Conviction Reversed on Appeal David Waldon Paschal, Elkins, Arkansas (convicted 2012)

Discussion in 'Tomcats' started by TMP, Apr 2, 2013.

  1. TMP

    TMP Himself

    Paschal David.jpg

    David Waldon Paschal, 38, teacher at Elkins High School, Elkins Public Schools, Elkins, Arkansas, "convicted last year of four counts of second-degree sexual assault for having an affair with an 18-year-old female student"

    UK Daily Mail: 'Fundamental right': Arkansas overturns ban on teachers having sex with students - IF the student is 18 (Mar 29 2013)

    Teachers in Arkansas can now have sex with their students if they are 18 or older after a state law that banned the practice was overturned Thursday. The state's Supreme Court ended the ban that prevented teachers from having a sexual relationship with students who were under the age of 21. The decision sides with David Paschal, a teacher at Elkins High School, who was convicted last year of four counts of second-degree sexual assault for having an affair with an 18-year-old female student.

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    David Paschal, Elkins, Arkansas, Elkins High School, Elkins Public Schools
  2. TMP

    TMP Himself

    I wonder if this decision was based solely on Arkansas law & the Arkansas Constitution, or if it relied in any way on Federal law or the U.S. Constitution? If it involved any federal issues, the prosecution can appeal the the U.S. Supreme Court, which which case it might not be over yet.

    Updated to add: I inserted the full text of the decision below, starting at post #4, but I have not yet had time to read it.
     
  3. TMP

    TMP Himself

    Chicago Tribune: Arkansas court overturns ban on teacher-student sex (Mar 29 2013)

    The Arkansas Supreme Court struck down a state law on Thursday that banned teachers from having sex with students under age 21, overturning a sexual assault conviction against a former teacher who had a consensual relationship with an 18-year-old student. In a 4-3 decision, the court vacated the conviction against David Paschal, a former teacher in the Elkins School District in northern Arkansas, because the girl was legally an adult during the relationship.[​IMG] For about five months, Paschal, then 36, had a consensual sexual relationship with the female student at Elkins High School, according to court documents. The girl had been a student of Paschal in tenth and eleventh grades, and she later became his classroom aide and offered to babysit his children. The two began their affair in 2009, when she was a senior, and Paschal was arrested the following year. In 2011, he was convicted of four counts of second-degree sexual assault and one count of bribing a witness at a jury trial last year. He was sentenced to 30 years in prison.

    Reuters: Arkansas court overturns ban on teacher-student sex (Mar 29 2013)
     
  4. TMP

    TMP Himself

    The court decision, courtesy Arkansas Times (part 1 or 4):

