Smoak v. State
Decision Date | 19 January 2012 |
Docket Number | No. CR 11–71.,CR 11–71. |
Citation | 385 S.W.3d 257,2011 Ark. 529 |
Parties | David SMOAK, Appellant v. STATE of Arkansas, Appellee. |
Court | Arkansas Supreme Court |
OPINION TEXT STARTS HERE
Candice Anne Cabaniss Settle, Van Buren, Brandon J. Harrison, Fort Smith, for appellant.
Dustin McDaniel, Atty. Gen., Laura Shue, Little Rock, for appellee.
Appellant David James Smoak was convicted by a Crawford County jury of internet stalking of a child in violation of Arkansas Code Annotated section 5–27–306 (Supp.2009). He was sentenced to a term of 96 months' imprisonment, with 24 months suspended. On appeal, Smoak contends that the circuit court erred in denying his motion for directed verdict because there was insufficient evidence to support his conviction. He also contends that the circuit court erred as a matter of law by denying his attempt to utilize an entrapment defense and by failing to instruct the jury on entrapment. We affirm in part and reverse and remand in part.
Smoak's first argument on appeal is that the circuit court erred in denying his motion for directed verdict because there was insufficient evidence to support his conviction. On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. E.g., Camp v. State, 2011 Ark. 155, 381 S.W.3d 11. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. This court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id.
The facts are adduced from the testimony and evidence at trial. Van Buren Police Department Detective Donald Eversole testified that he created a profile on Yahoo, posing as a fifteen-year-old girl from Van Buren named Amanda Moore, with the online screen name pageant_gurl433. The profile included a picture of a teenaged girl. On September 8, 2009, at approximately 3:30 p.m., Eversole entered the Arkansas “romance” chat room as Amanda, under the name pageant_ gurl433. Smoak, using the screen name fire fighteremt987, initiated a conversation with Amanda at 3:47 p.m. Smoak told her that he was twenty-seven years old.1 Amanda told Smoak that she was fifteen years old, and at 3:52 p.m., he responded, “free trip to jail lol [laugh out loud].” Smoak also stated, “when u get old enough u will be hell on wheels u will have boys lined up at your door 2 have a shot to go out with u just be pacient.” At 4:08 p.m., Smoak asked about the age of the boys she dated and what they did. Amanda responded, “what do u think he was 24.” Smoak replied, “well there no telling probley stayed in the bed most of the time most 24 year olds i knew was horney to be honest.” Smoak added, “well most guys thats all they want is sex sum are more open about that but thats what they want i know u know that but its true.” He further stated, at 4:22 p.m., “well i like it its fun feels good but when u don't have anyone to make love with you don't.”
At 5:06 p.m., Amanda told Smoak she was hungry. She said that she liked “chicken mcnuggets,” and Smoak asked, “u want sum,” “where u live at ... to bring u nuggets.” Amanda said, “well, i thought you liked me but i don't want u to drive all the way just to give me chicken nuggets.” Smoak responded, “well my luck u would be a cop ... and i would go to jail for bringing u chicken nuggets.” When Amanda told Smoak that he had only offeredchicken nuggets, he replied, “well could be more just trying to be safe.” Smoak offered to bring her dessert and said, “well i would give u more than dinner but u got to say u want it might be cream filled if u want it.” Smoak also said, “ok i ofered to cum over and let u eat and talk or whatever u have in mind,” and “u can do what u want to do with me.” For over an hour, Smoak continued to ask about her address or bringing her food, before she finally told him where she lived.
At 6:32 p.m., Amanda said that she did not want to get pregnant, and Smoak responded, “have to meet first then u can deside if u do or don't.” When Amanda suggested that they might postpone their meeting, Smoak told her not to “tease” him. Smoak asked, “u want me to cum or not,” which Detective Eversole testified was a reference to semen. Amanda responded, “[how] many times ... lol,” and Smoak replied, “find out.” Amanda then asked, “u got rubbers,” and Smoak responded, “yep.”
After they agreed to meet, Smoak picked up food at McDonald's and drove to the address given to him by Amanda. There, law enforcement officers arrested Smoak. Detective Eversole testified that several condoms were found above the driver's visor in Smoak's truck.
