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Hendrix v. State

Court of Appeals of Arkansas, Division IV

December 10, 2014

LESTER LEE HENDRIX, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT. NO. 23CR-2012-938. HONORABLE MICHAEL A. MAGGIO, JUDGE.

Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.

Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

ROBERT J. GLADWIN, Chief Judge. WALMSLEY and VAUGHT, JJ., agree.

OPINION

Page 693

ROBERT J. GLADWIN, Chief Judge

On November 22, 2013, in the Faulkner County Circuit Court, Lester Hendrix was convicted of internet stalking of a child, a violation of Arkansas Code Annotated section 5-27-306 (Supp. 2013), and sentenced to ten years' imprisonment. On appeal, he argues that the State failed to prove an essential element of the crime. However, the State contends that appellant failed to preserve the issue for appellate review. We agree that the issue is not preserved and affirm appellant's conviction.

A felony information was filed on September 7, 2012, alleging that appellant had stalked a child on the internet. At the bench trial, Shannon Cook, an investigator with the Faulkner County Sheriff's Office, testified that she investigates cases where people are trying to sexually exploit children in some way. She said that she met appellant on a website called Fetlife, which is a free social networking site for people who are interested in fetishes. She had set up a profile on Fetlife using an undercover email address, calling herself " playful mom."

She testified that appellant sent her a friend request, calling himself " daddy for young." From their meeting on Fetlife, they moved on to communicate through Yahoo messenger and Yahoo email. During their communications, Cook led appellant to believe that she was a thirty-year-old mother of two children, ages ten and eight, and that she had incestuous relationships with her children. She testified that appellant sought a meeting with her and the children, and she testified that he described explicitly the sexual acts he intended to carry out with her and the children. She said that appellant was given chances to " step back" from their conversations on the internet, but he did not. Instead, they set up a meeting at McDonald's on Highway 65 in Conway, Arkansas, where he arrived driving a 2002 silver Buick as described in the emails. Appellant and Cook went inside the restaurant, and appellant was arrested.

Jason Keeler testified that he is also an investigator with the Faulkner County Sheriff's Office, and he assisted in the investigations and computer forensics. He interviewed appellant subsequent to the arrest. He also contacted the Fulton County Sheriff's Office, because appellant resided in Viola, Arkansas, and a search warrant was executed on appellant's residence there.

Stephen Barker testified that he worked for the Russellville Police Department and conducted a forensic examination of the computer recovered from appellant's residence. He confirmed appellant's presence on the website Fetlife by recovering deleted messages posted on the website.

When the State rested its case, appellant moved for a dismissal, arguing as follows:

The State charged my client with the crime of internet stalking of a child under specific provisions of Arkansas Code 5-27-306. I think the court probably has a copy of that charging document. The State has failed to ...

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