Whitt v. State

Cite as 2015 Ark. App. 529

ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-15-61

Opinion Delivered September 30, 2015

GREGORY WHITT APPEAL FROM THE WASHINGTON
APPELLANT COUNTY CIRCUIT COURT
[No. CR-2004-575-1]
V.
HONORABLE WILLIAM A. STOREY,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

LARRY D. VAUGHT, Judge

After a jury trial on October 1, 2014, appellant Gregory Whitt was convicted of jury

tampering and sentenced to a term of six years in the Arkansas Department of Correction

and fined $5,000. On appeal, Whitt argues that (1) his conviction for jury tampering violated

constitutional protections against double jeopardy, and (2) there was insufficient evidence to

support the conviction. We affirm.

Whitt was charged with endangering the welfare of a minor and resisting arrest arising

from an altercation with police, who responded to a June 2013 domestic-disturbance call

made by his girlfriend. A jury trial took place on March 20, 2014. While on recess, William

Winkleman, a juror in the case, encountered Whitt in the bathroom. Winkleman made a

comment to Whitt about how he would rather be fishing, and Whitt then told him that his

girlfriend had “taken medication” and had “done some wild things.” Winkleman tried to

change the subject and left the bathroom. When he left, Ashley Richardson, another juror on
Cite as 2015 Ark. App. 529

the case, overheard Whitt say something to the effect that he did not tell authorities that his

girlfriend was taking medication on the night of the incident because she was in medical

school.

After deliberations began but prior to reaching a verdict, Winkleman and Richardson

notified the circuit judge of Winkleman’s conversation with Whitt and what Richardson had

overheard. The circuit judge declared a mistrial and excused the jury. The circuit judge

stated, “Clearly, there is reasonable cause to believe that [Whitt’s] in contempt of this court.

I’m therefore going to find him, at least for the time being, in contempt of this court, order

him transported to the Sheriff of Washington County, incarcerated, and if the Defendant

wishes to be heard, although I have a number of matters set for tomorrow, we’ll try to hear

it tomorrow. So the defendant, Gregory Keith Whitt, will be placed in custody.”1

The following day, on March 21, 2014, Whitt was charged with jury tampering (Class

D felony) in violation of Arkansas Code Annotated section 5-53-115 (Repl. 2005). A jury

trial took place on October 1, 2014. The State called three witnesses—Corporal Shawn

Wilson (the officer who responded to the June 2013 domestic disturbance), Winkleman, and

Richardson. At the conclusion of the jury trial, Whitt was convicted of jury tampering, and

he was sentenced as a habitual offender to six years in the Arkansas Department of

Correction and fined $5,000.

Whitt argues on appeal, as he did in his motion to dismiss below, that his conviction

for jury tampering violated constitutional protections against double jeopardy. The basis for

The record does not indicate anything further with respect to contempt. In fact, the
1

transcript of the March 20, 2014 proceeding is not a part of the record on appeal, except that
the one page containing the circuit court’s contempt finding is attached as an exhibit to the
motion to dismiss the jury-tampering case and is contained in the addendum.
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Cite as 2015 Ark. App. 529

his argument is that he had been held in contempt for the same conduct that led to the jury-

tampering charge.

We review a circuit court’s denial of a motion to dismiss on double-jeopardy grounds

de novo on appeal. Winkle v. State, 366 Ark. 318, 235 S.W.3d 482 (2006). When the analysis

presents itself as a mixed question of law and fact, the factual determinations made by the

trial court are given due deference and are not reversed unless clearly erroneous. Id. at 320,

235 S.W.3d at 483. 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. Hughes v. State, 347 Ark. 696, 702, 66 S.W.3d 645, 648 (2002). In order to

determine whether the same act violates two separate statutory provisions, we apply the

same-elements test as set out in Blockburger v. United States, 284 U.S. 299 (1932). Where 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 that the other does not. Walker v. State, 2012 Ark. App. 61,

389 S.W.3d 10. 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. Penn v. State, 73 Ark.

App. 424, 44 S.W.3d 746 (2001).

Whitt argues that he was held in criminal contempt for speaking to a juror during his

trial on March 20, 2014, and incarcerated immediately, which was punitive. He further argues

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that his contempt offense is a lesser-included offense of jury tampering. Whitt relies on Penn

v. State in support of his argument.

In Penn v. State, Penn, who was an attorney, was charged with interference with court-

ordered custody. She filed a motion to dismiss on double-jeopardy grounds because she had

previously been held in contempt of court relating to the same conduct, and was sentenced

to five days in jail and ordered to pay an $8500 attorney fee as a sanction. The motion was

denied, and she filed an interlocutory appeal to this court. 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 was charged. Id. at

428, 44 S.W.3d at 749.

