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Duren v. State

Court of Appeals of Arkansas, Division I

January 31, 2018

JOSEPH DEWAYNE DUREN APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-16-94] HONORABLE CHARLES E. CLAWSON, JR., JUDGE

          Debra J. Reece, for appellant.

          Leslie Rutledge, Att'y Gen., by: Jason Michael Johnson, Ass't Att'y Gen., for appellee.

          LARRYD. VAUGHT, JUDGE

         Joseph DeWayne Duren was found guilty by a Faulkner County jury of internet stalking of a child pursuant to Arkansas Code Annotated section 5-27-306 (Repl. 2013) and was sentenced to 240 months in prison. On appeal, Duren challenges the sufficiency of the evidence supporting his conviction. We affirm.

         At trial, fourteen-year-old B.T. testified that in mid-2015 she used her phone to message Duren, who was twenty-three years old at the time, using an internet-based phone application called Snapsext.[1] B.T. told Duren that she was twenty-six years old. B.T. did not meet with Duren and did not send him any pictures of her.

         On February 1, 2016, Jason Bollinger, B.T.'s guardian, discovered that B.T. had been messaging Duren. Bollinger confiscated B.T.'s phone, changed the passwords on the Snapsext website, and gave the phone to Chad Meli of the Faulkner County Sheriff's Department. Officer Meli confirmed that on February 1, 2016, he received a phone from Bollinger along with a report that a fourteen-year-old girl had been using the phone to message Duren on Snapsext. That day, Officer Meli extracted the Snapsext data from the phone. The Snapsext conversations between Duren and B.T.-who said she was twenty-six years old-were sexual in nature. At one point, B.T. asked Duren at what age was the youngest girl he would have sex with, to which Duren said sixteen. B.T. (lied and) said that her sister, who was fourteen and a virgin, wanted to have sex with someone "who knows what they're doing." Duren responded, "This will sound shallow so I'm sorry for this, but what does she look like?" B.T. did not respond. That was the final Snapsext conversation between B.T. and Duren.

         Officer Meli, acting as "B.T., " attempted to communicate with Duren on Snapsext, but Duren did not respond. Officer Meli, again acting as "B.T., " texted Duren's cell phone, and he responded.[2] "B.T." immediately told Duren that she was not twenty-six years old and that she did not have a younger sister. "B.T." told Duren that she was fourteen years old. Duren and "B.T." discussed what it would be like for "B.T." to have sex for the first time. Then "B.T." asked Duren if he ever came to Conway. Duren responded that he was in Little Rock almost every night for school. "B.T." said, "[Y]ou should sneak me out one night." At this point, Duren texted, "Let's say I did tonight. What would you want me to do?" "B.T." responded, "I wanna try and go all the way."

         Then Duren and "B.T." texted each other a picture. The State introduced the photographs into evidence. In the picture Duren sent to "B.T., " he was holding his friend's baby. The picture "B.T." sent to Duren depicted a prepubescent female holding a stuffed animal. Duren and "B.T." agreed that if Duren traveled to Conway that night, "B.T." would sneak out to meet him at Harps grocery store. He described his vehicle. "B.T." asked Duren to bring some rum, and he agreed. "B.T." also asked if Duren had a "rubber, " because she did not want to get "preggers, "and Duren said he had condoms. "B.T." told Duren to text her when he arrived at Harps, and he did. Officer Meli arrested Duren in the Harps parking lot. The search of his vehicle revealed condoms, K-Y Jelly, a bottle of rum, a knife (tucked between the driver's seat and the console), and his cell phone.

         Duren testified at trial that he had messaged B.T. on Snapsext one time in mid-2015. He said that he thought he had been talking to a twenty-six-year old woman during that chat and that he was not "thinking straight" when he made comments about B.T.'s sister because he was "inebriated." He said that he tried to message B.T. again on Snapsext, but she did not respond. He said that about six months later he received text messages from whom he thought was B.T. He admitted that he knew at that time B.T. was fourteen years old and that she was asking about how to lose her virginity. He testified that he did not want to sleep with B.T.; rather, he said that he showed false interest in her so that he could meet her to warn her that she was making a mistake by trying to have sex with an older man.

         At trial, the defense moved for a directed verdict at the close of the State's case, and again at the close of all the evidence, arguing that there was no evidence that Duren used the internet to entice B.T. into a meeting for sex. The circuit court denied the directed-verdict motions. Thereafter, the jury convicted Duren of internet stalking of a child. This appeal followed. Duren's only argument on appeal is that the circuit court erred in denying his motion for a directed verdict because the State lacked sufficient evidence to show that he used a "computer online service, internet service, or local internet bulletin board" to arrange a meeting with a fourteen-year-old girl to engage in sex.

         We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Kelley v. State, 103 Ark.App. 110, 114, 286 S.W.3d 746, 749 (2008). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id., 286 S.W.3d at 749. We affirm a conviction if substantial evidence exists to support it. Id., 286 S.W.3d at 749. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id., 286 S.W.3d at 749. We defer to the jury's determination on the matter of witness credibility. Id., 286 S.W.3d at 749. Jurors do not and need not view each fact in isolation; rather, they may consider the evidence as a whole. Id., 286 S.W.3d at 749. The jury is entitled to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence. Id., 286 S.W.3d at 749.

         Duren's appeal requires us to interpret a statute. The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Holcomb v. State, 2014 Ark. 141, at 3, 432 S.W.3d 600, 602. When the language is plain and unambiguous, there is no need to resort to rules of statutory construction, and the analysis need go no further. Id., 432 S.W.3d at 602. We review issues of statutory interpretation de novo because it is for the appellate court to decide what a statute means. Id., 432 S.W.3d at 602. When dealing with a penal statute, the appellate court strictly construes the statute in favor of the party sought to be penalized. Id., 432 S.W.3d at 602.

         The relevant statute, Arkansas Code Annotate section 5-27-306(a), entitled "Internet stalking of a child, " states as follows:

(a) A person commits the offense of internet stalking of a child if the person being twenty-one (21) years of age or older knowingly uses a computer online service, internet service, or local internet bulletin board service to:
. . . .
(2) Seduce, solicit, lure, or entice an individual that the person believes to be fifteen (15) years of age or younger in an effort to arrange a meeting with the ...

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