Schermerhorn v. State , 500 S.W.3d 181 ( 2016 )

Cite as 2016 Ark. App. 395
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-15-774
Opinion Delivered September 14, 2016
FRANK SCHERMERHORN APPEAL FROM THE VAN BUREN
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-2012-33]
V.
HONORABLE H.G. FOSTER, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
BRANDON J. HARRISON, Judge
Frank Schermerhorn appeals two convictions for possessing or viewing matter
depicting sexually explicit conduct involving a child. A Van Buren County jury convicted
him of two counts and acquitted him of thirteen counts. He was sentenced to six concurrent
terms of imprisonment. Here, Schermerhorn argues that the statute under which he was
convicted, Arkansas Code Annotated section 5-27-602, is unconstitutionally overbroad and
“void for vagueness” because the law criminalizes inadvertent and innocent viewing of
illegal explicit material. Because Schermerhorn’s constitutional challenge was not properly
preserved, we affirm the jury’s decision without addressing the merit of his argument.
I.
Schermerhorn has not challenged the sufficiency of the State’s evidence, so a
description of the underlying facts of this case is unnecessary. The statute at issue, Ark.
Code Ann. § 5-27-602, states in part,
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(a) A person commits distributing, possessing, or viewing of matter depicting
sexually explicit conduct involving a child if the person knowingly:
(1) Receives for the purpose of selling or knowingly sells,
procures, manufactures, gives, provides, lends, trades, mails,
delivers, transfers, publishes, distributes, circulates, disseminates,
presents, exhibits, advertises, offers, or agrees to offer through
any means, including the Internet, any photograph, film,
videotape, computer program or file, video game, or any other
reproduction or reconstruction that depicts a child or
incorporates the image of a child engaging in sexually explicit
conduct; or
(2) Possesses or views through any means, including on the
Internet, any photograph, film, videotape, computer program
or file, computer-generated image, video game, or any other
reproduction that depicts a child or incorporates the image of a
child engaging in sexually explicit conduct.
Schermerhorn’s constitutional challenge arose during an in camera hearing on the
second day of the jury trial. No written motion or brief was ever submitted on the issue.
All that is in the record is the following bench conference.
DEFENSE COUNSEL: This was something else too I did want to bring up and
I’m not sure when the appropriate time is but I think
those statutes are unconstitutional because it says possess
or view and I think you might can raise that at any time
whether it is unconstitutional or not.
COURT: Well, don’t we have to recess until the AG’s office has a
chance to respond?
DEFENSE COUNSEL: It is at that point, I guess.
COURT: . . . I really think if someone is going to challenge the
constitutionality of the statute, I think the AG’s office
has to be noticed and have an opportunity to respond
. . . [T]he Attorney General is supposed to defend the
statute.
DEFENSE COUNSEL: I just can’t do that at the appeal level?
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COURT: Well, I don’t think they can do it now is the thing, but
I mean clearly you are claiming that you consider it
unconstitutional . . . and I’m guessing the State says it is
constitutional . . . I see nothing to suggest that it is
unconstitutional and I think there is a procedure that
needs to be followed and I’m afraid it has not[.] [S]o for
both procedural and substantive reasons I’m going to
deny the motion[.]
As the discussion continued, the prosecuting attorney asked defense counsel to clarify
the basis for the constitutional challenge—whether it was for possession or viewing.
DEFENSE COUNSEL: Yes, the view part, I mean, there are times that you can’t
help but view it and then in the Federal code if you
delete it, delete it immediately that’s a defense but here
it is if you have seen it, you are guilty so I think that is
over broad.
....
STATE: His argument is that the Statute is unconstitutional is not
the same because how can he because of this possession
on viewing and problem with this case is that there is
evidence that the jury can look that he intentionally
viewed, intentionally possessed all fifteen images. As
applied to this case it is not reasonable. The issue of
intent is, I think, where you are going here and if a
person immediately believes it that he somehow brought
himself outside the criminal prosecution and saying the
statute is unconstitutional and the problem with this case
is we have evidence to show he held on to these for four
or five months.
COURT: Well, in general I would say that I think that given the
context of the statute, that the word “view,” I think the
meaning of how the word view is interpreted and I think
that it would mean something more than an involuntary
viewing of something, something flashing up. I think
that the term view would require a certain amount of I
mean, looking at it and I think that—the decision on
that would have to be made from the facts so that is in
general, in particular, I agree with [the prosecuting
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attorney’s] regard to the statute as applied to this
particular case[.]
II.
