Lead Opinion
11 Appellant David Waldon Paschal was convicted of four counts of second-degree sexual assault and one count of witness bribery. He was sentenced to ten years’ imprisonment on each of three of the sexual-assault convictions, given ten years’ suspended sentence for the fourth sexual-assault conviction,
I. Sufficiency of the Evidence: Witness Bribery
Paschal contends that the circuit court erred in denying his motion for directed verdict on the charge of witness bribery.
Arkansas Code Annotated section 5-53-108 provides in relevant part that a person commits witness bribery if he or she
(1) Offers, confers, or agrees to confer any benefit upon a witness or a person he or she believes may be called as a witness with the purpose of:
(A) Influencing the testimony of that person;
(B) Inducing that person to avoid legal process summoning that person to testify; or
(C) Inducing that person to absent himself or herself from an official proceeding to | swhich that person has been legally summoned.
Ark.Code Ann. § 5-53-108(a)(l) (Repl. 2005). An “official proceeding” is “a proceeding heard before any legislative, judicial, administrative, or other government agency or official authorized to hear evidence under oath, including any referee, hearing examiner, commissioner, notary, or other person taking testimony or depositions in any such proceeding.” Id. § 5-53-101(4)(A). “Testimony” means “an oral or written statement, document, or any other material that is or could be offered by a witness in an official proceeding.” Id. § 5-53-101(5).
Paschal, a high school teacher, had a months-long sexual relationship with eighteen-year-old A.D., a student at Elkins High School, where Paschal taught. Principal Rebecca Martin testified that on May 5, 2010, A.D. and her mother contacted school officials and informed them that A.D. and Paschal had engaged in a sexual relationship. Martin testified that Paschal told her that he knew his sexual relationship with A.D. was illegal and that he was concerned about whether his actions would have an effect on his career and his relationship with his children. Fayetteville Police Department Detective Jonathon Snyder interviewed Paschal that day in the school superintendent’s office, and Paschal admitted that he had engaged in a sexual relationship with A.D. On June 2, 2010, Snyder arrested Paschal, and he was formally charged with four counts of second-degree sexual assault on August 13, 2010.
S.C., a senior at Elkins High School, testified that Paschal was his AP World History teacher during his junior year. S.C. said that A.D. was his friend and a year ahead of him in ^school. S.C. stated that he worked at the local Wal-Mart and that Paschal knew that he worked there. In June 2010, while S.C. was returning to work from a break, Paschal waved at him and walked up to him. According to S.C., Paschal said, “[A.D.] knows that she’s not gonna get any money out of this and if it’s money she wants, I’ll give her a couple of thousand if she’ll drop the case.” S.C. testified that he attempted to contact A.D. through several of her friends, but when he was unable to make contact with her, he told Ms. Taylor, a geometry teacher at the school, what Paschal had told him. S.C. also stated that he told law enforcement officers what Paschal had said. S.C. identified Paschal in the courtroom as the person who had asked him to contact A.D. and offer her money.
Paschal contends that there was no evidence presented to the jury that he had offered A.D. money through S.C. for the purpose of influencing her testimony, inducing her to avoid legal process, or inducing her to absent herself from a legal proceeding to which she had been legally summoned. Paschal states that the conversation with S.C., which occurred in June 2010, was “a month or two” before he was formally charged in August 2010, so there were no legal proceedings at issue. Paschal contends that the evidence illustrates nothing more than his attempt to resolve the matter without all the attention of a trial, much like when prosecutors offer defendants plea offers in an attempt to resolve a pending case. We find no merit in Paschal’s argument.
