{ "id": 1912756, "name": "Lynn F. GRAHAM v. STATE of Arkansas", "name_abbreviation": "Graham v. State", "decision_date": "1993-09-20", "docket_number": "CR 93-198", "first_page": "152", "last_page": "158", "citations": [ { "type": "official", "cite": "314 Ark. 152" }, { "type": "parallel", "cite": "861 S.W.2d 299" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 5-27-301", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "pin_cites": [ { "page": "et seq.", "parenthetical": "1987, Supp. 1991" } ], "opinion_index": 0 }, { "cite": "299 Ark. 93", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888377 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/299/0093-01" ] }, { "cite": "307 Ark. 29", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1902429 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ark/307/0029-01" ] }, { "cite": "269 Ark. 119", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712552 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0119-01" ] }, { "cite": "738 S.W.2d 58", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1990, "opinion_index": 0 }, { "cite": "301 Ark. 235", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1885524 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/301/0235-01" ] }, { "cite": "313 Ark. 253", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914647 ], "weight": 3, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0253-01" ] }, { "cite": "312 Ark. 220", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935076 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0220-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-27-404", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-27-402", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 3, "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-27-401", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 6, "year": 1987, "pin_cites": [ { "page": "et seq." }, { "page": "(1)" }, { "page": "(2)" }, { "page": "(3)" }, { "page": "(2)" }, { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 630, "char_count": 10836, "ocr_confidence": 0.917, "pagerank": { "raw": 3.9915300851634893e-07, "percentile": 0.9054321313713657 }, "sha256": "6295796825ba610365fec5a87b33843588f512864240d42d1d943ce9229f4f3f", "simhash": "1:ab1dd0403487164c", "word_count": 1792 }, "last_updated": "2023-07-14T21:22:56.854306+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Reversed and dismissed.", "Corbin, J., concurs." ], "parties": [ "Lynn F. GRAHAM v. STATE of Arkansas" ], "opinions": [ { "text": "Jack Holt, Jr., Justice.\nThis is a case of first impression involving Act 451 of 1983, the statutory prohibition against the use of children in sexual performances as defined in the Act. Ark. Code Ann. \u00a7 5-27-401 et seq. (1987). The appellant, Lynn F. Graham, raises four points for reversal of his conviction of the felony offense of employing a child in a sexual performance. Because we reverse on the first issue, a challenge to the sufficiency of the evidence, it is unnecessary to consider the other questions raised on appeal.\nThe relevant portions of Ark. Code Ann. \u00a7 5-27-402 (1987) provide:\n(a) It is unlawful for any person if, knowing the character and content thereof, he employs, authorizes, or induces a child under seventeen (17) years of age to engage in a sexual performance.\n(c) Any person violating this section is guilty of a Class C felony for the first offense and Class B felony for subsequent offenses.\nA definition of \u201cperformance\u201d appears at Ark. Code Ann. \u00a7 5-27-401(1) (1987):\n\u201cPerformance\u201d means any play, dance, act, drama, piece, interlude, pantomime, show, scene, or other three-dimensional presentation or parts therof that is exhibited before an audience of two (2) or more persons[.]\nA \u201csexual performance\u201d consists of \u201cany performance or part therof that includes sexual conduct by a child younger than seventeen (17) years of age.\u201d Ark. Code Ann. \u00a7 5-27-401(2) (1987). \u201cSexual conduct\u201d involves \u201cactual or simulated sexual intercourse, deviate sexual activity, sexual bestiality, masturbation, sadomasochistic abuse, or lewd exhibition of the genitals.\u201d Ark. Code Ann. \u00a7 5-27-401(3) (1987).\nIn 1991, the Greene County prosecutor filed an information stating that, on April 28,1990, appellant Graham had employed, authorized, or induced a child under the age of seventeen to engage in a sexual performance.