Hall v. State

2022 Ark. App. 232

646 S.W.3d 204

Todd HALL, Appellant

v.STATE of Arkansas, Appellee

No. CR-21-306

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered May 18, 2022

Miller Butler Schneider Pawlik Rozzell PLLC, by: Alicia M. Canfield, for appellant.

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

ROBERT J. GLADWIN, Judge

Todd Matthew Hall appeals his conviction in the Benton County Circuit Court on one count of failure to comply with registration, a Class C felony, in violation of Arkansas Code Annotated section 12-12-904 (Supp. 2021), for failure to report a social-media application and as a habitual offender pursuant to Arkansas Code Annotated section 5-4-501(b)(1) (Supp. 2021). He argues that (1) when strictly construed in harmony, Arkansas Code Annotated sections 12-12-904(a)(1)(A)(i), -906 (Supp. 2021), -908(b) (Supp. 2021), and -909(b)(1)(D) (Supp. 2021) of the Sex Offender Registration Act of 1997 (the "Act") only require a lifetime sex offender or a sexually dangerous sex offender to submit to the social-media-reporting rules; (2) those same sections of the Act lack sufficient definiteness to provide notice and, therefore, are void for vagueness; and (3) the circuit court committed clear error when denying Hall's motion to suppress evidence based on an illegal search and seizure of his cell phone. We affirm.

I. Facts and Procedural History

On June 29, 2006, Hall pleaded no contest to second-degree sexual assault in Benton County case number 04CR-05-666; consequently, he was required to register as a sex offender. Hall subsequently was convicted of multiple offenses in Washington County, and he was released on parole for those convictions on May 24, 2018.¹ As a condition of his release, Hall signed a waiver giving Arkansas Community Correction officers permission to search his person, property, vehicle, or residence without a search warrant. He also signed a warrantless search waiver giving parole officers and certified law enforcement officers the ability to search his person, residence, or vehicle without a search warrant. Hall signed "Sex Offender Acknowledgement Forms" on May 29, 2018; May 20, 2019; July 15, 2019; and August 26, 2019, acknowledging the requirement that pursuant to Arkansas Code Annotated section 12-12-906, Arkansas state law requires the offender to report any changes in ... social network information IN Person to the local law enforcement agency having jurisdiction at that time of the change. Hall registered and verified another social-media platform—"Facebook"—on the "Sex Offender Verification Form" signed on May 29, 2018, and August 26, 2019.

Hall's assigned parole officer was Allishia Mace, and one of his parole conditions was to meet with Officer Mace twice monthly. Hall reported to Officer Mace on September 4, 2019, and she scheduled the next meeting for September 19. An automated text-message reminder was generated for the September 19 scheduled meeting. Officer Mace later called Hall on September 12 to reschedule the meeting for September 18 due to a conflict. Hall confirmed the new date over the phone, and Officer Mace entered the new date into the system. On September 18, however, Hall failed to report to Officer Mace as required. He reported to Officer Mace the following day, at which time Officer Mace asked why he failed to report on the 18th. Hall explained that he had received a text-message reminder stating that his scheduled visit was September 19.

Fellow parole officer, Lacey Maybee, overheard the conversation from her office located across the hall from Officer Mace's office. Officer Maybee walked across the hall to verify Harp's assertion that he had received a text-message notification and asked for his phone. Hall informed the parole officers that his cell phone was in his vehicle and handed Officer Maybee his keys to retrieve the cell phone from the vehicle. When Officer Maybee returned, Hall unlocked his cell phone and handed it back to Officer Maybee to look through his text messages for the text-message reminder.

Regarding what Hall claims was an extensive search of his cell phone and its contents, including various installed applications, Officer Maybee testified:

[A]t the time, th[ese] text message reminders were very new to us. We don't know who they're coming from, neither do the parolees. So, they're confused. They think that they're coming from us, and we don't know what numbers they're coming from. So, I'm looking through the text messages to find this random number. And so, I'm looking through the text messages and at that point I'm—as I'm looking, I see other parole violations and then proceed from there.