We first consider whether the constitutional issue Schermerhorn has raised on appeal
was preserved for our review; the State has specifically raised the issue. An ironclad rule of
law is that an appellant must raise an issue in the circuit court and support it with a sufficient
argument and legal authority, if there is any, to preserve it for an appeal. Raymond v. State,
354 Ark. 157, 162, 118 S.W.3d 567, 571 (2003). This is true even when the issue concerns
the constitutionality of a statute. Id. If a particular theory was not presented to and ruled
upon by the circuit court, then the theory will not be reviewed on appeal. Id. In other
words, an appellant has the burden of providing a record sufficient to demonstrate reversible
error. Id.
The State contends that Schermerhorn has “waived his constitutional challenge
because he did not file a motion in the circuit court challenging the statute’s
constitutionality, he did not notify the Attorney General of his constitutional challenge, nor
did he present to the circuit court any legal authority in support of his constitutional
challenge.” Whether the Attorney General’s office received sufficient notice that
Schermerhorn was challenging the constitutionality of Ark. Code Ann. § 5-27-602 is not a
question we must answer in this case because, even if notice was required and Schermerhorn
met the requirement, he still failed to adequately develop and support his constitutional
challenge.
We cannot judge Schermerhorn’s constitutional argument because he did not
adequately develop it in the circuit court. He never specifically identified what protected
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constitutional right was allegedly violated; nor did he name the United States or the Arkansas
constitution, or both. Because no constitution (state or federal) was named in the
arguments, we have no reference to any particular constitution, much less any developed
argument from a particular provision of either the state or federal constitutions.
Schermerhorn did not even cite a case or some secondary legal authority to the circuit court
to support his general objection to the statute—not during any court colloquy or in any
motion or brief filed with the court. No standard of constitutional review was mentioned
to the circuit court. All this means the circuit court did not have a particular constitutional
provision before it, much less did it receive “the benefit of development of the law” on the
“pivotal” point of whether Ark. Code Ann. § 5-27-602 is unconstitutional based on federal
or state constitutional law. See Raymond, 354 Ark. at 162, 118 S.W.3d at 571. On appeal,
we have a little more than what he provided to the circuit court; but even now
Schermerhorn has yet to identify a constitution that was violated. Challenging the
constitutionality of a statute, regardless of the challenge’s merit, requires more than what has
been put forward before this court will address it.
Because we do not reach the merit of the purported constitutional challenge, the
convictions are affirmed.
Affirmed.
GLOVER, J., agrees.
VAUGHT, J., concurs.
LARRY D. VAUGHT, Judge, concurring. I concur with the result reached
by the majority because Schermerhorn’s constitutional argument is meritless. I write separately
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because I disagree with the majority’s holding that Schermerhorn failed to preserve his
constitutional argument for appeal by failing to adequately cite to a specific state or federal
constitutional provision. I would hold that the constitutional argument was preserved but
ultimately provides no basis for reversal.
During the in camera hearing on the second day of trial, Shermerhorn’s attorney
specifically argued that the statute was unconstitutionally “over broad” because it would
punish unintentional viewing of the prohibited material. The majority holds that
Schermerhorn failed to adequately raise his constitutional challenge to the trial court because
[h]e never specifically identified what protected constitutional right was allegedly
violated; nor did he name the United States or the Arkansas constitution, or both.
Because no constitution (state or federal) was named in the arguments, we have no
reference to any particular constitution, much less any developed argument from a
particular provision of either the state or federal constitutions.
I disagree. Arguing that a statute is “constitutionally over broad” is sufficient to preserve the
issue. The overbreadth doctrine was developed in the context of the First Amendment to the
Constitution of the United States and is often applied in conjunction with the void-for-
vagueness doctrine, which is rooted in the Due Process Clauses of the Fifth and Fourteenth
Amendments. 1 Black’s Law Dictionary defines the Overbreadth Doctrine as “the doctrine holding
that if a statute is so broadly written that it deters free expression, then it can be struck down
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While previous cases have held that the overbreadth doctrine is inapplicable outside
the context of the First Amendment, Jegley v. Picado, 349 Ark. 600, 623, 80 S.W.3d 332,
344 (2002) (citing United States v. Salerno, 481 U.S. 739 (1987)), I note that the scope and
substance of criminal statutes related to child pornography have long been the subject of
First Amendment overbreadth analysis. See, e.g., Reno v. Am. Civil Liberties Union, 521
U.S.844 (1997); United States v. Williams, 553 U.S. 285 (2008).
