Simon v. State
2017 Ark. App. 209
| Ark. Ct. App. | 2017Background
- Arthur Simon was subject to a temporary restraining order in his (now) divorce case prohibiting contact with his wife Amy and electronic communications; the court later found him in criminal contempt for violating that order and sentenced him to 120 days.
- Amy’s daughter Anna (Simon’s stepdaughter) had explicit nude photos distributed in her neighborhood in August 2015; envelopes containing the photos and threatening notes were placed in driveways.
- The State charged Simon separately with two misdemeanor counts of unlawful distribution of sexual images or recordings for distributing Anna’s photos.
- Simon was convicted in district court and appealed; he moved in the circuit court to dismiss the criminal charges on double-jeopardy grounds, arguing the criminal-contempt proceeding in the divorce action already placed him in jeopardy for the same conduct.
- The circuit court denied the motion, adopting the State’s view that (1) the contempt finding concerned violations directed at Amy while the criminal charges concerned harms to Anna/Christopher, and (2) the contempt judgment rested on multiple incidents separate from the photo-distribution.
- Simon appealed interlocutorily; the Court of Appeals reviewed de novo whether the contempt finding and the statutory offenses are the same offense for double-jeopardy purposes.
Issues
| Issue | Simon's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the criminal contempt finding bars prosecution for two counts of unlawful distribution of sexual images under double-jeopardy | Contempt was effectively a lesser-included offense of the statutory charges under the same-elements (Blockburger) test, so subsequent prosecution must be dismissed | The contempt judgment involved different victims and other incidents; the statutory offense requires proof of elements not required for contempt | Denied — contempt was not a lesser-included offense; prosecutions may proceed |
| Whether proving the statutory charges without referencing communications to Amy would be prosecutorial subterfuge or misconduct | Any attempt to avoid repeating contempt-related facts would subvert double jeopardy and be misconduct | The State can prosecute the separate harm to Anna without relying on the contempt findings; the acts are distinct | Rejected — proving distribution to third parties as to Anna is a distinct offense |
Key Cases Cited
- Dilday v. State, 369 Ark. 1 (double-jeopardy interlocutory-appeal rule)
- Penn v. State, 73 Ark. App. 424 (court found contempt could be lesser-included of related statutory offense)
- Blockburger v. United States, 284 U.S. 299 (same-elements test for double-jeopardy)