    Cite as 2012 Ark. 127
    SUPREME COURT OF ARKANSAS
    No. CR 11-673
    DAVID WALDON PASCHAL
    APPELLANT
    V.
    STATE OF ARKANSAS
    APPELLEE
    Opinion Delivered March 29, 2012
    APPEAL FROM THE WASHINGTON
    COUNTY CIRCUIT COURT,
    [NO. CR-10-1392-1, CR-10-1909-1]
    HONORABLE WILLIAM A. STOREY,
    JUDGE
    AFFIRMED IN PART; REVERSED
    AND REMANDED IN PART;
    REVERSED AND DISMISSED IN
    PART.
    JIM HANNAH, Chief Justice
    Appellant David Waldon Paschal was convicted of four counts of second-degree
    sexual assault and one count of witness bribery. He was sentenced to ten years’ imprisonment
    on each of three of the sexual-assault convictions, given ten years’ suspended sentence for the
    fourth sexual-assault conviction, and fined $4000 1 for the witness-bribery conviction. On
    appeal, Paschal contends that the circuit court erred in (1) denying his motion for directed
    verdict on the witness-bribery charge, (2) refusing to admit evidence of bias on the part of
    the State’s chief witness-bribery-charge witness, (3) failing to sever the witness-bribery
    charge, (4) finding the second-degree sexual-assault statute constitutional as it was applied to
    1The judgment and commitment order stated that the sentences on the sexual-assault
    counts were “to run consecutively for a total of 480 months . . . with 120 suspended and 360
    to serve.”
    Cite as 2012 Ark. 127
    him, (5) admitting certain witness testimony during the penalty phase, and (6) rejecting
    proffered jury instructions. We affirm in part, reverse and remand in part, and reverse and
    dismiss in part.
    I. Sufficiency of the Evidence: Witness Bribery
    Paschal contends that the circuit court erred in denying his motion for directed verdict
    on the charge of witness bribery. On appeal, we 2 treat a motion for directed verdict as a
    challenge to the sufficiency of the evidence. E.g., Smoak v. State, 2011 Ark. 529, ___ S.W.3d
    ___. In reviewing a challenge to the sufficiency of the evidence, this court determines
    whether the verdict is supported by substantial evidence, direct or circumstantial. Id.
    Substantial evidence is evidence forceful enough to compel a conclusion one way or the
    other beyond suspicion or conjecture. Id. This court views the evidence in the light most
    favorable to the verdict, and only evidence supporting the verdict will be considered. Id.
    Arkansas Code Annotated section 5-53-108 provides in relevant part that a person
    commits witness bribery if he or she
    (1) Offers, confers, or agrees to confer any benefit upon a witness or a person he or
    she believes may be called as a witness with the purpose of:
    (A) Influencing the testimony of that person;
    (B) Inducing that person to avoid legal process summoning that person to testify; or
    (C) Inducing that person to absent himself or herself from an official proceeding to
    2Although Paschal’s challenge to the denial of the directed-verdict motion was not his
    first point on appeal, protection of Paschal’s double-jeopardy rights requires that we address
    such an argument prior to addressing other asserted trial errors. E.g., Sullivan v. State, 2012
    Ark. 74, ___ S.W.3d ___.
    2
    Cite as 2012 Ark. 127
    which that person has been legally summoned.
    Ark. Code Ann. § 5-53-108(a)(1) (Repl. 2005). An “official proceeding” is “a proceeding
    heard before any legislative, judicial, administrative, or other government agency or official
    authorized to hear evidence under oath, including any referee, hearing examiner,
    commissioner, notary, or other person taking testimony or depositions in any such
    proceeding.” Id. § 5-53-101(4)(A). “Testimony” means “an oral or written statement,
    document, or any other material that is or could be offered by a witness in an official
    proceeding.” Id. § 5-53-101(5).
    Paschal, a high school teacher, had a months-long sexual relationship with eighteenyear-
    old A.D., a student at Elkins High School, where Paschal taught. Principal Rebecca
    Martin testified that on May 5, 2010, A.D. and her mother contacted school officials and
    informed them that A.D. and Paschal had engaged in a sexual relationship. Martin testified
    that Paschal told her that he knew his sexual relationship with A.D. was illegal and that he
    was concerned about whether his actions would have an effect on his career and his
    relationship with his children. Fayetteville Police Department Detective Jonathon Snyder
    interviewed Paschal that day in the school superintendent’s office, and Paschal admitted that
    he had engaged in a sexual relationship with A.D. On June 2, 2010, Snyder arrested Paschal,
    and he was formally charged with four counts of second-degree sexual assault on August 13,
    2010.
    S.C., a senior at Elkins High School, testified that Paschal was his AP World History
    teacher during his junior year. S.C. said that A.D. was his friend and a year ahead of him in
    3
    Cite as 2012 Ark. 127
    school. S.C. stated that he worked at the local Wal-Mart and that Paschal knew that he
    worked there. In June 2010, while S.C. was returning to work from a break, Paschal waved
    at him and walked up to him. According to S.C., Paschal said, “[A.D.] knows that she’s not
    gonna get any money out of this and if it’s money she wants, I’ll give her a couple of
    thousand if she’ll drop the case.” S.C. testified that he attempted to contact A.D. through
    several of her friends, but when he was unable to make contact with her, he told Ms. Taylor,
    a geometry teacher at the school, what Paschal had told him. S.C. also stated that he told law
    enforcement officers what Paschal had said. S.C. identified Paschal in the courtroom as the
    person who had asked him to contact A.D. and offer her money.
    Paschal contends that there was no evidence presented to the jury that he had offered
    A.D. money through S.C. for the purpose of influencing her testimony, inducing her to
    avoid legal process, or inducing her to absent herself from a legal proceeding to which she
    had been legally summoned. Paschal states that the conversation with S.C., which occurred