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on its face because of its chilling effect—even if it also prohibits acts that may legitimately be
forbidden.” Black’s Law Dictionary (10th ed. 2014). Similarly, American Jurisprudence explains:
Imprecise laws can be attacked on their face under two different doctrines: first, the
overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of
First Amendment rights if the impermissible applications of the law are substantial
when judged in relation to the statute’s plainly legitimate sweep; second, even if an
enactment does not reach a substantial amount of constitutionally protected conduct,
it may be impermissibly vague because it fails to establish standards for the police and
public that are sufficient to guard against the arbitrary deprivation of liberty interests.
16A Am. Jur. 2d Constitutional Law § 428.
Arkansas courts have long recognized the overbreadth doctrine. See Shoemaker v. State,
343 Ark. 727, 736, 38 S.W.3d 350, 355 (2001); Bailey v. State, 334 Ark. 43, 52, 972 S.W.2d 239,
244 (1998). In both cases, the term “overbroad” was used as a term of art with a clearly
understood meaning in the realm of constitutional law. For example, in Shoemaker, the
Arkansas Supreme Court’s holding read simply, “Thus, § 6-17-106(a) is overbroad.” Shoemaker,
343 Ark. 727, 736, 38 S.W.3d 350, 355 (2001). In contrast to the case at bar, in Raymond v. State,
354 Ark. 157, 167, 118 S.W.3d 567, 574 (2003), the Arkansas Supreme Court held that
Raymond “failed to mention the terms ‘overbroad’ or ‘void for vagueness.’ Hence, there was
no development of his claims relating to vagueness and overbreadth before the circuit court.”
I disagree with the majority’s holding that Schermerhorn’s argument that the statute
under which he was charged is “unconstitutional” because it was “over broad” in that it
allowed the State to penalize inadvertent viewing of the prohibited images was insufficient to
invoke the well-established overbreadth doctrine. Requiring that a litigant also cite to a specific
provision of an identified state or federal constitution in order to preserve a constitutional
challenge has far-reaching implications. Under this theory, we would not be able to reach the
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merits of an appeal in which the litigants argued to the trial court that their “free speech rights”
or “due process rights” had been violated, unless they also specifically cited the First, Fifth,
and/or Fourteenth Amendments to the Constitution of the United States. A litigant who
argued that officers unconstitutionally searched him without a warrant or probable cause
would have failed to preserve his argument unless he also specifically mentioned “the Fourth
Amendment to the Constitution of the United States.” When invoking the right to privacy, is
a litigant now required to also cite to the numerous constitutional provisions from which it
was derived?
The majority is correct that this court will not address issues raised for the first time on
appeal and that we have rejected “general constitutional challenges.” However, it is important
to remember the underlying rationale for that rule: “Issues raised for the first time on appeal
will not be considered because the circuit court never had an opportunity to make a ruling.” Johnson v.
State, 2009 Ark. 460 (per curiam) (emphasis added) (citing Green v. State, 362 Ark. 459, 209
S.W.3d 339 (2005)). Therefore, the test for preservation cannot hinge solely on whether the
litigant used the correct “magic words” in citing to a specific constitutional provision.
I also note that, to the extent that Schermerhorn may have failed to fully articulate his
overbreadth argument, the record reveals that the trial court erroneously ruled that he could
not challenge the constitutionality of the statute because he had not first provided notice to
the attorney general’s office pursuant to Arkansas Code Annotated section 16-111-106, which
states in full:
(a) When the declaratory relief is sought, all persons shall be made parties who have or
claim any interest which would be affected by the declaration, and no declaration shall
prejudice the rights of persons not parties to the proceeding.
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(b) In any proceeding which involves the validity of a municipal ordinance or franchise,
the municipality shall be made a party and shall be entitled to be heard, and if the
statute, ordinance, or franchise is alleged to be unconstitutional, the Attorney General
of the state shall also be served with a copy of the proceeding and be entitled to be
heard.
Ark. Code Ann. § 16-111-106 (Repl. 2006). This statute has repeatedly been interpreted to
mean that “when the constitutionality of a statute is challenged, the attorney general of this
state must be notified and is entitled to be heard.” Mason v. State, 2014 Ark. App. 285, at 5–6,
435 S.W.3d 510, 514 (citing Landers v. Jameson, 355 Ark. 163, 174, 132 S.W.3d 741, 748 (2003)).
However, in Carney v. State, 305 Ark. 431, 434–35, 808 S.W.2d 755, 756–57 (1991), the
Arkansas Supreme Court addressed a constitutional issue that had been raised below but for
which the attorney general’s office had not been provided notice:
We have interpreted this statute many times. We have reversed and remanded
a finding by the trial court that part of a statute was unconstitutional where the Attorney
General was not notified. See Roberts v. Watts, 263 Ark. 822, 568 S.W.2d 1 (1978). We
have also refused to address the merits of an appellant’s arguments on the
constitutionality of the Arkansas replevin statutes, absent notice to the Attorney
General. See Olmstead v. Logan, 298 Ark. 421, 768 S.W.2d 26 (1989). However, we have
further said that “even though noncompliance with the notice requirement [of § 16-
111-106(b)] is generally reversible error, reversal is not mandated by the statute.” City
of Little Rock v. Cash, 277 Ark. 494, 512, 644 S.W.2d 229, 237 (1982). We added in Cash
that the purpose of § 16-111-106(b) is to prevent a statute or ordinance from being
declared unconstitutional without a full adjudication with adversary parties.
