McNeely v. State
2017 Ark. App. 483
Ark. Ct. App.2017Background
- Christopher McNeely, a parolee with multiple prior felonies, was charged and convicted (bench trial) of possession of a firearm by a felon and sentenced as a habitual offender to 10 years, consecutive to an existing sentence.
- Police responded to reports of gunfire at a residence; Officer Burroughs observed McNeely make a tossing motion as he approached and later found a loaded 9 mm pistol on the ground in front of his patrol car. The pistol showed signs of having been thrown (gouge marks, dirt in muzzle/ejection port).
- Body-camera video captured officers questioning McNeely and a companion, Michael. Michael initially told officers the 9 mm had been left in McNeely’s truck but later testified at trial that he had been shooting the gun and tossed it in the yard; he denied seeing McNeely with the gun.
- 9 mm ammunition was found in the passenger seat of McNeely’s truck; a .22 (Michael’s) was recovered down the road. Officers testified McNeely appeared intoxicated and denied throwing the gun.
- The circuit court denied McNeely’s dismissal motions, found him guilty, and—after review of prior convictions—sentenced him as a habitual offender to 10 years. McNeely appealed, challenging sufficiency of the evidence and the fairness/legality of sentencing procedures.
Issues
| Issue | McNeely's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence of possession | Michael’s testimony that he had the gun created a reasonable alternative hypothesis; evidence did not exclude innocence | Officer saw McNeely make a tossing motion and gun was found where officer observed toss; circumstantial evidence supports constructive possession | Affirmed — substantial evidence supports conviction (viewed in light most favorable to State) |
| Timeliness of habitual-offender notice (amendment after jury waiver) | Amendment increasing exposure was untimely after waiver of jury trial and thus unfair | McNeely never sought to withdraw waiver or object at trial; issue not preserved for appeal | Not preserved; claim rejected |
| Defect in amended information (missing contra pacem clause) | Amended information defective for lacking contra pacem clause | Issue must be raised before trial to be preserved | Not addressed on appeal (not preserved) |
| Prejudice from prior-conviction packet (wrong sentencing order included) | Packet included another defendant’s sentencing order, which could have prejudiced court | The extraneous order does not appear in the record as presented to the circuit court; actual prior-conviction packet admitted separately | Rejected — no reversible prejudice shown |
| Legality of habitual-offender enhancement and consecutive sentence | Legislature did not intend habitual enhancements for nonviolent felonies or consecutive sentencing here | Sentence fell within statutory range; running consecutive was within court’s discretion | Rejected — sentence lawful and within discretion |
Key Cases Cited
- White v. State, 446 S.W.3d 193 (Ark. Ct. App. 2014) (standard for reviewing sufficiency and constructive possession principles)
- Kimble v. State, 483 S.W.3d 832 (Ark. Ct. App. 2016) (facts addressing observed toss and possession inference)
- Plessy v. State, 388 S.W.3d 509 (Ark. Ct. App. 2012) (preservation rule for objections to amended informations)
- McNeese v. State, 976 S.W.2d 373 (Ark. 1998) (procedural requirement to raise charging-instrument defects before trial)
- Wetherington v. State, 889 S.W.2d 34 (Ark. 1994) (related rule on charging-instrument preservation)
- Campea v. State, 189 S.W.3d 459 (Ark. Ct. App. 2004) (cited on sentencing/habitual-offender matters)