Cite as 2022 Ark. App. 464 ARKANSAS COURT OF APPEALS DIVISION II No. CR-22-182
JAMES TAYLOR Opinion Delivered November 16, 2022 APPELLANT APPEAL FROM THE MILLER COUNTY CIRCUIT COURT V. [NO. 46CR-21-13]
STATE OF ARKANSAS HONORABLE CARLTON D. JONES, APPELLEE JUDGE
AFFIRMED
BRANDON J. HARRISON, Chief Judge
James Taylor was convicted after a Miller County jury decided that, as a prior felon,
he unlawfully possessed a firearm. It was his ninth felony conviction, and second felon-in-
possession conviction. Taylor was sentenced to 360 months for possessing the firearm as a
habitual offender. He argues here that there was insufficient evidence of constructive
possession. Taylor also argues that the circuit court should have allowed him to introduce
text messages of the more personal kind that a sheriff’s deputy for nearby Nevada County
sent to his (Taylor’s) girlfriend Brandi Johnson. We affirm.
I. Background
Since Appellant Taylor’s February 2000 conviction for felonious possession of
methamphetamine paraphernalia, it has been illegal for him to “own or possess any firearm.”
Ark. Code Ann. § 5-73-103(a)(1). He learned about that law no later than 19 July 2018,
when he pleaded guilty to breaking it. Taylor was on parole, and under a 72-month suspended sentence for three convictions that day, on 4 January 2021, when more trouble
knocked on Taylor’s door. Specifically, January 4 is the day when Adam Wilson and
Brandon Emerson with the Special Response Team for Arkansas Community Correction
arrived at a house on Miller County Road 105 (near Texarkana) to serve appellant Taylor
with an arrest warrant. There begins this story in earnest.
Taylor lived at the home where the officers went to serve the warrant. Law
enforcement knew to look for Taylor at the County Road 105 house because Taylor had
reported it as his residence to his parole officer since April 2019. Taylor did not, however,
own the house. Intent on serving the warrant, Officers Wilson and Emerson pulled up to
the house just behind another car. The driver of that car was named Nicky. She told the
officers that she was at the house to get a debit card from her mother, Brandi Johnson. At
the time, Ms. Johnson was Taylor’s girlfriend. Officer Wilson asked Nicky to tell Ms.
Johnson that law enforcement was outside. Ms. Johnson didn’t respond to her daughter
Nicky’s calls or texts. About this time, Officer Wilson heard movement inside the home,
but no one responded to knocks or requests to answer the door. So the officers entered
through an unlocked door.
Once inside the house, officers found Taylor and Ms. Johnson inside a bedroom that
had been padlocked from the inside; it was the only room in the home that appeared lived-
in. Taylor came out, at the officers’ request, and was arrested. Officer Wilson would
eventually find in that room a loaded .22 magnum rifle with a sawed-off stock and nine live
.22 magnum rounds. But he did not find the contraband when Taylor was first taken into
2 custody. The record reveals that the officers took a “quick look” around when they first
seized Taylor but did not search the room until later.
We know that Taylor was serving a suspended sentence when the officers engaged
Taylor at the County Road 105 home, but why did law enforcement serve a warrant on
Taylor on January 4? The pretrial proceedings disclose that Taylor was suspected of
committing Rape, Ark. Code Ann. § 5-14-103, and Introduction of Controlled Substance
Into Body of Another Person, Ark. Code Ann. § 5-13-210. That appears to be why law
enforcement went to the house where Taylor lived. And Miller County detective Cody
Hensley had learned from a forensic interviewer that an alleged victim said that Taylor had
possessed a gun—specifically, a shotgun.
Returning to post-arrest activities, as Officer Wilson was en route to the jail with
Taylor in custody, he called Detective Hensley to inform him of Taylor’s arrest. Detective
Hensley told Officer Wilson to go back to the house where Taylor was seized and look for
a firearm. Officer Wilson turned around (with Taylor still in the backseat) and went back
to the house.
Enter Bill Varner, who leased the house where Taylor lived when he was arrested.
Varner had also employed Taylor on a neighboring farm. At some point during these events,
Varner sent three other farmhands to retrieve a farm-owned Suburban that was parked at
the scene. The farmhands arrived at the home as Officer Wilson and company left the first
time. And the farmhands were still there when Officer Wilson returned with Taylor to
look for a gun at Detective Hensley’s behest. When Officer Wilson asked Taylor if he
3 would find a gun in the home, Taylor said no. Officer Wilson left Taylor in the car with
Officer Emerson while he went back into the house.
