Malvin v. State

Cite as 2014 Ark. App. 584

ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-13-1160

Opinion Delivered October 29, 2014

ASHLEY MALVIN APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
SEVENTH DIVISION
V. [NO. 2012-3374]

HONORABLE BARRY SIMS, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

ROBIN F. WYNNE, Judge

Ashley Malvin appeals from his convictions for computer exploitation of a child;

distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a

child; and sexual indecency with a child. He argues on appeal that the State failed to prove

that he committed sexual indecency with a child because it failed to prove that he exposed

his penis to the minor victim. We disagree and affirm.

Appellant was charged with computer exploitation of a child; distributing, possessing,

or viewing of matter depicting sexually explicit conduct involving a child; and sexual

indecency with a child. He waived his right to a jury trial. T.H., who was sixteen years old

at the time of the trial, testified that appellant was a pastor at her church. According to T.H.’s

testimony, her relationship with appellant turned sexual in 2011, when she was fourteen.

T.H. stated that appellant sent her photos of his penis. Copies of the photographs appellant
Cite as 2014 Ark. App. 584

sent to T.H. were admitted into evidence. T.H. testified that appellant sent the pictures from

his cell phone to her cell phone during text conversations.

After the State rested its case, appellant made a motion to dismiss the charges. With

regard to the charge of sexual indecency with a minor, appellant argued that the State had not

met its burden because the proof was that he exposed a picture of his penis to the victim as

opposed to exposing his penis itself. The motion was denied. At the close of all the evidence,

the motion was renewed and denied again. The trial court found appellant guilty on all three

counts, and sentenced him to seventy-two months’ imprisonment on each count, with the

sentences ordered to run concurrently. This appeal followed.

A motion to dismiss at a bench trial, like a motion for directed verdict at a jury trial,

is considered a challenge to the sufficiency of the evidence. Rule v. State, 2014 Ark. App. 390,

438 S.W.3d 279. When the sufficiency of the evidence is challenged in a criminal conviction,

we review the evidence in the light most favorable to the State and affirm if the verdict is

supported by substantial evidence. Id. Substantial evidence is evidence that induces the mind

to go beyond mere suspicion or conjecture, and that is of sufficient force and character to

compel a conclusion one way or the other with reasonable certainty. Id.

Appellant argues on appeal that his conviction for sexual indecency with a child is not

supported by substantial evidence because the State failed to prove that he exposed his penis

to the minor victim. A person commits sexual indecency with a child if with the purpose to

arouse or gratify a sexual desire of himself or herself or a sexual desire of any other person, the

person purposely exposes his or her sex organs to a minor, and the actor is the minor’s

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Cite as 2014 Ark. App. 584

guardian, an employee in the minor’s school or school district, a temporary caretaker, or a

person in a position of trust and authority over the minor. Ark. Code Ann. § 5-14-

110(a)(3)(C) (Repl. 2013).

Appellant contends in his brief, as he did at trial, that sending a picture of his penis to

the victim does not satisfy the requirement in the statute that he “expose his sexual organs.”

His argument requires us to determine the meaning of the phrase “exposes his or her sex

organs” in section 5-14-110(a)(3)(C). This court reviews issues of statutory interpretation de

novo, as it is for this court to decide the meaning of a statute. Brown v. State, 375 Ark. 499,

292 S.W.3d 288 (2009). We construe criminal statutes strictly, resolving any doubts in favor

of the defendant. Id. We also adhere to the basic rule of statutory construction, which is to

give effect to the intent of the legislature. Id. We construe the statute just as it reads, giving

the words their ordinary and usually accepted meaning in common language, and if the

language of the statute is plain and unambiguous, and conveys a clear and definite meaning,

there is no occasion to resort to rules of statutory interpretation. Id. Additionally, in

construing any statute, we place it beside other statutes relevant to the subject matter in

question and ascribe meaning and effect to be derived from the whole. Id.

“Expose” is defined as laying open to view. Webster’s Third New International Dictionary

802 (2002). Applying the plain meaning of the term “expose,” the State was required to

establish that appellant laid open to view his sexual organs to T.H. to arouse or gratify his

sexual desire, and that he was in a position of trust and authority over T.H. Appellant argues

that he did not expose his penis to T.H.; rather, he exposed a picture of his penis, which he

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Cite as 2014 Ark. App. 584

maintains does not meet the requirements of the statute. We do not agree. Appellant

intentionally laid his penis open to view by a minor who was a member of his church

congregation for the purpose of arousing or gratifying his sexual desire. His penis is what he

exposed to T.H.; a photograph was simply the manner he selected for her to view his exposed

penis. What he exposed (his penis), combined with whom it was exposed to (a minor), why

it was exposed (for the purpose of arousal or sexual gratification), and his position of trust and

authority over the victim constitute the elements necessary for the commission of the offense.

The manner in which T.H. viewed the exposure does not take appellant’s conduct outside

of that prohibited by the statute. This is illustrated by the fact that when T.H. viewed the

photograph as its intended recipient, what she saw was no different than what she would have

seen had appellant pulled down his pants while standing in front of her. Appellant’s conduct

in this case meets the requirements of the statute, and the trial court’s verdict is supported by

substantial evidence.

Affirmed.

GLADWIN, C.J., and PITTMAN, J., agree.

Kent C. Krause., Public Defender, by: Clint Miller, Deputy Public Defender, for

appellant.

Dustin McDaniel, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.

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