A split Arkansas Supreme Court Thursday threw out the Internet-stalking conviction of a man who chatted online with a Van Buren police officer who he believed was a 15-year-old girl.
The court ruled 4-3 that Derek Coy Holcomb, 32, of Little Rock did not make a“determined attempt” to arrange a meeting with the officer for sexual activity when they engaged in online chats.
Holcomb was convicted of one count of Internet stalking of a child in Crawford County Circuit Court and received a five-year suspended sentence and an $8,000 fine.
But Justice Karen Baker wrote that there was not substantial evidence to convict Holcomb of the crime under Arkansas Code Annotated 5-27-306, which requires an attempt to arrange a meeting.
“Although Holcomb’s messages pose hypotheticals, they do not demonstrate that he made a determined attempt to plan to meet [the officer]. In fact, the record demonstrated that Holcomb declined [the officer’s] request to meet several times,” Baker wrote in the majority opinion, which was joined by Justices Courtney Hudson Goodson, Jo Hart and Cliff Hoofman. Chief Justice Jim Hannah and Justices Donald Corbin and Paul Danielson dissented.
Prosecutors said Holcomb engaged in online chats with a person identified as “ Amanda” between Oct. 23, 2009 and June 10, 2010. “Amanda” was actually detective Donald Eversole of the Van Buren Police Department.
The two exchanged 846 messages, which included “sexually explicit exchanges” and photos, according to the court filings.
Holcomb was arrested on June 28, 2010, and his first trial ended in a hung jury. He was tried again on March 11, 2013, and convicted.
Holcomb’s attorney, John Wesley Hall, appealed the conviction, arguing that the lower court erred by denying his motion for a directed verdict in Holcomb’s favor and by denying his motion to declare the statute unconstitutional under the First Amendment, which protects freedom of speech.
The court did not rule on the constitutionality of the statute because the conviction was overturned on other grounds.
Hall said he was pleased with the court’s ruling but disappointed it did not address the constitutionality of the provision. Hall said it appeared that there were many similar cases around the state because prosecutors alluded to them in Holcomb’s case.
Hall said talking on the Internet about hypothetical situations should be protected under the First Amendment.
“With pure speech and no act, it’s protected speech,” Hall said.
Aaron Sadler, a spokesman for the attorney general’s office, said in an email that “we respect the court’s decision.”
Hannah wrote in the dissenting opinion that the majority “appears to agree with Holcomb’s assertion that the state failed to prove that he had made an effort to arrange a meeting with Amanda because, during his conversations with her, he was only playing a game and had no intention of ever meeting her.”
But Hannah wrote that the jury convicted Holcomb after hearing evidence that he discussed going to Van Buren to see the girl and later asked her to “get a car and come here.” The jury should ultimately decide the credibility of witnesses and how to weigh the evidence, he wrote.
”The jury was not obligated to accept Holcomb’s alternate explanation, and the majority should not substitute its judgment for that of the jury,” Hannah wrote.
Arkansas, Pages 11 on 04/04/2014