Paschal was in no position to attempt to “negotiate” with A.D. The State has the authority to bring criminal charges, irrespective of whether the victim wishes to pursue those charges. See, e.g., Clay v. State,
II. Admission of Evidence of Bias
Paschal contends that the circuit court abused its discretion in rejecting his proffered evidence of the bias of S.C. The decision to admit or exclude evidence is within the sound discretion of the circuit court, and we will not reverse a circuit court’s decision regarding the admission of evidence absent a manifest abuse of discretion. E.g., Rollins v. State,
At trial, Paschal sought to introduce evidence that S.C.’s father was sued in 2009 in a quiet-title action by J.P. Corporation of Northwest Arkansas, a corporation in which |RPaschal’s father held an interest. The corporation lost the lawsuit, and title to the property was quieted in S.C.’s father on May 11, 2009. During voir dire examination of S.C., S.C. testified that he lived on the property at issue in the lawsuit and that he knew that Paschal’s family was “on the other side of the lawsuit.” Neither S.C. nor Paschal was a party to the lawsuit, and S.C. said that he was not affected by the lawsuit “in any form or fashion.” S.C. testified that the extent of his knowledge of the lawsuit was “just hearing, just second-hand, just hearing it from my parents.” The circuit court concluded that the evidence was not relevant, that it had no probative value, and that it would be prejudicial.
The State contends that the circuit court did not abuse its discretion by refusing the evidence because neither S.C. nor Paschal was a party to the lawsuit, which had ended favorably to S.C.’s father. The State also points out that the lawsuit ended in May 2009, which was nearly two years before S.C.’s testimony at Paschal’s trial and over a year prior to Paschal’s witness-bribery attempt.
As a general rule, all relevant evidence is admissible. Ark. R. Evid. 402 (2011). Relevant evidence is “evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Ark. R. Evid. 401. Relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Ark. R. Evid. 403.
“A witness’s credibility is always an issue, subject to attack by any party.” Fowler v. State,
S.C. was the State’s chief witness for the witness-bribery charge, and Paschal sought to attack S-.C.’s credibility by offering evidence of proof of bias. We disagree with the circuit court’s finding that the evidence was not relevant. The jury should have been allowed to hear this evidence because it might have borne on the accuracy and truth of S.C.’s testimony. The circuit court abused its discretion in refusing to admit evidence of the proof of bias of S.C.
Before leaving this point, we note that, in his brief on appeal, Paschal contends that this situation — where the only evidence of guilt is the testimony of a single witness — should be treated like one in which the testimony of an- accomplice is relied upon by the government and that the denial of cross-examination in such an instance may constitute a violation of the Sixth Amendment right of confrontation. Paschal did not make this argument to the circuit court; therefore, it is not preserved for our review. Our law is well settled that issues raised for the first time on appeal, even constitutional ones, will not be sconsidered on appeal. E.g., Davis v. State,
III. Constitutionality of Arkansas Code Annotated section 5-11-125 (a) (6)
Paschal next contends that the circuit court erred in finding that section 5-14-125(a)(6) was constitutional as applied in this case. Statutes are presumed constitutional, and the burden of proving otherwise is on the challenger of the statute. E.g., Jefferson v. State,
Arkansas Code Annotated section 5-14-125(a)(6) (Supp.2009), in effect at the time of the crimes charged, provided that “[a] person commits sexual assault in the second degree if the person [i]s a teacher in a public school in a grade kindergarten through twelve (K-12) and engages in sexual contact
The State responds that there is no fundamental right for a public high school teacher to have sex with an eighteen-year-old high school student enrolled in that public school. In support of its argument, the State cites Talbert v. State,
Citing Lawrence and Picado, Talbert contended that the statute violated his federal and state constitutional rights to engage in private, consensual sex with other adults. Talbert,
Paschal contends that Talbert is distinguishable from the instant case. He asserts that there is a constitutional difference between the coerced sexual conduct that was present in Talbert and the consensual, noncommercial acts of sexual intimacy that are present in his case. We agree. The State misapprehends the issue when it asserts that there is no fundamental right for a public high school teacher to have sex with an eighteen-year-old high school student enrolled in that school. The issue is whether the statute, as applied in this case, |ninfringes on Paschal’s fundamental right to engage in private, consensual, noncommercial acts of sexual intimacy with an adult. We hold that it does.
