A former volunteer church minister from North Little Rock was sentenced to six years in prison Thursday for exchanging sexually explicit photographs with a teenage parishioner after a Pulaski County Circuit judge rejected arguments that the pictures were no proof of wrongdoing.
Ashley Deshaun Malvin did not testify during the 90-minute bench trial before Judge Barry Sims, who convicted the married 26-yearold father of two on all counts - computer exploitation of a child, possessing material depicting sexually explicit conduct involving a child and sexual indecency with a child - charges that together carried a 36-year maximum. Malvin must also register as a sex offender.
“He must pay the consequences of his actions,” Sims said.
Deputy prosecutor Luke Daniel told the judge that incarceration was the only appropriate punishment.
“He needs to be sent to prison. She asked him to stop, and he wouldn’t. He sent a 15-year-old girl a picture of his penis,” Daniel said. “He could have stopped but he didn’t.”
Defense attorney Kent Krause argued that probation would be more appropriate for a first-time offender who’s never broken the law before.
“I think he’s someone who can be redeemed … someone who knows he’s done wrong and seeks forgiveness,” Krause told the judge.
He also urged the judge to think about the girl’s participation in the phone messages, pointing out that she’s smiling in the pictures and had kept the communication with Malvin secret from her parents. She only stopped texting Malvin because her mother found out, Krause said.
Sherwood police were called in June 2012 after the girl’s mother found text messages between Malvin and the girl and notified authorities. He was arrested about three months later.
The girl, who will turn 17 in about two months, testified that she had started exchanging text messages with Malvin, one of her youth pastors, about church events in 2011 when she was 14. But the tone of Malvin’s texts moved beyond friendly as he began to send her “sexual messages and compliments,” she told the judge.
She said she was unable to recall details of the messages, but he asked her for topless photographs of herself, and she complied. Daniel showed the judge 17 photographs of the girl, Malvin and unidentified people, all collected from the defendant’s cellphone last year.
Responding to a defense challenge to the pictures, the judge struck one, which did not show either the girl or Malvin, as not illegal, but nothing he would want one of his children to see.
“I wouldn’t want that to come to my child over the phone,” Sims said.
Malvin sent her photographs of his genitalia, the girl told the judge, but she hadn’t asked for them. She said she had tried to get him to stop and the text messages would cease for a while before beginning again.
The Rev. Victor Moore of Mount Olive Missionary Baptist Church testified that Malvin had been an unpaid associate pastor at the 86-year-oldchurch. Malvin had no fixed duties at the church at Atkinson and Rhodes streets, but did regularly work with the adult and youth choirs.
He said Malvin admitted to him sending “sexually explicit” photographs to the girl when Moore asked him about accusations made by the girl’s father last year. Malvin gave him no details of the pictures, and Moore did not ask for any, the pastor said.
Detective Frank Spence said the photographs had been irretrievably deleted from the girl’s phone, but he was able to find the pictures on Malvin’s phone.
The defense argued that the photographs - pictures of Malvin’s exposed genitals, photos of himself aroused in his underwear and revealing images of the girl, including photos of her bare breasts - were sufficient evidence for a conviction. The photos of the girl, shown smiling in her underwear and low-cut tops, also do not fit the standard for lewdness required under the law, Krause said.
Krause told the judge the indecency law requires child victims to be exposed directly to the defendant’s sex organs, making a photograph insufficient evidence to convict under the law. He said the law was aimed at trench-coat type flashers.
“I’m taking the law as it says,” Krause told the judge. “Are pictures … a sex organ? No, they are not. It’s just the depiction of a penis.”
To make his point, Krause showed the girl a reproduction of a painting of a smoking pipe, The Treachery of Images by Belgian surrealist artist Rene Magritte, which features the caption, “This is not a pipe.”
“If I asked you is this a pipe, would your answer be yes?” he asked. “I could put tobacco in it and smoke it?”
Daniel, the prosecutor, said Krause’s argument was without merit.
“There’s no way the Legislature intended to allow an adult male to send a picture of his penis to a 14-year-old, 15-year-old girl,” he told the judge.
Arkansas, Pages 9 on 09/06/2013