    in June 2010, was “a month or two” before he was formally charged in August 2010, so
    there were no legal proceedings at issue. Paschal contends that the evidence illustrates
    nothing more than his attempt to resolve the matter without all the attention of a trial, much
    like when prosecutors offer defendants plea offers in an attempt to resolve a pending case.
    We find no merit in Paschal’s argument.
    Paschal was in no position to attempt to “negotiate” with A.D. The State has the
    authority to bring criminal charges, irrespective of whether the victim wishes to pursue those
    charges. See, e.g., Clay v. State, 236 Ark. 398, 403 n.4, 366 S.W.2d 299, 303 n.4 (1963)
    4
    Cite as 2012 Ark. 127
    (noting that the State is the party in the criminal prosecution, not the victim). According to
    S.C., Paschal told him to tell A.D. that he would give her money if she would “drop the
    case” against him. While the decision to bring criminal charges was the State’s and not
    A.D.’s, A.D.’s allegations formed the basis of the State’s case, and the State needed her
    cooperation as a witness. When Paschal spoke to S.C., he was aware that criminal charges
    against him were being investigated by the police, and Paschal was likely aware that A.D.
    could give a sworn statement for use against him in a criminal prosecution. Finally, even
    though Paschal’s conversation with S.C. took place before formal charges were filed, the
    statute does not require that a criminal case or any other “official proceeding” actually be
    pending at the time of the offer. S.C.’s testimony established that Paschal offered to confer
    a benefit upon A.D. with the purpose of influencing her testimony. We hold that there is
    substantial evidence to support a conviction for witness bribery. The circuit court did not err
    in denying Paschal’s motion for directed verdict.
    II. Admission of Evidence of Bias
    Paschal contends that the circuit court abused its discretion in rejecting his proffered
    evidence of the bias of S.C. The decision to admit or exclude evidence is within the sound
    discretion of the circuit court, and we will not reverse a circuit court’s decision regarding the
    admission of evidence absent a manifest abuse of discretion. E.g., Rollins v. State, 362 Ark.
    279, 208 S.W.3d 215 (2005).
    At trial, Paschal sought to introduce evidence that S.C.’s father was sued in 2009 in
    a quiet-title action by J.P. Corporation of Northwest Arkansas, a corporation in which
    5
    Cite as 2012 Ark. 127
    Paschal’s father held an interest. The corporation lost the lawsuit, and title to the property
    was quieted in S.C.’s father on May 11, 2009. During voir dire examination of S.C., S.C.
    testified that he lived on the property at issue in the lawsuit and that he knew that Paschal’s
    family was “on the other side of the lawsuit.” Neither S.C. nor Paschal was a party to the
    lawsuit, and S.C. said that he was not affected by the lawsuit “in any form or fashion.” S.C.
    testified that the extent of his knowledge of the lawsuit was “just hearing, just second-hand,
    just hearing it from my parents.” The circuit court concluded that the evidence was not
    relevant, that it had no probative value, and that it would be prejudicial.
    The State contends that the circuit court did not abuse its discretion by refusing the
    evidence because neither S.C. nor Paschal was a party to the lawsuit, which had ended
    favorably to S.C.’s father. The State also points out that the lawsuit ended in May 2009,
    which was nearly two years before S.C.’s testimony at Paschal’s trial and over a year prior to
    Paschal’s witness-bribery attempt.
    As a general rule, all relevant evidence is admissible. Ark. R. Evid. 402 (2011).
    Relevant evidence is “evidence having a tendency to make the existence of any fact that is
    of consequence to the determination of the action more or less probable than it would be
    without the evidence.” Ark. R. Evid. 401. Relevant evidence “may be excluded if its
    probative value is substantially outweighed by the danger of unfair prejudice, confusion of
    the issues, or misleading the jury, or by considerations of undue delay, waste of time, or
    needless presentation of cumulative evidence.” Ark. R. Evid. 403.
    “A witness’s credibility is always an issue, subject to attack by any party.” Fowler v.
    6
    Cite as 2012 Ark. 127
    State, 339 Ark. 207, 219, 5 S.W.3d 10, 16 (1999). The scope of cross-examination extends
    to matters of credibility. See Ark. R. Evid. 611(b). A matter is not collateral if the evidence
    is relevant to show bias. Fowler, 339 Ark. at 219, 5 S.W.3d at 16. Proof of bias is “almost
    always relevant because the jury, as finder of fact and weigher of credibility, has historically
    been entitled to assess all evidence which might bear on the accuracy and truth of a witness’
    testimony.” Id., 5 S.W.3d at 16–17 (quoting United States v. Abel, 469 U.S. 45, 52 (1984)).
    “In other words, matters affecting the credibility of a witness are always relevant.” Id., 5
    S.W.3d at 17.
    S.C. was the State’s chief witness for the witness-bribery charge, and Paschal sought
    to attack S.C.’s credibility by offering evidence of proof of bias. We disagree with the circuit
    court’s finding that the evidence was not relevant. The jury should have been allowed to
    hear this evidence because it might have borne on the accuracy and truth of S.C.’s testimony.
    The circuit court abused its discretion in refusing to admit evidence of the proof of bias of
    S.C.
    Before leaving this point, we note that, in his brief on appeal, Paschal contends that
    this situation—where the only evidence of guilt is the testimony of a single witness—should
    be treated like one in which the testimony of an accomplice is relied upon by the
    government and that the denial of cross-examination in such an instance may constitute a
    violation of the Sixth Amendment right of confrontation. Paschal did not make this
    argument to the circuit court; therefore, it is not preserved for our review. Our law is well
    settled that issues raised for the first time on appeal, even constitutional ones, will not be
    7
     