Away from prying ears, Officer Wilson asked Ms. Johnson, who had remained at the
home, the same question. Based on information from her, the officer found a loaded .22
magnum rifle with a sawed-off stock in the room Ms. Johnson and Taylor were in when
law enforcement arrived to serve the warrant and entered the house. The rifle was in a
closet-like area of that room, “hidden” and “disguised” in a box whose bottom you couldn’t
see, with men’s clothes pulled over it. In a drawer, Officer Wilson found “a large mass” of
ammunition of various calibers, including nine .22 magnum rounds. He brought the rifle
and ammunition back to the truck where Taylor and Officer Emerson were waiting and
secured them in the cab.
In a post-arrest interview, Detective Hensley asked Taylor about the gun. Taylor
admitted he had known about the gun, and “stated it had been there for umpteen years.”
Michael Cheatham, one of the farmhands who retrieved Varner’s Suburban, an event
we mentioned already, testified at trial. Cheatham had worked for Varner, and known
Taylor, for six years. He confirmed that Taylor had lived at the house on County Road
105. Cheatham also testified that he had seen Taylor with the gun Officer Wilson retrieved
from the house on nights when Taylor would go hog hunting on the neighboring farm.
Cheatham recalled the gun as a sawed off or pump shotgun. Sometimes, though, he said
Taylor would come over with a gun that looked like a .22 with a scope on it.1
1 Whether a shotgun, another .22 rifle, or this .22 rifle, it would have been unlawful for Taylor to possess a firearm in the time Cheatham testified he had known him.
4 Taylor moved for a directed verdict at the close of the State’s evidence, arguing there
was insufficient evidence that he constructively possessed a firearm. The circuit court noted
the potential discrepancy in Cheatham’s testimony about the gun he had seen Taylor possess,
but ruled that “whether he is talking about the firearm that is presently in evidence” was a
question for the jury.
Taylor called one witness in defense: his girlfriend, Ms. Johnson, who said that,
within five minutes of Taylor’s arrest, she received a call on her cell phone from Steve
Otwell, a deputy with the Nevada (not Miller) County Sheriff’s Department. Ms. Johnson,
who lives in Nevada County, knew Deputy Otwell and had reached out to him shortly
before these events for help with a personal matter. Since then, she testified, Deputy Otwell
had been reaching out regularly, entreating her to come to his house for dinner, drinks, or
sex. Taylor’s counsel questioned Ms. Johnson about what she testified were screenshots
from her phone of text messages since November 2020 between Deputy Otwell and her.
She testified they fairly and accurately depicted what was said. When counsel moved to
introduce them, the State objected:
PROSECUTOR: Your Honor, they appear to be photocopies of text messages between her and Steve Otwell. They are irrelevant. They are hearsay. They have not been authenticated and therefore I object to their introduction.
DEFENSE COUNSEL: Your Honor, they are relevant and we are working on hooking, connecting that up. They have been identified as screen shots taken from her phone. They are, been identified as a fair and accurate representation of screen shots taken from her phone. Now the jury can give whatever weight they want to that evidence, but that does not exclude them as hearsay.
5 After the circuit court excused the jury and the witness, Taylor’s counsel explained
that the text messages were not being offered to prove the truth of the contents, and that
continued examination of Brandi Johnson would show that Nevada County Deputy Otwell
had engaged Miller County Deputy Hensley in a conspiracy to subject Taylor to a felon-
in-possession charge. The circuit court allowed counsel to voir dire Ms. Johnson about the
messages and the anticipated context her testimony would provide to demonstrate their
relevance and value to the jury.
Outside the jury’s presence, Ms. Johnson identified the seized rifle as her
grandfather’s. She produced what she testified was the original stock, which had broken off
because she dropped the gun. She took the gun to Taylor’s house the night before his
arrest, she said, because Deputy Otwell had advised that “there was going to be a series of
events taking place,” but Taylor wouldn’t get in any serious trouble. Ms. Johnson said she
had put the gun in the top of the closet, but panicked when officers were handcuffing Taylor
and moved it to the bottom of the closet, hoping they wouldn’t find it.
The court excluded the text messages:
Okay. All right. The text messages are out for any number of reasons. Number one, I don’t find them to be relevant. Number two, there’s no date which tells whether they are within the period relevant to this proceeding. Number three, they don’t go directly to the defense of this matter. Number four, as to what I stated earlier, the date, you know, that goes to whether or not they are authenticated.
