Hendrix v. State

Cite as 2014 Ark. App. 696

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-14-228

Opinion Delivered December 10, 2014
LESTER LEE HENDRIX
APPELLANT APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT
[NO. 23CR-2012-938]
V.
HONORABLE MICHAEL A.
MAGGIO, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

ROBERT J. GLADWIN, Chief Judge

On November 22, 2013, in the Faulkner County Circuit Court, Lester Hendrix was

convicted of internet stalking of a child, a violation of Arkansas Code Annotated section 5-27-

306 (Supp. 2013), and sentenced to ten years’ imprisonment. On appeal, he argues that the

State failed to prove an essential element of the crime. However, the State contends that

appellant failed to preserve the issue for appellate review. We agree that the issue is not

preserved and affirm appellant’s conviction.

A felony information was filed on September 7, 2012, alleging that appellant had

stalked a child on the internet. At the bench trial, Shannon Cook, an investigator with the

Faulkner County Sheriff’s Office, testified that she investigates cases where people are trying

to sexually exploit children in some way. She said that she met appellant on a website called

Fetlife, which is a free social networking site for people who are interested in fetishes. She
Cite as 2014 Ark. App. 696

had set up a profile on Fetlife using an undercover email address, calling herself “playful

mom.”

She testified that appellant sent her a friend request, calling himself “daddy for young.”

From their meeting on Fetlife, they moved on to communicate through Yahoo messenger

and Yahoo email. During their communications, Cook led appellant to believe that she was

a thirty-year-old mother of two children, ages ten and eight, and that she had incestuous

relationships with her children. She testified that appellant sought a meeting with her and the

children, and she testified that he described explicitly the sexual acts he intended to carry out

with her and the children. She said that appellant was given chances to “step back” from their

conversations on the internet, but he did not. Instead, they set up a meeting at McDonald’s

on Highway 65 in Conway, Arkansas, where he arrived driving a 2002 silver Buick as

described in the emails. Appellant and Cook went inside the restaurant, and appellant was

arrested.

Jason Keeler testified that he is also an investigator with the Faulkner County Sheriff’s

Office, and he assisted in the investigations and computer forensics. He interviewed appellant

subsequent to the arrest. He also contacted the Fulton County Sheriff’s Office, because

appellant resided in Viola, Arkansas, and a search warrant was executed on appellant’s

residence there.

Stephen Barker testified that he worked for the Russellville Police Department and

conducted a forensic examination of the computer recovered from appellant’s residence. He

confirmed appellant’s presence on the website Fetlife by recovering deleted messages posted

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Cite as 2014 Ark. App. 696

on the website.

When the State rested its case, appellant moved for a dismissal, arguing as follows:

The State charged my client with the crime of internet stalking of a child under
specific provisions of Arkansas Code 5-27-306. I think the court probably has a copy
of that charging document. The State has failed to meet its burden of proof of
establishing that he has in fact violated that specific penal statute. We move for an
acquittal.

After the State responded, the circuit court denied the motion. The defense then rested its

case, and the dismissal motion was renewed without further specification and denied. After

the State’s closing argument, appellant’s counsel gave his closing argument, contending that

appellant was not guilty of the charge. He then specifically explained that appellant did not

violate the statute because he did not communicate with a person that he believed to be

fifteen years of age or younger, as is required by the statute. The State argued that appellant’s

asking Cook to talk to her daughter to determine if she were okay with his “touching her and

other things” was a communication that met the element under the statute.

The circuit court found appellant guilty and sentenced him to ten years’ imprisonment

in the Arkansas Department of Correction. Appellant filed a timely notice of appeal, and this

appeal followed.

Arkansas Rule of Criminal Procedure 33.1 (2014) provides in pertinent part as follows:

(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the
close of all of the evidence. The motion for dismissal shall state the specific grounds
therefor. If the defendant moved for dismissal at the conclusion of the prosecution’s
evidence, then the motion must be renewed at the close of all of the evidence.

