The evidence by the state was that the appellant rubbed the victim, an eight-year-old female, under her arms and on her legs and thighs, that he would hold her tightly on his lap and would not let her go. The child compared his lap to a “hard stick,” and, “I felt something hard in his lap that made me scared.” There was testimony that the child was deeply troubled by these episodes and was nervous, withdrawn and frightened and did not want to go to school. The jury found that evidence credible and therefore the appellant’s conduct comes within the proscription of Ark. Code Ann. § 5-27-204(a) (1987):
(a) A person commits the offense of endangering the welfare of a minor in the second degree if he knowingly engages in conduct creating a substantial risk of serious harm to the physical or mental welfare of one known by the actor to be a minor.
The majority relies on the Commentary to Ark. Code Ann. § 5-27-202 (1987). But the Commentary merely suggests the statute is “designed” to protect minors and incompetents from deletrious non-sexual activities, hardly the same as stating that the statute has no application to sexual offenses. Besides, the Commentary is advisory, whereas the language of the statute, if plain, is obligatory. Britt v. State, 261 Ark. 488, 541 S.W.2d 84 (1977). We have said that where the language of the statute is clear and unambiguous and susceptible of a sensible construction, resort to extrinsic and collateral aids in construing it is not permitted. Cross v. Graham, 224 Ark. 277, 272 S.W.2d 682 (1954).
As to the reference to strict construction of criminal statutes, the majority simply invokes the doctrine, with no attempt to apply it to the case before us, nor even a suggestion that the statute is ambiguous. If the majority is holding that strict construction requires that unambiguous language which purports to prohibit any conduct that creates a substantial risk of serious harm to the physical or mental welfare of a minor, has no application where such conduct is sexual in nature, that is a novel use of the rule and reads a provision into the statute which is neither present nor implied. The rule of strict construction does not require that a statute be given the narrowest possible meaning or that the evident legislative intent be disregarded. United States v. Giles, 300 U.S. 41 (1936).
Criminal statutes are strictly construed so that conduct, thought to be lawful, will not be criminalized by virtue of an ambiguity in the statute that leaves the issue in doubt. That is hardly the situation before us. See generally United States v. Alpers, 338 U.S. 680 (1950); United States v. Hood, 343 U.S. 148 (1951) (“A statute should not be construed so as to read out what as a matter of ordinary English speech is in.”)
I respectfully dissent.
Holt, C.J., joins in dissent.