LITTLE ROCK — A divided state Supreme Court on Thursday threw out a man’s conviction of Internet stalking of a child and dismissed the case against him, saying that because he never arranged or tried to arrange a meeting with a child, the evidence did not support his conviction.
The decision was 4-3, with the dissenting justices saying the evidence shows that Derek Coy Holcomb of Little Rock chatted online with a person he believed to be a 15-year-old girl — though in fact the “girl” was a male Van Buren police officer — and that during the conversations Holcomb did propose meeting for sex.
Holcomb’s first trial in Crawford County Circuit Court ended in a hung jury. In his second trial in March 2013, he was convicted and received a five-year suspended sentence and an $8,000 fine. Holcomb then filed an appeal.
In its majority opinion Thursday, the Supreme Court said that under Arkansas Code Annotated 5-27-306(a)(2), a person age 21 or older commits the offense of Internet stalking of a child if he or she uses an Internet service to “seduce, solicit lure or entice an individual that the person believes to be 15 years of age or younger in an effort to arrange a meeting with the individual” for sex.
According to the opinion, a transcript of messages exchanged between Holcomb and Van Buren police detective Donald Eversole, posing as “Amanda,” shows that the possibility of meeting in person was discussed between them several times.
The two also talked about having sex, and Holcomb exposed himself to “Amanda” and masturbated in front of a webcam, but no meeting was ever arranged.
In one instance, on June 4, 2010, Holcomb asked “Amanda,” where she was. Eversole answered “van buren,” and Holcomb said he had a buddy there and was going to Rogers the next day.
Holcomb offered to go a day early and stay with his friend in Van Buren, and Eversole responded, “that would be fun.”
But Holcomb then said he had just texted his friend in Van Buren and learned that he was not home. He said he was too broke for a hotel room, so he would not go. Eversole offered to pay for a room, but Holcomb declined.
Holcomb later told police he never intended to meet with “Amanda” and said it was all “a tease.”
Justice Karen Baker wrote in the majority opinion, “Although Holcomb’s messages pose hypotheticals, they do not demonstrate that he made a determined attempt to plan to meet Eversole. In fact, the record demonstrates that Holcomb declined Eversole’s request to meet several times.”
Justices Courtney Goodson, Josephine Hart and Cliff Hoofman joined in the majority opinion.
Chief Justice Jim Hannah wrote in a dissenting opinion that substantial evidence supported Holcomb’s conviction.
Referring to the June 4, 2010, conversation, Hannah said, “The fact that Holcomb told Amanda that his friend was not home does not negate the fact that he and Amanda had discussed the possibility of Holcomb’s going to Van Buren on June 4.”
Although Holcomb said he never intended to meet with “Amanda,” the jury was not obligated to accept his explanation, Hannah wrote in the minority opinion.
Justices Donald Corbin and Paul Danielson joined in the dissent.