Simon v. State

Cite as 2017 Ark. App. 209
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-16-617
Opinion Delivered: April 5, 2017
ARTHUR HERMAN SIMON, JR. APPEAL FROM THE CRITTENDEN
APPELLANT COUNTY CIRCUIT COURT
[NO. 18CR-15-985]
V.
HONORABLE RALPH WILSON, JR.,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
KENNETH S. HIXSON, Judge
Appellant Arthur Simon (Arthur) brings this interlocutory appeal after the Crittenden
County Circuit Court denied his motion to dismiss his charges based on double-jeopardy
grounds. Simon was charged with two misdemeanor counts of unlawful distribution of
sexual images or recordings. On appeal, appellant contends that the circuit court erred in
denying his motion to dismiss because the charges violate his right to be free from double
jeopardy as protected by the United States and Arkansas Constitutions. We affirm.
In order to understand appellant’s arguments in the criminal case before us, it is
important to understand the proceedings that took place in appellant’s separate divorce
action. Appellant and Amy Kathleen Simon (Amy) were married in 2013. In 2015, Amy
filed a complaint for divorce. In that action, the circuit court issued a temporary restraining
order that stated in relevant part,
10. [Arthur] is enjoined from coming about the residence or rental properties
in possession of [Amy], threatening, harassing, molesting or engaging any other
Cite as 2017 Ark. App. 209
contact with [Amy] that causes apprehension. [Arthur] is also enjoined from calling,
texting or contacting [Amy] through any other electronic means. In the event
[Arthur] violates this restraining Order, the monthly support payments shall be
terminated.
Amy subsequently filed a petition for contempt on August 19, 2015, alleging that
appellant had violated the temporary restraining order. She specifically alleged that
[Arthur] has left letters in the mailbox; sent multiple harassing texts to [Amy]; entered
the rental properties of [Amy]; harassed [Amy’s] daughter; threatened to post and
publish compromising photographs of [Amy] or her family; followed [Amy] around
town; cut the tires of [Amy’s] vehicle; cut the tires of a private investigator employed
by her. Defendant was arrested at approximately 4:00 am on August 9, 2015, two
blocks from [Amy’s] house a night after her air condition[er] was damaged and an
arrow was shot through her window. [Arthur] has been charged with a felony for
his conduct.
An order to show cause was issued on August 19, 2015. After a hearing, the circuit court
found appellant in willful and voluntary contempt in an order filed on January 5, 2016. The
circuit court specifically found that appellant had violated paragraph 10 of the temporary
restraining order. As a result, the circuit court sentenced appellant to serve 120 days in the
Crittenden County Detention Center.
In addition to the various acts of contempt exhibited against Amy, appellant allegedly
procured copies of nude photographs of his stepdaughter, Anna, and left copies of the nude
photographs in the driveways of various houses in his stepdaughter’s neighborhood. Shortly
thereafter, a neighbor retrieved the photographs from the various driveways. Therefore,
separate from the divorce proceedings, the State filed charges against appellant for two
counts of unlawful distribution of sexual images or recordings in the Crittenden County
District Court in August 2015.
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Cite as 2017 Ark. App. 209
In the attached sworn affidavit, Christopher, Anna’s husband, explained that he had
found an envelope in his driveway that stated, “Don’t worry there is more coming, if you
don’t like your prints trade with your neighbors It’s good to know your neighbors.” Inside
the envelope, Christopher found explicit photographs of his wife, Anna. Amy, Anna’s
mother, later shared with Christopher texts that she had received from appellant, in which
appellant had threatened to distribute the pictures in the neighborhood.
In November 2015, the district court found appellant guilty, sentencing him in
pertinent part to one year in jail on each count to run concurrent. Appellant appealed to
the circuit court and filed a motion to dismiss, which is the subject of this appeal. Appellant
alleged in his motion that the charges should be dismissed because he had already been
placed in jeopardy for the same conduct in the criminal-contempt proceedings in his divorce
action. At the hearing, the State disagreed with appellant’s contentions, alleging that the
victims in the criminal case were Anna and Christopher—not Amy. The State additionally
alleged that there were other incidents alleged at the contempt proceeding that could have
formed the basis for the circuit court’s finding appellant in contempt that were completely
unrelated to the conduct at issue in the criminal case. After the hearing, the circuit court
denied appellant’s motion and incorporated its oral findings of fact by reference, which
adopted both of the State’s arguments. This appeal followed.
This is an interlocutory appeal, and our supreme court has long recognized the right
to an immediate appeal from the denial of a motion to dismiss on double-jeopardy grounds.
Dilday v. State, 369 Ark. 1, 250 S.W.3d 217 (2007). We review a circuit court’s denial of
a motion to dismiss on double-jeopardy grounds de novo on appeal. Whitt v. State, 2015
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Ark. App. 529, 471 S.W.3d 670. When the analysis presents itself as a mixed question of
law and fact, the factual determinations made by the circuit court are given due deference
and are not reversed unless clearly erroneous. Id.
The Fifth Amendment to the United States Constitution and article 2, section 8 of
the Arkansas Constitution require that no person be twice put in jeopardy of life or liberty
for the same offense. The Double Jeopardy Clause protects criminal defendants from (1) a
second prosecution for the same offense after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for the same offense. Whitt, supra.
