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Krol v. State

Court of Appeals of Arkansas, Division III

October 24, 2018



          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 ...

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