Ark. Code Ann. § 5-27-306 (2020)

RESEARCH REFERENCES

ALR.

Validity, Construction, and Application of State Statutes Prohibiting Child Luring as Applied to Cases Involving Luring of Child by Means of Electronic Communications. 33 A.L.R.6th 373.

Validity of State Stalking Statutes. 6 A.L.R.7th Art. 6 (2015).

Validity, Construction, and Application of State Cyberstalking Laws, 26 A.L.R.7th Art. 6 (2018).

U. Ark. Little Rock L. Rev.

Survey of Legislation, 2005 Arkansas General Assembly, Criminal Law, 28 U. Ark. Little Rock L. Rev. 335.

Case Notes

Construction.

—Former Version of Section.

Although the 2016 text messages defendant sent to a police officer acting as a 14-year-old child were sent over phone lines, substantial evidence supported defendant's conviction for internet stalking of a child under the plain language of the 2016 version of this section because a police officer testified that the picture of a child that was sent to defendant was sent over the internet; defendant's text messages demonstrated that he believed “the child” was 14 years old and he arranged a meeting with “the child” for sex after receiving the picture and thus the State presented evidence that the picture was received in furtherance of an effort to arrange a meeting with the child under subdivision (a)(4) of this section. Duren v. State, 2018 Ark. App. 68, 544 S.W.3d 555 (2018) (decision under prior version of section).

While the 2017 amendment to this section broadened its reach beyond the use of the internet, the amendment lacked the significance claimed by defendant because substantial evidence supported the jury's conclusion that defendant used the internet when he exchanged photographs with “the child”. Duren v. State, 2018 Ark. App. 68, 544 S.W.3d 555 (2018) (decision under prior version of section).

Appellate Review.

Defendant claimed the State was remiss in not complaining at the time of his closing argument that the State's case should be reopened, but the rule states that it is the appellant's duty to strictly comply, offering the motion to dismiss in a time and manner so the State might have the opportunity to reopen its case if the circuit court deems it necessary; when defendant failed to comply with the rule by arguing his case with no specificity at the time of the dismissal motion, the circuit court was not given the chance to rule on that issue, and the claim that the State failed to prove an element of the crime of internet stalking of a child was not preserved. Hendrix v. State, 2014 Ark. App. 696, 450 S.W.3d 692 (2014).

Entrapment As Affirmative Defense.

Defendant, who was convicted for internet stalking, should have been permitted to plead entrapment under § 5-2-209 as an affirmative defense while at the same time denying one or two elements of the crime, and therefore defendant's conviction was reversed, because the doctrine requiring a defendant to admit to all the elements of a crime in order to plead entrapment could result in punishing a defendant who was merely entrapped; the doctrine could possibly punish a defendant for a serious crime for merely seeking to require the state to prove its case aside from offering an affirmative defense. Smoak v. State, 2011 Ark. 529, 385 S.W.3d 257 (2011), rehearing denied, — Ark. —, — S.W.3d —, 2012 Ark. LEXIS 26 (Ark. Jan. 19, 2012).

Trial court did not err in denying defendant's motions for a directed verdict on the ground of entrapment where there were factual issues to be decided by the jury as to whether the conduct of law enforcement would have caused a law-abiding citizen to commit internet stalking of a child. Squyres v. State, 2015 Ark. App. 665, 476 S.W.3d 839 (2015).

Evidence.

In defendant's trial for computer child pornography, § 5-27-603(a)(2), and internet stalking of a child, under subsection (a) of this section, the state did not fail to establish beyond a reasonable doubt that defendant believed the victim was only thirteen years old as the detective, who was the minor girl at the other end of the computer, told him that she was only thirteen years old in their correspondence and defendant noted the age difference as well as the fact that he would get into trouble if she told anyone about their chats. Kelley v. State, 103 Ark. App. 110, 286 S.W.3d 746 (2008).

Defendant's conviction for internet stalking of a child, in violation of subdivision (a)(2) of this section, was supported by the evidence where a “girl,” who was really a police officer, informed defendant very early on that she was only 13 years old, defendant indicated that three condoms would suffice, and defendant indicated that they would decide after they met if she could “handle what he had.” Gikonyo v. State, 102 Ark. App. 223, 283 S.W.3d 631 (2008).

Defendant's conviction for internet stalking of a child, in violation of subdivision (a)(2)(C) of this section, was supported by the evidence because the state presented evidence that defendant believed that he was talking to a 14-year-old girl; during one conversation, defendant asked the girl if she was still in high school, to which the girl replied that she was in the ninth grade. Jackson v. State, 2009 Ark. App. 466, 320 S.W.3d 13 (2009), rehearing denied, — Ark. App. —, — S.W.3d —, 2009 Ark. App. LEXIS 672 (July 29, 2009), review denied, — Ark. —, — S.W.3d —, 2009 Ark. LEXIS 568 (Sept. 17, 2009).

