# FILED
February 25, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE APRIL 1997 SESSION

STATE OF TENN ESSEE, ) ) NO. 03C01-9601-CC-00044 Appellee, ) ) MONROE COUNTY VS. ) ) HON. MAYO L. MASHB URN, DAVID GARY MILLSA PS, ) JUDGE ) Appellant. ) (Child Abuse)

FOR THE APPELLANT : CHARLES M. CORN District Public Defender WILLIAM C. DONALDSON Assistant Public Defender 110 1⁄2 Washington Ave N.E. Athens, TN 37303 FOR THE APPEL LEE : JOHN KNOX WALKUP Attorney General and Repor ter CLI NTO N J. MOR GAN Assistant Attorney Gener al Cordell Hull Buildi ng, 2nd Floor 425 Fifth Avenue North Nashville, TN 37243-0493 JERRY N. ESTES District Attorney General AMY ARMSTRONG Assistant

District Attorney

General P.O. Box 647 Athens, TN 37303-0647

OPINION FI LED:

CONVICTION AFFIRMED; REMANDED FOR RESENTENCING JERRY L. SMITH, JUDGE1 It is the policy of this Court not to re

veal the names of

minor victims.

2 The photograph

s depict substantia

l bruising and disc

oloration of the sk

in on the child’s leg

s, back and arm. 2

OPINION
The defendant, David Gary Millsaps, was convicted by a jury of simple child abuse. He was s entenced to eleven (11) months and twenty-nine (29) days. On appeal, he contends the evidence adduced at trial is not sufficient to support a guilty verdict and his sentence is excessive. The conviction is affirmed, but for reasons hereinafter stat ed, the case is remanded for resentencing.

FACTUAL BA CKGROUND
The defendant and Tammy Millsaps w ere divorced. On June 9, 1995, eight (8) year-old G.M. 1 spent the day with his father, the defe ndant. Tammy Millsaps, the vict im's mother, picked him up that afternoon and noticed what appeared to be bruises on the v ictim's legs, back and arms. Tammy Millsaps took the victim to the Sweetwater Emergency Room where the police were summoned. Sergeant Gary Ne wman of the Sweetwater Police Department observed several bruises and welts on the child. The victim's injuries were photographed by the police at the hospital. 2 The defendant arrived at the hospital, was read his Miranda rights and subsequentl y gave a written statement that he had given the chil d a "whippin’."

SUFFICIENCY OF THE EVIDENCE

The defendant contends the circumstantial evidence presented at tri al does not support a guilty verdict because the v ictim did not testify, ther e was no medical testimony that the i njuries rose to the lev el of child abuse, and medical3

testimony was not intr

oduced to show the injuri es were other than accid ental. Although the evidence of the defendant’ s guilt is circums tantial in nature, circumstantial evidenc

e alone may be sufficient to support a conviction. State v. Tharpe , 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Gregory , 862 S.W.2d 574, 577 (Tenn. Crim. App. 1993); State v. Buttrey , 756 S.W.2d 718, 721 (Tenn. Crim. App. 1988). Howev er, in order for this to oc cur, the circumstantial evidence must be not only consistent with the guilt of the accused but it must also be inconsistent with innocence and must exclude every other reasonable theory or hypothesis

except that of guilt. Tharpe , 726 S.W.2d at 900. In addition, “it must establish such a certainty of guilt of the accused as to con vince the mind beyond a reasonable doubt that [the defendant] is the one who committed the crime.” Tharpe , 726 S.W .2d at 900 (quot ing Pruitt v. State , 460 S.W.2d 385, 391 (T enn. Crim. App. 1970)). While following the above guidel ines, this Court must remember that the jury decides the we ight to be given to c ircumstantial evidence and that “[t]he inferences to be drawn from such evidence, and the extent t o which the circumstances are consistent with guilt and inconsistent with innocence are questions primarily for the jury.” Marable v. State , 313 S.W.2d 451, 457 (Tenn. 1958); see also State v. Gregory , 862 S.W.2d at 577; State v. Coury , 697 S.W.2d 373, 377 (Tenn. Crim. App. 1985); Pruitt v. State , 460 S.W.2d at 391. Where sufficiency of the evidence is chall enged, the relevant ques tion for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or crimes beyond a reasonab le doubt. Tenn. R. App. P. 13(e); Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Abr ams , 935 S.W.2d 399, 401 (Tenn. 1996). Neither the testimony of the victim nor medical testimony was necessary in this case. The defendant arriv ed at the hospital shortly after the victim. After being read his right

s, the defendant admitted physical ly striking the v ictim. The jury in this case obv

iously believed the defendant knowingly infli cted the injuries4

on the victim, and that those injuries rose to the lev el of simple child abuse as provided in Tenn. Code Ann. § 39- 15-401. The evidence was sufficient to support the guilty v

erdict.

