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K.O. v. State

Court of Appeals of Arkansas, Division IV

January 16, 2019

K.O. APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT [NO. 16JJV-18-111] HONORABLE BARBARA HALSEY, JUDGE

          Terry Goodwin Jones, for appellant.

          Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.

          BART F. VIRDEN, JUDGE

         The Craighead County Circuit Court adjudicated appellant K.O. a juvenile delinquent for committing the offense of harassment, a Class A misdemeanor. The trial court placed K.O. on probation for twelve months subject to various terms and conditions. He was also ordered to pay a fine, as well as costs and fees; perform eighty hours of public service; cooperate with and follow the recommendations of a counseling agency; obey a curfew; submit to random drug tests; and be committed to the Craighead County Juvenile Detention Center for ninety days, with credit for one day served and with eighty-nine days deferred. K.O. argues on appeal that the trial court erred in its adjudication because the State failed to prove an element of the offense. Because K.O.'s challenge to the sufficiency of the evidence supporting his adjudication is not preserved for review, we affirm without reaching the merits.

         I. Background

         On April 3, 2018, the State filed a petition in the juvenile division of circuit court alleging the following:

That on or about 2-25-18, in Craighead County, Arkansas, [K.O.] did violate Arkansas Code Annotated 5-71-208, with the purpose to harass, annoy, or alarm another person, without good cause, he, in a public place, repeatedly insults, taunts, or challenges another in a manner to provoke a violent response, namely by, grabbing the head of an eleven (11) year old female and forcing her face in his crotch, while telling her he wanted "some head," which is slang for oral sex, thereby committing the offense of HARASSMENT (A-M) against the peace and dignity of the State of Arkansas.

         A bench trial was held on April 4, 2018. Following the presentation of testimony regarding the factual basis for the State's petition, defense counsel moved for a directed verdict, [1] arguing the following:

Your Honor, at this time I make a motion for a directed verdict based on 5[-]71-208. The definition of harassment says that there has to be proof by a prepon-beyond a reasonable doubt in this new charge, that without good cause that this person either subjected a person to offensive physical contact or attempted to threaten to do so, or in a public place directed obscene language or in an order to-or in a manner to provoke a violent or disorderly response. Your Honor, out of those two possible scenarios, the State has not proven beyond a reasonable doubt that my client did either one of those two things.

         The trial court denied K.O.'s motion for dismissal, and K.O. took the stand and testified on his own behalf. When defense counsel renewed her motion, she did so "with the same specificity." The trial court again denied K.O.'s motion and found the allegations in the State's petition to be true.

         II. Discussion

         There are several ways to commit harassment. Relevant here, a person commits the offense of harassment if, with purpose to harass, annoy, or alarm another person, without good cause, he or she:

(1) strikes, shoves, kicks, or otherwise touches a person, subjects that person to offensive physical contact or ...

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