“[T]he fundamental right to privacy implicit in our law protects all private, consensual, noncommercial acts of sexual intimacy between adults.” Picado,
As applied in this case, section 5-14-125(a)(6) criminalizes consensual sexual conduct between adults and, therefore, we conclude that the statute infringes on Paschal’s | ^fundamental right to privacy.
The State does not claim a compelling state interest in its brief to this court. Rather, it contends that the Arkansas Constitution clearly contemplates the preservation of a special learning environment for high school students through the age of twenty-one and that the State has a legitimate interest in protecting that environment. Citing article 14, section 1 of the Arkansas Constitution, the State avers that Arkansans aged six through twenty-one have a constitutional right to a public education in a “general, suitable and efficient” public school system, and the State is required to use “all suitable means to secure to the people the | ^advantages and opportunities of education.” The State contends that section 5-14-125(a)(6) preserves the special learning environment because it protects all high school students, regardless of their age, from the sexual advances of teachers who have special authority and control over such students. Further, the State contends that, even if the relationship is consensual, the statute is designed to protect persons, both minors and adults, from people who have power, authority, or control over them on a day-to-day basis. As we understand the argument, the State asserts that it has an interest in protecting adult students from the sexual advances of teachers who have power, authority, or control over them.
Assuming that the State has asserted a compelling state interest and assuming that section 5-14-125(a)(6) advances that interest,
We feel compelled to point out that the dissenting justices would like to have before them a very different statute than what the General Assembly provided in section 5-14-125(a)(6). Regardless of how we feel about Paschal’s conduct, which could correctly be referred to as reprehensible, we cannot abandon our duty to uphold the rule of law when a case presents distasteful facts.
Paschal’s convictions for sexual assault in the second degree are reversed and dismissed. Finally, because we reverse and dismiss those charges, we need not address Paschal’s remaining arguments on appeal.
Affirmed in part; reversed and remanded in part; reversed and dismissed in part.
Notes
. The judgment and commitment order stated that the sentences on the sexual-assault counts were “to run consecutively for a total of 480 months ... with 120 suspended and 360 to serve.”
. Although Paschal's challenge to the denial of the directed-verdict motion was not his first point on appeal, protection of Paschal's double-jeopardy rights requires that we address such an argument prior to addressing other asserted trial errors. E.g., Sullivan v. State,
. " 'Sexual contact’ means any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female.” Ark.Code Ann. § 5-14-101(10) (Supp.2009).
. A.D. testified that she was eighteen when she began having a sexual relationship with Paschal. "All persons of the age of eighteen (18) years shall be considered to have reached the age of majority and be of full age for all purposes. Until the age of eighteen (18) years is attained, they shall be considered minors.” Ark.Code Ann. § 9-25-101(a) (Repl.2009).
.In Lawrence, the United States Supreme Court found unconstitutional a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct.
. In Picado, the court held that Arkansas’s sodomy statute, Arkansas Code Annotated section 5-14-122, was "unconstitutional as applied to private, consensual, noncommercial, same-sex sodomy.”
. We find it perplexing that one of the dissenting justices chooses to ignore this court’s binding precedent and instead turns to cases from other jurisdictions to determine whether an Arkansas statute, section 5-14-125(a)(6), as applied in this case, violates the fundamental right to privacy found in the Arkansas Constitution. See Flaskamp v. Dearborn Pub. Sch.,
. We must make this assumption because the State, concluding that Paschal's fundamental right to privacy was not violated, did not address Paschal’s contention that the statute was subject to strict-scrutiny review.
. Mandated reporters have a duty to notify the Child Abuse Hotline if they have reasonable cause to suspect that a child has been subjected to child maltreatment or that a child has died as a result of child maltreatment. Ark.Code Ann. § 12-18-402(a) (Supp. 2011). A teacher is a mandated reporter. Id. § 12—18—402(b)(26).