  5. TMP

    TMP Himself

    The court decision, courtesy Arkansas Times, continued (part 2 or 4):

    Cite as 2012 Ark. 127
    considered on appeal. E.g., Davis v. State, 2009 Ark. 478, 348 S.W.3d 553.
    III. Constitutionality of Arkansas Code Annotated section 5-14-125(a)(6)
    Paschal next contends that the circuit court erred in finding that section 5-14-
    125(a)(6) was constitutional as applied in this case. Statutes are presumed constitutional, and
    the burden of proving otherwise is on the challenger of the statute. E.g., Jefferson v. State, 372
    Ark. 307, 276 S.W.3d 214 (2008). If it is possible to construe a statute as constitutional, we
    must do so. Id. Because statutes are presumed to be framed in accordance with the
    Constitution, they should not be held invalid for repugnance thereto unless such conflict is
    clear and unmistakable. Id.
    Arkansas Code Annotated section 5-14-125(a)(6) (Supp. 2009), in effect at the time
    of the crimes charged, provided that “[a] person commits sexual assault in the second degree
    if the person s a teacher in a public school in a grade kindergarten through twelve (K-12)
    and engages in sexual contact with another person who 3 is [a] student enrolled in the public
    school and [l]ess than twenty-one (21) years of age.” The record reveals that A.D. was an
    adult4 when she engaged in a sexual relationship with Paschal, and the State does not dispute
    Paschal’s contention that the sexual relationship was consensual. Paschal contends that,
    3“‘Sexual contact’ means any act of sexual gratification involving the touching, directly
    or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a
    female.” Ark. Code Ann. § 5-14-101(10) (Supp. 2009).
    4A.D. testified that she was eighteen when she began having a sexual relationship with
    Paschal. “All persons of the age of eighteen (18) years shall be considered to have reached the
    age of majority and be of full age for all purposes. Until the age of eighteen (18) years is
    attained, they shall be considered minors.” Ark. Code Ann. § 9-25-101(a) (Repl. 2009).
    8
    Cite as 2012 Ark. 127
    because he and A.D. were adults engaged in a consensual sexual relationship, the statute
    unconstitutionally infringes on a fundamental right. In support of his argument, Paschal relies
    on the United States Constitution’s protection of the right to privacy, see Lawrence v. Texas,
    539 U.S. 558 (2003), as well as the Arkansas Constitution’s 5 protection for “all private,
    consensual, noncommercial acts of sexual intimacy between adults,” see Jegley v. Picado, 349
    Ark. 600, 632, 80 S.W.3d 332, 350 (2002). Paschal asserts that, because section 5-14-
    125(a)(6) infringes on a fundamental right and because the statute is not the least restrictive
    method available for the promotion of a state interest, it is unconstitutional.
    The State responds that there is no fundamental right for a public high school teacher
    to have sex with an eighteen-year-old high school student enrolled in that public school. In
    support of its argument, the State cites Talbert v. State, 367 Ark. 262, 239 S.W.3d 504 (2006).
    In Talbert, the defendant, a minister, challenged the constitutionality of Arkansas Code
    Annotated section 5-14-126(a)(1)(B) (Repl. 2006), which provides that “[a] person commits
    sexual assault in the third degree if the person [e]ngages in sexual intercourse or deviate
    sexual activity with another person who is not the actor’s spouse, and the actor is . . . a
    member of the clergy and is in the position of trust or authority over the victim and uses the position
    of trust or authority to engage in sexual intercourse or deviate sexual activity.” (Emphasis added.)
    Citing Lawrence and Picado, Talbert contended that the statute violated his federal and
    state constitutional rights to engage in private, consensual sex with other adults. Talbert, 367
    5In Lawrence, the United States Supreme Court found unconstitutional a Texas statute
    making it a crime for two persons of the same sex to engage in certain intimate sexual
    conduct.
    9
    Cite as 2012 Ark. 127
    Ark. at 269–70, 239 S.W.3d at 511–12. We rejected Talbert’s challenge under the United
    States Constitution, concluding that, “substantive due process, including his right to engage
    in private, consensual sex, protects an individual’s liberty interest under the United States
    Constitution ( Lawrence, supra), but Talbert has no liberty interest to engage in sexual activity
    by using his position of trust and authority.” Id. at 269, 239 S.W.3d at 511. We also rejected
    Talbert’s challenge under the Arkansas Constitution and held that section 5-14-126(a)(1)(B)
    did “not infringe upon Talbert’s fundamental right to have private, consensual sex” because
    “[t]he conduct criminalized by the statute is the use of trust and authority as a minister over
    individuals to engage in unwanted sexual activity with them.” Id. at 270, 239 S.W.3d at 512.
    Further, we noted that the Talbert case was distinguishable from Picado because the “conduct
    criminalized in [Picado] was purely consensual, 6 whereas the conduct criminalized” in Talbert
    was not. Id., 239 S.W.3d at 512.
    Paschal contends that Talbert is distinguishable from the instant case. He asserts that
    there is a constitutional difference between the coerced sexual conduct that was present in
    Talbert and the consensual, noncommercial acts of sexual intimacy that are present in his case.
    We agree. The State misapprehends the issue when it asserts that there is no fundamental
    right for a public high school teacher to have sex with an eighteen-year-old high school
    student enrolled in that school. The issue is whether the statute, as applied in this case,
    6In Picado, the court held that Arkansas’s sodomy statute, Arkansas Code Annotated
    section 5-14-122, was “unconstitutional as applied to private, consensual, noncommercial,
    same-sex sodomy.” 349 Ark. at 632, 80 S.W.3d at 350.
    10
    Cite as 2012 Ark. 127
    infringes on Paschal’s fundamental right to engage in private, consensual, noncommercial acts
    of sexual intimacy with an adult. We hold that it does.
    “[T]he fundamental right to privacy implicit in our law protects all private,
    consensual, noncommerical acts of sexual intimacy between adults.” Picado, 349 Ark. at 632,
    80 S.W.3d at 350. Section 5-14-125(a)(6) criminalizes consensual sexual contact between
    adults. While it is possible that the General Assembly intended to criminalize a teacher’s use
    of his or her position of trust or authority over an adult student to procure sex, section 5-14-
    125(a)(6) contains no language evincing such intent. While we might be inclined to assume
    the General Assembly so intended, we are constrained from making such assumptions. This
    court strictly construes criminal statutes, resolving any doubts in favor of the accused. E.g.,
    Brown v. State, 375 Ark. 499, 292 S.W.3d 288 (2009). This court cannot, and should not, by
    construction or intendment, create offenses under statutes that are not in express terms
    created by the legislature. E.g., Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002).
    Nothing is taken as intended which is not clearly expressed, and this court is without
