ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

STANLEY DEE DILLARD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-862

May 16, 2000

APPEAL FROM THE FAULKNER

COUNTY CIRCUIT COURT

[CR99-223]

HONORABLE DAVID L.

REYNOLDS, CIRCUIT JUDGE

AFFIRMED

Appellant, Stanley Dee Dillard, was tried by the court and convicted of the offense of harassing communications, a Class A misdemeanor, regarding a phone call that he made to his ex-wife, Lisa Dillard. We affirm the conviction.

Lisa Dillard testified that she and appellant were married in 1984 and divorced around 1997 or 1998. She stated that it was not an amicable divorce and that appellant had harassed and threatened her during the course of the divorce proceedings. She stated that he was jailed in 1998 "because he wasn't following the Court's order"; that he was released in May 1998, but did not stop his harassing conduct; that in December she went to a friend's house and appellant left nine messages on the answering machine, despite being under a court order not to call her or her friends; and that he was held in contempt again.

She stated that on the night in question in this case, March 13, 1999, appellant was still under a court order to leave her alone and not call her; that she had been to a friend's house for a cook-out; and that after she left, Todd Barnes, whom she had previously dated and who had been at the cook-out, called and told her his tires had been slashed and that he wanted appellant's mobile number. She said that she gave Barnes the number, and that appellant subsequently called her and said, "Why in the hell did you give Todd my phone number?" She stated that she could tell appellant was drunk, that he was yelling, and that she hung up on him. She stated that appellant had probably made a hundred or more calls "like that" since they separated and that he also makes threats to her. She stated that before they separated, he told her if she ever left him it would be a flat line, meaning that he would kill her. She further testified that one night when she came home, appellant was hiding in the woods across from her apartment and that he came toward her as she was trying to get in the door. He has followed her to the store and asked to park in her neighbors' driveways in order to watch her house. She thought that he has been found in contempt of chancery court a total of three times. She stated that prior to March 13, 1999, the last time appellant communicated with her or with Barnes was in December 1998.

Officer David Strite, a Mayflower police officer, testified that he responded to a vandalism call regarding slashed tires in March 1999. He spoke with appellant by phone and then accompanied a Greenbrier police officer to appellant's house; appellant was in hisgarage and there were weapons in the garage near him. Strite stated that no one at the party where the tires had been slashed told him that Barnes had called appellant prior to appellant's call.

Appellant testified that he had been at a friend's house watching a boxing match on the night in question; that when he was driving in his driveway, his cell phone rang and it was Barnes who said in part, "Dillard, this is Barnes, and I'm gonna get you." Appellant said he asked what for because he had no idea what Barnes was talking about. He said that his caller ID showed that his ex-wife had tried to call him and that he called her and asked what in the hell she was doing giving Todd Barnes his private cell phone number. He denied slashing any tires that night. He acknowledged that he was under a restraining order on March 13, 1999, which prohibited him from calling his ex-wife.

Appellant's mother, Lou Dillard, testified that she personally observed appellant's caller ID to see if there were calls made to him on March 13. She recognized one number as that of Lisa Dillard and another that was identified as that of the Smith residence, where the cook-out was held and the tires were slashed.

For his primary point of appeal, appellant contends that "the Court erred in finding that Stan Dillard harassed Lisa Dillard by returning her telephone call after her friend called and threatened `to get him.'" The gist of appellant's contention under this point is that therewas not sufficient evidence to support his conviction for harassing communication. The argument was not preserved for appellate review.

Rule 33.1 of the Arkansas Rules of Criminal Procedure provides in pertinent part:

(Emphasis added.)

At the close of all the evidence, appellant's counsel moved for a directed verdict, but did not specify the respect in which the evidence was deficient. Consequently, the issue was not preserved for our review.

In addition to his primary point of appeal, appellant also contends: 1) that "the court erred in finding appellant guilty in domestic abuse court and in allowing the FaulknerCounty Prosecutor, H.G. Foster, to determine appellant's sentence," and 2) that "the court erred in placing appellant in double jeopardy by determining his guilt and/or punishment based upon facts for which he was previously incarcerated for criminal contempt."

The trial court explained that appellant was

Moreover, the prosecutor did not determine appellant's sentence. Rather, following the court's announcement that he would suspend imposition of a six-month jail sentence and fine appellant $1,000, the prosecutor requested that the trial court modify its sentence to also suspend the $1,000 fine conditioned upon appellant's successful completion of batterer's treatment. The fact that the trial court granted that request does not mean that the prosecutor determined the sentence. Furthermore, neither does the fact that more conditions of suspension were included with the actual judgment and disposition order than were actually discussed at the hearing establish that the prosecutor, rather than the judge, was determining appellant's sentence. The conditions of suspension were signed by the circuit court judge, and appellant cites no authority nor convincing argument to support his position in this regard.

Finally, we disagree with appellant's contention that a contempt conviction in chancery court, for which he was sentenced to thirty days in jail, barred the subsequent and underlying prosecution for harassing communication that is at issue here. "The Double Jeopardy Clauses of both the United States and Arkansas constitutions protect 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." State v. Thompson, 343 Ark. 135, 141, 34 S.W.3d 33, 37 (2000) (emphasis added). The contempt conviction in chancery court was for conduct that occurred in 1998 during the divorce proceedings, while the conduct at issue here involves a telephone call that was made in March 1999. Those two actions by appellant do not constitute the "same offense," and his double-jeopardy argument cannot stand.

Affirmed.