Wilcoxon v. State

2022 Ark. App. 458

655 S.W.3d 686

Thomas D. WILCOXON, Appellant

v.STATE of Arkansas, Appellee

No. CR-22-54

Court of Appeals of Arkansas, DIVISIONS III & IV.

Opinion Delivered November 9, 2022

Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.

Leslie Rutledge, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

WAYMOND M. BROWN, Judge

Appellant Thomas Wilcoxon was found guilty by an Ashley County Circuit Court jury of attempted internet stalking of a child and pandering. He was sentenced to an aggregate term of thirty-five years’ incarceration in the Arkansas Department of Correction. On appeal, Wilcoxon first challenges the sufficiency of the evidence supporting his convictions. He further argues the circuit court (1) erred in excluding certain photographs related to his entrapment defense and (2) made various errors during the sentencing phase of trial. We affirm Wilcoxon's convictions for attempted internet stalking of a child and pandering.

On March 6, 2020, Wilcoxon was charged by felony information with one count of internet stalking of a child in violation of Arkansas Code Annotated section 5-27-306.¹ On May 17, 2021, the State amended the information, charging Wilcoxon, as a habitual offender,² with one count of attempted internet stalking of a child³ and one count of pandering.⁴

Wilcoxon filed a motion in limine on May 21, seeking to admit into evidence ten photos from a Facebook account created under the fictitious name of "Julie Williams." One photo displayed the profile picture associated with the Julie Williams Facebook account; another photo revealed that the birth date associated with the Facebook account was July 30, 1996. Another photo showed comments left by other individuals on Julie Williams's profile picture. The remaining seven photos were of sexually explicit or suggestive content that were posted on the Julie Williams Facebook page. At a pretrial hearing, the circuit court ruled admissible, the photo that showed the date of birth posted on Julie Williams's account but withheld ruling on the other nine photographs.

At the jury trial held on June 29, Mark Griever, an investigator with the Ashley County Sheriff's Department, testified that his duties included monitoring the fictitious Julie Williams Facebook account. He stated that the account was established to aid with investigations into both narcotics trafficking and sex trafficking involving minors. Julie Williams's displayed date of birth, July 30, 1996, made her twenty-four years old at the time the interactions with Wilcoxon took place. Griever testified that Wilcoxon first contacted the account via Facebook Messenger on February 28, 2020, and the messages were ongoing and continued until March 3. A log of the messages exchanged during that time span was admitted into evidence. Griever stated that approximately 266 messages were exchanged between Wilcoxon and the fictitious Julie Williams along with eight photographs. Wilcoxon also attempted to contact Julie Williams via Facebook call on the evening of March 2. Griever testified that once Wilcoxon's messages indicated his interest in sex, Julie Williams was portrayed as a fourteen-year-old female. Prior to Wilcoxon's cross-examination of Griever, the circuit court ruled that the nine outstanding photographs from the motion in limine were inadmissible based on lack of evidence that Wilcoxon ever saw those posts. On cross-examination, Griever testified that Wilcoxon requested a meeting with Julie—they arranged to go mud riding.

Wilcoxon moved for a directed verdict on both counts at the close of the State's case. Specifically, related to the attempted-internet-stalking-of-a-child charge, Wilcoxon argued that he never actually scheduled a meeting with Julie Williams, a meeting never took place, and there was sufficient evidence of renunciation. Regarding the pandering charge, Wilcoxon asserted that the evidence was insufficient to establish he knew he was communicating with a child. Further, Wilcoxon argued there was sufficient evidence of entrapment as to both charges. The circuit court denied the directed-verdict motions.

For his case-in-chief, Wilcoxon elected not to testify. However, he did call one witness, Wendy Stevens. Stevens testified that Wilcoxon is one of her best friends and that the two of them had dated for approximately a year from 2019 to 2020. She stated that on March 2, 2020, she and Wilcoxon had a conversation about the Julie Williams Facebook account. Stevens testified she told Wilcoxon that Julie looked familiar, but she was unsure where she knew her from, whether it was from college or through Stevens's twenty-four-year old son.

