Paschal v. State , 2012 Ark. LEXIS 158 ( 2012 )

PAUL E. DANIELSON, Justice,

concurring in part and dissenting in part.

I concur with the majority opinion to the extent that it reverses and dismisses Paschal’s convictions for sexual assault in the second degree. I respectfully dissent, however, from the majority’s affirmance of Paschal’s conviction for witness bribery.

Arkansas Code Annotated § 5-53-108 provides, in pertinent part:

hfi(a) A person commits witness bribery if he or she:

(1) Offers, confers, or agrees to confer any benefit upon a witness or a person he or she believes may be called as a witness with the purpose of:

(A) Influencing the testimony of that person;

(B) Inducing that person to avoid legal process summoning that person to testify; or

(C)Inducing that person to absent himself or herself from an official proceeding to which that person has been legally summoned; or

Ark.Code Ann. § 5-53-108(a) (Repl.2005). Because Paschal’s statement to S.C. was clearly not an attempt to induce A.D. to avoid legal process under subsection (B), or to absent herself from an official proceeding to which she had been summoned under subsection (C), it seems to me that the sole provision under which Paschal could be convicted had to be subsection (A). Paschal’s statement surely constituted an offer to confer a benefit on A.D. Even assuming that A.D. was a person he believed might be called as a witness against him, the question, then, is did Paschal offer to confer a benefit with the purpose of influencing A.D.’s testimony. Contrary to the majority, I cannot say that he did.

“Testimony” “includes an oral or written statement, document, or any other material that is or could be offered by a witness in an official proceeding.” Ark.Code Ann. § 5-53-101(5) (Repl.2005). To constitute witness bribery, then, Paschal was required to offer or agree to confer a benefit on A.D. with the purpose of influencing her oral or written statement that was or could be offered by her in an official proceeding. In my opinion, Paschal’s offer of money to “drop the charges” in no way equates to an offer of money with the purpose of influencing one’s statements at an official proceeding. At the time of the offer, no official proceeding was pending, and while it may not have been within A.D.’s ability to [17“drop the charges,” there was no evidence to demonstrate that Paschal knew or did not know of that fact. At most, Paschal’s statement could be construed as an offer with the purpose of enticing a lack of cooperation with police. To construe Paschal’s statement as one to influence testimony simply reads too much into his offer.

This court must strictly construe criminal statutes and resolve any doubts in favor of the defendant. -See Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002). With that in mind, it is my opinion that there was insufficient evidence to sustain Paschal’s conviction for witness bribery. As the majority opinion correctly points out,

[t]his court cannot, and should not, by construction or intendment, create offenses under statutes that are in express terms created by the legislature. E.g., Williams v. State, 347 Ark. 728, 67 S.W.3d 548 (2002). Nothing is taken as intended which is not clearly expressed, and this court is without authority to declare an act to come within the criminal laws of the state merely by implication. See, e.g., Heikkila v. State, 352 Ark. 87, 98 S.W.3d 805 (2003).

Unfortunately, here, the majority is doing that which it cannot. It is construing the statute to include an act not clearly expressed. Had the General Assembly wished to do so, it could have included an offer to “drop the charges” as a type of witness bribery. It did not do so, and I therefore respectfully dissent on this issue. Because I would do so, there would be no need to address Paschal’s remaining claim regarding bias.