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McCarley v. State

Court of Appeals of Arkansas, Division IV

April 17, 2019

TOBEY LEE MCCARLEY APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          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 ...


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