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Malvin v. State

Court of Appeals of Arkansas, Division I

October 29, 2014

Malvin
v.
State

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION. NO. 2012-3374. HONORABLE BARRY SIMS, JUDGE.

Kent C. Krause., Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

Dustin McDaniel, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.

ROBIN F. WYNNE, Judge. GLADWIN, C.J., and PITTMAN, J., agree.

OPINION

Page 209

ROBIN F. WYNNE, Judge

Ashley Malvin appeals from his convictions for computer exploitation of a child; distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child; and sexual indecency with a child. He argues on appeal that the State failed to prove that he committed sexual indecency with a child because it failed to prove that he exposed his penis to the minor victim. We disagree and affirm.

Appellant was charged with computer exploitation of a child; distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child; and sexual indecency with a child. He waived his right to a jury trial. T.H., who was sixteen years old at the time of the trial, testified that appellant was a pastor at her church. According to T.H.'s testimony, her relationship with appellant turned sexual in 2011, when she was fourteen. T.H. stated that appellant sent her photos of his penis. Copies of the photographs appellant sent to T.H. were admitted into evidence. T.H. testified that appellant sent the pictures from his cell phone to her cell phone during text conversations.

After the State rested its case, appellant made a motion to dismiss the charges. With regard to the charge of sexual indecency with a minor, appellant argued that the State had not met its burden because the proof was that he exposed a picture of his penis to the victim as opposed to exposing his penis itself. The motion was denied. At the close of all the evidence, the motion was renewed and denied again. The trial court found appellant guilty on all three counts, and sentenced him to seventy-two months' imprisonment on each count, with the sentences ordered to run concurrently. This appeal followed.

A motion to dismiss at a bench trial, like a motion for directed verdict at a jury trial, is considered a challenge to the sufficiency of the evidence. Rule v. State, 2014 Ark.App. 390, 438 S.W.3d 279. When the sufficiency of the evidence is challenged in a criminal conviction, we review the evidence in the light most favorable to the State and affirm if the verdict is supported by substantial evidence. Id. Substantial evidence is evidence that induces the mind to go beyond mere suspicion or conjecture, and that is of sufficient force and character to compel a conclusion one way or the other with reasonable certainty. Id.

Appellant argues on appeal that his conviction for sexual indecency with a child is not supported by substantial evidence because the State failed to prove that he exposed his penis to the minor victim. A person commits sexual indecency with a child if with the purpose to arouse or gratify a sexual desire of himself or herself or a sexual desire of any other person, the person purposely exposes his or her sex organs to a minor, and the actor is the minor's guardian, an employee in the minor's school or school district, a temporary caretaker, or a person in a position of trust and authority over the minor. Ark. Code Ann. § 5-14-110(a)(3)(C) (Repl. 2013).

Appellant contends in his brief, as he did at trial, that sending a picture of his penis to the victim does not satisfy the requirement

Page 210

in the statute that he " expose his sexual organs." His argument requires us to determine the meaning of the phrase " exposes his or her sex organs" in section 5-14-110(a)(3)(C). This court reviews issues of statutory interpretation de novo, as it is for this court to decide the meaning of a statute. Brown v. State, 375 Ark. 499, 292 S.W.3d 288 (2009). We construe criminal statutes strictly, resolving any doubts in favor of the defendant. Id. We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. Id. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory ...


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