine (9) felonies over the last fifteen
trial was held in the matter on December 5, 2017. Michael
Day, an investigator for the Mountain Home Police Department,
testified to receiving a report from the victim alleging that
appellant "threatened to kill her" while he was at
the Mountain Home Motel on July 22, 2017, because "he
thought she was working with the police." Appellant had
also sent pictures of himself to her cell phone holding a
firearm which she showed Day. She also showed Day the same
photos posted on Facebook with a "timestamp" of
July 24, 2017. There were seven photos total: three from the
victim and four from Facebook. Day admitted no independent
knowledge of when or where the photographs were taken. In his
opinion, the photos were "absolutely" pictures of
appellant and "absolutely" pictures of a gun,
specifically of appellant holding the gun that came into
Day's possession on July 24, 2017. Day knew appellant was
a felon at the time he obtained the photos because Day had
"had a run-in or two with him in the past."
same date, Day also received a call from another police
officer subsequent to that encounter asserting possession of
a gun that "supposedly involved" appellant. Day
took possession of the gun, which was a loaded Mossberg 702
Plinkster, a rifle. He went on to testify that the overall
length of the gun was too short by about eight inches and the
barrel was too short by about twelve inches. Accordingly, the
gun was illegal for anyone to possess, whether a convicted
felon or not.
Hicks, appellant's parole officer, testified that
appellant "paroled out back in November, 2016" and
was assigned to his caseload as a maximum-supervision case.
He agreed that is was "fair to say that [appellant had]
been a convicted felon for years"-"at least the
last ten years"-and stated, after looking at the seven
photos, that "the person depicted in those pictures
appear[ed] to be [appellant]"; at least in six of the
seven photos since he could not see the person's face in
one picture. Appellant had been incarcerated since July 26,
2017; however, he could have had access to social media via a
contraband cellular phone.
Allen, owner of El Dorado Tire Service, testified to seeing a
"lanyard clip or something sticking out from under
[Allen's] portable building" and discovered upon use
of a flashlight that it was a "little cut up .22 rifle
under there." He noted that there was "always
people stashing stuff back there." He told his workers
that a gun had been "stashed" back there and they
came to where he was, though they did not "mess
with" the gun. At that time, appellant walked by and
Allen "jokingly" asked if appellant had lost his
gun, to which appellant replied "Yeah, I did, dude. I
need to snag that." When appellant came toward Allen and
his workers to retrieve the gun, one of his workers stopped
him. Appellant then turned and walked away in the direction
from which he had come; then he ran. Allen called the police.
Allen was present when the officers unloaded the gun; it had
a magazine and one shell in the chamber.
Cass, one of Allen's employees, testified to being
present when appellant walked by; he was the person who
stopped appellant from retrieving the gun. He too was present
when the officer unloaded the gun seeing a shell in the
chamber and mud in the barrel.
Cass's testimony, appellee rested, and appellant moved
for a directed verdict due to appellee's alleged failure
to prove that appellant controlled or possessed the weapon on
the asserted date. The motion was denied. Appellant then
rested his case without putting on any ...