Carter v. State, CR

Citation255 Ark. 225,500 S.W.2d 368
Decision Date08 October 1973
Docket NumberNo. CR,CR
PartiesClaude S. 'Sandy' CARTER, Jr., and Thomas C. Burkhead, Appellants, v. STATE of Arkansas, Appellee. 73--82.
CourtSupreme Court of Arkansas

Jim Hooper and Harkness, Friedman & Kusin, Texarkana, Jack Lessenberry, Little Rock, for appellants.

Jim Guy Tucker, Atty. Gen., by Philip M. Wilson, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Appellants Carter and Burkhead were found guilty of sodomy, alleged to have occurred shortly after 11:00 p.m. in Carter's automobile which was parked at the public rest and tourist information facility adjacent to Interstate Highway 70, where other parties had parked trucks, automobiles and campers. Appellants admit the evidence is sufficient to sustain the jury verdict, if our sodomy statute is constitutional as applied to them. Thus, it will be unnecessary for us to set out the sordid testimony about the act, which appeared so revolting to one of the two deputies sheriff, who stated they observed it while patrolling the area, that he vomited thrice during the evening--the first time as an immediate reaction to his seeing what was taking place in the automobile, and the others while appellants were in custody and being 'booked.' Although both appellants flatly denied that they had engaged in the homosexual act related by the police officers, they contend that even if they had done it, the state's evidence only shows a consensual act in which two adult persons engaged. They were charged in the information on which they were tried with voluntary participation in an unnatural sex act in violation of Ark.Stat.Ann. § 41--813 (Repl.1964).

The principal ground for reversal is that: the statute itself is an invasion of their right of privacy, which they allege to be protected by the First, Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments to the United States Constitution; the statute is so vague and ambiguous as to deprive them of rights quaranteed by the state and federal constitutions; the application of the statute to them serves no legitimate state interest and that enforcement of the statute constitutes cruel and unusual punishment. Appellants introduce their argument with a statement that they do not suggest the statute be declared unconstitutional in every application. They contend it is 'only unconstitutionally overbroad as applied to consenting adults because all persons who engage in acts of sodomy are subject to prosecution under the terms of the statute, including husband and wife, consenting adults of the opposite sex, or consenting adults of the same sex, regardless of whether the act is committed in public or in private.'

The very strong presumption of constitutionality attendant upon every statute, requiring that all doubt be resolved in favor of constitutionality, is enhanced by the highly persuasive fact that the statute was long unassailed. See Stone v. State, 254 Ark. 566, 494 S.W.2d 715; Williams v. State, 253 Ark. 973, 490 S.W.2d 117; Poole v. State, 244 Ark. 1222, 428 S.W.2d 628. As we said in Williams, if such a statute were in violation of federal constitutional principles, surely the thought would have long since occurred to the many legal scholars and jurists of this state. Appellants have not, by their multifaceted attack, met their very heavy burden of showing that this statute is unconstitutional.

We recently had occasion to consider and reject an attack on the constitutionality of this same statute in Connor v. State, 253 Ark. 854, 490 S.W.2d 114. We do not agree with appellants that the difference in the two cases is sufficient to justify a re-examination of our holding there. We will turn our attention to arguments asserted as new and to alleged distinctions. Appellants allege a minor was involved and consent was not established in Connor. No point was made of the participation of the minor in reaching our conclusion in Connor. The mere fact that a participant is a minor does not prevent his consenting to the act. See Strum v. State, 168 Ark. 1012, 272 S.W. 359.

We can reject all cases cited by appellants relating to acts committed in private out of hand. No such act is involved here, in spite of a rather frail argument that the act, if committed, was done in the privacy of Carter's automobile in a secluded area of a roadside park. In our opinion, the record simply does not support the idea that the act was committed in private, or in a rather remote area of the roadside park. Officer Phillips testified that the area was well lighted, and it was unnecessary for one to use a flashlight to observe people in the cars. The area is only 120 to 140 yards off the main interstate highway. It is approximately 40 to 60 yards wide. Burkhead described the area as quite crowded. He said there were a lot of people around and that some of the many cars parked in the area were near the Carter automobile. No greater degree of privacy than that shown in Connor can be said to have existed here.