The Court has also looked at them and actually appears that some of the copies are two different shades. So that gives this Court, you know, significant concerns about those messages, so they are out.
If you wish to inquire and I think there’s been testimony regarding a relationship with Mr. Otwell before the jury, but that would be the extent of where we are on this.
6 After the jury returned, Ms. Johnson repeated her testimony on the points from voir
dire, and two more. By this we mean she also testified that Deputy Otwell had some
leverage over her because she was in trouble in Nevada County. And when Deputy Otwell
called shortly after Taylor’s arrest, he asked why she hadn’t given officers the gun, and told
her they were coming back to get it.
On cross-examination, Ms. Johnson admitted that she loved Taylor, although she
was married to someone else. She denied being in a sexual relationship with Deputy Otwell.
She admitted she had told the prosecutor’s office a different story: farmhand Cheatham had
taken the gun from her car the day of Taylor’s arrest and put it in the house. And she
admitted that, on the day Taylor was arrested, she had told Officer Wilson (who found the
rifle) that she had seen a gun in Taylor’s closet before. Between the State’s objections,
Taylor’s counsel elicited on redirect that Ms. Johnson had been afraid Deputy Otwell would
have her thrown in jail if she did not plant the gun in the house.
At the end, the jury convicted Taylor of unlawfully possessing a firearm, and the
circuit entered the judgment and sentencing order that Taylor has appealed.
II. Discussion
A. Sufficiency of Evidence
Taylor argues first that the circumstantial evidence he possessed the rifle did not
“exclude every other reasonable hypothesis than guilt of the accused,” Gill v. State, 2015
Ark. 421, at 3, 474 S.W.3d 77, 79, because he did not own the home, Ms. Johnson was
with him in the room where the gun was found, and the gun was discovered outside his
7 immediate proximity after he was removed from the home. Further, Taylor notes, Ms.
Johnson told the jury that she moved the gun without his knowledge.
Constructive possession—the control or right to control contraband—is sufficient to
prove possession of a firearm. Davis v. State, 2019 Ark. App. 463, at 3, 586 S.W.3d 229,
231. The record must include “substantial evidence”, which is evidence “forceful enough
to compel a conclusion one way or the other without resorting to speculation or
conjecture.” Knauls v. State, 2020 Ark. App. 48, 4, 593 S.W.3d 58, 61. Circumstantial
evidence will support a conviction if it is consistent with the defendant’s guilt and
inconsistent with any other reasonable conclusion. Id. Our supreme court has stated:
Whether [circumstantial] evidence excludes every other hypothesis [than guilt] is left to the jury to decide. The credibility of witnesses is an issue for the jury and not the court. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and … inconsistent evidence.
Morgan v. State, 2009 Ark. 257, 7, 308 S.W.3d 147, 152 (citations omitted). Accordingly,
when we review the evidence supporting a conviction, we look only at the evidence that
supports the jury’s verdict, and view it in the light most favorable to the State. E.g., Cluck
v. State, 365 Ark. 166, 170, 226 S.W.3d 780, 783 (2006).
There is sufficient evidence to support the jury’s verdict. When law enforcement
arrived at the house where Taylor resided, he and Ms. Johnson were inside a room that was
padlocked from the inside. After Taylor and Ms. Johnson emerged from the small room, it
was (eventually) searched and a loaded rifle was found in a closet-like area inside the room
from which Taylor and Ms. Johnson had reluctantly emerged on law enforcement’s repeated
commands.
8 On the rifle that Taylor could not have lawfully possessed as a prior felon, it was
“hidden” and “disguised” in a box whose bottom you couldn’t see, with men’s clothes
pulled over it. In a drawer housed in the same small room, Officer Wilson found “a large
mass” of ammunition including nine rounds that fit the rifle. Farmhand Cheatham testified,
remember, that he had seen Taylor with the gun Officer Wilson retrieved from the house.
Officer Wilson secured that gun in the cab of the truck with Taylor. And although Taylor
had told Officer Wilson before the search that there would be no gun in the house, he
admitted to Detective Hensley in a post-arrest interview that he had known about the gun;
it had been there for “umpteen years,” said Taylor. What’s more, the rifle was loaded when
Wilson found it, and Detective Hensley later confirmed it was functional by firing one of
the rounds Officer Wilson recovered from the same room.
The main thrust here is that the jury was free to disregard Ms. Johnson’s testimony
that she had put the rifle in Taylor’s closet before his arrest or that she moved it afterward.
Coger v. State, 2017 Ark. App. 466, at 11, 529 S.W.3d 640, 648 (holding that jury was free
to disbelieve girlfriend’s testimony that a vial containing drug residue was hers). Ms.
