Smith v. State

• Court: Arkansas Supreme Court
• Writing for the Court: Jim Hannah
• Citation: Smith v. State, 118 S.W.3d 542, 354 Ark. 226 (Ark. 2003)
• Decision Date: 25 September 2003
• Docket Number: No. CR 02-1258.,CR 02-1258.
• Parties: James D. SMITH v. STATE of Arkansas.

118 S.W.3d 542

354 Ark. 226

James D. SMITH v. STATE of Arkansas.

No. CR 02-1258.

Supreme Court of Arkansas.

September 25, 2003.

Baxter, Jensen, Young & Houston, by Ray Baxter and Brent Houston, Benton, for appellant.

Mike Beebe, Att'y Gen., by Vada Berger, Ass't Att'y Gen., Little Rock, for appellee.

JIM HANNAH, Justice.

A Clark County jury convicted appellant James "Smokey" Smith of twenty counts of violation of a minor in the first degree in violation of Ark.Code Ann. § 5-14-120 (Repl.1997) (repealed).¹ In accordance with the verdicts, the trial court imposed five four-year sentences for counts one through five and sentences of a zero-dollar fine for the remaining fifteen convictions. At the request of the prosecuting attorney and over Smith's objection, the trial court ordered the five four-year sentences to be served consecutively.

At trial, the State alleged that Smith, a teacher in the Arkadelphia Public Schools, committed twenty counts of violation of a minor in the first degree by having a sexual relationship with A.C., a minor student, from April 1999 to October 2000. At the time counts one through nineteen were alleged to have occurred, Smith was a teacher at Goza Junior High School, a school in the same school district as A.C.'s high school. In the fall of 2000, Smith began teaching at Arkadelphia High School. A.C. alleged that count twenty occurred after Smith began teaching at the high school. At all times relevant to this case, Smith was also employed as a school-bus driver for the Arkadelphia Public Schools.

Smith raises ten points on appeal, and the State raises one point on cross-appeal. Smith argues that: (1) the trial court erred in not declaring Ark.Code Ann. § 5-14-120 unconstitutional for violating the equal protection clauses of the United States Constitution and the Arkansas Constitution; (2) the trial court erred in admitting certain evidence which was irrelevant to proving the guilt of the appellant; (3) the trial court erred in admitting a photograph into evidence; (4) the trial court erred in not declaring a mistrial when a prosecution witness testified that pornography was found on the defendant's computer; (5) the trial court erred in not granting a mistrial when the prosecution presented evidence that Smith had an extramarital affair and a child born as a result, which occurred twenty years ago; (6) the trial court erred in denying him the right to cross-examine the alleged victim regarding her sexual history, when she testified on direct examination that Smith "was the only one I was with;" (7) the trial court erred in not giving the jury a proffered defense instruction regarding the greater weight of the evidence; (8) the trial court erred in allowing the mother of the alleged victim to testify during sentencing about alleged violations of the court's No Contact Order between Smith and her daughter; (9) the trial court erred in imposing consecutive sentences when Smith's actions amounted to one course of conduct; and (10) the trial court erred in finding that it did not have jurisdiction to hear a motion for new trial when, following the filing of the first notice of appeal, defense counsel discovered, within the files of the prosecuting attorney and the Arkadelphia Police Department, exculpatory evidence which was not made available to the defense.

The State raises one issue on cross-appeal. The State argues that Smith's sentences of no term of imprisonment and a fine of zero dollars for fifteen of his twenty convictions are illegal.

We affirm the trial court on all points on direct appeal. We reverse and remand on cross-appeal for resentencing on counts six through twenty. Our jurisdiction is pursuant to Ark. S.Ct. R. 1-2(8) and Ark. R.App. P.-Crim. 3.

Constitutionality of Ark.Code Ann. § 5-14-120

Smith alleges that his right to equal protection of the laws was violated when he was prosecuted for violation of a minor in the first degree pursuant to § 5-14-120(a) (Repl.1997) (repealed). Section 5-14-120(a) provides:

(a) A person commits the offense of violation of a minor in the first degree if he engages in sexual intercourse or deviate sexual activity with another person not his spouse, who is more than thirteen (13) years of age and less than eighteen (18) years of age, and the actor is the minor's guardian, an employee in the minor's school or school district, a temporary caretaker, or a person in a position of trust or authority of the minor.