\nGraham waived a jury trial. During the bench trial, the State produced as evidence a video tape of Graham and three other males participating in mutual masturbation and oral sex. Nude photographic prints of the parties were also introduced in evidence. The State contended that the defendant had engaged in deviate sexual activity with children under the age of seventeen and had made a videotape of the acts.\nAlthough neither of the two youths in question, who were identified by the names of Clifton and Anthony, were present at trial, a witness for the State, Wendell Pullen, supplied damaging testimony over repeated hearsay objections. Pullen stated that in December 1989, several months before the videotape was made, he and Graham drove from the appellant\u2019s home in Paragould to Poplar Bluff, Missouri, to pick up Graham\u2019s friend, Terry Branch. Pullen stated that they went to Branch\u2019s parents\u2019 house, where they met Branch\u2019s sister and her two sons, whom Branch introduced as his nephews. After a 45-minute visit, Graham, Pullen, and Branch left to return to Paragould.\nAccording to Pullen, Graham told Branch that his nephews were cute, and Branch indicated that he was sexually involved with them. Pullen said that he asked Branch how old the youths were, and Branch stated, in Graham\u2019s presence, that Clifton and Anthony were thirteen and fourteen years old. At that point, Pullen testified, Graham asked Branch how he might get the youths to come to his house in Paragould, suggesting that he give Branch $20 to be split between Clifton and Anthony.\nGraham presented as an affirmative defense his reasonable belief that the two youths were at least seventeen years old, based on the good-faith provision of Ark. Code Ann. \u00a7 5-27-404 (1987):\nIt is an affirmative defense to a prosecution under this subchapter that the defendant in good faith reasonably believed that the person who engaged in the sexual conduct was seventeen (17) years of age or older.\nTaking the witness stand, Graham stated that both of the boys had told him they were seventeen and, further, that Clifton had offered to produce his driver\u2019s license. Another witness for the defense, David Allison, testified that in November 1989 he had met Clifton and Anthony in the company of Terry Branch and that Clifton had showed him a driver\u2019s license from which he estimated the young man\u2019s age to be \u201capproximately seventeen \u2014 almost eighteen years old.\u201d Dr. James Sikes, a pediatrician, also testified for Graham, stating that while it is not possible to pinpoint an exact year of age by examining photographs, he would place the age range for the youths who appeared on the videotape somewhere between fourteen and twenty years.\nThe trial court found Graham guilty of promoting a sexual performance by a child under the age of seventeen and held that he had failed to meet his affirmative defense. The court sentenced him to ten years imprisonment, the maximum sentence under Ark. Code Ann. \u00a7 5-27-402 for a first offense.\nFor his first point for reversal, Graham asserts that the trial court erred in failing to grant his motions for directed verdict at the close of the state\u2019s case and at the close of all evidence. It is, of course, unnecessary in a trial by the court without a jury for the defense to renew its motion for a directed verdict at the close of the trial in order to preserve the issue for appeal. Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993). Our focus on appellate review, therefore, is limited to an assessment of the posture of the state\u2019s case at the time the first directed-verdict motion was made.\nA motion for a directed verdict is a challenge to the sufficiency of the evidence. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Id. On appeal, this court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 738 S.W.2d 58 (1990). Evidence is substantial ifit is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).\nGraham contends that the State failed to provide substantial evidence regarding the elements of the offense of employing a child in a sexual performance under Ark. Code Ann. \u00a7 5-27-402(a). \u201cSexual performance\u201d is defined at Ark. Code Ann. \u00a7 5-27-401(2) (1987) as \u201cany performance of part thereof that includes sexual conduct by a child younger than seventeen (17) years of age.