FROM THE MILLER COUNTY CIRCUIT COURT [46CR-17-231], HONORABLE
KIRK JOHNSON, JUDGE
Potter Law Firm, Texarkana, by: Joshua Landes Potter, for
Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen.,
J. GLADWIN, Judge
McCarley was convicted in the Miller County Circuit Court of
theft by receiving, possession of a controlled substance,
possession of drug paraphernalia, and simultaneous possession
of a controlled substance and firearms. He appeals only his
conviction for simultaneous possession of illegal drugs and
guns, arguing that insufficient evidence supports the
verdict. We agree and reverse.
McCarley was charged by criminal information with possession
of firearms by certain persons, theft by receiving,
possession of a controlled substance (less than two grams of
methamphetamine/cocaine), simultaneous possession of drugs
and firearms, and possession of drug paraphernalia. He was
also charged with being a habitual offender on each count.
The criminal information was amended to reflect that the
theft-by-receiving charge was based on stolen property worth
between $ 1000 and $ 5000.
evidence presented to the jury was that Paul Murphy had been
contacted by an acquaintance about vintage road signs for
sale. He was told that the signs were located at a trailer
home on McClure Road with a small red pickup truck in front.
Murphy knew that some of his own signs had been stolen, and
the signs being described for sale were like his stolen
signs. Murphy reported to the Miller County Sheriff’s Office
that his signs were missing and the location of the signs for
sale on McClure Road. Later, Cpl. Hardemon notified Murphy
that the signs had been discovered at the location described.
Murphy went to the location and collected his signs from
police on the scene.
Corporal Hardemon testified that he had received Murphy’s
complaint and had investigated the lead. At the trailer home,
Hardemon saw a red Toyota pickup and a black tarp leaning
against the side of the porch. Under the tarp were the
antique signs belonging to Murphy. It was determined that the
red truck belonged to McCarley. Hardemon knocked on the
trailer door, but no one answered, and no one answered a
knock at the back door. Hardemon said that he spoke with Lt.
Keller and obtained a search warrant because Murphy had said
that some of his signs were still missing. Police watched the
trailer all day while waiting for the warrant, and Hardemon
said that no one left the trailer.
Hardemon said they had believed someone was in the trailer
because they could smell marijuana smoke near the back of the
trailer and could hear footsteps from inside. When the
warrant was obtained, police breached the door and found one
man under a bed. Police identified him as Brian Mudd, and
they also found a pistol and a rifle under the bed next to
Mr. Mudd. Police later realized that they had missed seeing
someone hiding under the couch in the living room. McCarley
was found under the couch, along with a small bag of
methamphetamine. On the coffee table were marijuana pipes and
a marijuana joint. Hardemon said that police then stopped
their search to obtain a warrant for narcotics. That warrant
was obtained at about 5:00 p.m. Police then found syringes on
a couch adjacent to the couch McCarley had been hiding under,
another bag of methamphetamine under a television in the
living room, a bag full of ammunition, a spoon with residue,
and marijuana pipes. Police also realized that the television
in the living room was playing a live feed from a mounted
camera facing the
roadway. Through a prosecutor’s subpoena, police obtained a
lease agreement for the trailer showing McCarley as the
lessee, and McCarley’s driver’s license ...