Johnson did not claim to have brought the matching ammunition, which tended to tie
Taylor to the gun. She admitted having previously told an investigator for the State that
someone else (Cheatham) had planted the rifle at a different time.
Construed favorably to the State, the remaining evidence supported scenarios
inconsistent with any reasonable hypothesis but Taylor’s guilt. Taylor admitted that he
knew about the rifle, which was found in a way that could be fairly called “hidden” or
“disguised.” There was also Taylor’s ammunition collection, within the room he occupied
9 when officers from Arkansas Community Correction had announced their presence and
knocked and knocked on his door. Whether the rifle was concealed soon before opening
the bedroom door for Officer Wilson or long before January 4 arrived, the point is that
Taylor’s 2018 felon-in-possession conviction should have brought home that the closeted
gun was illegal contraband. We affirm the circuit court’s decision to deny Taylor’s
sufficiency challenge at trial.
B. Text Messages
Taylor also challenges the circuit court’s exclusion of a five-page collection of text
message screenshots between Ms. Johnson and Deputy Otwell. The circuit courts have
broad discretion in deciding evidentiary issues, and a circuit court’s ruling will not be
disturbed on appeal without a demonstration that the appellant has been prejudiced by an
abuse of that discretion. E.g., Armstrong v. State, 2020 Ark. 309, at 11, 607 S.W.3d 491, 499.
The circuit court’s stated reasons for excluding the messages boil down to doubts about their
authentication and relevance. We conclude that excluding the text messages was an abuse
of the circuit court’s discretion albeit, as we will relate, not a prejudicial one in the
circumstances. Therefore, no reversible error is presented.
First, authentication of the text messages. The general requirements of
authentication and identification under Rule 901 “are satisfied where the trial judge in his
discretion is satisfied that the physical evidence presented is genuine and in reasonable
probability has not been tampered with.” Davis v. State, 350 Ark. 22, 39, 86 S.W.3d 872,
883 (2002). People seldom communicate by text message in circumstances that would allow
a witness to testify from direct evidence that the purported sender or intended recipient sent
10 or received a particular message. Message contents often are not retained by the mobile
carrier. That is one reason why “screenshots” are increasingly presented to courts as
evidence of communication on this point or that. E.g., Rodriguez v. State, 2014 Ark. App.
660, 449 S.W.3d 306 (rejecting best-evidence challenge to screenshots of since-deleted text
messages where AT&T representative testified the company did not retain message contents
and recipient testified the screenshots accurately reflected the messages she received). Both
this court and the Supreme Court have addressed the requirements for authenticating
screenshots, which is a “developing (and important) area of the law in this electronic age[,]”
Duvall v. State, 2018 Ark. App. 155, at 13, 544 S.W.3d 106, 114. In the typical case, the
messages are alleged to have been sent or received by a criminal defendant with a privilege
not to testify.
For example, in Duvall, we discussed authenticity objections to photographs of a
phone screen showing text messages that were purportedly exchanged between a defendant
and a daughter he was accused of sexually abusing. Id. at 10, 544 S.W.3d at 112–13. The
circuit court excluded the messages, on defendant’s authenticity objection, when the State
sought to introduce them through an investigator who “admitted that she ‘believed’ but did
not ‘know’ [the defendant] had sent the text messages and had ‘no proof’ that he did.” Id.
at 11, 544 S.W.3d at 113. The exchanges were admitted later, however, after the daughter
described the following:
She said that before she reported her father, she tried to talk to him by text messaging. She “wanted him to understand what he did” but still wanted a relationship with him. She agreed that the texts were sent to a number she knew to be his; she had labeled the number as “Padre.” [She] said that she did not believe Duvall let other people use his phone. She agreed that when she was texting these messages to the phone number that she knew to be her dad, someone was replying
11 to her messages. She also said that State’s exhibits one through seven were accurate pictures of the text messages that she sent to her father’s number.
Id. at 11–12, 544 S.W.3d at 113. We affirmed the circuit court’s ruling that the photographs
should be admitted, observing that the messages’ content “suggested that Duvall did [send]
(or could have) sent them” and “no direct proof in this case undermined the messages’
authenticity.” Id. at 14, 544 S.W.3d at 115.
