Dejohn v. State

2021 Ark. App. 495

638 S.W.3d 32

Frankie DEJOHN, Appellant

v.STATE of Arkansas, Appellee

No. CR-20-729

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered December 8, 2021

Kezhaya Law PLC, by: Sonia A. Kezhaya and Matthew A. Kezhaya, Bentonville, for appellant.

Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

LARRY D. VAUGHT, Judge

Frankie DeJohn was convicted by a Washington County jury of two counts of second-degree sexual assault and one count of contributing to the delinquency of a minor. He now appeals his conviction as to the count of second-degree sexual assault which involved his daughter, M.D.2. DeJohn challenges the sufficiency of the evidence presented against him, arguing that the State failed to prove that his actions were for the purpose of sexual gratification. We affirm.

In 2018, DeJohn and his three children—Memphis, M.D.1, and M.D.2—moved to Elkins, Arkansas, where they lived with DeJohn's sister and her children, including then seventeen-year-old K.P., for approximately four to five months. At the end of 2018, DeJohn and his children moved into a nearby home.

In early March 2019, M.D.1, Memphis, and K.P. invited some of their friends over to DeJohn's house to have a party. According to the evidence presented at trial, there were six or seven people at the party, and they smoked marijuana, drank alcohol, and danced. DeJohn was the only person over twenty-one years old at the party, and he provided alcohol to the minors. DeJohn also made sexual comments to the teenagers. For example, he told K.P. that he had flirted and cuddled with I.D., a girl at K.P.’s school, but said that he was going to wait until I.D. was eighteen years old to have sex with her.

At some point during the party, DeJohn was in the kitchen making drinks with twelve-year-old M.D.2, and after everyone else had left the kitchen, DeJohn reached toward M.D.2, squeezed her breast, laughed, and then left the kitchen. M.D.2 stated that she did not believe this was an accident.

K.P. said that, at another point during the party, DeJohn approached her from behind while she was dancing and groped her breasts and buttocks. K.P. also said she saw DeJohn wrestle with M.D.1 and bite her on the thigh, and she witnessed him walk up behind M.D.1 and "smack-grab" her buttocks. DeJohn's actions caused conflict between him and others at the party, including M.D.1's boyfriend, who was angered by the way he touched the girls.

The evidence also demonstrated that the party was not the first time DeJohn had behaved in an inappropriately sexual manner toward the minors. When DeJohn was still living at his sister's house, he had given K.P. massages during which he would start at her shoulders and then slowly move his hands down her back until he was touching her buttocks, at which point she told him to stop. He also sent messages to K.P. at night that said he wanted her to cuddle with him, and on a separate occasion, he asked her if "[she] had any friends [who] would have sex with him for money." DeJohn told K.P. that he preferred younger women because "older women can't keep up with him in bed." DeJohn also started messaging a girl named B.S., who was M.D.2's fifteen-year-old friend, and told her that he "could do amazing things with his tongue" and "wanted to touch [her] thighs or [her] butt." DeJohn then told B.S. to delete the messages when he discovered she was saving them on her phone. On another occasion, DeJohn made sexual comments and jokes to M.B., M.D.1's fourteen-year-old friend. As with B.S., DeJohn told M.B. that he could do amazing things with his tongue. He also sent her messages saying that "he wanted to flirt with [her]," "he needed to get [her] drunk," and "he wouldn't have to be drunk to kiss [her]."

DeJohn was charged and tried on two counts of second-degree sexual assault against M.D.2 and K.P. for fondling them at the party and one count of contributing to the delinquency of a minor. Following a trial, the jury convicted DeJohn on all three counts, and he was sentenced to five years’ imprisonment for each count of second-degree sexual assault, imposed to run consecutively, and one year of confinement in the county jail for contributing to the delinquency of a minor, imposed to run concurrently. This appeal follows.

A person commits second-degree sexual assault in violation of Arkansas Code Annotated section 5-14-125(a)(3) (Supp. 2021) if the actor is eighteen years of age or older and engages in sexual contact with another person who is less than fourteen years of age and not the actor's spouse. Arkansas Code Annotated section 5-14-101(11) (Supp. 2021) defines "sexual contact" as "any act of sexual...