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Simon v. State

Court of Appeals of Arkansas, Division I

April 5, 2017



          Tyler Ginn, for appellant.

          Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., for appellee.

          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 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.

          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 Ark.App. 529, 471 S.W.3d 670. When the analysis presents itself as a mixed question of law and fact, ...

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