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Frederic v. State

Court of Appeals of Arkansas, Division I

September 26, 2018

PHILIP FREDERIC APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-16-133] HONORABLE CHARLES E. CLAWSON, JR., JUDGE

          Hancock Law Firm, by: Charles D. Hancock and Sharon Kiel, for appellant.

          Leslie Rutledge, Att'y Gen., by: Michael A. Hylden, Ass't Att'y Gen., for appellee.

          LARRYD. VAUGHT, JUDGE

         Philip Frederic appeals the sentencing order entered by the Faulkner County Circuit Court convicting him of conspiracy to commit rape and sentencing him to thirty years' imprisonment. Frederic argues there is insufficient evidence to support his conviction. We affirm.

         This case began on the evening of February 14, 2016, when Chad Meli of the Faulkner County Sheriff's Office, who is trained to investigate cybercrimes against children, used an undercover Kik account[1] to answer an advertisement on Craigslist entitled "Seeking dads and daughters" that was posted on February 9, 2016. The ad read:

Seeking to talk with a dad who has a daughter interested in mature gentlemen. We could begin by sharing our interests and getting to know a little about each other and your daughter and what her interests are . . . in men. Nothing too taboo to share, no judgements[sic], you can kik me at cfcardinal. I'm a father with a daughter also . . . .

         Officer Meli's online profile was that of a single forty-two-year-old father named "T.J." who had a thirteen-year-old daughter named "Kaci." Frederic responded to "T.J." by asking if "Kaci" was sexy and by saying that he (Frederic) had a "hot" fifteen-year-old daughter whom he used to "f**k." Frederic sent a picture of himself and several pictures of a young girl (who was later identified as Frederic's fifteen-year-old daughter) to "T.J." Then "T.J." sent pictures of "Kaci" (an adult female) to Frederic. "T.J." told Frederic that "Kaci" played with[2] him because he bought her "s**t." The conversation between Frederic and "T.J." continued and contained sexually graphic language, including Frederic's repeating multiple times that he would like to "f**k" "T.J.'s" "sweet little thirteen-year-old" daughter. "T.J." said that he was willing to make "Kaci" available for Frederic's sexual gratification. Frederic asked, "What would I have to buy her?"

         The next day, Frederic and "T.J." chatted again, and during this conversation, Frederic made arrangements to meet "T.J." and "Kaci" around 4:30 p.m. at an Exxon station in Mayflower, Arkansas. Frederic gave "T.J." his phone number, said his name was "Phil" and that he drove a dark blue Chevrolet Ventura van. Frederic again asked "T.J." what he should buy "Kaci." "T.J." responded that she liked Michelob Ultra beer and glitter nail polish. "T.J." also said that pink and purple were "Kaci's" favorite colors.

         Upon meeting Officer Meli at the Exxon station as planned, Frederic was arrested. In his van, officers found twelve Michelob Ultra beers, pink and purple glitter nail polish, and a hunting knife.[3] Officer Meli testified that Frederic was arrested and charged with conspiracy to commit rape based on Officer Meli's online conversations with Frederic, along with the facts that Frederic showed up at the planned meeting location and brought with him the beer and nail polish.

         Frederic also testified. He admitted that he was familiar with the Craigslist ad to which "T.J." had responded; that he had seen it; that the address on the ad was his; and that he had posted a similar ad on Craigslist on February 9, 2016, after chatting with someone else online named "Texas Stepdad"; but he denied posting the advertisement. He also admitted that he (1) engaged in the sexually explicit conversations with "T.J."; (2) sent pictures of himself and his daughter to "T.J."; (3) arranged a meeting with "T.J." and "Kaci," who he thought was thirteen years old; (4) showed up at the meeting location as planned; and (5) brought the gifts for "Kaci" that "T.J." had suggested. Frederic testified that he did all these things for research. He described in great length his academic interest in human sexuality and that he wanted to learn whether he could develop an online-research technique in this area. He stated that his plan was to introduce himself online as a member of whatever demographic he was studying-homosexual, pedophile, transgender, transsexual-and immerse himself into the dialogue of that demographic so that he could have "an honest conversation" about people's different sexual choices. He said that he had no intention of meeting with any of the people he conversed with and had not met with any of them until he arranged the meeting with "T.J." and "Kaci." He testified that his true intent in meeting with "T.J." was to have a conversation, get a pizza, and drink some beers. Nevertheless, during his testimony, Frederic conceded the wrongfulness of his conduct, stating, "It was an active indiscretion" and "I should not have been in that conversation."

         The jury convicted Frederic of conspiracy to commit rape and sentenced him to thirty years in prison. This appeal followed. Frederic's sole point on appeal is that the circuit court erred in denying his timely motions for directed verdict challenging the sufficiency of the evidence.

         We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Moore v. State, 372 Ark. 579, 580, 279 S.W.3d 69, 71 (2008). Our supreme court has repeatedly held that 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., 279 S.W.3d at 71. We affirm a conviction if substantial evidence exists to support it. Id., 279 S.W.3d at 71. 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. at 580-81, 279 S.W.3d at 71. Circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Id., 279 S.W.3d at 71. Whether the evidence excludes every other hypothesis is left to the jury to decide. Id., 279 S.W.3d at 71-72. The credibility of witnesses is an issue for the jury and not the court. Id., 279 S.W.3d at 72. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id., 279 S.W.3d at 72.

         A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person who is less than fourteen years of age. Ark. Code Ann. § 5-14-103(a)(3)(A) (Supp. 2017). "Deviate sexual activity" means any act of sexual gratification involving the penetration, however slight, of the labia majora or anus of a person by any body member ...


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