Cite as 2012 Ark. App. 259
ARKANSAS COURT OF APPEALS
VINCENT BYRON FETT
April 18, 2012
APPEAL FROM THE POLK
COUNTY CIRCUIT COURT
HONORABLE J.W. LOONEY, JUDGE
STATE OF ARKANSAS
REVERSED AND DISMISSED
JOSEPHINE LINKER HART, Judge
A Polk County jury convicted Vincent Byron Fett of possession of marijuana with
intent to deliver and simultaneous possession of drugs and firearms. He was sentenced to
consecutive sentences of 36 months and 120 months, respectively, in the Arkansas Department
of Correction. On appeal, Fett challenges only his conviction for simultaneous possession of
drugs and firearms. He argues that there was insufficient evidence to sustain his conviction and
that the trial court erred in its interpretation of Arkansas Code Annotated section 5-74-106
(Supp. 2011). The State has conceded error, and we agree. We therefore reverse and dismiss
Fett’s conviction for simultaneous possession of drugs and firearms.
At trial, both Polk County Deputy Ronnie Richardson and Eighteenth Judicial District
Drug Task Force Investigator Jeff Fields testified that Fett consented to the search of his
residence. In addition to a quantity of marijuana, the police found a rifle and a pistol in the
location where Fett said that they would be found. Both officers stated that the guns were not
Cite as 2012 Ark. App. 259
loaded and that they did not find any ammunition in the residence.
Citing Rabb v. State, 72 Ark. App. 396, 39 S.W.3d 11 (2001), Fett moved at trial for
directed verdict on the simultaneous-possession-of-drugs-and-firearms charge, arguing that
because the guns were not loaded and no ammunition was recovered in the residence, the
firearms were not “readily accessible for use as a firearm.” The trial court denied the motion.
Fett timely renewed the motion at the close of his case, and his directed-verdict motion was
again denied by the trial court. Following the jury’s verdict, Fett filed this appeal.
On appeal, Fett again argues that the instant case is controlled by our holding in Rabb.
The State concurs, and we agree. In Rabb, we reversed and dismissed a conviction for
simultaneous possession of drugs and firearms where there was an unloaded weapon and no
available ammunition. We reasoned that, without ammunition, a firearm is not “readily
accessible for use as a firearm.” 72 Ark. App. at 403, 39 S.W.3d at 17. The facts are identical
in the instant case. We therefore reverse and dismiss Fett’s conviction for simultaneous
possession of drugs and firearms. Having reversed and dismissed on this point, we need not
consider Fett’s argument concerning the trial court’s interpretation of Arkansas Code Annotated
Reversed and dismissed.
GRUBER and GLOVER, JJ., agree.