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Schermerhorn v. State

Court of Appeals of Arkansas, Division II

September 14, 2016

FRANK SCHERMERHORN APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE VAN BUREN COUNTY CIRCUIT COURT [NO. CR-2012-33] HONORABLE H.G. FOSTER, JUDGE

          Omar F. Greene, for appellant.

          Leslie Rutledge, Att'y Gen., by: Kristen C. Green, Ass't Att'y Gen., for appellee.

          BRANDON J. HARRISON, Judge

         Frank Schermerhorn appeals two convictions for possessing or viewing matter depicting sexually explicit conduct involving a child. A Van Buren County jury convicted him of two counts and acquitted him of thirteen counts. He was sentenced to six concurrent terms of imprisonment. Here, Schermerhorn argues that the statute under which he was convicted, Arkansas Code Annotated section 5-27-602, is unconstitutionally overbroad and "void for vagueness" because the law criminalizes inadvertent and innocent viewing of illegal explicit material. Because Schermerhorn's constitutional challenge was not properly preserved, we affirm the jury's decision without addressing the merit of his argument.

         I.

         Schermerhorn has not challenged the sufficiency of the State's evidence, so a description of the underlying facts of this case is unnecessary. The statute at issue, Ark. Code Ann. § 5-27-602, states in part,

(a) A person commits distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child if the person knowingly:
(1) Receives for the purpose of selling or knowingly sells, procures, manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes, distributes, circulates, disseminates, presents, exhibits, advertises, offers, or agrees to offer through any means, including the Internet, any photograph, film, videotape, computer program or file, video game, or any other reproduction or reconstruction that depicts a child or incorporates the image of a child engaging in sexually explicit conduct; or
(2) Possesses or views through any means, including on the Internet, any photograph, film, videotape, computer program or file, computer-generated image, video game, or any other reproduction that depicts a child or incorporates the image of a child engaging in sexually explicit conduct.

         Schermerhorn's constitutional challenge arose during an in camera hearing on the second day of the jury trial. No written motion or brief was ever submitted on the issue. All that is in the record is the following bench conference.

Defense counsel: This was something else too I did want to bring up and I'm not sure when the appropriate time is but I think those statutes are unconstitutional because it says possess or view and I think you might can raise that at any time whether it is unconstitutional or not.
Court: Well, don't we have to recess until the AG's office has a chance to respond?
Defense counsel: It is at that point, I guess.
Court: . . . I really think if someone is going to challenge the constitutionality of the statute, I think the AG's office has to be noticed and have an opportunity to respond . . . [T]he Attorney General is supposed to defend the statute.
Defense counsel: I just can't do that at the appeal level?
Court: Well, I don't think they can do it now is the thing, but I mean clearly you are claiming that you consider it unconstitutional . . . and I'm guessing the State says it is constitutional . . . I see nothing to suggest that it is unconstitutional and I think there is a procedure that needs to be followed and I'm afraid it has not[.] [S]o for both procedural and substantive reasons I'm going to deny the motion[.]

         As the discussion continued, the prosecuting attorney asked defense counsel to clarify the basis for the constitutional challenge-whether it was for possession or viewing.

Defense counsel: Yes, the view part, I mean, there are times that you can't help but view it and then in the Federal code if you delete it, delete it immediately that's a defense but here it is if you have seen ...

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