Wilcoxon renewed the directed-verdict motions at the close of all the evidence. The circuit court again denied the motions. The jury found Wilcoxon guilty of both offenses. During sentencing, the State introduced a certified copy of a judgment and commitment order filed on January 11, 2005, showing that Wilcoxon had been convicted of rape and introduction of a controlled substance into the body of another and was consequently sentenced to an aggregate term of fourteen years’ incarceration. The State called Investigator Griever, who testified that Wilcoxon's 2005 rape conviction involved his fifteen-year-old niece and that, as a result of the prior convictions, Wilcoxon is a registered sex offender. Wilcoxon testified on his own behalf at sentencing. He stated that he initially contacted Julie because there were provocative posts on her Facebook account and that, according to her listed date of birth, she was twenty-four-years old. Regarding his 2005 prior convictions, Wilcoxon testified that he had purchased alcohol for the two of them, and his niece provided the drugs. He stated that two days later, he was told he had raped his niece.

During sentencing, on direct, regarding whether he thought he would have to serve 100 percent of any sentence imposed in the instant case, Wilcoxon testified, "ADC goes by your record and mine is pretty bad." On cross-examination, although the circuit court found that Wilcoxon had opened the door to questioning about his prison record and parole eligibility, "out of an abundance of caution," the circuit court prohibited any further questions on convictions not already in evidence. However, over Wilcoxon's objection and following a question about whether his behavior in prison had anything to do with his parole eligibility and Wilcoxon's subsequent denial, the circuit court admitted into evidence a certified copy of Wilcoxon's "pen pack"—a record of his behavior in jail—from the Arkansas Department of Correction. The pen pack showed that Wilcoxon lost class status during his prior incarceration due to behavioral issues and disciplinary sanctions.

Wendy Stevens, who testified during the guilt phase, again testified during the sentencing phase of Wilcoxon's trial. She testified that Wilcoxon had acted as a father figure to her fourteen-year-old daughter, and she intended for him to adopt her daughter. Stevens also testified that she is aware of Wilcoxon's prior convictions. As a result of this testimony from Stevens and Wilcoxon's testimony also referring to other convictions, the circuit court found that Wilcoxon had sufficiently opened the door to evidence of his prior convictions. The State was then permitted to cross-examine Stevens about Wilcoxon's prior criminal history. She testified that she was aware he had a homicide charge from when he lost control of a vehicle and hit another vehicle, which resulted in the death of a young child. Stevens also mentioned that Wilcoxon had a charge related to an incident in which he caught his wife with another man.

Following the jury's recommendation, in a sentencing order filed on June 30, 2021, Wilcoxon was sentenced to twenty years’ incarceration for attempted internet stalking of a child and fifteen years’ incarceration for pandering. The sentences were ordered to be served consecutively. This appeal followed.

For his first point on appeal, Wilcoxon asserts there was insufficient evidence to support his convictions.

We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence.⁵ When reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict.⁶ We will affirm a judgment of conviction if substantial evidence exists to support it.⁷ Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture.⁸ We defer to the jury's determination on the matter of witness credibility.⁹ Jurors do not and need not view each fact in isolation; rather they may consider the evidence as a whole.¹⁰ The jury is entitled to draw any reasonable inference from circumstantial evidence to the same extent that it can be from direct evidence.¹¹ The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State's account of the facts rather than the defendant's.¹² We need consider only that testimony that supports the guilty verdict.¹³

Arkansas Code Annotated section 5-27-306(a)(1)¹⁴ provides that a person who is twenty-one years of age or older commits the offense of internet stalking of a child if the person knowingly uses a computer online service, internet service, or local internet bulletin board service to seduce, solicit, lure, or entice a child fifteen years of age or younger in an effort to arrange a meeting with the child for the purpose of engaging in sexual intercourse, sexually explicit conduct, or deviate sexual activity. If the person tries to arrange a meeting with an individual fifteen years of age or younger, it is a class B felony, even if the meeting did not take place.¹⁵

Wilcoxon was convicted of attempted internet stalking...