    authority to declare an act to come within the criminal laws of the state merely by
    implication. See, e.g., Hekkila v. State, 352 Ark. 87, 98 S.W.3d 805 (2003).
    As applied in this case, section 5-14-125(a)(6) criminalizes consensual sexual conduct
    between adults and, therefore, we conclude that the statute infringes on Paschal’s
    11
    Cite as 2012 Ark. 127
    fundamental right to privacy. A statute that infringes 7 on a fundamental right is subject to
    strict-scrutiny review, and the statute cannot survive unless “a compelling state interest is
    advanced by the statute and the statute is the least restrictive method available to carry out
    [the] state interest.” Picado, 349 Ark. at 632, 80 S.W.3d at 350 (quoting Thompson v. Ark.
    Social Servs., 282 Ark. 369, 374, 669 S.W.2d 878, 880 (1984)).
    The State does not claim a compelling state interest in its brief to this court. Rather,
    it contends that the Arkansas Constitution clearly contemplates the preservation of a special
    learning environment for high school students through the age of twenty-one and that the
    State has a legitimate interest in protecting that environment. Citing article 14, section 1 of
    the Arkansas Constitution, the State avers that Arkansans aged six through twenty-one have
    a constitutional right to a public education in a “general, suitable and efficient” public school
    system, and the State is required to use “all suitable means to secure to the people the
    7We find it perplexing that one of the dissenting justices chooses to ignore this court’s
    binding precedent and instead turns to cases from other jurisdictions to determine whether
    an Arkansas statute, section 5-14-125(a)(6), as applied in this case, violates the fundamental
    right to privacy found in the Arkansas Constitution. See Flaskamp v. Dearborn Pub. Sch., 385
    F.3d 935 (6th Cir. 2004) (holding that a school board’s denial of tenure to a teacher who had
    allegedly engaged in a sexual relationship with a high school student within nine months of
    the student’s graduation did not violate the teacher’s federal constitutional rights); State v.
    McKenzie-Adams, 915 A.2d 822 (Conn. 2007) (holding that a statute criminalizing sexual
    intercourse between a teacher and a student was not unconstitutional under the United States
    Constitution and the Connecticut Constitution), overruled on other grounds by State v. Payne, 34
    A.3d 370 (Conn. 2012); State v. Hirschfelder, 242 P.3d 876 (Wash. 2010) (holding that a
    statute criminalizing sexual conduct between teachers and students was not void for
    vagueness and did not violate the teacher’s right to equal protection under the United States
    Constitution).
    12
    Cite as 2012 Ark. 127
    advantages and opportunities of education.” The State contends that section 5-14-125(a)(6)
    preserves the special learning environment because it protects all high school students,
    regardless of their age, from the sexual advances of teachers who have special authority and
    control over such students. Further, the State contends that, even if the relationship is
    consensual, the statute is designed to protect persons, both minors and adults, from people
    who have power, authority, or control over them on a day-to-day basis. As we understand
    the argument, the State asserts that it has an interest in protecting adult students from the
    sexual advances of teachers who have power, authority, or control over them.
    Assuming that the State has asserted a compelling state interest and assuming that
    section 5-14-125(a)(6) advances that interest, we must 8 determine whether the statute is the
    least restrictive method available to carry out the State’s interest. We recognized in Picado that
    “the State has a clear and proper role to protect the public from offensive displays of sexual
    behavior, to protect people from forcible sexual conduct, and to protect minors from sexual
    abuse by adults,” 349 Ark. at 637, 80 S.W.3d at 353 (citing Commonwealth v. Bonadio, 415
    A.2d 47 (Pa. 1980)), and that “criminal statutes, including those proscribing indecent
    exposure, rape, statutory rape, and the like, are in existence to protect the public from
    precisely such harms.” Id., 80 S.W.3d at 353. Likewise, we recognize that the State has an
    interest in protecting adult students from the sexual advances of teachers. But section 5-14-
    8We must make this assumption because the State, concluding that Paschal’s
    fundamental right to privacy was not violated, did not address Paschal’s contention that the
    statute was subject to strict-scrutiny review.
    13
    Cite as 2012 Ark. 127
    125(a)(6), which criminalizes adult consensual sex, is not the least restrictive method available
    to carry out the State’s interest. Moreover, the State’s interest is already advanced in section
    5-14-126(a)(1)(C) (Supp. 2011), which prohibits a mandated reporter9 in a position of trust
    or authority over a victim from using the position of trust or authority to engage in sexual
    intercourse or deviate activity.10 Section 5-14-125(a)(6), as applied in this case, infringes on
    9Mandated reporters have a duty to notify the Child Abuse Hotline if they have
    reasonable cause to suspect that a child has been subjected to child maltreatment or that a
    child has died as a result of child maltreatment. Ark. Code Ann. § 12-18-402(a) (Supp. 2011).
    A teacher is a mandated reporter. Id. § 12-18-402(b)(26).
    10Oddly, the dissents repeatedly refer to Paschal’s misuse of his position of trust or
    authority when that is not at issue in this case. Section 5-14-125(a)(6) is a strict-liability
    statute. The State was required to prove only that, while Paschal was a teacher, he had sexual
    contact with a student who was less than twenty-one years of age. We find appalling the
    statement from one of the dissenting justices that the majority’s interpretation of the statute
    condones a teacher’s misuse of trust or authority. A cursory glance at section 5-14-125(a)(6)
    reveals that the statute contains no language regarding trust or authority, much less the misuse
    of that trust or authority. The majority’s interpretation can hardly condone conduct that is
    not mentioned in the statute.
    Another dissenting justice writes that the majority has suggested that, because the
    words “trust or authority” are not included in the statute, “a teacher may not be aware of the
    fact that he or she holds such a position vis-á-vis a student, which apparently, according to
    the majority’s reasoning, somehow permits that unknowing teacher to have sex with an
    eighteen-year-old student.” Not only does the majority make no such suggestion, but
    Paschal never contended that he was unaware that he held a position of trust or authority in
    the school. The dissent’s manufacturing of an issue is both injudicious and irresponsible.
    The interpretation of section 5-14-125(a)(6) favored by the dissenting justices—which
    would require this court to add words to the statute and thus add elements to the
    crime—amounts to legislation by judicial fiat. Despite the dissents’ apparent willingness to
    do so, we will not usurp the General Assembly’s legislative role by reading language into the
    statute.
    14
     
