Mudd v. State

2018 Ark. App. 628, 565 S.W.3d 154
CourtCourt of Appeals of Arkansas
DecidedDecember 12, 2018
DocketNo. CR-18-512
StatusPublished
Cited by2 cases

This text of 2018 Ark. App. 628 (Mudd 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
Mudd v. State, 2018 Ark. App. 628, 565 S.W.3d 154 (Ark. Ct. App. 2018).

Opinion

KENNETH S. HIXSON, Judge

Appellant Brian D. Mudd was convicted in a jury trial of felony theft by receiving, possession of methamphetamine, and possession of drug paraphernalia with the purpose to inject, ingest, or inhale methamphetamine.1 Mudd was sentenced as a habitual offender to three consecutive fifteen-year prison terms. Mudd now appeals, and his sole argument is that there was insufficient evidence to support the verdicts. We affirm.

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Bohanan v. State , 72 Ark. App. 422, 38 S.W.3d 902 (2001). Substantial evidence is evidence forceful enough to compel a conclusion with reasonable certainty without resort to speculation or conjecture. Breedlove v. State , 62 Ark. App. 219, 970 S.W.2d 313 (1998). We review the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict. Morton v. State , 2011 Ark. App. 432, 384 S.W.3d 585.

Paul Murphy testified that he has a collection of old gas and oil signs from the 1940s and 1950s. He kept some of these signs under and in front of a shed at his house. One morning Murphy noticed that some of his signs were missing, and he contacted the police. Murphy told the police that an acquaintance had told him that the signs were located at a residence at 6939 McClure Road in Miller County and that there would be a red truck parked in front of the house.

Several police officers who participated in the investigation testified at trial. One of the officers testified that when Murphy called to report the stolen signs he mentioned the name "Mudd," and that the police were familiar with Mudd from previous encounters.2 The officer also stated that he knew Mudd lived at the McClure Road address with his roommate, Tobey McCarley.

*156Police officers went to the residence and found a red truck belonging to McCarley backed up to the front porch. The police immediately noticed some old gas and oil signs leaning against the front porch and partially covered by a tarp. The police knocked repeatedly on the door but got no answer. Murphy was called to the scene, and he identified the signs as belonging to him.3 Because some of the missing signs were not found next to the porch, the police obtained a warrant to search the house for the remaining signs.

When the police executed the search warrant, they initially did not find any occupants. However, one of the officers noticed someone hiding under the bed in a back bedroom and ordered him to come out. This person was Mudd, and he came out from under the bed as directed. The police found a rifle and a handgun under the bed where Mudd had been hiding. A marijuana cigarette was found on the nightstand in the bedroom. Mudd was handcuffed, and he told the police that someone was hiding under the couch in the living room.

The police looked under the living-room couch and found McCarley hiding there. A small baggie was under the living-room television and was partially visible. After seeing the baggie, the police obtained another warrant to search the residence for narcotics. When executing that search warrant, the police found syringes in the area where McCarley had been hiding. On the living-room coffee table were marijuana pipes, rolling papers, and a spoon containing a white residue. The baggie that was under the television was sent to the crime lab and was found to contain 0.7 grams of methamphetamine. The police did not find any additional stolen signs inside the house.

One of the police officers testified that there were surveillance cameras outside the residence. The police cars parked in front of the residence were being live-streamed on the living-room television.

The officers did not find any mail, utility bills, or any other items containing Mudd's name in the residence. The police did, however, find some work shirts bearing McCarley's name.

Mudd's only argument on appeal is that there was insufficient evidence to support his convictions for theft by receiving, possession of methamphetamine, and possession of drug paraphernalia with the purpose to inject, ingest, or inhale methamphetamine. Specifically, Mudd contends that the State failed to prove he possessed or exercised control over any of the contraband found at the residence. We disagree.

A person commits theft by receiving when he or she receives, retains, or disposes of stolen property of another person, either knowing or having good reason to believe the property was stolen. Ark. Code Ann. § 5-36-106(a) (Repl. 2013). A presumption that a person knows or believes property was stolen arises when there is unexplained possession or control by the person of recently stolen property. Ark. Code Ann. § 5-36-106(c)(1). Arkansas Code Annotated section 5-64-419(a) and (b)(1) (Repl. 2016) make it unlawful to possess methamphetamine. Arkansas Code Annotated section 5-64-443(a)(2) (Repl. 2016) makes it unlawful to possess drug paraphernalia with the purpose to inject, ingest, or inhale methamphetamine.

*157The State need not prove actual possession of contraband to prove possession; it may be proved by constructive possession, which is the control or the right to control the contraband. Polk v. State , 348 Ark. 446, 73 S.W.3d 609 (2002). Constructive possession can be inferred when the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Harjo v. State , 2017 Ark. App. 337, 522 S.W.3d 839. Constructive possession can also be inferred when the contraband is in the joint control of the accused and another.

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Bluebook (online)
2018 Ark. App. 628, 565 S.W.3d 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mudd-v-state-arkctapp-2018.