. Oddly, the dissents repeatedly refer to Paschal's misuse of his position of trust or authority when that is not at issue in this case. Section 5-14-125(a)(6) is a strict-liability statute. The State was required to prove only that, while Paschal was a teacher, he had sexual contact with a student who was less than twenty-one years of age. We find appalling the statement from one of the dissenting justices that the majority's interpretation of the statute condones a teacher's misuse of trust or authority. A cursory glance at section 5-14-125(a)(6) reveals that the statute contains no language regarding trust or authority, much less the misuse of that trust or authority. The majority's interpretation can hardly condone conduct that is not mentioned in the statute.
Another dissenting justice writes that the majority has suggested that, because the words "trust or authority" are not included in the statute, "a teacher may not be aware of the fact that he or she holds such a position vis-á-vis a student, which apparently, according to the majority’s reasoning, somehow permits that unknowing teacher to have sex with an eighteen-year-old student.” Not only does the majority make no such suggestion, but Paschal never contended that he was unaware that he held a position of trust or authority in the school. The dissent’s manufacturing of an issue is both injudicious and irresponsible. The interpretation of section 5 — 14—125(a)(6) favored by the dissenting justices — which would require this court to add words to the statute and thus add elements to the crime— amounts to legislation by judicial fiat. Despite the dissents’ apparent willingness to do so, we will not usurp the General Assembly’s legislative role by reading language into the statute.
Concurrence in Part
concurring in part and dissenting in part.
I concur with the majority opinion to the extent that it reverses and dismisses Paschal’s convictions for sexual assault in the second degree. I respectfully dissent, however, from the majority’s affirmance of Paschal’s conviction for witness bribery.
Arkansas Code Annotated § 5-53-108 provides, in pertinent part:
hfi(a) A person commits witness bribery if he or she:
(1) Offers, confers, or agrees to confer any benefit upon a witness or a person he or she believes may be called as a witness with the purpose of:
(A) Influencing the testimony of that person;
(B) Inducing that person to avoid legal process summoning that person to testify; or
(C)Inducing that person to absent himself or herself from an official proceeding to which that person has been legally summoned; or
Ark.Code Ann. § 5-53-108(a) (Repl.2005). Because Paschal’s statement to S.C. was clearly not an attempt to induce A.D. to avoid legal process under subsection (B), or to absent herself from an official proceeding to which she had been summoned under subsection (C), it seems to me that the sole provision under which Paschal could be convicted had to be subsection (A). Paschal’s statement surely constituted an offer to confer a benefit on A.D. Even assuming that A.D. was a person he believed might be called as a witness against him, the question, then, is did Paschal offer to confer a benefit with the purpose of influencing A.D.’s testimony. Contrary to the majority, I cannot say that he did.
“Testimony” “includes an oral or written statement, document, or any other material that is or could be offered by a witness in an official proceeding.” Ark.Code Ann. § 5-53-101(5) (Repl.2005). To constitute witness bribery, then, Paschal was required to offer or agree to confer a benefit on A.D. with the purpose of influencing her oral or written statement that was or could be offered by her in an official proceeding. In my opinion, Paschal’s offer of money to “drop the charges” in no way equates to an offer of money with the purpose of influencing one’s statements at an official proceeding. At the time of the offer, no official proceeding was pending, and while it may not have been within A.D.’s ability to [17“drop the charges,” there was no evidence to demonstrate that Paschal knew or did not know of that fact. At most, Paschal’s statement could be construed as an offer with the purpose of enticing a lack of cooperation with police. To construe Paschal’s statement as one to influence testimony simply reads too much into his offer.
