Fikes v. State

378 S.W.3d 302, 2010 Ark. App. 803, 2010 Ark. App. LEXIS 849
Court of Appeals of Arkansas·Decided December 1, 2010·No. No. CA CR 10-263·Published

Opinion

WAYMOND M. BROWN, Judge.

1,Appellant David Fikes was convicted by a jury of computer child pornography and was sentenced to fifteen years’ imprisonment. His sole argument on appeal is that the trial court erred by denying his motion for directed verdict because the circumstantial evidence does not prove he committed the illegal acts.1 We affirm.

A motion for directed verdict is a challenge to the sufficiency of the evidence.2 The test for determining the sufficiency of the evidence is whether substantial evidence, direct or | ^circumstantial, supports the verdict.3 Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture.4 On appeal, the evidence is reviewed in the light most favorable to the appellee and only the evidence supporting the verdict is considered.5 Guilt can be established without eyewitness testimony, and evidence of guilt is not less because it is circumstantial.6 The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide.7 Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict.8

According to Arkansas Code Annotated section 5-27-603(a)(2),9 a person commits computer child pornography if the person knowingly utilizes a computer online service, internet service, or local bulletin board service to seduce, solicit, lure, or entice or attempt to seduce, solicit, lure, or entice a child or another individual believed by the person to be a child, to engage in sexually explicit conduct.

laHere, Fikes does not challenge that computer child pornography took place. Rather, he argues that the evidence was insufficient to prove that he was the individual committing the illegal acts. This argument is without merit.

The evidence viewed in the light most favorable to the appellee is as follows. Yvette Schrock, a detective with the Washington County Sheriffs Department, had online chats with a person by the name of Big_Pops46 on at least eight occasions between January 7, 2009 and April 13, 2009.10 Detective Schrock used an undercover persona of a thirteen-year-old girl named DeeDee Miller, with a screen name of PinkGloss35.11 Big_Pops46 engaged Pink-Gloss35 in sexually explicit conversations throughout their chats. The sexual topics included masturbation, oral sex, anal sex, and regular sex. PinkGloss35 reminded Big_Pops46 on numerous occasions that she was only thirteen years old.

On January 8, 2009, BigJPops46 told PinkGloss35 that he was forty-six years old, that he installs floor coverings for a living, and that he has two sons. He also told her that his sons did not live with him, and that their mother, his ex-wife, was remarried. PinkGloss35 told him that she was thirteen years old, that she lives with her mother, and that she is home schooled. BigJPops46 asked PinkGloss35 did she want to see his penis, and after this the webcam came up. Detective Schrock stated that BigJPops46 masturbated until ejaculation as [4PinkGloss35 looked at the computer.12 According to Det. Schrock, she could tell from the webcam that BigJPops46 was a heavy-set white male with a small penis. She further testified that he had brown pubic hair, and that there were two scars of discoloration on his left leg. Detective Schrock stated that the webcam allowed her to see some portions of the background, which included a bed, and distinctive wallpaper with palm trees on it.

Detective Schrock testified that in the April 6, 2009 chat, Big_Pops46 told Pink-Gloss35 that he was married once, and that his wife “cheated among other things.” He also stated that his sons were nineteen and twenty-four years old. Detective Schrock stated that there was a two-hour break in their chat session, and that BigJPops46 explained that it was due to his computer updating. Big_Pops46 asked PinkGloss35 if she wanted him to send her an email of a girl that “looked” her age masturbating. PinkGloss35 gave him her email address; however, the email did not come through. Detective Schrock stated that at this point, it was important to get an email address from BigJPops46 so she asked him to just send her anything to “make sure that [her email] was working.” Big_Pops46 sent an email saying, “Hey, hun.” Detective Schrock said that the email came from Big_Pops46@yahoo.com, and it showed that it originated from appellant, David Fikes. Detective Schrock testified that this was the first time she “had known of a name for BigJPops46.” During the course of this chat session, Big_Pops46 told PinkGloss35 that she might need to get a vibrator. He even offered to “loan” her one of his because he had a “few.”

IsDuring the April 13, 2009 chat, Big_Pops46 told PinkGloss35 that he had the day off, and he offered to come to Fayetteville and get her if she wanted him to. Detective Schrock stated that there was about a two-hour break during the chat, and when the chat resumed, Big_Pops46 stated that he had gotten his hair trimmed. According to Det. Schrock, once the chat resumed, Big_Pops46 mentioned dating PinkGloss35’s mother, waiting for her mother to fall asleep, and then getting into bed with PinkGloss35. He told PinkGloss35 that he would allow her to watch as he was having sex with her mother. He also asked if she would be willing to have oral sex with .her mother, and if she would be willing to have oral sex with him after he had sex with her mother. Detective Schrock stated that this was the last time PinkGloss35 chatted with BigJPops46. She said that they started getting their warrants together for Fikes. She also stated that they were concerned because they learned that Fikes was living with a woman who had a nine-year-old daughter. Detective Schrock said that she learned BigJ?ops46 was registered to Fikes, that they had tracked Big_Pops46’s IP address, and that during one of the chats, Big_Pops46 had directed Pink-Gloss35 to his profile. The profile included a photograph of Fikes. Detective Schrock stated that she sent the information to the prosecutor and was able to obtain a warrant for Fikes. She said that she also sent the information and transcripts of the chats to the Garland County Sheriff and the Arkansas State Police Crimes Against Children unit. A search warrant was obtained and executed with Fikes’s arrest warrant.

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Fikes v. State, 378 S.W.3d 302, 2010 Ark. App. 803, 2010 Ark. App. LEXIS 849 (Ark. Ct. App. 2010).

378 S.W.3d 302 (Fikes v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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