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Trotter v. State

Court of Appeals of Arkansas, Division III

May 23, 2018

JONATHAN SCOTT TROTTER APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE HEMPSTEAD COUNTY CIRCUIT COURT [NO. 29CR-16-302] HONORABLE RANDY WRIGHT, JUDGE

          Anthony S. Biddle, for appellant.

          Leslie Rutledge, Att'y Gen., by: Kent Holt, Ass't Att'y Gen., for appellee.

          KENNETH S. HIXSON, Judge

         Appellant Jonathan Scott Trotter, age twenty-eight, was convicted in a jury trial of two counts of rape and two counts of second-degree sexual assault committed against a thirteen-year-old girl named R.S. For these offenses, Mr. Trotter was sentenced to thirty years in prison. Mr. Trotter now appeals, raising two arguments. First, he argues that there was insufficient evidence to support his convictions. Next, he argues that the trial court erred in denying his motion to declare Ark. Code Ann. § 5-14-102 (Repl. 2013) unconstitutional. We affirm.

         Pursuant to Ark. Code Ann. § 5-14-103(a)(3)(A), a person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. Pursuant to Ark. Code Ann. § 5-14-125(a)(3), a person commits second-degree sexual assault if the person, being eighteen years of age or older, engages in sexual contact with another person who is less than fourteen years of age.

         When an appellant challenges the sufficiency of the evidence, we review the sufficiency argument prior to a review of any alleged trial errors. Bohanan v. State, 72 Ark.App. 422, 38 S.W.3d 902 (2001). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion with reasonable certainty without resort to conjecture. Breedlove v. State, 62 Ark.App. 219, 970 S.W.2d 313 (1998). We review the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict. Morton v. State, 2011 Ark.App. 432, 384 S.W.3d 585.

         Before trial, Mr. Trotter filed a motion to declare Ark. Code Ann. § 5-14-102 unconstitutional. That statute provides, under subsection (b):

(b) When the criminality of conduct depends on a child's being below fourteen (14) years of age and the actor is twenty (20) years of age or older, it is no defense that the actor:
(1) Did not know the age of the child; or
(2) Reasonably believed the child to be fourteen (14) years of age or older.

Ark. Code Ann. § 5-14-102(b). In his motion, Mr. Trotter argued that the above provision, which prohibits a defendant from using mistake of age as a defense when the victim is less than fourteen years of age, violates due process and his right to a fair trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 2, section 10 of the Arkansas Constitution. Mr. Trotter asserted that R.S. had posted on the internet that she was born on May 3, 1997, which would have made her nineteen years old during the relevant time frame. Mr. Trotter asserted further that R.S. had posted pornography and other sexual statements on the internet and was engaging in activity normally engaged in only by adults. He thus posited that R.S. should be held to an "adult standard." Mr. Trotter contended that the challenged statute assumes that every person under the age of fourteen is the same when, in fact, they differ in size, shape, behavior, and maturity. Citing cases from other states, Mr. Trotter argued that Arkansas should allow mistake of age as a defense.

         A pretrial hearing was held on Mr. Trotter's motion, and Mr. Trotter testified at the hearing. Mr. Trotter testified that R.S. had approached him on social media, and on her Facebook page she represented that she was born on May 3, 1997. Mr. Trotter stated that R.S. deceived him into thinking she was nineteen years old. Mr. Trotter further testified that R.S. "flaunted herself" by posting half-naked pictures of herself on her Facebook page. Mr. Trotter stated that R.S. did not look like a thirteen-year-old or carry herself like a thirteen-year-old. He also stated that she displayed adult behavior, including smoking cigarettes and telling him that she recently had a baby. Mr. Trotter admitted that R.S. is thirteen years old and that he had sexual intercourse with her. However, he testified that he wanted to take some responsibility, but not full responsibility, because had he known R.S.'s age he would not have had sex with her.

         At the conclusion of Mr. Trotter's testimony at the pretrial hearing, the trial court denied Mr. Trotter's motion to declare Ark. Code Ann. § 5-14-102 unconstitutional. The trial court also ruled that the aforementioned information and pictures ...


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