This court must strictly construe criminal statutes and resolve any doubts in favor of the defendant. -See Williams v. State,
[t]his court cannot, and should not, by construction or intendment, create offenses under statutes that are in express terms created by the legislature. E.g., Williams v. State,347 Ark. 728 ,67 S.W.3d 548 (2002). Nothing is taken as intended which is not clearly expressed, and this court is without authority to declare an act to come within the criminal laws of the state merely by implication. See, e.g., Heikkila v. State,352 Ark. 87 ,98 S.W.3d 805 (2003).
Unfortunately, here, the majority is doing that which it cannot. It is construing the statute to include an act not clearly expressed. Had the General Assembly wished to do so, it could have included an offer to “drop the charges” as a type of witness bribery. It did not do so, and I therefore respectfully dissent on this issue. Because I would do so, there would be no need to address Paschal’s remaining claim regarding bias.
Concurrence in Part
dissenting in part and concurring in part.
The majority holds that the following statute is unconstitutional as applied to a thirty-six-year-old teacher who was engaged in a sexual affair with an eighteen-year-old high school senior for five months. I disagree and would not hold that the statute is unconstitutional as applied.
| iSThe statute in question reads as follows:
(а) A person commits sexual assault in the second degree if the person:
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(б) Is a teacher in a public school in a grade kindergarten through twelve (K-12) and engages in sexual contact with another person who is:
(A) A student enrolled in the public school; and
(B) Less than twenty-one years of age.
Ark.Code Ann. § 5-14-125(a)(6) (Repl. 2009).
The majority’s analysis is wrong for several reasons. As an initial matter, it erroneously equates the adult relationship in Jegley v. Picado, which involved consenting same-sex couples who clearly were on an equal footing as adults, to a student-teacher relationship in high school where the teacher is without question the authority figure. See Picado,
The majority hangs its hat in part on the fact that the relevant subsection cited above does not use the words “trust or authority” in describing the relationship between a teacher and student in grades K through 12. What the majority suggests is that without those words, a teacher may not be aware of the fact that he or she holds such a position vis-á-vis a student, which apparently, according to the majority’s reasoning, somehow permits that unknowing teacher to have sex with an eighteen-year-old student. That of course is preposterous. Any teacher knows that he or she occupies a position of trust or authority in the school. This court has recognized that teachers occupy a position of authority over their students. See Logan v. State,
The focus of the majority opinion is on a right to privacy gleaned from our Picado decision. Certainly in Picado we held that a right to privacy exists for consenting adults to have sexual relations in the privacy of their homes. See Ark. Dep’t of Human Servs. v. Cole,
When faced with this same issue of a student-teacher relationship, other jurisdictions have determined that restrictions on these relationships do not infringe on the right to intimate association or privacy. In fact, the Sixth Circuit Court of Appeals has recognized that policies restricting student-teacher sexual relationships are not even entitled to strict scrutiny review, which obviously accompanies a substantial burden on a fundamental right. See Flaskamp v. Dearborn Pub. Sch,
The Sixth Circuit went on to say in Flaskamp:
[I]n view of the importance of prohibiting teachers and students from beginning romantic relationships, a school board could act prophylactically in this area by prohibiting sexual relationships between teachers and former students within a year or two of graduation. Such a policy would prevent high school seniors from being perceived as prospects eligible for dating immediately after graduation; it would prevent interference with the education of other family members who still may be in 121 school ...; and it would curb sexual harassment liability arising from claims that a policy against student-teacher relationships is not adequately enforced.
Id. at 944 (emphasis added). Recognizing that Flaskamp did not involve a criminal statute, the myriad dangers of permitting student-teacher sexual relationships recognized by the Sixth Circuit apply equally to the facts of the case before us and reinforce the importance of the State’s interest in protecting students.
The Connecticut Supreme Court has also determined that regardless of whether a fundamental right of sexual privacy exists, it would not protect sexual intimacy in the context of an inherently coercive relationship, such as the teacher-student relationship, wherein consent might not easily be refused. State v. McKenzie-Adams,
CJn the face of this authority, the majority in this case cites no case law for its singular proposition that a right to privacy exists to enable a high school teacher to have sex with an enrolled student. That, in itself, is telling.