As Officer Maybee was looking through Hall's text messages to find the reminder, she saw evidence of other possible parole violations, including the social-media app called Tinder, downloaded on his phone. Officer Mace did not think that the Tinder account had been registered in the sex-offender system as required. Officer Maybee found the text-message reminder, gave the cell phone to Officer Mace, and explained that she may have found evidence of parole violations on Hall's phone, which prompted further examination.

Officer Mace then verified with Detective Paul Newell that Hall had not registered his Tinder account on either the initial form or the ones submitted on the subsequent dates previously listed, despite the fact that Hall was required to report to him twice yearly to verify the required sex-offender information, including Hall's social-media accounts. Officer Mace gave Hall's phone to the Benton County Sheriff's Office for further examination, and the extraction report indicated activity on Hall's Tinder account dating back to 2017.

On November 1, 2019, the State charged Hall, a registered sex offender, with failing to comply with reporting requirements, specifically alleging that Hall had failed to register or verify his Tinder social-media account.

On October 7, 2020, Hall filed a motion to suppress the evidence discovered on his cell phone during the warrantless search of his cell phone during the October 19, 2019 meeting at Officer Mace's office. The parties agreed to allow the circuit court to consider Hall's motion to suppress during the bench trial because the witnesses and evidence to be considered would be the same. On November 30, a hearing was held, and the circuit court determined that Hall's constitutional rights were not violated by the warrantless cell phone search conducted by Officer Maybee because at that time, Hall was both a registered sex offender and a parolee.

During the bench trial, Hall stipulated that he was required to register as a sex offender and that he was required to verify his sex-offender status. He further stipulated that the Tinder account found on his cell phone was his.

According to Hall, he signed a limited warrantless search waiver as a condition of his parole, which permitted law enforcement to search only his person, residence, or motor vehicle. He claimed that his personal property, i.e., his cell phone, was not included in the warrantless search waiver. Hall asserted that the signed conditions of release did not notify him that evidence seized from a warrantless search could be used to convict him of a new criminal offense.

The State explained in response that when Hall was placed on parole in 2018, he signed conditions of release permitting a parole officer to search his person, property, vehicle, or residence at any time without a warrant. The circuit court rejected Hall's arguments and denied his motion to suppress, reasoning that he "was clearly notified by his condition of release that he [was] subject to warrantless searches of his person, property, place of residence, and motor vehicle."

After the State rested, Hall moved to dismiss, arguing that the State had failed to prove that he was guilty of failing to comply with registration requirements because (1) under section 12-12-906, only sex offenders subject to lifetime registration are required to verify their social-media accounts; (2) section 12-12-908 likewise +does not impose a requirement for him to verify his social-media accounts; and (3) without elaboration, the sex-offender statutes are void for vagueness. When asked by the circuit court, Hall admitted that he had failed to notify the Arkansas Attorney General that he was challenging the constitutionality of the sex-offender-registration statutes.

The defense rested without presenting evidence or witnesses, and Hall renewed his motion to dismiss. He again mentioned that the sex-offender-registration statutes are "void for vagueness" because "it's not a crime for [a sex offender] not to report a social media app." The circuit court "cut and paste[d] [its] earlier ruling" and did not include a substantive ruling on Hall's void-for-vagueness argument. The circuit court reasoned that it lacked jurisdiction to decide the issue because Hall had failed to notify the Attorney General of his challenge to the constitutionality of the statute.

The circuit court found Hall guilty of failing to comply with reporting requirements and sentenced him as a habitual offender to thirty-six months’ imprisonment pursuant to a sentencing order filed on December 3. An amended sentencing order was filed on December 7 to correct the box checked for Hall's gender. On December 17, Hall filed a timely notice of appeal.

II. Standard of Review and Applicable Law

In bench trials, the standard of review on appeal is not whether there is substantial evidence to support the finding of the circuit court but whether the court's findings were clearly erroneous or clearly against the preponderance of the evidence. Baugh v. State , 2021 Ark. App. 400, at 2, 635 S.W.3d 9, 11. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that an error has been committed. Id. Facts in dispute and...