LANDAN J. WORSHAM APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE POPE COUNTY CIRCUIT COURT [NO. 58CR-17-621]
HONORABLE BILL PEARSON, JUDGE.
Law Firm, P.A., by: Hugh R. Laws, for appellant.
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
J. GLADWIN, Judge.
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.
Facts and Procedural History
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.
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. As required, appellant also sent notice to
the Arkansas Attorney General that he was challenging the
constitutionality of section 5-14-110(a)(1).
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.
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)
Standard of Review and Applicable Law
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.
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).
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, ...