Landan J. WORSHAM, Appellant
v.
STATE of Arkansas, Appellee
Page 2
APPEAL
FROM THE POPE COUNTY CIRCUIT COURT [NO. 58CR-17-621],
HONORABLE BILL PEARSON, JUDGE
Laws
Law Firm, P.A., Russellville, by: Hugh R. Laws, for
appellant.
Leslie
Rutledge, Atty Gen., by: Brooke Jackson Gasaway, Asst Atty
Gen., for appellee.
OPINION
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 appellants
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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, 102 S.Ct. 3348, 73 L.Ed.2d 1113
(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 appellants motion,
with no testimony presented. The circuit court held that
"[t]he States special interest in protecting [minors
under the age of fifteen] from indecent speech or conduct
substantially outweigh[ed] [appellants] 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 courts 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 ...