  6. TMP

    TMP Himself

    The court decision, courtesy Arkansas Times, continued (part 3 or 4):

    Cite as 2012 Ark. 127
    a fundamental right and is not the least restrictive method available for the promotion of a
    state interest; therefore, it is unconstitutional. Because we conclude that the statute is
    unconstitutional on this basis, we need not address the remaining constitutional challenges
    to the statute. Bayer CropScience LP v. Schafer, 2011 Ark. 518, ___ S.W.3d ___.
    We feel compelled to point out that the dissenting justices would like to have before
    them a very different statute than what the General Assembly provided in section 5-14-
    125(a)(6). Regardless of how we feel about Paschal’s conduct, which could correctly be
    referred to as reprehensible, we cannot abandon our duty to uphold the rule of law when a
    case presents distasteful facts.
    Paschal’s convictions for sexual assault in the second degree are reversed and dismissed.
    Finally, because we reverse and dismiss those charges, we need not address Paschal’s
    remaining arguments on appeal.
    Affirmed in part; reversed and remanded in part; reversed and dismissed in part.
    DANIELSON, J., concurs in part and dissents in part.
    BROWN, GUNTER, and BAKER, JJ., dissent in part and concur in part.
    PAUL E. DANIELSON, Justice, concurring in part and dissenting in part. I concur with
    the majority opinion to the extent that it reverses and dismisses Paschal’s convictions for
    sexual assault in the second degree. I respectfully dissent, however, from the majority’s
    affirmance of Paschal’s conviction for witness bribery.
    Arkansas Code Annotated § 5-53-108 provides, in pertinent part:
    15
    Cite as 2012 Ark. 127
    (a) A person commits witness bribery if he or she:
    (1) Offers, confers, or agrees to confer any benefit upon a witness or a person
    he or she believes may be called as a witness with the purpose of:
    (A) Influencing the testimony of that person;
    (B) Inducing that person to avoid legal process summoning that person to
    testify; or
    (C) Inducing that person to absent himself or herself from an official proceeding
    to which that person has been legally summoned; or
    Ark. Code Ann. § 5-53-108(a) (Repl. 2005). Because Paschal’s statement to S.C. was clearly
    not an attempt to induce A.D. to avoid legal process under subsection (B), or to absent herself
    from an official proceeding to which she had been summoned under subsection (C), it seems
    to me that the sole provision under which Paschal could be convicted had to be subsection
    (A). Paschal’s statement surely constituted an offer to confer a benefit on A.D. Even
    assuming that A.D. was a person he believed might be called as a witness against him, the
    question, then, is did Paschal offer to confer a benefit with the purpose of influencing A.D.’s
    testimony. Contrary to the majority, I cannot say that he did.
    “Testimony” “includes an oral or written statement, document, or any other material
    that is or could be offered by a witness in an official proceeding.” Ark. Code Ann. § 5-53-
    101(5) (Repl. 2005). To constitute witness bribery, then, Paschal was required to offer or
    agree to confer a benefit on A.D. with the purpose of influencing her oral or written
    statement that was or could be offered by her in an official proceeding. In my opinion,
    Paschal’s offer of money to “drop the charges” in no way equates to an offer of money with
    the purpose of influencing one’s statements at an official proceeding. At the time of the offer,
    no official proceeding was pending, and while it may not have been within A.D.’s ability to
    16
    Cite as 2012 Ark. 127
    “drop the charges,” there was no evidence to demonstrate that Paschal knew or did not know
    of that fact. At most, Paschal’s statement could be construed as an offer with the purpose of
    enticing a lack of cooperation with police. To construe Paschal’s statement as one to
    influence testimony simply reads too much into his offer.
    This court must strictly construe criminal statutes and resolve any doubts in favor of
    the defendant. See Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002). With that in
    mind, it is my opinion that there was insufficient evidence to sustain Paschal’s conviction for
    witness bribery. As the majority opinion correctly points out,
    [t]his court cannot, and should not, by construction or intendment, create offenses
    under statutes that are in express terms created by the legislature. E.g., Williams v.
    State, 347 Ark. 728, 67 S.W.3d 548 (2002). Nothing is taken as intended which is not
    clearly expressed, and this court is without authority to declare an act to come within
    the criminal laws of the state merely by implication. See, e.g., Hekkila v. State, 352
    Ark. 87, 98 S.W.3d 805 (2003).
    Unfortunately, here, the majority is doing that which it cannot. It is construing the statute
    to include an act not clearly expressed. Had the General Assembly wished to do so, it could
    have included an offer to “drop the charges” as a type of witness bribery. It did not do so,
    and I therefore respectfully dissent on this issue. Because I would do so, there would be no
    need to address Paschal’s remaining claim regarding bias.
    ROBERT L. BROWN, Justice, dissenting in part and concurring in part. The majority
    holds that the following statute is unconstitutional as applied to a thirty-six-year-old teacher
    who was engaged in a sexual affair with an eighteen-year-old high school senior for five
    months. I disagree and would not hold that the statute is unconstitutional as applied.
    17
    Cite as 2012 Ark. 127
    The statute in question reads as follows:
    (a) A person commits sexual assault in the second degree if the person:
    . . .
    (6) Is a teacher in a public school in a grade kindergarten through twelve (K-12) and
    engages in sexual contact with another person who is:
    (A) A student enrolled in the public school; and
    (B) Less than twenty-one years of age.
    Ark. Code Ann. § 5-14-125(a)(6) (Repl. 2009).
    The majority’s analysis is wrong for several reasons. As an initial matter, it erroneously
    equates the adult relationship in Jegley v. Picado, which involved consenting same-sex couples
    who clearly were on an equal footing as adults, to a student-teacher relationship in high
    school where the teacher is without question the authority figure. See Picado, 349 Ark. 600,
    80 S.W.3d 332 (2002). In doing so, the majority skews and minimizes the role of a teacher
    and views a sexual affair between a high school student and teacher as merely one between
    consenting adults. That view distorts the facts of this case and discards the valid objective of
    the General Assembly to criminalize this conduct.
    The majority hangs its hat in part on the fact that the relevant subsection cited above
    does not use the words “trust or authority” in describing the relationship between a teacher
    and student in grades K through 12. What the majority suggests is that without those words,
    a teacher may not be aware of the fact that he or she holds such a position vis-à-vis a student,
    which apparently, according to the majority’s reasoning, somehow permits that unknowing
    teacher to have sex with an eighteen-year-old student. That of course is preposterous. Any
    teacher knows that he or she occupies a position of trust or authority in the school. This
    18
    Cite as 2012 Ark. 127
    court has recognized that teachers occupy a position of authority over their students. See
    Logan v. State, 299 Ark. 266, 273, 773 S.W.2d 413, 416 (1989) (recognizing the “authority
    relationship” between a teacher and a minor student in the context of a rape conviction);
    Smith v. State, 354 Ark. 226, 238, 118 S.W.3d 542, 549 (2003) (“School district employees
    are authority figures to minor children . . . The State has an interest in the general welfare of
    children, and it certainly has an interest in making laws which punish school district
    employees who abuse their positions of trust and authority to facilitate inappropriate
    relationships with children.”). For the majority to say that such authority vanishes when a
    student turns eighteen ignores the realities of the student-teacher relationship.
    The focus of the majority opinion is on a right to privacy gleaned from our Picado
    decision. Certainly in Picado we held that a right to privacy exists for consenting adults to
    have sexual relations in the privacy of their homes. See Ark. Dep’t of Human Servs. v. Cole,
    2011 Ark. 145, at 14 (recognizing the fundamental right of privacy to engage in private,
    consensual, noncommercial intimacy in the privacy of the home). But this court has never
    held or even suggested that a fundamental right of privacy exists to enable high school
    teachers to have sex with the school’s enrolled students. In doing so, the majority either
    overlooks or dismisses the inherently unequal posture that a student is in with respect to a
    much older teacher. Here, Paschal had been the student’s teacher when she was a sophomore
    and junior in high school. She then became his teacher’s aide, and they began their affair after
    that during her senior year. The evolution of this sexual relationship in the school setting is
    19
    Cite as 2012 Ark. 127
    vastly different from that of the consenting adults in Picado and Cole.
    When faced with this same issue of a student-teacher relationship, other jurisdictions
    have determined that restrictions on these relationships do not infringe on the right to
    intimate association or privacy. In fact, the Sixth Circuit Court of Appeals has recognized that
    policies restricting student-teacher sexual relationships are not even entitled to strict scrutiny
    review, which obviously accompanies a substantial burden on a fundamental right. See
    Flaskamp v. Dearborn Pub. Sch., 385 F.3d 935, 942 (6th Cir. 2004). As the Flaskamp court
    wrote, only government action that has a “direct and substantial influence” on intimate
    association receives heightened review. Id. (citing Anderson v. City of LaVergne, 371 F.3d 879,
    882 (6th Cir. 2004)). Government action has a “direct and substantial influence” on intimate
    association “only where a large portion of those affected by the rule are absolutely or largely
    prevented from [forming intimate associations], or where those affected by the rule are
    absolutely or largely prevented from [forming intimate associations] with a large portion of
    the otherwise eligible population of [people with whom they could form intimate
    associations].” Flaskamp, 385 F.3d at 942 (brackets in original) (citing Vaughn v. Lawrenceburg,
    269 F.3d 703, 710 (6th Cir. 2001)).
    The Sixth Circuit went on to say in Flaskamp:
    n view of the importance of prohibiting teachers and students from beginning
    romantic relationships, a school board could act prophylactically in this area by
    prohibiting sexual relationships between teachers and former students within a year or
    two of graduation. Such a policy would prevent high school seniors from being
    perceived as prospects eligible for dating immediately after graduation; it would
    prevent interference with the education of other family members who still may be in
    20
     
  7. TMP

    TMP Himself

    The court decision, courtesy Arkansas Times, continued (part 4 or 4):

