McCarley v. State

2019 Ark. App. 222, 575 S.W.3d 603
CourtCourt of Appeals of Arkansas
DecidedApril 17, 2019
DocketNo. CR-18-868
StatusPublished
Cited by1 cases

This text of 2019 Ark. App. 222 (McCarley v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCarley v. State, 2019 Ark. App. 222, 575 S.W.3d 603 (Ark. Ct. App. 2019).

Opinion

ROBERT J. GLADWIN, Judge *605Tobey 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.

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 *606roadway. 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,

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 ordered to run consecutively for a total term of thirty-seven years. This appeal timely followed.

II. Standard of Review

We have recently utilized the applicable standard of review and law as follows:

On appeal from the denial of a directed-verdict motion challenging the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, considering only the evidence that supports the verdict, and determine whether the verdict is supported by substantial evidence, which is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Turner v. State , 2014 Ark. 415, 443 S.W.3d 535. Although circumstantial evidence may provide the basis to support a conviction, it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Morgan v. State , 2009 Ark. 257, 308 S.W.3d 147. Whether the evidence excludes every other hypothesis is a decision left to the jury. Id. The jury has the sole authority to evaluate the credibility of evidence and to apportion the weight to be given to the evidence. Starling v. State , 2016 Ark. 20, 480 S.W.3d 158.

The law regarding constructive possession is also well settled. It is not necessary for the State to prove that an accused physically held the contraband, as possession of contraband can be proved by constructive possession, which is the control or right to control the contraband. Tubbs v. State , 370 Ark. 47, 257 S.W.3d 47 (2007). In cases involving joint occupancy of the premises where the contraband is found, some additional factors must be present to link the accused to the contraband. Loggins v. State , 2010 Ark. 414, 372 S.W.3d 785. Those factors include (1) that the accused exercised care, control, or management over the contraband; and (2) that the accused knew the matter possessed was contraband. The control and knowledge can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that *607it is in plain view, and the ownership of the property where the contraband is found. Id. In addition, an accused's suspicious behavior coupled with proximity to the contraband is clearly indicative of possession. Pokatilov v. State , 2017 Ark. 264, 526 S.W.3d 849.

McDaniel v. State , 2019 Ark. App. 66, at 1-3, 571 S.W.3d 43, 45-46.

III. Link Between Firearms and Controlled Substances

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Related

Mark Garner v. State of Arkansas
2020 Ark. App. 101 (Court of Appeals of Arkansas, 2020)

Cite This Page — Counsel Stack

Bluebook (online)
2019 Ark. App. 222, 575 S.W.3d 603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccarley-v-state-arkctapp-2019.