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Caple v. State

Court of Appeals of Arkansas, Division II

January 23, 2019



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

          Leslie 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.


         Appellant's 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 affirm.

         An 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 (15) years.

         A bench 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."

         On the 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.

         Bobby 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.

         Mike 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.

         Chris 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.

         Following 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 ...

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