In order to determine whether the same act violates two separate statutory provisions, we
apply the same-elements test, commonly referred to as the Blockburger test, which states as
follows:
[W]here the same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses or only
one, is whether each provision requires proof of a fact which the other does not. . . .
[A] single act may be an offense against two statutes, and if each statute requires proof
of an additional fact which the other does not, an acquittal or conviction under either
statute does not exempt the defendant from prosecution and punishment under the
other.
Blockburger v. United States, 284 U.S. 299, 304 (1932). The Arkansas General Assembly has
codified this constitutional protection at Arkansas Code Annotated section 5-1-110(b)
(Repl. 2013), which provides that an offense is included in an offense charged if the offense
is established by proof of the same or less than all of the elements required to establish the
commission of the offense charged. While criminal contempt does not have elements as
does a statutory criminal offense, this court has stated that it still applies the same-elements
test. Whitt, supra; see also Penn v. State, 73 Ark. App. 424, 44 S.W.3d 746 (2001).
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Appellant argues on appeal that the criminal-contempt proceeding should be
characterized as a trial on a lesser-included offense because it meets the same-elements test.
He argues that, as a result, his criminal charges must be dismissed as a violation of his
constitutional right from being placed in double jeopardy. He further compares the
circumstances of this case to those in Penn. In response to the State’s and the circuit court’s
contention that appellant is not being placed in double jeopardy, because the criminal
charges involve two different victims and that the same-elements test is therefore not met,
appellant acknowledges that the State could prove the criminal charges against him without
discussing any communication that he had with Amy, for which he was found in criminal
contempt. However, he argues that the only purpose of the State doing so would be to
“subvert double jeopardy” and would constitute “prosecutorial misconduct.” Appellant
finally argues that the lack of specificity in the contempt order does not affect the double-
jeopardy analysis, and he requests this court to reverse and dismiss his criminal case.
Appellant’s arguments are without merit.
In Penn v. State, Penn, who was an attorney, had assisted her client in obtaining an
order approving the registration of a void divorce decree that vested custody of the children
to her client. Using the registered decree, Penn persuaded the police and assisted her client
in obtaining custody of the children to cross into Tennessee. Id. Penn was held in criminal
contempt in the divorce proceeding for her participation in the void divorce-decree ruse.
Id. Penn was subsequently charged with interference with court-ordered custody. Id. After
she had been charged, Penn filed a motion to dismiss on double-jeopardy grounds because
she had previously been held in criminal contempt of court in her client’s divorce
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proceedings relating to the same conduct. Id. Penn was specifically found in contempt of
court for filing a fraudulent document and using the fraudulent document to take physical
custody of the children contrary to the order of the court, and Penn was sentenced to five
days in jail and ordered to pay an $8500 attorney fee as a sanction. Id. The motion was
denied, and she filed an interlocutory appeal to this court. Id. We reversed the circuit
court’s denial of the motion to dismiss on double-jeopardy grounds, finding that the
judgment of contempt was a lesser-included offense of the crime with which Penn had been
charged—interference with court-ordered custody. Id.
Penn, however, is distinguishable from the facts of this case. Appellant was found in
contempt and punished for violating a court order that enjoined him from going to Amy’s
residence or rental properties; threatening, harassing, molesting, or engaging any other
contact with Amy that causes apprehension; or calling, texting, or contacting Amy through
any other electronic means. Appellant now faces two counts of unlawful distribution of
sexual images or recording, a Class A misdemeanor, in violation of Arkansas Code
Annotated section 5-26-314 (Supp. 2015), which provides as follows:
(a) A person commits the offense of unlawful distribution of sexual images or
recordings if, being eighteen (18) years of age or older, with the purpose to harass,
frighten, intimidate, threaten, or abuse another person, the actor distributes an image,
picture, video, or voice or audio recording of the other person to a third person by
any means if the image, picture, video, or voice or audio recording:
(1) Is of a sexual nature or depicts the other person in a state of nudity; and
(2) The other person is a family or household member of the actor or another person
with whom the actor is in a current or former dating relationship.
The State alleges that appellant violated section 5-26-314 by distributing explicit
photos of Anna and then distributing them to third persons with the purpose of harassing,
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frightening, intimidating, threatening, or abusing Anna. Appellant’s alleged conduct toward
Anna does not require the State to prove the same elements that were required to find
appellant in contempt for his conduct toward Amy, and we cannot conclude that appellant’s
contempt finding was a lesser-included offense of unlawful distribution of sexual images or
recordings. We further disagree with appellant’s claim that for the State to prove its case
without bringing to light the electronic communication with Amy would be to subvert
double jeopardy and would constitute prosecutorial misconduct. The fact that appellant
also texted Amy and threatened to publish nude pictures of her daughter is a separate,
contemptible action from appellant allegedly distributing pictures of Anna to other people
in the neighborhood. As such, we must affirm the circuit court’s denial of appellant’s
motion to dismiss.
Affirmed.
GLOVER and BROWN, JJ., agree.
Tyler Ginn, for appellant.
Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.
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