We can just as readily dismiss those cases based on conduct between married persons and those rendered in jurisdictions where a 'non-criminal physical relationship of homosexual nature' was involved. We do not find anything in citations to various 'sex manuals' (even though they may have been best sellers) to be of such compelling force or effect that we may take judicial notice of the supposed data, arguments and recommendations of the authors, the expertise of some of whom is at least questionable. We likewise find nothing which persuades us that the Connor decision was wrong. If the legislative branch should, in the exercise of its investigative powers, find these works credible in considering statutory revision, we would acknowledge not only that the matter is, but that it should be, within its province. See People v. Hurd, 5 Cal.App.3d 865, 85 Cal.Rptr. 718 (1970); People v. Ragsdale, 177 Cal.App.2d 676, 2 Cal.Rptr. 640 (1960); People v. Massey, 137 Cal.App.2d 623, 290 P.2d 906 (1955).

In some mystical manner, appellants have woven together various unrelated decisions as support for their argument that the statute is an overbroad invasion of their right to privacy. These decisions all struck down some act as unconstitutional, and include those having to do with the education of children, compulsory sexual sterilization of habitual criminal offenders, interracial marriage and sexual relations, access to contraception information, private possession of obscene materials, and abortions. As we understand appellants' argument, these cases lend support to their position because they demonstrate that the expansion of the 'right to privacy in matters of intimate personal preference' is based upon the courts' having taken cognizance of dramatic changes in social conditions which have made legal doctrines once appropriate become unsuited for contemporary society. If social changes have rendered our sodomy statutes unsuitable to the society in which we now live, we need not be concerned about the matter because there is a branch of our government within whose purview the making of appropriate adjustment and changes peculiarly lies. Since that branch has not acted, we adhere to the views expressed in Connor.

Appellants' argument, that there is no legitimate state interest to be served by applying the sodomy statute to them, is hinged to a very great extent upon the contention that somehow the statute is constitutionally forbidden by that clause of the First Amendment to the Constitution of the United States prohibiting laws respecting establishment of religion. We rejected this argument in Connor and reject it here, and for the same reasons. The appellants additionally assert that the state must articulate the secular, social interests the statute under attack seeks to protect, suggesting that the failure to do so shows that the only purposes served do relate to establishment of religion. We do not think a recitation of purpose in the statute is necessary. Even if we should concede, and we do not, that the state had no interest in the suppression or minimization of sexual perversion, the condition existing at the time of this offense is illustrative of a valid state interest. Officer Phillips testified that the site is often frequented by children. The two male appellants, purportedly unacquainted, met there and in only a few minutes were in an automobile in the well lighted area enjoying fellatio. On cross-examination, Officer Phillips was asked to read his arrest report. It disclosed that this area, constructed for enjoyment and rest by travelers, had come to be frequented by homosexuals and that the sheriff's office had received many complaints of such acts being observed and of visitors being approached by homosexuals. This is a clear and sufficient indication of the public interest to be served by the sodomy statute. People who come to such places for rest, recuperation and relaxation have a right to be unmolested, particularly by those in search of the exercise of their claimed right to sexual perversion, and should not expect to find in such havens as this the type of activities with which appellants were charged.

The police power is very broad and comprehensive and embraces maintenance of good order and quiet of the community, and preservation of the public morals. Williams v. State, 85 Ark. 464, 108 S.W. 838, 26 L.R.A.,N.S. 482, 122 Am.St.Rep. 47, aff'd 217 U.S. 79, 30 S.Ct. 493, 54 L.Ed. 673, 18 Ann.Cas. 865; City of Helena v. Dwyer, 64 Ark. 424, 42 S.W. 1071. Under it, the legislature may, within constitutional limitations, prohibit all things hurtful to the comfort, safety and welfare of the people and prescribe regulations to promote the public health, morals and safety. Wright v. DeWitt School District, 238 Ark. 906, 385 S.W.2d 644; Williams v. State, supra; Dabbs v. State, 39 Ark. 353, 43 Am.Rep. 275. In its exercise the legislature has a wide...

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