(c) The failure of a defendant to challenge the sufficiency of the evidence at the times
and in the manner required in subsections (a) and (b) above will constitute a waiver
of any question pertaining to the sufficiency of the evidence to support the verdict or

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judgment. A motion for directed verdict or for dismissal based on insufficiency of the
evidence must specify the respect in which the evidence is deficient. A motion merely
stating that the evidence is insufficient does not preserve for appeal issues relating to
a specific deficiency such as insufficient proof on the elements of the offense. A
renewal at the close of all of the evidence of a previous motion for directed verdict or
for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a
motion or a renewed motion at the close of all of the evidence for directed verdict or
for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate
review on the question of the sufficiency of the evidence.

Ark. R. Crim. P. 33.1(b) & (c). Rule 33.1 is strictly construed. Etoch v. State, 343 Ark. 361,
365, 37 S.W.3d 186, 189 (2001) (citing Thomas v. State, 315 Ark. 504, 868 S.W.2d 483

(1994)).

Arkansas Code Annotated section 5-27-306 provides that a person commits the offense

of internet stalking of a child if the person, being twenty-one years of age or older, knowingly

uses a computer online service, internet service, or local internet bulletin board service to

seduce, solicit, lure, or entice a child fifteen years of age or younger, or who the person

believes to be fifteen years of age or younger, in an effort to arrange a meeting with the child

for the purpose of engaging in sexual intercourse, sexually explicit conduct, or deviate sexual

activity. Ark. Code Ann. § 5-27-306(a)(1) & (2). Appellant argues that the State did not

prove every element of the offense charged. He contends that the State’s evidence was that

appellant had arranged to meet the internet persona “Brooke” and her children and have

sexual contact with them. Appellant claims that communication with “Brooke” alone and

never with one of the “children” does not suffice to meet the elements of the statute.

The State claims that the issue is not preserved for appellate review because appellant

did not specifically address the elements claimed missing from the State’s case when he made

and renewed the motion for dismissal. The State cites McClina v. State, 354 Ark. 384, 123

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S.W.3d 883 (2003), where our supreme court refused to consider an appellant’s closing

argument as a dismissal motion in a bench trial. Also, citing Grube v. State, 2010 Ark. 171,

368 S.W.3d 58, the State contends that a challenge to the sufficiency of the evidence must be

preserved in a dismissal motion rather than a closing argument. Finally, in Hudson v. State,

2014 Ark. App. 305, the State points to this court’s refusal to treat Hudson’s closing argument

as a motion to dismiss where he failed to move for dismissal.

In reply, appellant contends that the reason that Rule 33.1 requires precision in

specifying the missing elements in a motion to dismiss is to allow the trial court to reopen the

State’s case so it can meet the identified deficiency. McClina, supra. Based on this reasoning,

appellant argues, the merits issue is preserved here. He contends that when the argument was

made with specificity during closing, the State did not argue that it was deprived of any

opportunity to cure the deficiency. Rather, he asserts that the State’s position was that no

direct communication with a child was needed.

Appellant’s argument is that the State was remiss in not complaining at the time of his

closing argument that the State’s case should be reopened to meet an essential element of the

charged offense. However, the Rule states that it is appellant’s duty to strictly comply,

offering the motion to dismiss in a time and manner so that the State might have the

opportunity to reopen its case if the circuit court deems it necessary. When appellant failed

to comply with Rule 33.1 by arguing his case with no specificity at the time the dismissal

motion was made, the circuit court was not given the opportunity to rule on that issue. A

dismissal argument made in a closing argument does not preserve the issue of sufficiency, even

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in a bench trial. See McClina, supra; Hudson, supra.

Appellant distinguishes McClina from the instant case, as there was no dismissal motion

made before closing arguments in McClina. However, the dismissal motion made here did

not comply with the specificity requirements of Rule 33.1; thus, construing the rule strictly,

the issue is not preserved for appellate review.

Affirmed.

WALMSLEY and VAUGHT, JJ., agree.

Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellant.

Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.

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