Initially, we note that there has been a full adjudication of the equal protection
issue before this court, including a brief by the Attorney General as counsel for the
appellee. It is further clear from the record that the appellant was not formally advised
that he would have his license suspended under Act 93 until the sentencing hearing.
Under these facts it would be impractical in the extreme to expect the appellant to
notify the Attorney General in the middle of a hearing. Lastly, § 16-111-106(b) relates
to civil actions—and by the chapter heading it specifically relates to Declaratory
Judgments—where the state is not automatically a party. Here, that is not the case. The
state was a party at the sentencing hearing and was represented by the prosecuting
attorney. We find no merit in the appellee’s argument.
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As Carney mentions above, our precedents on this issue are somewhat inconsistent. However,
in light of Carney’s pronouncement that the statute specifically applies to civil cases (where the
State is not a party), and because the supreme court in Carney allowed the appellee’s brief filed
by the attorney general’s office to satisfy the requirement that there be a full development of
the issue in an adversarial proceeding, the trial court erred in denying Schermerhorn the
opportunity to present his constitutional challenge at trial.
Therefore, I would reach the merits of Schermerhorn’s appeal. Schermerhorn argues
that the child-pornography statute under which he was convicted, section 5-27-602, is
unconstitutionally vague and overbroad because it criminalizes “mere viewing” of illegal
images as well as possession, and would therefore criminalize even inadvertent or
unintentional viewing. His argument has no merit. Section 5-27-602 reads in full:
(a) A person commits distributing, possessing, or viewing of matter depicting
sexually explicit conduct involving a child if the person knowingly:
(1) Receives for the purpose of selling or knowingly sells, procures,
manufactures, gives, provides, lends, trades, mails, delivers, transfers, publishes,
distributes, circulates, disseminates, presents, exhibits, advertises, offers, or agrees to
offer through any means, including the Internet, any photograph, film, videotape,
computer program or file, video game, or any other reproduction or reconstruction
that depicts a child or incorporates the image of a child engaging in sexually explicit
conduct; or
(2) Possesses or views through any means, including on the Internet, any
photograph, film, videotape, computer program or file, computer-generated image,
video game, or any other reproduction that depicts a child or incorporates the image
of a child engaging in sexually explicit conduct.
(b) Distributing, possessing, or viewing of matter depicting sexually explicit
conduct involving a child is a:
(1) Class C felony for the first offense; and
(2) Class B felony for any subsequent offense.
(c) It is an affirmative defense to a prosecution under this section that the
defendant in good faith reasonably believed that the person depicted in the matter was
seventeen (17) years of age or older.
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Ark. Code Ann. § 5-27-602 (Repl. 2013). 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, 317,
276 S.W.3d 214, 222 (2008). If it is possible to construe a statute as constitutional, we must do
so. Id., 276 S.W.3d at 223. 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., 276 S.W.3d at 223.
Here, it is clear that the statute only prohibits “knowingly” “possessing or viewing”
sexually explicit images of children. The criminal code contains specific definitions of the term
“knowingly.” A person acts knowingly with respect to the person’s conduct or the attendant
circumstances when he or she is aware that his or her conduct is of that nature or that the
attendant circumstances exist. Ark. Code Ann. § 5-2-202(2)(A). A person acts knowingly with
respect to a result of the person’s conduct when he or she is aware that it is practically certain
that his or her conduct will cause the result. Ark. Code Ann. § 5-2-202(2)(B). Under the plain
language of the statute and the definitions contained in the criminal code, the statute does not
criminalize inadvertent viewing.
Moreover, there was significant evidence that Schermerhorn intentionally viewed and
possessed the images. The evidence revealed that he downloaded the images to the computer’s
hard drive, which could not have been done inadvertently. Schermerhorn then showed these
images to his niece by purposefully accessing them on his computer, demonstrating that he
knew they were there and was intentionally viewing them.
I therefore agree that Schermerhorn’s conviction should be affirmed.
Omar F. Greene, for appellant.
Leslie Rutledge, Att’y Gen., by: Kristen C. Green, Ass’t Att’y Gen., for appellee.
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