Cite as 2017 Ark. App. 209

ARKANSAS COURT OF APPEALS

DIVISION I 

No. CR-16-617

ARTHUR HERMAN SIMON, JR.

APPELLANT

V.

STATE OF ARKANSAS 

APPELLEE

Opinion Delivered: April 5, 2017

APPEAL FROM THE CRITTENDEN

COUNTY CIRCUIT COURT

[NO. 18CR-15-985] 

HONORABLE RALPH WILSON, JR., 

JUDGE

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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2 

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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3 

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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4 

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 doublejeopardy 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.