APPEAL
FROM THE WASHINGTON C O U NT Y C IRC U IT C O U R T [NO.
72CR-16-706] HONORABLE JOANNA TAYLOR, JUDGE
Wilkerson Law Firm, by: Shane Wilkerson, for appellant.
Leslie
Rutledge, Att'y Gen., by: Kathryn Henry, Ass't
Att'y Gen., for appellee.
LARRYD. VAUGHT, Judge
Micah
Kenton Krol appeals his conviction by a Washington County
Circuit Court jury of three counts of sexual indecency with a
child, a Class D felony, in violation of Arkansas Code
Annotated section 5-14-110(a)(2)(A) (Repl. 2013). On appeal,
Krol argues that there was insufficient evidence to support
his conviction because the statute should be interpreted as
requiring proof that the child consciously observed the
indecent exposure of the defendant's genitals. He also
argues that his conviction violates the Arkansas and federal
constitutions' protections against double jeopardy. We
disagree with his arguments and affirm his conviction.
At
trial, Austin Lewallen testified that he was working at the
Walmart store in Springdale, Arkansas, on February 2, 2016.
Lewallen was an asset-protection associate, and he testified
that he watched Krol on the store's surveillance cameras
walk up behind two young children who were alone in an aisle
and lift up his shirt, exposing his penis. Krol then walked
to another aisle where one child was present and again lifted
his shirt and exposed his penis while standing behind the
child. Lewallen testified that no one ever reported the
incident to the store. Lewallen also testified that, shortly
after exposing himself, Krol left the store without
purchasing anything, and Lewallen used the surveillance
cameras in the parking lot to obtain his license-plate
number. Lewallen's coworker reported the incident to
police, who later identified and arrested Krol.
Tommy
Wooten testified that he is a detective for the Springdale
Police Department. He stated that no one made any report to
the Springdale Police Department that they or their children
had seen a man expose himself at the Walmart store. The
children in the video were never identified and had not been
interviewed as a part of the investigation. Wooten stated
that he could not tell, from the video, whether the children
had seen Krol's exposed genitals. The surveillance video
was introduced into evidence and played for the jury several
times.
Before
trial, Krol filed a memorandum of law arguing the case should
be dismissed because there was no evidence that the children
actually saw him expose his genitals. The State responded
that our statute contains no requirement that the child view
or witness the exposure, only that it be made "to"
a child. The court set a pretrial hearing on the issue, but
that hearing was later continued, and the record does not
reflect that it ever occurred. Krol did not obtain a pretrial
ruling on whether the statute requires proof that the
exposure was viewed by the child.
At
trial, the issue arose when Krol's counsel objected to
Detective Wooten's testimony, given while watching the
surveillance video, that "[h]e is exposing himself to
those children." Krol's counsel argued, among other
things, that the witness was "trying to suggest that
this is what the jury instruction says - what the law
says" and "that's a mischaracterization of the
law in this case." The State responded that "that
is the law in this case. That's how the statute
reads." (Emphasis added.) The court ruled that "the
line of questioning is going to the fact that Mr. Krol
exposed his penis to these children as opposed to adults who
were in the store as well," concluding that the
detective could testify to what he saw on the screen and that
Krol could cross-examine him on it.
The
issue of what exposure "to" a child means under the
statute came up again when the State asked Detective Wooten
whether, based on his "common experience" and based
on the angle of the child's head in the video, it was
possible that the child could have noticed Krol out of her
peripheral vision, turned to the left, and seen his exposed
penis. Krol's counsel objected to the question as calling
for speculation, and the court sustained the objection,
explaining, "I believe this is something that the jurors
are going to have to use their common sense to
determine." Detective Wooten ultimately testified that
he did not know if the children had seen Krol's exposed
genitals, [1] and no witness testified that the children
either had or had not seen the exposure.
After
the State rested, Krol moved for directed verdict, which
incorporated his memorandum of law, arguing that the statute
required proof, as an essential element of the crime, that
the child view the exposure. He argued that the State had
failed to introduce sufficient proof on that element and that
the charges should therefore be dismissed. He also argued
that, if conscious observation on the part of the child
victim was not an element, the court should dismiss one of
the three counts of sexual indecency with a child, since Krol
had lifted his shirt only twice to expose his genitals. The
State argued that the statute does not contain an element
requiring proof that the exposure be witnessed or viewed,
that the focus of the statute was on the defendant's
conduct not the child's awareness, and that three counts
were appropriate because Krol had intentionally exposed his
genitals to three children.
In
arguing the motion for directed verdict, both sides cited
numerous cases from both Arkansas and other jurisdictions to
support their interpretation of the statute, and they often
relied on the same cases, reaching different understandings
of the fundamental holdings of those cases. For example, both
sides heavily relied on Malvin v. State, 2014
Ark.App. 584, 446 S.W.3d 208, in which we affirmed a
conviction for sexual indecency with a child based on the
defendant's sending of a photo of his penis to a child
via electronic communication. The State argued that
Malvin defines "expose" as "laying
open to view," which the State argued hinges only on the
defendant's conduct and does not contain an awareness
element on the part of the victim. The defense argued that
Malvin hinged on the fact that the child actually
saw the defendant's genitals in the photo just as she
would have seen if he had exposed himself in person. The
circuit court ruled that it had read the relevant cases and
was most persuaded by Malvin v. State and quoted a
portion of the Malvin opinion in which we stated
that "expose is defined as laying open to view . . . .
His penis is what he exposed to [T.H.]. A photograph was
simply the manner he selected for her to view it." The
court then restated the elements of the crime, but regarding
the element that the exposure be made "to" a child,
the court did not clarify whether Malvin required
proof that the child actually viewed the exposure. The court
concluded by saying "[T]he State has made a prima facia
case, that raises issues of fact for the jury to consider, as
to all elements of the charged offense and the motion for
directed verdict is denied." At the close of all
evidence, Krol renewed his motion, which was again denied.
Krol
also submitted proposed jury instructions that included, as a
necessary element of the crime, a finding that the child
viewed his exposed genitals. The court rejected his proposed
jury instructions and instead gave the model version of those
instructions, as advocated for by the State, which simply
tracked the language of the statute, requiring the jury to
determine whether Krol had exposed himself "to" a
person less than fifteen years of age. Krol proffered his
proposed jury instructions to the court. The jury convicted
Krol of three counts of sexual indecency with a child, and
this appeal follows. On appeal, Krol has challenged only the
denial of his motion for directed verdict.
This
court reviews a motion for a directed verdict as a challenge
to the sufficiency of the evidence and will affirm the
circuit court's denial of a motion for directed verdict
if there is substantial evidence, either direct or
circumstantial, to support the jury's verdict.
Williamson v. State, 2009 Ark. 568, at 3-4, 350
S.W.3d 787, 789 (citing Flowers v. State, 373 Ark.
127, 282 S.W.3d 767 (2008)). Substantial evidence is evidence
forceful enough to compel a conclusion one way or the other
beyond suspicion or conjecture. Id., at 3-4, 350
S.W.3d at 789. In reviewing the sufficiency of the evidence,
we view the evidence and all reasonable inferences deducible
therefrom in the light ...