Verdict For Ex-Officer Held Off Until October — (The Times Record)

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The Times Record

Friday, August 3, 2007 9:04 AM CDT

By Jeff Arnold, TIMES RECORD • JARNOLD@SWTIMES.COM

A former Fort Smith police officer will not learn the verdict in his trial held Thursday on a misdemeanor harassment charge until October.

Harold Dean Arter, 48, is charged with misdemeanor harassment in Fort Smith District Court for attempting to take what a prosecutor described as “up-skirt” photographs of a female employee of the Fort Smith Police Department.

The employee testified Thursday that she believed Arter attempted to take the photographs on April 18 and April 30.

In the first incident, the employee testified she was standing next to her desk at work when Arter came up beside her and engaged her in conversation.

As they spoke, she said Arter was playing with a coin that he dropped. When he bent down to get the coin, she testified she felt something graze her leg.

She said she was shocked and didn’t look down initially, but when she did, Arter was returning to an upright position holding his camera-equipped cell phone.

Not positive about what occurred, the employee said she brushed the incident aside.

The employee then testified that on April 30 she was proofreading a document in Arter’s office, at his request.

As she began to describe that incident, the employee broke down on the stand momentarily before resuming her testimony.

She told Acting Judge Glenn Neel that as she read the document, Arter leaned back in his chair and stretched out his arm behind her.

The employee stepped back, and when she did, she said Arter drew his arm back and was holding his cell phone as he put his hand in his lap.

“I felt sick,” she told the court.

The employee then went to her supervisor ­ reporting both incidents ­ which sparked a criminal investigation.

Under cross-examination by Fort Smith attorney Chip Sexton, representing Arter, the employee said she didn’t feel threatened by Arter, he had not physically harmed her and that she did not confront Arter after either incident. She also told Sexton that she could not say with certainty that Arter actually took a picture either time.

Detective Tammy DeMier, one of two Fort Smith detectives who questioned Arter, testified that Arter said he attempted to take a picture of the female employee “from behind” on April 30, but said he was unsuccessful.

When investigators asked to examine his cell phone, DeMier testified, Arter told them he threw it in the Poteau River when he panicked after seeing the employee in a closed-door meeting with a supervisor.

Sexton asked DeMier if Arter offered any excuse for his behavior.

DeMier told the court that Arter told her he was an alcoholic, suffered from depression and was on medication.

Sexton then asked if Arter told her his participation in a S.W.A.T. operation that led to the death of a man led to his drinking and depression. DeMier said he did not.

Capt. Jeff Barrows of the Fort Smith Police, in a telephone interview Thursday, confirmed Arter participated in a forced-entry operation at a Fort Smith apartment complex in October 2004 that led to the death of 61-year-old Nguyen Kien Nguyen.

Arter was not one of the officers who fired at Nguyen when he raised a .22-caliber semiautomatic pistol when the S.W.A.T. team located him inside a closet.

Following DeMier’s testimony, Sexton asked Neel for a directed verdict of not guilty, arguing that the state failed to provide evidence of harassment.

Sexton argued the state was required to show Arter purposefully harassed, alarmed or annoyed the female employee ­ which it failed to prove.

Sebastian County Deputy Prosecutor Cory Johnson told Neel it was common sense that a man would know trying to take an “up-skirt” picture of a woman without permission would cause someone alarm.

Neel denied Sexton’s motion for a directed verdict, and Sexton rested the defense case without offering any evidence or Arter’s taking the stand.

In closing arguments, Sexton and Johnson largely reiterated issues they addressed when the defense requested a directed verdict.

Sexton also argued the case against Arter should be dismissed because the harassment law is unconstitutionally vague.

Instead of immediately rendering a verdict, Neel asked Sexton and Johnson to submit briefs to the court on two issues ­ the constitutionality of the harassment statute and the evidence presented or absent regarding the alleged purposeful conduct of Arter.

Neel said Sexton would have 30 days to submit his brief, Johnson would have 30 days to respond and he would issue a written ruling by the end of October.

Arter, a 17-year veteran of the Fort Smith police department, resigned after being put on administrative leave following his arrest on May 2.

Harassment is a Class A misdemeanor punishable by a sentence of up to one year in the county jail and/or up to a fine of $1,000.