ARGANBRIGHT v. STATE

2014 OK CR 5, 328 P.3d 1212, 2014 WL 2118252, 2014 Okla. Crim. App. LEXIS 5
Court of Criminal Appeals of Oklahoma·Decided May 20, 2014·No. F-2012-1022·Published·Cited by 22 cases

Opinions

OPINION

LUMPKIN, Judge.

{1 Appellant, Ronald Arganbright, was tried in a non-jury trial before the Honorable Doug Haught, District Judge, District Court of Beckham County, Case No. CF-2011-126. He was convicted of Lewd or Indecent Acts to a Child under 16 (Count I) (21 O.8.Supp. 2007, § 1123(A)(2)), and Soliciting Sexual Conduct or Communication with Minor by Use of Technology (Count II) (21 O.8.Supp. 2007, § 1040.182)1 In Count I, the trial court sentenced Appellant to imprisonment for five (5) years with all but three (8) years suspended and assessed Appellant with court costs and a Victim's Compensation Assessment in the amount of § 5,202.73.2 As to Count II, the trial court sentenced Appellant to imprisonment for five (5) years with all but three (8) years suspended and assessed Appellant with court costs and a Victim's Compensation Assessment in the amount of $50.00. The trial court ordered the sentences to run concurrently. It is from this judgment and sentence that Appellant appeals.

[1215]*1215T2 Appellant raises the following proposition of error in support of this appeal:

I. The statute under which Appellant was convicted in Count II is unconstitutional as applied to Appellant's sexual text messages to a sixteen-year-old over the age of consent with whom he was in a relationship.

13 After thorough consideration of this proposition and the entire record before us on appeal including the original record, transcripts and briefs of the parties, we have determined that neither reversal nor modification of the judgment or sentence is warranted under the law and the evidence.

FACTS

{14 Appellant was employed as a Trooper with the Oklahoma Highway Patrol. He was forty-four years old and married, M.C. was fifteen years old. She attended school with Appellant's son. Appellant entered into an illicit relationship with M.C. that culminated in sexual intercourse in Appellant's patrol car.

¶5 Beginning in October of 2009, Appellant communicated with M.C. through electronic devices and social media. Appellant "friended" M.C. on Facebook and conversed with her by instant messaging. He also text-ed messages to her cell phone.

6 Sometime between the middle of December of 2009 and early January 2010, Appellant started telling M.C. that he loved her. Appellant persuaded M.C. to meet him in person. He picked M.C. up from her home one night when her parents were out of town. Appellant took her out to an area near Thrills Hills in his pickup and parked. Appellant kissed M.C. and held her hand. He placed his hand under her shirt and bra and touched her breasts. M.C. repeatedly told Appellant "no" when he placed his fingers in the waist of her pants. Eventually, Appellant took M.C. home.

T 7 Thereafter, Appellant continued to text message and telephone M.C. He told her that he wanted to marry her and stated that he would leave his wife and kids. In February of 2010, Appellant persuaded M.C. to meet him at the city park. M.C. arrived at the park with the assistance of a girlfriend who was old enough to drive. Appellant and M.C. met on three or four occasions and engaged in sexual activity,. The meetings took place at night when there were no other vehicles in the park.

1 8 After M.C. turned sixteen and began to drive, Appellant persuaded her to meet him on numerous occasions. Over the course of several months, Appellant coased M.C. to engage in escalating sex acts with him. M.C. was reluctant to engage in the sexual activities. Appellant convinced her to perform the acts by referencing the text messages they had exchanged.

T 9 Appellant also gave M.C. several gifts. He gave her a necklace, a sweat shirt, and eventually a ring. He promised her that they were "together for the long haul, and were going to get married." (Tr. 12).

" 10 At the end of June of 2010, Appellant sent M.C. texts that were intended to encourage her to engage in sexual intercourse with him. Appellant sent M.C. multiple messages about trying to meet and their feelings towards each other. Shortly after midnight on June 28th, Appellant sent M.C. a message which stated that they would be having sex already if he was able to pick her up.

11 On July 12, 2010, Appellant engaged in sexual intercourse with M.C. in his patrol car. M.C. described the intercourse as "mutual; however, she was reluctant." (Tr. 11). M.C. related that Appellant wanted to have sex but she did not want to have sex because she felt it was wrong. M.C. explained that she gave in because Appellant stated he did not understand why she would not want to if she loved him. Thereafter, Appellant engaged in sexual intercourse with M.C. in his patrol car once a week until November 15, 2010.

12 Appellant told M.C. that if anyone found out about their relationship that she was supposed to say that she was the one that initiated the sexual conduct. M.C. informed her friends that she had lost her virginity to Appellant. Several students reported the matter to the school superintendent who, in turn, notified the Oklahoma Highway Patrol.

[1216]*12161 13 The Oklahoma Highway Patrol Investigations Division investigated Appellant's relationship with M.C. and interviewed Appellant. At first, Appellant denied that his relationship with M.C. was anything more than a friendship but conceded that he had been texting her for more than one year. Eventually, Appellant admitted that he had engaged in the sex acts that M.C. had described. He agreed that the acts began before M.C.'s sixteenth birthday. He related that after July of 2010, he had engaged in sexual intercourse with M.C. in his patrol car. This occurred onee a week in various locations around town.

DISCUSSION

14 In his sole challenge, Appellant contends that 21 0.S.Supp.2007, § 1040.182 is unconstitutional as applied to him. He asserts that the statutory provision violates the Free Speech Clause of the First and Fourteenth Amendments to the United States Constitution.

115 It is the Legislature's role to establish and maintain the plumb line of minimally allowed conduct in our ordered society. See Hogan v. State, 2006 OK CR 19, 182, 189 P.3d 907, 984 (policy matters fall within the purview of the legislature and not the courts). As there are no common law crimes in this State, this Court is bound by the language the Legislature has placed in our statutes defining crimes. Salyers v. State, 1988 OK CR 88, 17, 755 P.2d 97, 100; Hisel v. State, 1958 OK CR 163, 264 P.2d 375, 385; 21 O.S.2011, § 2. We defer to our sister branch of the government and indulge every presumption in favor of the constitutionality of an act of the Legislature. State ex. rel. Mashburn v. Stice, 2012 OK CR 14, ¶12, 288 P.3d 247, 250, Murphy v. State, 2012 OK CR 8, ¶32, 281 P.3d 1288, 1292. Thus, the party attacking the constitutionality of a statute has the burden of proving the statute is unconstitutional. Murphy, 2012 OK CR 8, 132, 281 P.3d at 1292; Romano v. State, 1998 OK CR 8, ¶ 66, 847 P.2d 368, 384.

116 Appellant contends that there is no compelling state interest that justifies the content based restriction on speech set forth in § 1040.18a(A). "[Als a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Ashcroft v. ACLU, 535 U.S. 564

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ARGANBRIGHT v. STATE, 2014 OK CR 5, 328 P.3d 1212, 2014 WL 2118252, 2014 Okla. Crim. App. LEXIS 5 (Okla. Ct. App. 2014).

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