\u201d\nThe precise meaning of the term \u201cperformance\u201d was a subject of spirited debate at trial, and Graham argues on appeal that the State failed to put on evidence of an actual \u201cperformance\u201d as defined by \u00a7 5-27-401(1). The definition, set forth earlier, employs specialized terminology that obviously embraces the traditional aspects of live theatrical production (\u201cplay, dance, act, drama,\u201d and so forth), including such antiquities as interludes and pantomimes. It ignores, meanwhile, the more unstructured varieties of contemporary presentation generally known as \u201cperformance art,\u201d in which elements of the spontaneous and the random are often prominently featured. Significantly, no mention is made in the definition of \u201cperformance\u201d \u2014 or, for that matter, in any other section of the Act \u2014 of film or videotape.\nAlthough no legislative history is available, it is clear from an examination of the text of Act 451 of 1983 that the intent of the General Assembly was specifically to prohibit the exploitation of children in commercial pornographic stage productions. If it had been the purpose of the legislature to criminalize such privately conducted activities as those in the present case, the Act could have expressly barred, in distinct language, the filming or videotaping of children engaged in any sort of sexual conduct.\nThe definition of \u201cperformance\u201d in \u00a7 5-27-401(1) requires that an exhibition of the work before an audience of at least two persons \u2014 an indication that the legislators had in mind some form of public display rather than a private recording of sexual intimacies between participating parties. In this regard, Graham further contends that the State failed to present any evidence that the sexual conduct on the videotape amounted to a performance \u201cexhibited before an audience of two (2) or more persons.\u201d The State concedes that the statutory definiton of \u201cperformance\u201d set forth at \u00a7 5-27-401(1) requires the State to prove that the sexual performance was exhibited to two or more viewers.\nMuch energy was expended at trial in an attempt to determine how many people were observing the sexual performances as they were being taped. The trial court decided that because there were four persons involved in the taping of the sexual conduct and because during most of the running time of the two different episodes only two persons appeared on camera, the remaining pair must have comprised an audience of two persons.\nThe trial court\u2019s conclusion relies heavily on conjecture and supposition. There is simply no proof that two or more persons were watching as the tape rolled.\nOn appellate review, we strictly construe criminal statutes, resolving any doubts in favor of the defendant. Leheny v. State, 307 Ark. 29, 818 S.W.2d 236 (1991). Nothing is taken as intended which is not clearly expressed. Hales v. State, 299 Ark. 93, 771 S.W.2d 285 (1989). Graham\u2019s conduct, therefore, is not violative of Ark. Code Ann. \u00a7 5-27-401 et seq. (1987), and we reverse and dismiss his conviction.\nBecause we are reversing and dismissing the matter on the issue of the sufficiency of the evidence, it is unnecessary for us to address the other points raised by the appellant.\nReversed and dismissed.\nCorbin, J., concurs.\nIn fact, the General Assembly had, by 1983, already enacted such a prohibition. Act 499 of 1979, the Arkansas Protection of Children Against Exploitation Act, codified at Ark. Code Ann. \u00a7 5-27-301 et seq. (1987, Supp. 1991), addresses precisely the situation before us. Section 5-27-303 (a) provides that:\nAny person who employs, uses, persuades, induces, entices, or coerces any child to engage in, or who has a child assist any other person to engage in, any sexually explicit conduct for the purpose of producing any visual or print medium depicting such conduct shall be guilty of a Class C felony for the first offense and a Class B felony for subsequent offenses.\nA crucial difference in the earlier Act is that a \u201cchild\u201d is defined as \u201cany person under the age of sixteen (16) years.\u201d", "type": "majority", "author": "Jack Holt, Jr., Justice." } ], "attorneys": [ "Stidham & Crow, by: Daniel T. Stidham and Gregory L. Crow, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Clint Miller, Senior Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Lynn F. GRAHAM v. STATE of Arkansas\nCR 93-198\n861 S.W.2d 299\nSupreme Court of Arkansas\nOpinion delivered September 20, 1993\nStidham & Crow, by: Daniel T. Stidham and Gregory L. Crow, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Clint Miller, Senior Asst. Att\u2019y Gen., for appellee." }, "file_name": "0152-01", "first_page_order": 178, "last_page_order": 184 }