    Cite as 2012 Ark. 127
    school . . . ; and it would curb sexual harassment liability arising from claims that a
    policy against student-teacher relationships is not adequately enforced.
    Id. at 944 (emphasis added). Recognizing that Flaskamp did not involve a criminal statute,
    the myriad dangers of permitting student-teacher sexual relationships recognized by the Sixth
    Circuit apply equally to the facts of the case before us and reinforce the importance of the
    State’s interest in protecting students.
    The Connecticut Supreme Court has also determined that regardless of whether a
    fundamental right of sexual privacy exists, it would not protect sexual intimacy in the context
    of an inherently coercive relationship, such as the teacher-student relationship, wherein consent might
    not easily be refused. State v. McKenzie-Adams, 915 A.2d 822, 832 (Conn. 2007) (emphasis
    added), overruled on other grounds by State v. Payne, 34 A.3d 370 (Conn. 2012). Along the same
    lines, in State v. Hirschfelder, 242 P.3d 876 (Wash. 2010), a high school-choir teacher who was
    thirty-three had sexual intercourse with one of his students. The student was eighteen at the
    time. The teacher was charged under a statute that criminalized sexual intercourse by school
    employees with a registered student of the school who was at least sixteen years old and not
    married to the employee, if the employee is at least sixty months older than the student. Id.
    at 878. Under Washington’s law a registered student included persons up to the age of
    twenty-one. Id. at 878–80. Interestingly, when analyzing the equal-protection challenge to
    the statute, the Hirschfelder court noted that “nderstandably, [the teacher] does not claim that
    K–12 school employees have a fundamental or important right to sexual relations with
    registered students.” Id. at 883 (emphasis added).
    21
    Cite as 2012 Ark. 127
    In the face of this authority, the majority in this case cites no case law for its singular
    proposition that a right to privacy exists to enable a high school teacher to have sex with an
    enrolled student. That, in itself, is telling.
    The statute at issue in this case does not infringe on the non-job-related sexual activity
    of Paschal, or any other teacher, and it does not directly or substantially burden his right to
    engage in acts of sexual intimacy with other consenting adults. The State became interested
    in his sexual activity only after the student reported it. She testified that the relationship
    changed after she became Paschal’s aide and began working in his classroom during eighth
    period. She further testified that she and Paschal began talking on a more personal level
    during that time and that he told her he needed a babysitter over Christmas, and she offered
    to babysit. She added that sometimes she and Paschal would go to his home after eighth
    period and that he told her she could “never say anything” about being at his home. The
    affair lasted for about five months.
    Without question, Paschal used his job as a teacher to get close to an enrolled student
    to gain her trust and to propose that she come alone to his home after school. Even assuming
    that Paschal is entitled to strict-scrutiny review of the statute, which I do not for a moment
    concede, the statute is narrowly tailored to serve the State’s compelling interest in maintaining
    the integrity of the educational system because it only targets sexual conduct that occurs
    between teachers and enrolled students and does not directly or substantially burden non-jobrelated
    sexual conduct of teachers. See Cole, 2011 Ark. 145, at 19 (holding that the burden
    22
    Cite as 2012 Ark. 127
    on the fundamental right to sexual intimacy is direct and substantial when the State requires
    a person to give up the right entirely in order to qualify as an adoptive or foster parent).
    Once this opinion is handed down, there will be nothing to prevent sexual contact
    between high school teachers and enrolled students who have turned eighteen. This will
    cause significant disruption in our high schools and have a deleterious impact on education
    in general and the teacher-student dynamic in particular. That is completely contrary to the
    State’s duty, which is to protect its students in the public school setting against sexual advances
    and exploitation by teachers. That duty has been completely jeopardized and undermined by
    today’s decision.
    I respectfully dissent on this point and would affirm the conviction and sentence for
    second degree-sexual assault.
    On the issue of admission of evidence to show S.C.’s bias, which was disallowed, I
    agree that the circuit judge erred on this point. Accordingly, I would reverse the judgment
    for witness-bribery and send that count back for further proceedings.
    GUNTER and BAKER, JJ., join.
    KAREN R. BAKER, Justice, dissenting in part and concurring in part. I concur with
    the majority’s conclusions that Paschal’s conviction for witness bribery is supported by
    substantial evidence, but that the trial court erred in refusing to admit evidence of bias of S.C.
    However, I do not agree with the reversal and dismissal of his conviction for sexual assault in
    the second degree based on the majority’s holding that Arkansas Code Annotated section 5-
    23
    Cite as 2012 Ark. 127
    14-125(a)(6) is unconstitutional. Because I believe the majority’s conclusion that Paschal has
    a constitutionally protected fundamental privacy right to have sexual contact with an 18-yearold
    student at the school where he teaches is absurd, I dissent.
    Paschal argues that section 5-14-125(a)(6) is unconstitutional as applied to him. He
    asserts that because he and the student, A.D., were adults in a consensual sexual relationship,
    the statute infringes on his fundamental right to privacy under the U.S. Constitution, see
    Lawrence v. Texas, 539 U.S. 558 (2003) and Griswold v. Connecticut, 381 U.S. 479 (1960), and
    the Arkansas Constitution, see Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002). He
    contends that because the statute infringes on a fundamental right, this court should analyze
    it under strict scrutiny. The majority agrees.
    Paschal was convicted under the version of Arkansas Code Annotated section 5-14-
    125(a)(6) (Supp. 2009), which provided, in pertinent part, that a person commits seconddegree
    sexual assault if the person is “a teacher in a public school in a grade kindergarten
    through twelve (K-12) and engages in sexual contact with another person who is a student
    enrolled in the public school and less than twenty-one (21) years of age.” The effect of
    striking this provision in our Code is to legalize sexual contact between teachers and students
    who have not reached the age of 21. The majority does this by relying on the premise that
    a teacher and a student have a privacy right to engage in consensual sexual contact. I disagree.
    The right to privacy does not authorize such behavior between a high-school teacher and a
    student who is required under our laws to be in that school. See Ark. Code Ann. § 6-18-211
    24
    Cite as 2012 Ark. 127
    (requiring mandatory attendance for students in grades 9 through 12).
    The majority draws a distinction between the instant case and our decision in Talbert
    v. State, 367 Ark. 262, 239 S.W.3d 504 (2006). In Talbert, a minister was convicted of thirddegree
    sexual assault. He argued that the State cannot intrude into an individual’s right to
    engage in private, consensual sex with other adults, citing Lawrence, supra, and Jegley, supra.
    This court emphatically concluded that the statute did not infringe upon Talbert’s right to
    have private, consensual sex with other adults. Rather, the “conduct criminalized by the
    statute [in Talbert] is the use of trust and authority as a minister over individuals to engage in
    unwanted sexual activity with them.” Talbert, 367 Ark. at 270, 239 S.W.3d at 512. The
    statute before us now similarly criminalizes the conduct of a K–12 public-school teacher in
    having sexual contact with another person who is a student in the public school and less than
    21 years of age. Unlike Talbert, section 5-14-125(a)(6) does not include the language stating
    that the defendant “is in a position of trust or authority.” However, we have previously
    recognized that the “State has an interest in the general welfare of children, and it certainly
    has an interest in making laws which punish school district employees who abuse their
    positions of trust and authority to facilitate inappropriate relationships with children.” Smith
    v. State, 354 Ark. 226, 238, 118 S.W.3d 542, 549 (2003). In Smith, the statute at issue
    penalized school-district employees or others in a position of trust or authority. It is
    illustrative of the fact that the legislature did not see a need to penalize only those schooldistrict
    employees who were in a position of trust or authority: the relationship between
    25
    Cite as 2012 Ark. 127
    teacher and student is inherently one that places the teacher in a position of trust or authority
    by its very nature. By concluding that a teacher has a fundamental privacy right to engage
    in sexual contact with his 18-year-old student, the majority condones the misuse of this
    position of trust or authority. I can not agree that a teacher has a right protected by our
    constitution to engage in sexual contact with a student.
    I conclude the statute does not involve a fundamental right. If a statute does not
    burden a fundamental right or targets a suspect class, the legislative classification will be upheld
    if it bears a rational relation to some legitimate result. Romer v. Evans, 517 U.S. 620, 631
    (1996); see also Bosworth v. Pledger, 305 Ark. 598, 810 S.W.2d 918 (1991). The Texas Court
    of Appeals considered a challenge to a similar statute, and in concluding that the statute was
    constitutional, stated as follows: “We think it clear the State has at least a rational basis for
    passing the statute at issue. Protecting students in primary and secondary schools—even those
    of age—from the pressures, emotional strain, conflicts, distractions, and other difficulties
    brought on by sexual conduct with persons, not their spouse, employed at the students’
    schools is within the State’s legitimate interest.” In re Shaw, 204 S.W.3d 9, 17-18 (Tex. App.
    2006). I would likewise hold that the State has a legitimate interest in protecting high-school
    students from the difficulties that arise from sexual contact with teachers at their schools,
    conclude that the statute is constitutional, and affirm Paschal’s convictions for sexual assault.
    BROWN and GUNTER, JJ., join.
    26
     
