This opinion is uncorrected and subject to revision before publication in the printed official reporter.
APPEAL FROM THE POINSETT COUNTY CIRCUIT COURT. No. CR-2013-147. HONORABLE JOHN N. FOGLEMAN, JUDGE.
Martin E. Lilly, for appellant.
Dustin McDaniel, Att'y Gen., by: LeaAnn J. Adams, Ass't Att'y Gen., for appellee.
LARRY D. VAUGHT, Judge. HARRISON and GRUBER, JJ., agree.
BLARRY D. VAUGHT, Judge
Appellant, Danny Shane Akers, appeals his conviction by a Poinsett County jury of first-degree sexual assault and fourth-degree sexual assault. On appeal, he challenges the sufficiency of the evidence and argues that his conviction for first-degree sexual assault violated his right to privacy under the Constitution of the United States and the Arkansas Constitution because it was based upon his status as a teacher. He also argues that the trial court committed reversible error when it denied two of his proffered jury instructions. We affirm.
At trial, the evidence revealed that Akers, a ninth- and tenth-grade English teacher at Trumann High School, had an ongoing sexual relationship with a minor, A.C., beginning the summer after her tenth-grade year, when she was fifteen years old. A.C. had been Akers's student the two previous school years, and Akers continued to serve as the teacher advisor for a student organization in which she was involved. Akers and A.C. would meet early in the morning at the school and between classes to talk, kiss, and have sex in his classroom. He often wrote notes to excuse her tardiness when their interactions made her late for class. In November 2011, A.C. discovered that she was pregnant with Akers's child. Akers and A.C. continued their relationship until May, when Akers texted A.C. that he would not leave his wife. A.C. gave birth to Akers's son on July 14, 2012.
Akers was charged with first-degree sexual assault under Arkansas Code Annotated section 5-14-124(a)(3) (Supp. 2011), which states that a person commits the crime if he " engages in sexual intercourse . . . with a minor who is not the actor's spouse and the actor is [a]n employee of the victim's school or school district[.]" He was also charged with fourth-degree sexual assault under Arkansas Code Annotated section 5-14-127, which covers sexual intercourse and sexual contact between an actor twenty years old or older and a minor under the age of sixteen.
At the close of the State's case, Akers moved for directed verdict, arguing that there was insufficient evidence that he had utilized a position of trust and authority to influence A.C. to have sex with him. He further argued that it would violate his state and federal constitutional rights to privacy to find him guilty based solely on his status as a teacher. The court denied the motion.
At the close of all evidence, Akers renewed his motion, and it was again denied. Akers requested two jury instructions, which the court rejected. First, Akers proffered a jury instruction on first-degree sexual assault that would have included, as added elements of the offense, " that Danny Akers was in a position of trust or authority over [A.C.]" and that he " used the position to engage in sexual intercourse" with her. Second, after he was found guilty, Akers proffered an alternative sentencing instruction that would have allowed the jury to sentence him to house arrest and/or probation in lieu of prison. The jury sentenced Akers to nineteen years in prison and a fine of $15,000 for first-degree sexual assault and six years in prison and a fine of $10,000 for fourth-degree sexual assault. Akers filed a timely notice of appeal.
Akers's first point on appeal is that the trial court erred in denying his motion for directed verdict for two reasons: (1) the evidence was insufficient, and (2) a conviction based solely upon his status as a teacher is unconstitutional. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Smoak v. State, 2011 Ark. 529, at 2, 385 S.W.3d 257, 259. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id., 385 S.W.3d at 259. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id., 385 S.W.3d at 259.
Akers argues that there was insufficient evidence that he held a position of authority or trust over A.C. and that he used that position to influence her to have sex with him. The court found that there was evidence that he held and utilized such a position because he had been her teacher, continued to be her advisor in a school organization, and utilized his position to facilitate their sexual encounters. However, the trial court found that the statute did not require proof that Akers held and utilized such a position ...