James David Smoak, Smoak's father, testified that Smoak was a high school graduate, but that he has “always been a special eds kid.” According to his father, Smoak was “slow” and could be “easily led ... by suggestion.”
Section 5–27–306(a)(2) provides:
A person commits the offense of internet stalking of a child if the person being twenty-one (21) years of age or older knowingly uses a computer online service, internet service, or local internet bulletin board service to
(2) Seduce, solicit, lure, or entice an individual that the person believes to be fifteen (15) years of age or younger in an effort to arrange a meeting with the individual for the purpose of engaging in:
(A) Sexual intercourse;
(B) Sexually explicit conduct; or
(C) Deviate sexual activity.
Smoak, who was twenty-eight years old when he communicated online with “Amanda,” does not dispute that he believed he was communicating with a fifteen-year-old girl. Rather, he contends that, during this communication, he did not seduce, solicit, lure, or entice Amanda in an effort to arrange a meeting with her for the purpose of having sex with her. Smoak claims that a review of the chat log will reveal that he only sought to bring Amanda some food and perhaps strike up a friendship with her.
We conclude that there is substantial evidence that Smoak seduced, solicited, lured, or enticed a person he believed to be fifteen years of age or younger in an effort to arrange a meeting for the purpose of having sex. Shortly after Smoak initiated the conversation in an Arkansas “romance” chat room, he learned that Amanda was fifteen years old and joked that her age could get him a free trip to jail. Smoak asked Amanda about the age of her boyfriends and what they did, and when Amanda said her last boyfriend was twenty-four years old, Smoak said that most twenty-four year olds were “horney,” and that most guys wanted sex. He said that sex was “fun” and “feels good,” but that he did not have “anyone to make love with.” When Amanda told Smoak that she was hungry, he offered to bring her some food. Even though Smoak told Amanda, “with my luck u would be a cop,” he continued to ask Amanda for her address so he could meet her. He also told Amanda not to “tease” him when she suggested that they postpone their meeting.
After Amanda told Smoak she did not want to get pregnant, he told her that they could meet first and then she could decide. He also told her that he had rubbers, and several condoms were found in his truck when he was arrested.
Smoak claims that, given his indisputably low intelligence, “there was too much guesswork on the jury's part” regarding whether he seduced, solicited, lured, or enticed Amanda for the purpose of having sex. We disagree.
The jury heard the testimony of Smoak's father that Smoak was slow and easily led by suggestion. The jury also heard Detective Eversole's testimony about the online conversation he had with Smoak on September 8, 2009, when Eversole was posing as Amanda, a fifteen-year-old girl from Van Buren. Moreover, a copy of the chat log from that conversation was admitted into evidence. The jury has the sole authority to evaluate the credibility of witnesses and to apportion the weight to be given to the evidence. E.g., Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998). It is for the jury to resolve any questions of conflicting testimony and inconsistent evidence, and the jury may choose to believe the State's version of the facts over the defendant's. Id. Viewing the evidence in the light most favorable to the verdict, it was reasonable for the jury to infer from the circumstances that Smoak seduced, solicited, lured, or enticed a fifteen-year-old girl to arrange a meeting for the purpose of having sex with her.
Smoak next contends that the circuit court erred as a matter of law by denying his attempt to utilize an entrapment defense and abused its discretion in refusing to instruct the jury on entrapment. During voir dire, both Smoak's counsel and the State discussed entrapment and hypothetical entrapment situations with potential jurors. In opening statement, Smoak's counsel denied elements of the crime and also stated that Detective Eversole solicited and induced Smoak. Before the first witness was called, the State objected to Smoak's entrapment defense based on the fact that his counsel denied elements of the crime in opening statement. Smoak responded that, pursuant to the holding in Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988), he could deny elements of the crime and also raise the defense of entrapment. The circuit court ruled that Smoak had to elect whether to deny the crime or to admit to it and claim entrapment. The jury was not given an entrapment instruction.
Entrapment is an affirmative defense that “occurs when a law enforcement officer or any person acting in cooperation with a law enforcement officer induces the commission of an offense by using persuasion or other means likely to cause a normally law-abiding person to commit the offense.” Ark.Code Ann. § 5–2–209(b)(1) (Repl.2006). “Conduct merely...
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