  8. TMP

    TMP Himself

    Fox 16: Teacher-student sex legal if student 18yo (Mar 29 2013)

    The Arkansas Supreme court decides it is okay for teachers and students to have sex as long as the student is 18. The ruling is in response to an appeal by David Paschal, an Elkins High School teacher found guilty of having consensual sex with an 18-year-old student. State attorneys argued the law protects high school girls and boys from sexual advances by teachers. But the high court writes today regardless of how it feels about Paschal's conduct, the court can not abandon its duty to uphold the rule of law. Therefore, Paschal will have his convictions reversed and dismissed.
     
  9. TMP

    TMP Himself

    Good article, does more to put the decision in perspective than most of the other articles thus far ...

    NWA Home Page: AR Supreme Court Drops Law Banning Student-Teacher Sex (Mar 29 2013)

    The case involves an Elkins teacher convicted of having sex with one of his 18-year-old students. A University of Arkansas Law Professor saysthe ruling does not give teachers a get out of jail card when it comes to having sex with students over 18. The courts are there to make difficult decisions," said University Law Professor Brian Gallini. Thursday The Arkansas Surpreme Court made a difficult decision, striking down a law banning teachers from having sex with students over 18-years-old. "All this ruling does is uphold the ability of people who reach the age of consent to engage in consentual sex," said Gallini.
     
  10. TMP

    TMP Himself

    Arkansas Blog: Court rules sex contact law unconstitutional (Mar 29 2013)

    In a 4-3 decision, the State Supreme Court dismissed the sexual assault convictions of former Elkins teacher David Paschal, 38, and said a state law that criminalizes sexual contact between teachers and students who are over 18 years old is unconstitutional. "Regardless of how we feel about Paschal’s conduct, which could correctly be referred to as reprehensible, we cannot abandon our duty to uphold the rule of law when a case presents distasteful facts," Chief Justice Jim Hannah wrote in the majority opinion.
     
  11. TMP

    TMP Himself

    New York Daily News: Arkansas court overturns ban on teacher-student sex: Rules people 18 and older have a right to engage in consensual sexual relationship (Mar 30 2013)

    The court sided with 38-year-old David Paschal, an Elkins High School history and psychology teacher who admitted having a five-month consensual sexual relationship with an 18-year-old student ... Attorneys for the state argued the law protects high school students from sexual advances of teachers who are in positions of authority. But the high court found the law was unconstitutional because it criminalized sexual conduct between consenting adults. In a dissent, Justice Robert Brown said that the majority's opinion will cause disruption in high schools because there will be nothing to prevent teachers from having sex with students who are 18 or older.
     
  12. TMP

    TMP Himself

    Inquisitr: Arkansas Supreme Court Decides Teachers Can Have Sex With Students (Mar 30 2013)

    Horny teenage boys all over Arkansas will be happy to know that the states Supreme court on Thursday decided to allow sexual relations between teachers and students. Now before every over excited 15-year-old attempt to ogle their French teacher there is one big consideration, the student must be at least 18-years-old in order to meet the states age of consent rules. The Supreme Court in making its ruling struck down a state law that banned sexual contact between a student and their teacher. The court found that people 18 or older have a constitutional right to engage in consensual sexual relationships. It was 38-year-old David Paschal, an Elkins High School history and psychology who brought the case before the court after admitting that he engaged in a five-month long sexual relationship with an 18-year-old student.
     
  13. TMP

    TMP Himself

    Courthouse News Service: Teacher-Student Sex Is Now Legal in Arkansas (Apr 2 2013)

    Arkansas teachers can have sex with students who are age 18 and older, the state Supreme Court ruled, calling a ban on such conduct unconstitutional. In a 4-3 decision Thursday, the court said adult students, 18 and older, have a constitutional right to consensual sex. The age of consent in Arkansas is 16. The court reached this conclusion as it dismissed the sexual assault charges against David Paschal, 38, of Elkins, Ark., a teacher at Elkins High school.
     
  14. Dallas

    Dallas Guest

    All court documents regarding this post have been sealed by the State of Arkansas as of July 12, 2013. This thread needs to be removed.
     
  15. TMP

    TMP Himself

    Sealing court cases has no effect on media in this country, except perhaps to make reporting slightly more difficult in the future.

    Furthermore, your assertion that "all court documents ... have been sealed" is false. Perhaps the trial documents have been sealed, but the Arkansas Supreme Court decision (all 26 pages thereof) will be part of the public record forever:

    This thread will not be removed from public view.