The statute at issue in this case does not infringe on the non-job-related sexual activity of Paschal, or any other teacher, and it does not directly or substantially burden his right to engage in acts of sexual intimacy with other consenting adults. The State became interested in his sexual activity only after the student reported it. She testified that the relationship changed after she became Paschal’s aide and began working in his classroom during eighth period. She further testified that she and Paschal began talking on a more personal level during that time and that he told her he needed a babysitter over Christmas, and she offered to babysit. She added that sometimes she and Paschal would go to his home after eighth period and that he told her she could “never say anything” about being at his home. The affair lasted for about five months.
Without question, Paschal used his job as a teacher to get close to an enrolled student to gain her trust and to propose that she come alone to his home after school. Even assuming that Paschal is entitled to strict-scrutiny review of the statute, which I do not for a moment concede, the statute is narrowly tailored to serve the State’s compelling interest in maintaining the integrity of the educational system because it only targets sexual conduct that occurs between teachers and enrolled students and does not directly or substantially burden non-job-related sexual conduct of teachers. See Cole,
Once this opinion is handed down, there will be nothing to prevent sexual contact between high school teachers and enrolled students who have turned eighteen. This will cause significant disruption in our high schools and have a deleterious impact on education in general and the teacher-student dynamic in particular. That is completely contrary to the State’s duty, which is to protect its students in the public school setting against sexual advances and exploitation by teachers. That duty has been completely jeopardized and undermined by today’s decision.
I respectfully dissent on this point and would affirm the conviction and sentence for second degree-sexual assault.
On the issue of admission of evidence to show S.C.’s bias, which was disallowed, I agree that the circuit judge erred on this point. Accordingly, I would reverse the judgment for witness-bribery and send that count back for further proceedings.
GUNTER and BAKER, JJ., join.
Concurrence in Part
dissenting in part and concurring in part.
I concur with the majority’s conclusions that Paschal’s conviction for witness bribery is supported by substantial evidence, but that the trial court erred in refusing to admit evidence of bias of S.C. However, I do not agree with the reversal and dismissal of his conviction for sexual assault in the second degree based on the majority’s holding that Arkansas Code Annotated section 5-{14-125(a)(6)24 is unconstitutional. Because I believe the majority’s conclusion that Paschal has a constitutionally protected fundamental privacy right to have sexual contact with an 18-year-old student at the school where he teaches is absurd, I dissent.
Paschal argues that section 5-14-125(a)(6) is unconstitutional as applied to him. He asserts that because he and the student, A.D., were adults in a consensual sexual relationship, the statute infringes on his fundamental right to privacy under the U.S. Constitution, see Lawrence v. Texas,
Paschal was convicted under the version of Arkansas Code Annotated section 5-14-125(a)(6) (Supp.2009), which provided, in pertinent part, that a person commits second-degree sexual assault if the person is “a teacher in a public school in a grade kindergarten through twelve (K-12) and engages in sexual contact with another person who is a student enrolled in the public school and less than twenty-one (21) years of age.” The effect of striking this provision in our Code is to legalize sexual contact between teachers and students who have not reached the age of 21. The majority does this by relying on the premise that a teacher and a student have a privacy right to engage in consensual sexual contact. I disagree. The right to privacy does not authorize such behavior between a high-school teacher and a student who is required under our laws to be in that school. See Ark. Code Ann. § 6-18-2111 ^(requiring mandatory attendance for students in grades 9 through 12).
The majority draws a distinction between the instant case and our decision in Talbert v. State,
I conclude the statute does not involve a fundamental right. If a statute does not burden a fundamental right or targets a suspect class, the legislative classification will be upheld if it bears a rational relation to some legitimate result. Romer v. Evans,
BROWN and GUNTER, JJ., join.