Whitt v. State, 471 S.W.3d 670

Gregory Whitt was tried March 20, 2014, on charges of resisting arrest and endangering the welfare of a minor; during a recess he spoke to juror William Winkleman in a restroom, and juror Ashley Richardson overheard additional remarks.
Winkleman reported that Whitt discussed the girlfriend taking medication and implied reasons for not telling authorities; Winkleman tried to change the subject and later informed the judge.
The trial judge declared a mistrial, excused the jury, made an on-the-record finding that Whitt was in contempt “for the time being,” and ordered him into custody; no contempt hearing or written contempt order appears in the record.
The State then charged Whitt with jury tampering under Ark. Code Ann. § 5-53-115; a jury convicted him on October 1, 2014, and he was sentenced to six years and a $5,000 fine.
On appeal Whitt argued (1) double jeopardy barred the jury-tampering prosecution because he had been held in contempt for the same conduct, and (2) the evidence was insufficient to prove intent to influence a juror.
The Court of Appeals affirmed, holding no double-jeopardy bar because there was no evidence Whitt was punished for contempt, and that the evidence was sufficient to allow a jury to infer intent to influence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecution for jury tampering was barred by double jeopardy because Whitt was previously held in contempt for the same conduct	Whitt: the contempt finding constituted punishment for the same conduct, making jury-tampering prosecution a second jeopardy	State: contempt finding was temporary; record shows no contempt hearing, order, or punishment, so no prior punishment for the same offense	Affirmed for State — no double jeopardy because there was no evidence Whitt was punished for contempt
Whether the evidence was sufficient to show intent to influence a juror as required for jury tampering	Whitt: his restroom conversation was initiated by juror, he may not have known the man was a juror, and his comments weren’t directly about charged offenses	State: Whitt admitted speaking to juror; his statements about girlfriend’s conduct related to events underlying the charges and could be seen as soliciting sympathy or influencing a juror; juror testimony supported inference of intent	Affirmed for State — viewing evidence in State’s favor, reasonable jurors could infer intent to influence

Blockburger v. United States, 284 U.S. 299 (1932) (same-elements test for determining whether two statutes prohibit the same offense)
Penn v. State, 73 Ark. App. 424 (2001) (contempt can be a lesser-included offense and may bar subsequent prosecution when punishment was imposed)
Winkle v. State, 366 Ark. 318 (2006) (standard of review for double-jeopardy dismissal)
Hughes v. State, 347 Ark. 696 (2002) (double-jeopardy protections and the three types of double-jeopardy bars)
Walker v. State, 2012 Ark. App. 61 (2012) (application of same-elements test to determine distinct offenses)
Hobbs v. State, 43 Ark. App. 149 (1993) (appellant must bring a record that demonstrates error)