Emily Grace Brinley v. State of Arkansas

── Emily Grace Brinley v. State of Arkansas ── Court: Court of Appeals of Arkansas Date: May 13, 2026 Category: General Cite as 2026 Ark. App. 299 ARKANSAS COURT OF APPEALS DIVISION II No. CR-25-547 EMILY GRACE BRINLEY Opinion Delivered May 13, 2026 APPELLANT APPEAL FROM THE BENTON COUNTY CIRCUIT COURT V. [NO. 04CR-23-2359] STATE OF ARKANSAS HONORABLE ROBIN F. GREEN, APPELLEE JUDGE AFFIRMED BRANDON J. HARRISON, Judge In November 2023, Emily Grace Brinley and her husband Benjamin Coney made depraved arrangements through social media, then phone, to sexually abuse a nine-year-old girl in Bentonville with her mother’s consent. There was no girl; the “mother” worked for law enforcement. When Brinley and Coney arrived with incriminating sexual paraphernalia, police arrested them. Brinley pleaded guilty to federal charges of attempted enticement of a minor to engage in sexual activity and aiding and abetting under 18 U.S.C. §§ 2 & 2422(b). She brings this interlocutory appeal from the Benton County Circuit Court’s denial of her pretrial motion to dismiss her prosecution for conspiracy to commit rape, Ark. Code Ann. §§ 5-3-401 (Repl. 2013) & 5-14-103(a)(3)(A) (Supp. 2023), under the statutory double-jeopardy defense in Ark. Code Ann. § 5-1-114(1) (Repl. 2013). 1 1 The circuit court dismissed another count, internet stalking of a child under Ark. Code Ann. § 5-27-306 (Supp. 2023), which the State conceded was barred.  We can hear an interlocutory appeal because double jeopardy guarantees the right not to be tried twice (not just convicted twice) for the same offense. Waterman v. State, 2025 Ark. 62. Our review is de novo. Winkle v. State, 366 Ark. 318, 235 S.W.3d 482 (2006). When the analysis presents as a mixed question of law and fact, we give the circuit court’s factual determinations some deference and do not reverse them unless they are clearly erroneous. Id. at 320, 235 S.W.3d at 483. But we review de novo the ultimate decision that the protection against double jeopardy was not violated. Waterman, 2025 Ark. 62. And here, we affirm. * * * Arkansas, like many states, has enacted stronger statutory protections against successive prosecutions than the federal or state constitution provides. Under the “dual sovereignty” doctrine, a state prosecution following a federal conviction based on the same conduct would not violate double jeopardy under the Fifth Amendment to the U.S. Constitution even if the offense elements were identical. 2 The double-jeopardy provision in article 2, section 8 of the Arkansas Constitution has about the same breadth and would be no barrier either. Waterman, supra. But section 114, whose relevant provisions are identical to Model Penal Code § 1.10, creates an affirmative defense to the new prosecution unless it fits an included exception. As relevant to this appeal, section 114 provides: 2 The substantive elements of the federal and state offenses can be truly identical. Under the Assimilative Crimes Act, for example, conduct that is prohibited in the jurisdiction surrounding a federal enclave, but not by existing federal law, is a federal crime with the same elements in the enclave. 18 U.S.C. § 13. 2  When conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States . . . , a prosecution . . . is an affirmative defense to a subsequent prosecution in this state under the following circumstances: (1) The first prosecution resulted in an acquittal or in a convict