Kramer v. State

670 S.W.2d 445, 283 Ark. 36, 1984 Ark. LEXIS 1714

• Court: Supreme Court of Arkansas
• Decided: June 18, 1984
• Docket: CR 84-58
• Status: Published

Opinions

Richard B. Adkisson, Chief Justice.

Appellant, Ralph Lewis Kramer, was tried and convicted by the court of sexual abuse, 1st degree, in violation of the Ark. Stat. Ann. § 41-1808 (Repl. 1977) and sentenced to four years imprisonment. On appeal appellant argues the evidence is insufficient to support the conviction. We agree.

The victim, a twelve-year-old girl, testified that on June 19,1983, while she was standing in line to get a soft drink in a store, appellant touched her on her buttocks. Appellant argues that the sexual abuse statute does not prohibit touching of the buttocks and that therefore the evidence is insufficient to support the conviction.

Ark. Stat. Ann. § 41-1808 (Repl. 1977) provides:

(1) A person commits sexual abuse in the first degree if:

(c) being eighteen (18) years or older he engaged in sexual conduct with a person not his spouse who is less than fourteen (14) years old.

Sexual contact is defined in Ark. Stat. Ann. § 41-1801(8) (Repl. 1977) as follows:

(8) “Sexual conduct” means any act of sexual gratification involving the touching of the sex organs or anus of a person, or the breast of a female.

It has long been held that penal statutes are to be strictly construed with all doubts resolved in favor of the defendant, and nothing is taken as intended which is not clearly expressed. Austin v. State, 259 Ark. 802, 536 S.W.2d 699 (1976); Scarmardo v. State, 263 Ark. 396, 565 S.W.2d 414 (1978). Touching of the buttocks is not prohibited sexual conduct as defined in Ark. Stat. Ann. § 41-1801(8); therefore appellant’s conviction cannot stand under this statute.

Reversed and dismissed.

Purtle, J., concurs. Hickman and Hays, JJ., dissent.