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                 ARKANSAS COURT OF APPEALS

                                         DIVISION II
                                        No.CR-16-948

                                              Opinion Delivered:   April 26, 2017

MONTY JAMES PAYNE            APPEAL FROM THE BOONE
                  APPELLANT COUNTY CIRCUIT COURT
                             [NO. 05CR-15-79]
V.
                             HONORABLE GORDON WEBB,
                             JUDGE
STATE OF ARKANSAS
                    APPELLEE AFFIRMED


                             KENNETH S. HIXSON, Judge

       Appellant Monty Payne was convicted by a jury of possession of methamphetamine

and possession of drug paraphernalia. On appeal, Mr. Payne challenges the sufficiency of

the evidence to support his convictions. Alternatively, Mr. Payne contends that the trial

court erred in denying his posttrial motion for a new trial. We affirm.

       When sufficiency is challenged on appeal from a criminal conviction, we consider

only that proof that supports the verdict. Perez v. State, 2016 Ark. App. 291, 494 S.W.3d

431. We view the evidence and all reasonable inferences deducible therefrom in the light

most favorable to the State. Id. We will affirm if the finding of guilt is supported by

substantial evidence. Id. Evidence is substantial if it is of sufficient force and character that

it will, with reasonable certainty, compel a conclusion one way or the other without

resorting to speculation or conjecture. Id. The weight of the evidence and credibility of

the witnesses are matters for the factfinder. Simpkins v. State, 2010 Ark. App. 723.
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       On March 15, 2015, Monty Payne was driving his truck on Highway 7 in Boone

County. Donald Miller was riding as a passenger in the front seat of appellant’s truck.

       Officer Gene Atwell of the Boone County Sheriff’s Department was patrolling that

day. Officer Atwell stopped Mr. Payne’s truck after he saw the truck swerve left of the

center line. During the stop, Officer Atwell found a glass pipe and a baggie containing a

white powdery substance on the ground on the passenger’s side of the truck. Officer Atwell

testified that he field tested the powdery substance and that it was positive for

methamphetamine. The baggie was later sent to the crime lab, where a chemical test

showed that it contained 0.3448 grams of methamphetamine.

       Officer Atwell was wearing a body camera and the traffic stop was recorded. On the

recording, Mr. Payne told Officer Atwell that he did not have any drugs in the truck, and

he denied throwing anything out the window. Mr. Miller also denied throwing anything

out the window, and he told Officer Atwell that as they were being pulled over Mr. Payne

had thrown a pipe out the window.

       With Mr. Payne’s consent, Officer Atwell ran his drug dog through the truck and

the dog alerted near the front driver’s-side door. Officer Atwell conducted an inventory

search but did not find any more drugs. However, at the time the truck was being loaded

on to the wrecker to be towed, Mr. Miller advised Officer Atwell that Mr. Payne had

popped the driver’s-side door panel off, shoved something into the door paneling, and then

popped it back on.

       Officer Jason Brisco obtained a written waiver from Mr. Payne to search the truck

in the impound yard on the following day. During his search of the vehicle, Officer Brisco


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found two baggies containing white residue and two syringes located in the driver’s door

between the door panel and the metal outer frame. According to Officer Brisco, one of the

syringes appeared to have blood on it and the other appeared to have been just used. Officer

Brisco testified that based on his experience the syringes were items of drug paraphernalia.

Officer Brisco indicated that the residue in the baggies appeared to be methamphetamine

and that it field-tested positive for methamphetamine.

       Donald Miller testified as a defense witness. Mr. Miller stated that, as they were

being stopped by the police, Mr. Payne was throwing items out the passenger’s window.

Mr. Miller stated that he did not throw anything out the window. Mr. Miller also indicated

that Mr. Payne had hidden some items in the driver’s-side door panel.

       On cross-examination, Mr. Miller testified that he had smoked methamphetamine

with Mr. Payne on several occasions using the pipe that was seized by the police. Mr. Miller

stated that the pipe was not his, and that he believed that it belonged to Mr. Payne.

Mr. Miller testified that he had not been charged in relation to this incident and that he was

not promised anything in exchange for his testimony.

       In this appeal, Mr. Payne challenges the sufficiency of the evidence to support his

convictions for possession of methamphetamine and possession of drug paraphernalia.

Pursuant to Arkansas Code Annotated section 5-64-419(a) and (b)(1)(A) (Repl. 2016), it is

a Class D felony to possess less than two grams of a controlled substance that is

methamphetamine. Pursuant to Arkansas Code Annotated section 5-64-443(a)(2), it is a

Class D felony to possess drug paraphernalia with the purpose to use the drug paraphernalia

to inject, ingest, inhale, or otherwise introduce into the human body methamphetamine.


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Mr. Payne argues that there was insufficient evidence that he committed either of these

offenses because there was a lack of proof that he was in possession of methamphetamine or

that any of the items seized by the police were drug paraphernalia. Mr. Payne asserts that

the only item sent to the crime lab was the baggie of white powder that had been thrown

from the truck, and that although the powder was positive for methamphetamine, there was

an issue as to its ownership and it was found on the passenger’s side as opposed to

Mr. Payne’s side of the vehicle. Mr. Payne further contends that because none of the other

seized items were tested at the crime lab to establish their identity, or whether the pipe had

actually been used to ingest controlled substances, none of those items could support either

conviction.

       It is not necessary for the State to prove literal physical possession of contraband in

order to prove possession. Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002). Rather,

possession may be proved by constructive possession, which is the control or right to control

the contraband. Id. On this record, we hold that there was substantial evidence that

Mr. Payne was in possession of both methamphetamine and drug paraphernalia.

