FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CR-15-985]
HONORABLE RALPH WILSON, JR., JUDGE AFFIRMED
Ginn, for appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
KENNETH S. HIXSON, Judge
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.
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
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.
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.
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.
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.
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.
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,