Whitt’s case is distinguishable from Penn. While Whitt’s being held in contempt for

speaking with a juror may be a lesser-included offense of jury tampering, we need not make

that determination because there is no indication in the present case that Whitt was punished

for contempt. The record before us shows only what the circuit court said from the bench,

which indicated that Whitt had been found in contempt “for the time being” and ordered to

be taken into custody. At the beginning of the trial, the circuit court, in denying the renewed

motion to dismiss on double-jeopardy grounds, stated that Whitt was never punished. There

is no indication that a hearing was held, that an order of contempt was entered, or that Whitt

was punished. Because there was no evidence that Whitt was punished for contempt as was

the case in Penn, Whitt’s reliance on Penn is misplaced. An appellant is required to bring up a

record that demonstrates error. See Hobbs v. State, 43 Ark. App. 149, 862 S.W.2d 285 (1993).

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Based on these facts, we hold that Whitt’s conviction for jury tampering was not barred by

double jeopardy.

In the alternative, Whitt argues that there was insufficient evidence to support the

conviction of jury tampering. Our standard of review is well settled:

A motion for directed verdict is a challenge to the sufficiency of the evidence. When
a defendant makes a challenge to the sufficiency of the evidence on appeal, we view
the evidence in the light most favorable to the State. Evidence, whether direct or
circumstantial, is sufficient to support a conviction if it is forceful enough to compel
reasonable minds to reach a conclusion one way or the other. Evidence is substantial
if it is of sufficient force and character to compel reasonable minds to reach a
conclusion and pass beyond suspicion and conjecture. On appeal, this court does not
weigh the evidence presented at trial, as that is a matter for the fact-finder, nor do we
assess the credibility of the witnesses.

Ford v. State, 2014 Ark. App. 576, at 1.

Arkansas Code Annotated section 5-53-115 provides: “A person commits the offense

of jury tampering if he or she attempts directly or indirectly to communicate with a juror,

other than as a part of the official proceedings in which the juror is participating, with the

purpose of influencing the juror’s vote, decision, or other action as a juror.” Whitt conceded

that he communicated with Winkleman in the bathroom during a recess at his trial on March

20, 2014. This concession satisfies the first element of the offense, which requires proof that

he communicated directly or indirectly with a juror.

Whitt argues only that the evidence was insufficient to prove that he spoke to

Winkleman with the intent to influence his decision. In support of his argument, Whitt

contends that there was no evidence to indicate he knew Winkleman was a juror and that

Winkleman initiated the conversation. He argues that Winkleman was not wearing a badge

or identification to indicate he was a juror. He further suggests that Winkleman did not

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recognize him when he first walked into the bathroom. While Winkleman testified that he

did not recognize Whitt when he walked into the bathroom, he stated that he did recognize

Whitt as the defendant when Whitt began speaking.

Whitt also argues there was no evidence of intent to influence the juror because what

he said to Winkleman was unrelated to the resisting-arrest and child-endangerment charges.

Winkleman testified that Whitt spoke of what his “wife” 2 was doing at the time of the

alleged crime and that she had taken medication and done some wild things because of the

medication. He testified that he knew Whitt’s comments had to do with the case in which he

was a juror. Winkleman stated that it sounded like Whitt was trying to get him on his side.

Whitt argues that his statements to Winkleman about his girlfriend had nothing to do

with the case; however, the altercation with the girlfriend led to the police coming to the

home to investigate a domestic disturbance, which resulted in the charges of resisting arrest

and child endangerment. Whitt further contends that the jury had to speculate regarding

Whitt’s intent in making the statements, alleging that the State did not present evidence of

intent. Whitt’s talking to Winkleman about Whitt’s girlfriend’s actions on the night leading to

the charges for which he was being tried was evidence of his intent to influence the juror’s

vote. In addition, Winkleman testified that he tried to change the conversation because he

knew it was inappropriate. Based on this evidence, there was sufficient evidence from which

the jury could conclude, without speculation or conjecture, that Whitt spoke with a juror

with the intent to influence his decision in the case.

2
The woman was actually his girlfriend.
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Cite as 2015 Ark. App. 529

Affirmed.

VIRDEN and GLOVER, JJ., agree.

Flinn Law Firm, P.A., by: Jennifer Williams Flinn, for appellant.

Leslie Rutledge, Att’y Gen., by: Kristen C. Green, Ass’t Att’y Gen., for appellee.

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