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                 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
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       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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       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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