In a case in which defendant appealed his conviction for violating subdivision (a)(2)(C) of this section, he argued unsuccessfully that the state presented insufficient evidence showing that he believed that he was talking to someone fifteen years of age or under. While the jury could certainly infer from the context of the conversation that “Misty” might be in high school or college, the chat specifically stated at the outset that “Misty” was a fourteen-year-old female living in Conway, Arkansas; viewing the evidence in the light most favorable to the state, it could not be said that there was no substantial evidence on that point. Buffalo v. State, 2010 Ark. App. 127, 374 S.W.3d 82 (2010), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 226 (Apr. 22, 2010).

In a case in which defendant appealed his conviction for violating subdivision (a)(2)(C) of this section, he unsuccessfully argued that the evidence was insufficient to show that his purpose in meeting was to conduct inappropriate sexual acts. Even though defendant had stated that he did not have any condoms, the statute did not require a plan for sexual intercourse to be violated; given the discussion regarding oral sex, the sufficiency of the evidence was properly presented to the jury. Buffalo v. State, 2010 Ark. App. 127, 374 S.W.3d 82 (2010), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 226 (Apr. 22, 2010).

In a case in which defendant appealed his conviction for violating subdivision (a)(2)(C) of this section, he unsuccessfully argued the trial court abused its discretion in admitting into evidence a cut-and-paste word document from the police computer system because it was not properly authenticated or the best evidence. The trial court did not abuse its discretion by deeming the printout sufficiently authenticated by the officer who conducted the chat and who converted it to a printable Wordpad document, and the trial court did not abuse its discretion in admitting the printout into evidence because it was properly authenticated and was admissible as a duplicate or an original. Buffalo v. State, 2010 Ark. App. 127, 374 S.W.3d 82 (2010), review denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 226 (Apr. 22, 2010).

Substantial evidence supported defendant's conviction for internet stalking of a child under this section as it supported a reasonable inference that defendant believed that a victim was under 15 years old and defendant admitted that defendant brought condoms to a prearranged meeting due to the possibility of having sex with the victim. Tipton v. State, 2011 Ark. App. 166 (2011).

Sufficient evidence showed that defendant, who was convicted of internet stalking under subdivision (a)(2) of this section, seduced, enticed, solicited, and lured a person whom defendant chatted with online and believed to be a fifteen year-old girl, in an effort to arrange a meeting for sex because the transcript of the online chat and the testimony of the detective who posed as a fifteen year-old girl online showed that defendant made sex-related comments, asked for the person's address, and told the person that defendant had condoms, which were found in defendant's truck. Smoak v. State, 2011 Ark. 529, 385 S.W.3d 257 (2011), rehearing denied, — Ark. —, — S.W.3d —, 2012 Ark. LEXIS 26 (Ark. Jan. 19, 2012).

There was sufficient evidence to convict defendant of internet stalking of a child in violation of this section, because he had a series of online chats with a police lieutenant representing himself as a fifteen-year-old female; defendant initiated a sexually explicit conversation, made plans to meet in person, and offered to teach the fifteen-year-old female a variety of sexual skills. There was sufficient evidence to prove that (1) defendant believed the person chatting online was age fifteen or younger; and (2) his purpose in meeting in person was to engage in sexual activity. Todd v. State, 2012 Ark. App. 626, 425 S.W.3d 25 (2012).

Defendant and a person he believed to be a 15-year-old girl exchanged 846 messages, but the passages did not support that defendant made a determined attempt to arrange a meeting with the girl, and although his messages posed hypotheticals, he declined the girl's request to meet several times; the trial court erred in denying his motion for a directed verdict. Holcomb v. State, 2014 Ark. 141, 432 S.W.3d 600 (2014).

Evidence was sufficient to support a conviction under subdivision (a)(2) of this section where the chat log showed that defendant believed the undercover agent was only 15. Squyres v. State, 2015 Ark. App. 665, 476 S.W.3d 839 (2015).

Conversations defendant had with with a 14-year-old female on an adult social-networking website failed to support defendant's conviction for internet stalking of a child because during the conversations, defendant believed he was communicating with a 26-year-old female and no meeting was arranged. Duren v. State, 2018 Ark. App. 68, 544 S.W.3d 555 (2018).

There was substantial evidence to support the jury's finding that when defendant and a police officer posing as a child exchanged pictures, defendant used the internet because the officer, who was qualified as an expert witness in extracting data from computers and mobile devices, testified that the pictures that defendant and “the child” exchanged had been sent over the internet. Duren v. State, 2018 Ark. App. 68, 544 S.W.3d 555 (2018) (decision under prior version of section).

Circuit court erred in denying defendant's directed verdict motion on the charge of internet stalking of a child; while the text messages between defendant and the victim showed that they discussed meeting for sexual activity, they did not demonstrate that defendant made a determined attempt to plan to meet the victim. Taliaferro v. State, 2020 Ark. App. 68 (2020).

Requirements.

Applying the ordinary definitions of the terms effort, arrange, and meeting, defendant must have made a determined attempt to plan a coming together with a girl he believed was 15 years old, for purposes of his internet stalking of a child conviction. Holcomb v. State, 2014 Ark. 141, 432 S.W.3d 600 (2014).