In Gulley v. State, the supreme court addressed the authentication of three text
messages that had been sent from a prepaid phone, whose contents the State had subpoenaed
from the provider. 2012 Ark. 368, at 2–3, 423 S.W.3d at 572–73. Citing Arkansas Rule of
Evidence 901, the court discussed each of the screenshots in turn, tying the messages to
other testimony that tended to demonstrate that the messages were sent by the defendant
himself, the phone’s registered owner. Id. at 13–15, 423 S.W.3d at 578–79. Even when text
messages are harvested from a phone forensically, however, they are not authenticated as
messages by the person named in the contact entry if there is no evidence of who had stored
the contact or owned the phone, and no other evidence links the name to the stored phone
number. Armstrong, 2020 Ark. 309, at 13–14, 607 S.W.3d at 500.
Although the point is a close one, the messages in this case were sufficiently
authenticated. Ms. Johnson testified that Deputy Otwell, like herself, lived in Nevada
County; she had known him from years past and communicated with him about other
matters. She had reached out to him in November 2020 “for some assistance with a personal
matter,” and after that he tried to get her to come to his house. Recall that Deputy Otwell
had called Ms. Johnson within five minutes of Taylor’s arrest. Why this happened is not
clear in the record. Still, Ms. Johnson testified directly that the text-message
12 communications presented to the circuit court as evidence were fair and accurate depictions
of her cell phone-based messages with Deputy Otwell.
One screenshot from the proffered-but-excluded collection is in a different format
than the others and displays a phone number with an (870) area code beneath the name
“Steve Otwell.” The messages in that screenshot do not bear a date or time. The other
screenshots display the name “Steve Otwell” but no phone number. Three of the pages
detail messages (mostly from Deputy Otwell) timestamped on 4 & 5 May 2021. The other
two pages list communications over a few hours “Saturday.” Which Saturday is anyone’s
guess.
True, when voir dired, what Ms. Johnson said about the messages’ context did not
cleanly tie off the connections between the telephone number, the stored contact, and the
Steve Otwell she knew. But a couple of messages include legal questions a layperson might
ask a law enforcement officer. Deputy Otwell asks in an undated message if Ms. Johnson
will be “followed” if she comes over. In another message dated “Saturday,” the deputy
identifies a sexual desire and indicates Ms. Johnson needs “to figure out how to make it
happen without anybody knowing!!” Although some of the deputy’s messages seem to
respond to intervening messages we don’t have, the collected messages share a tone and
content such that Brandi Johnson’s testimony that Steve Otwell sent them sufficiently
authenticated them.
Second, relevancy. The circuit court concluded that the text messages were
irrelevant to Taylor’s defense because they were not dated, did not appear confined to the
period surrounding the arrest, or both. But Taylor’s defense was that he did not have
13 “control or the right to control” the rifle that was found inside the closet of a room from
which he emerged when confronted by law enforcement. Investigators did not fingerprint
the rifle or trace its ownership, and Ms. Johnson was in the room where the rifle was found
before, and perhaps after, Taylor’s arrest. Ms. Johnson also said on the stand that she had
put the rifle in the closet on Deputy Otwell’s instructions. So documentation that she had
exchanged intimate communications with the deputy—who had known within minutes of
Taylor’s arrest that no gun had been found—was relevant to that defense.
Although the circuit court abused its discretion by excluding the exhibit, we
conclude that the error is slight and therefore harmless. House v. State, 2020 Ark. App. 452,
at 5, 611 S.W.3d 197, 201. For the reasons set out in the sufficiency analysis above, there
was ample evidence that Taylor had constructively possessed the rifle. Recall one piece of
that evidence is Taylor’s statement to Detective Hensley that he (Taylor) had known about
the rifle. And there was Farmhand Cheatham’s testimony that he saw Taylor with that rifle.
Although the circuit court erroneously concluded that the text messages between
Deputy Otwell and Ms. Johnson were unauthenticated and irrelevant, we agree, for many
of the same reasons that gave that court pause, that introducing the messages would not
have changed the outcome here. The messages confirm that Deputy Otwell had a personal
interest in Ms. Johnson. She testified to the deputy’s sexual interest in her, and the
prosecution did not attempt to discredit her on that point. None of the messages mention
Taylor or his arrest. None mention anything about planting a gun where Taylor might be
found with it. No other witness tied Deputy Otwell to the relevant events. And the only
dated messages between the deputy and Johnson are dated months after Taylor’s arrest.
14 Finally, Taylor’s and Cheatham’s recorded testimony and statements support the State’s case.
We therefore hold that excluding the messages at issue was harmless error.
Affirmed.
ABRAMSON and HIXSON, JJ., agree.
Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.
Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Sr. Ass’t Att’y Gen., for appellee.