Worsham v. State

          APPEAL FROM THE POPE COUNTY CIRCUIT COURT [NO. 58CR-17-621] HONORABLE BILL PEARSON, JUDGE.

          Laws Law Firm, P.A., by: Hugh R. Laws, for appellant.

          Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, Judge.

         Appellant Landan Worsham appeals the entry of a conditional guilty plea against him on one count of sexual indecency with a child pursuant to Arkansas Code Annotated section 5-14-110(a)(1) (Repl. 2013). He argues that the circuit court erred in denying his motion to dismiss, which argued that section 5-14-110(a)(1), as applied, was overbroad and impermissibly infringed on and burdened his fundamental right to freedom of expression under the First Amendment to the United States Constitution and article 2, section 6 of the Arkansas Constitution. We find merit in his argument; therefore, we reverse and dismiss.

         I. Facts and Procedural History

         On September 6, 2017, an information was filed in which appellant was charged with sexual indecency with a child in violation of section 5-14-110(a)(1), specifically that he, "being eighteen years old at the time, solicited another person who was less than fifteen, to engage in sexual intercourse, deviate sexual activity, or sexual contact." Appellant, who was eighteen years old at the time, and his then fourteen-year-old girlfriend, Z.R., sent text messages and social media posts to one another in which he solicited sex with her. At least one text message was apparently provided in discovery, but no text messages or social media posts were introduced in the circuit court proceedings or are part of the record on appeal.

         Appellant filed a pretrial motion to dismiss, alleging that section 5-14-110(a)(1), as applied, was unconstitutional in that it punished speech about lawful activity-specifically that it criminalized appellant's expression in words of his desire to have sex with Z.R., which is a legal act under Arkansas law.^[1] As required, appellant also sent notice to the Arkansas Attorney General that he was challenging the constitutionality of section 5-14-110(a)(1).

         In response, the State claimed that it has a special interest in protecting the well-being of its youth, citing New York v. Ferber, 458 U.S. 747 (1982). The State argued that the challenged solicitation provision of the statute was aimed at "protecting the emotional, social, mental, and physical well-being of children" and that the provision was "narrowly tailored to its rationale"-in that it does not prohibit adults from soliciting children fifteen years or older; it does not prevent adults from speaking generally with children fourteen years or younger; it only prevents adults from attempting to solicit sexual intercourse, sexual contact, or deviate sexual activity with children fourteen years or younger.

         On February 12, 2018, there was a hearing on appellant's motion, with no testimony presented. The circuit court held that "[t]he State's special interest in protecting [minors under the age of fifteen] from indecent speech or conduct substantially outweigh[ed] [appellant's] expressive interest to communicate the same." The motion was denied by order on March 6, 2018, and the following day, appellant entered a conditional guilty plea to sexual indecency with a child, preserving his ability to appeal the circuit court's denial of his motion to dismiss, which is now before us. See Ark. R. Crim. P. 24.3(b)(iii) (2017).

         II. Standard of Review and Applicable Law

         This appeal raises the question of whether the circuit court erred when it found that Arkansas Code Annotated section 5-14-110(a)(1) was not overbroad and did not impermissibly infringe upon the constitutionally protected speech of appellant. Both the circuit court's interpretation of the constitution as well as the issues of statutory interpretation are reviewed de novo. Wyly v. State, 2018 Ark.App. 505, 559 S.W.3d 326.

         The conduct of solicitation involved in this appeal constitutes speech, and freedom of speech involves a fundamental right guaranteed by the First and Fourteenth Amendments to the United States Constitution, as well as article 2, section 6 of the Arkansas Constitution. The standard of review on constitutional challenges of fundamental rights are reviewed under strict scrutiny, which means it cannot pass constitutional muster unless it provides the least restrictive method available that is narrowly tailored to accomplish a compelling State interest. Arnold v. State, 2011 Ark. 395, 384 S.W.3d 488; see also Sable Commc'ns of Cal. v. F.C.C., 492 U.S. 115 (1989).

         Arkansas statutes are presumed constitutional, and the challenger of the statute must prove otherwise. Ray v. State, 2017 Ark.App. 574, 533 S.W.3d 587. If it is possible to construe a statute as constitutional, ...