A former North Little Rock pastor serving a six-year sentence for "sexting" with an underage parishioner lost his appeal Wednesday morning.
Arguing that the image of his privates that he sent via phone to a teenage girl in 2012 were not covered by state sexual indecency statutes, Ashley Malvin asked the Arkansas Court of Appeals to throw out convictions that followed his arrest in the summer of 2012.
The argument failed, according to a unanimous Court of Appeals opinion penned by Judge Robin Wynne.
"[Malvin] argues that he did not expose his penis to [the victim]; rather, he exposed a picture of his penis, which he maintains does not meet the requirements of the statute," Wynne wrote. "We do not agree."
Malvin worked as a volunteer pastor at the Mount Olive Missionary Baptist Church, and he began texting with the 14-year-old in a dialogue that eventually turned sexual.
At trial, he was convicted of computer exploitation of a child, distribution of sexually explicit material and sexual indecency with a child and given three concurrent six-year sentences Sept. 5, 2013.
On appeal, Malvin, 28, challenged the sexual indecency conviction, using arguments that had been rejected during his trial.
Malvin's attorneys argued that the law doesn't explicitly prohibit adults from sending photos of their own genitals to children.
"Malvin concedes that his conduct was morally reprehensible. However, moral reprehensibility and criminality are not synonyms, and proof of moral reprehensibility is not necessarily proof of criminality," they argued.
The court said "exposure" doesn't require close physical proximity and can occur in person or electronically.
"The manner in which [the victim] viewed the exposure does not take [Malvin's] conduct outside of that prohibited by the statute," Wynne wrote. "What she saw was no different than what she would have seen had appellant pulled down his pants while standing in front of her."
Malvin remains at the state prison in Malvern where he is also serving an eight-year sentence after an August conviction for a second-degree sexual assault from November 2010.
Metro on 11/01/2014