APPEAL
FROM THE MILLER COUNTY CIRCUIT COURT [46CR-17-231] HONORABLE
KIRK JOHNSON, JUDGE.
The
Potter Law Firm, by: Joshua Landes Potter, for appellant.
Leslie
Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't
Att'y Gen., for appellee.
ROBERT
J. GLADWIN, Judge.
Tobey
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.
I.
Facts
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.
The
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 reflects the
trailer's address.
At the
close of the State's evidence, McCarley moved for a
directed verdict based on insufficient evidence. Counsel
argued in part,
Number one, simultaneous possession of drugs and firearms,
we've only heard testimony that the firearms were in the
immediate proximity of Brian Mudd, under a bed to which he
had been there for quite some time. Number two, the .22
rifle, although it may be semantics at this point, is
inoperable. I think that that came because of a missing bolt.
However, there has been no testimony that the revolver is not
inoperable. I think there is insufficient evidence to take
this to the jury on the simultaneous possession of drugs and
firearms. There has been no intent shown to possess any of
those things.
The
directed-verdict motion was denied. McCarley told the court
that he did not wish to testify. After closing arguments were
made and the jury had retired to deliberate, McCarley's
counsel renewed the directed-verdict motion, and the court
denied it.
The
jury returned a guilty verdict, and McCarley was sentenced to
imprisonment terms of ten years for theft by receiving;
twelve years for possession of a controlled substance; ten
years for simultaneous possession of drugs and firearms; and
five years for possession of drug paraphernalia. These
sentences were ...