SENTENCING

The defendant contends his sentence was excessive because the trial court improperly consi dered two previous c onvictions and failed to cons ider one mitigating factor. In our review of the record , it is unfortunately appar ent the sentencing hearing had flaw s much greater than the appli cation of mitigating and enhancement factors. Prior to the hearing the trial court had an ex parte conversation with Sheriff’s Detective Georg e Williams. It further appears from the recor d that neither the state nor defense counsel was made aware of this c onversation prior to the hearing. The court beg an the hearing by announcin g, “[a]ll right. Ladies and Gentlemen, it has been brought to my attention by an officer here in Bradley County that he has certain information concerning Mr . Millsaps and a threat th at he’s mad e.” At this point the trial cour t called a nd examin ed the de tective regarding an alleged threat by the defendant to “blow the courthouse up and kill everybody in the c

ourthouse.” After examining the witness, the trial

court asked the defendant if he wished to cross -examine the witness.The defendant, apparently representing himself, began to make statements to the detective and the court. This prompted the publi c defender to ask if his office was relieved of representation. The court repl ied negatively. The public defender at that point examined the detective. Next, the Monroe County Sheriff was called by the trial court to testify

. The tria l judge

had also

spoken w

ith the s heriff ex parte

before the hearing. The court examined the Sheriff about the d efendant’s alleged threat. At this point the public defender objected to the tr ial court’s presentation

of evidence that was properly the responsibi lity of the District Attorney General’s office.5 Mr. Donaldson: In all fairness, Judge, I think we should be

made aware of any evidence that’s gonna be present ed agains t Mr. Millsa ps. This i s really a sentencing hearing by ambush. The Court: That’s right. Have a seat.
Most of the remaining testimony in the hearing consisted of whether the officers believed the alleg ed threat was serious en ough to have the defendant or his home searched for explosi ves. One conversati on centered around the defendant alleging numerous unr elated illegal activ

ities committed by officers of the Monroe County Sheriff’s Department. The sentencing heari ng consisted entirely of testimony and discussions about the alleg ed threat and unrelated matters. There was no testimony or argument by counsel concerning the facts, enhancement factors or mitigati ng factors relating to the case upon which the defendant was being sentenced. When passing sentence on the defendant, the trial c ourt stated it found no mitigating factors, y

et a fairly extensiv

e record of prior criminal activity. The tri al court then stated:

Now let me say this , and it’s not necessary for me to say it, but I want to be perfectly candid with every

body. I sat down and read this presentence report on you about two or thr ee weeks ago. And then I sat down and read it again last night. And while I’m somewhat reluctant to admit i t, I’ve got to be honest w ith everybody, and I can tell you that before I came up her e today, I had pretty much made up my mind w hat your sentence was gonna be. (Brief pause) An d all of yo u can read it right he re, “Appr ove fine, $1250, 11 months and 29 days suspended.” But that’s not the sentence of this Court today. The sentence of this Court today is 11 months and 29 days to serv e at 75%, and you go into custody right now. That’s the sentence of the court. Clearly, a judge may neither permit nor consider ex parte communications in a sentencing proceeding . Sup. Ct. Rules, Rule 10, Canon 3, B(7)(1997); State v. Cash , 867 S.W .2d 741, 749 (T enn. 1993). Ju st as important ly, a trial judge should call and examine witnesses only in rare instances, it being better practice to suggest to counsel that certain questions be ask ed of a witness. State v. Brock , 940 S.W.2d 577, 58 1 (Tenn. Crim. App. 1996). We in no way intend to diminish the r esponsibility of a tria l court to6

maintain security. Security should alway s be a paramount concern and is i ndeed the trial court’s responsibility. The crucial matter leading to the problem in this case, however, w

as the failure of the trial cour t to advise counsel of the ex parte communications prior to the hearing. As a result the trial court elicited this information during the sentenci ng hearing from witnes ses called by the court

. Furthermore, the hearing w as consumed with accusati ons and cross-accusations of unrelated past events. In light of the trial court’s comments, he obviously considered these matters in imposing the maximum senten ce. Therefore, this case must be rem anded for a ne w sentencing hearin g.

CONCLUSION

We find the evidence was sufficient in this case for the jury to hav e found the defendant guilty of the offense charg ed. However, because the sentencing hearing was fraugh t with error, we remand for a new senten cing hearing.

____________________________ JERRY L. SMITH, JU DGE

CONCUR:

______________________________ JOE G. RILEY, JUDGE

______________________________ CHRIS CRAF

T, SPECIAL JUD

GE