       The evidence viewed in the light most favorable to the State established that, upon

being pursued by the police for a minor traffic infraction, Mr. Payne began frantically tossing

and hiding items in an attempt to conceal them from the police. According to Mr. Miller,

Mr. Payne threw some things out the passenger’s side window, which were recovered by

the police during the stop. These items included a baggie containing a small amount of

methamphetamine as well as a pipe. Mr. Miller testified that the pipe was not his, that he

believed it belonged to Mr. Payne, and that they had both used the pipe to smoke


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methamphetamine on multiple occasions. Pursuant to Arkansas Code Annotated section 5-

64-101(12)(B)(xii)(a), “drug paraphernalia” includes an object used in inhaling a controlled

substance, such as a pipe. Arkansas Code Annotated section 5-64-101(12)(C)(iv) provides

that, in determining whether an item is “drug paraphernalia,” the proximity of the object

to a controlled substance is a relevant factor to consider. In this case the pipe was located

with the methamphetamine found outside Mr. Payne’s truck, and there was testimony that

Mr. Payne was in control of these items and threw them out the window. Therefore, we

conclude that there was substantial evidence beyond speculation or conjecture that

Mr. Payne was in possession of methamphetamine and drug paraphernalia.

       Mr. Payne also argues on appeal that the trial court erred in denying his motion for

a new trial. After the jury returned its guilty verdicts, but before the sentencing order was

formally entered, Mr. Payne filed a motion for a new trial pursuant to Arkansas Rule of

Criminal Procedure 33.3 and Arkansas Code Annotated section 16-89-130. Mr. Payne’s

motion was based on his claim that Donald Miller had recanted portions of his testimony at

trial, and that this recantation of testimony constituted newly discovered evidence that had

impacted the outcome of the trial. Attached to appellant’s motion was a recording of a

posttrial conversation between appellant’s counsel and Mr. Miller, which was recorded at

the jail, wherein Mr. Miller stated that had he lied at trial about the pipe and

methamphetamine found outside the truck belonging to Mr. Payne, and that in fact these

items belonged to him. In that same conversation, Mr. Miller denied ownership of the

contraband Mr. Payne had hidden in the door panel.




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       The trial court held a hearing on appellant’s motion for new trial. At the hearing,

Mr. Payne testified that, after he was convicted, he was sharing a jail cell with Mr. Miller

and that Mr. Miller approached him, stated that he had lied at trial, and asked to speak with

Mr. Payne’s attorney. Mr. Miller also testified at the hearing on appellant’s motion for new

trial, and he admitted having a recorded conversation with appellant’s attorney while he was

in jail, but he denied that he had asked to speak with appellant’s counsel. Instead, Mr. Miller

stated that he was asked to speak with appellant’s counsel. At the hearing, Mr. Miller

invoked his Fifth Amendment right against self-incrimination and refused to recount any

details of his conversation with appellant’s counsel. At the conclusion of the hearing, the

trial court denied Mr. Payne’s motion for new trial, finding that the circumstances

surrounding the newly discovered evidence were totally lacking in credibility.

       Mr. Payne now argues that this ruling by the trial court was erroneous. He contends

that he should have been afforded a new trial because it was likely that the recanted

testimony was pivotal to the jury’s deliberations and its subsequent guilty verdicts.

       In Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), our supreme court stated

that newly discovered evidence is the least favored ground for a new trial motion. When a

new trial is denied on this ground, we will reverse only for an abuse of discretion. Misskelley,

supra. To prevail, the appellant must show that the new evidence would have impacted the

outcome of his case, and that he used due diligence in trying to discover the evidence. Id.

Moreover, a trial court’s factual determinations on a motion for new trial will not be

reversed unless clearly erroneous, and the issue of witness credibility is for the trial court to

weigh and assess. Smart v. State, 352 Ark. 522, 104 S.W.3d 386 (2003).


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       Under the circumstances presented in this case, we hold that there was no abuse of

discretion in the trial court’s denial of Mr. Payne’s motion for a new trial. Mr. Miller

testified at Mr. Payne’s trial only because he was called as a defense witness. Mr. Miller’s

testimony at trial was consistent with what he had told the police at the scene of the

investigation. Both at trial and in his posttrial recorded conversation with appellant’s

counsel, Mr. Miller consistently stated that he had smoked methamphetamine with

Mr. Payne many times using the pipe that was found outside of Mr. Payne’s truck. He also

consistently denied ownership of the contraband found in the door paneling. At the hearing

on appellant’s new-trial motion, Mr. Miller testified that he had spoken with appellant’s

counsel at the jail only because he was asked to speak with him, and at the hearing he

invoked his Fifth Amendment right against self-incrimination, refusing to discuss the details

of that conversation. Even if it could be said that there was a recantation on the part of a

witness, it is the duty of the trial court to deny a new trial where it is not satisfied that the

recanting testimony is true, especially where it involves a confession of perjury. Cooper v.

State, 246 Ark. 368, 438 S.W.2d 681 (1969). Here, the trial court did not believe that

Mr. Miller’s recantation was truthful. The question of whether a new trial is granted on

this ground depends on all the circumstances of the case including the testimony of the

witnesses submitted on the motion for new trial, and the answer lies largely within the

discretion of the trial court. Id. We conclude that the trial court in this case committed no




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error in finding that the recantation of testimony lacked credibility and that Mr. Payne failed

to present sufficient grounds to support his request for a new trial.

       Affirmed.

       ABRAMSON and MURPHY, JJ., agree.

       Potts Law Office, by: Gary W. Potts, for appellant.

       Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.




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