Smith argues that an impermissible classification exists between persons who are employed by school districts and persons who are not employed by school districts. The equal protection clause permits classifications that have a rational basis and are reasonably related to a legitimate government purpose. Seagrave v. Price, 349 Ark. 433, 79 S.W.3d 339 (2002). Equal protection does not require that persons be dealt with identically; it only requires that classification rest on real and not feigned differences, that the distinctions have some relevance to the purpose for which the classification is made, and that their treatment be not so disparate as to be arbitrary. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999).

On an equal protection challenge to a statute, it is not our role to discover the actual basis for the legislation. Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002). We merely consider whether there is any rational basis which demonstrates the possibility of a deliberate nexus with state objectives so that legislation is not the product of arbitrary and capricious government purposes. Id. If we determine that any rational basis exists, the statute will withstand constitutional challenge. Id.

Smith argues that § 5-14-120 unconstitutionally discriminates against those employed in a minor's school district because they do not have authority or control over the minor who is not a student in their school and that abuse of that authority is what the statute is designed to redress. Smith states:

The statute is designed to protect individuals from people who have some type of power, authority or control over them on a day-to-day basis. It makes perfect sense to hold accountable individuals who may lord over someone and use that position to satisfy sexual desires. A person may feel as though they do not have a choice because a grade or other achievement may depend on their actions if they do not give into their superior. That type of legislative scheme makes perfect sense. It does not, however, stand to reason, that an individual who does not possess the right to control the actions of another, should be classified the same as an individual who does not maintain some degree of control. Teaching in the same school district does not give an individual access or control over another by virtue of his or her employment.

To support his argument, Smith argues that since he was no longer the victim's teacher at the time the incidents occurred, he was in a position no different from, for example, a Wal-Mart employee or a pharmacy technician, whose sexual intercourse with a minor would not have been a crime. Smith argues that "[w]hat made the activity a crime was simply who wrote out his paycheck each month."

The State contends that the General Assembly:

could have rationally concluded that employees in a minor's school or school district occupy a position of trust with respect to that minor and, thus, have a special obligation to refrain from having sexual intercourse with that minor in a way that Wal-Mart employees or pharmacy technicians might not. Moreover, contrary to appellant's argument, some employees of a school district do have authority or control over minors even though they are not employed at the minors' schools. A district superintendent, for example, has authority or control over minors who are not students in a school in which the superintendent is employed.

Further, the State contends that the facts of the present case demonstrate why § 5-14-120(a) survives an equal-protection challenge, stating:

Appellant was the victim's teacher while she was a student at Goza Junior High School. The two recognized their attraction for one another at the end of the school year, and appellant kissed her on the cheek, but they did not engage in sexual intercourse. The next school year the victim was a high-school student, while appellant remained a bus driver and junior-high-school teacher. After the victim began attending high school, appellant would drive his bus by the high school where the victim was having band practice. Their relationship ultimately progressed to their having sexual intercourse, usually in appellant's junior-high classroom.

Appellant developed a relationship with the victim as a direct result of his being her teacher and maintained that relationship as a direct result of his being employed in the same school district. The legislature could have rationally concluded that persons such as appellant should not use their positions as school and school-district employees to find and cultivate their underage sexual partners.

We agree. Acts 1985, No. 326, § 1, which created the offense of violation of a minor in the first degree, provides:

(1) A person commits the offense of violation of a minor in the first degree if he engages in sexual intercourse or deviate sexual activity with another person not his spouse, who is more than thirteen (13) years of age and less than eighteen (18) years of age, and the actor is the other person's guardian.

Acts 1985, No. 326, § 3, provides legislative intent for the creation of the offenses of violation of a minor in the first and second degree. It provides, in part:

It is hereby found and determined by the General Assembly that certain individuals who are in a position of power or authority over minors have avoided prosecution under current law for certain sexual activities with such minors and that such activities by individuals should be punished.

I...