### IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE September 7, 2000 S ession REGINA L. CABLE v. CHARLES E. CLEMMONS, JR. Appeal By Permission from the Court of Appeals, Eastern Division

Circuit Court for Knox County No. 79492 Bill Swann, Judge

No. E1998-00526-SC-R11-CD - Filed January 3, 2001

We granted this appeal to determine the following two issues: 1) whether double jeopardy bars multiple convictions for criminal contempt based on violations of an order of protection and 2) whether domestic violence

counseling may be

imposed as part of

the sentence for

criminal contempt

. After finding t he defendant guilty of six counts of criminal contempt, the trial court’s sentence consisted of 1) ten days in

jail for each act

of contempt to be served consecutively and 2) forty-five weeks of domestic violence c oun seling. A new order of protection was issued. The Court of Appeals held that the evidence supported only one conviction for criminal contempt and that the trial court lacked the authority to impo se counseling as part of a sentence for criminal contempt. After reviewing the record and

authority, we hold that double jeopardy does not bar multiple convictions for criminal contempt

and that the evide

nce supports thre

e convictions in thi

s case. We furth

er hold that although the legisl

ature has not spec

ifically authoriz

ed domestic viole

nce c ounseling as a sente nce fo r criminal contempt, the trial court properly imposed the requirement as part of a new order of protection. Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed and Case Remanded to the Trial Court
E. R ILEY ANDERSON , C.J., delivered th e opinio n of the court , in which A DOLPHO A. B IRCH , J R ., J ANICE M. H OLDER , and W ILLIAM M. B ARKER , JJ., joined. F RANK F. D ROWOTA , I II , not participating.
Oliver S. Thomas, John A. Bell, Catherine P. Kligerman, and Theodore R. Kern , Kn oxville, Tennessee, for the appellant, Regina L. Cable. Jonathan A. Moffatt, Knoxville, Tennessee, for the appellee, Charles E. Clemmons, Jr.-2- OPINION
BACKGROUND Regina L. Cable and the defendant, Charles Clemmons, Jr., lived together and had a minor child. On June 2, 1998, Cable sought an order of protection, alleging that Clemmons had threatened to shoot he r and had grabbed her hair. She also alleged that Clemmons, on prior occasions, had pulled a gun and

had abused her physically. On the same day, an ex parte order of protection was entered, by which Clemmons was “restrained and prohibited from abusing, threatening to abuse, or committing acts of violence” upon Cable.
On June 11, 1998, following a hearing, the trial court entered a “proof order of protection without social contact.” The order stated that Clemmons was “enjoined from coming about [Regina L. Cable] for any purpose and specifically from abusing, threa tening to abuse, or committing any acts of violence upon [Cable] upon penalty of contempt.” The order further prohibited Clemmons fromcontacting Cable “by any means whatsoever, upon pains of 10 days in jail” for each violation.

On August 23, 1998, Clemmons was arrested on charges of violating the order of protection. At a later bench trial, Cable testified that on August 23, 1998, Clemmons telephoned her and the two met for dinner. During dinner Clemmons drank excessively. After dinner, Cable gave Clemmons
a ride to a motel. On t

he way to the motel,

Cable declined to

spend the night with

Cl emmons
. Clemmons became angry, grabbed Cable by her hair, and pushed her head against the car window. He then pulled a knife and threatened to kill her. Cable pulled to the side of the road and got out of the car. Clemmons followed her outof the car and then kicked and stabbed the car. Cable fled from the scene and called 911. Clemmons was arrested for violating the order of protection.
Clemmons testified that he telephoned Cable and that the two had dinner. He admitted that he dr an k alcohol but denied he was intoxicated. Clemmons admitted that he and Cable had an argument but he denied that he grabbed her hair, struck her, or harmed her physically. Clemmons also denied that he threatened Cable with a knife or that he damaged her car. Clemmons testified that he went to his mo

tel room after din

ner and was late

r arrested by pol

ice officers.
The trial court found Clemmons guilty of six counts of criminal contempt for violating the order of protection. The first two convictions were based on grabbing Cab le whil e in the car; the third conviction was based on pushing Cable’s head against the car window; the fourth conviction
was based on pulling a knife; th e fifth conviction was based on threatening to kill Cable; and the sixth conviction was based on damaging Cable’s car. The trial court sentenced Clemmons to serve 10 days for each c

onviction to be ser

ved consecutive

ly; ordered Clemmo

ns to undergo 45 weeks of domestic violence counseling; and issued a new order of protection.
The Court of Appeals held that the trial court erred in finding Clemmons guilty of six counts of criminal contempt. The a ppe llate court deter

mined that the unde

rlying acts were

so closely-3-

related as to time, place , and prox imity that they constituted only one violation of the order of protection and, theref

ore, supported only one conviction for criminal contempt. The Court of Appeals also held that the trial court lacked the authority to order domestic violence counseling as a part of a sentence for criminal contempt counseling and vacated the requirement. We granted this a

ppeal to address t

hese important issu

es.

ANALYSIS
Domestic Abuse
We begin our analysis by examining the relevant statutory provisions that have been enacted by the legislature to “recognize the seriousness of domestic abuse as a crime and to assure that the law provides a victim of domestic abuse with enhanced protection from domestic

abuse.” See Tenn. Code Ann. § 36-3-618 (1996).
“Domestic

abuse” is defined by the leg

islature as “infl

icting or attemptin

g to inflict physical injury on an adult or minor by other than accidental means, placing an adult or minor i n fear of physical harm, physical restraint, or malicious damage to the personal property of the abused party.” Tenn. Code Ann. § 36-3-601(1) (Supp. 1999). Any person who has been subjected to or threatened with domestic abuse by a present or former adult family or household member may seek relief by filing a sworn petition al

leging such domesti

c abuse by the re

spondent. See Tenn. Code Ann. § 36- 3-602 (Supp. 1999). Upon the filing of a petition, a court may issue an ex p arte order of protection for “good
cause ,” which is defined as an “immediate and present danger of abuse to the petitione r.” Tenn

. Code Ann. § 36-3-605(a) (1996 & Supp. 1999). Within 15 days of service on the respondent, the court shall hold a hearing and either dissolve the ex parte order, if one had been issued, or extend the order of protection for a definite period of time not to excee d one year. Tenn. Code Ann. § 36-3- 605(b) (1996 & Supp. 1999).
An order of protection is aimed at protecting the petitioner from abuse. It may prohibit the respondent

from 1) abusing or threatening to abuse the petitioner or the petitioner’s minor children; 2) telephoning, contacting, or otherwise comm unicating with the p

etitioner direct

ly or indirectly; or 3) stalking the petitioner. Tenn. Code Ann. § 36-3-606(a)(1) - (3) (1996 & Supp. 1999). It may also address issues such as housing, custody o f children, and financial support. See Tenn. Code Ann. § 36-3-606(a)(4) - (7) (1996 & Supp. 1999). Finally, the order may require the respondent to attend “ava ilablecounseling programs that address violence and control issues or substance a bus e problems.” Tenn. Code Ann. § 36-3-606(a)(8) (1996 & Supp. 1999).
When a person is arrested for violating an order of protection, t he court s hall conduct a hearing to determine whet her to hold that per

son in contempt of court

. See Tenn. Code Ann. §§ 36--4-

3-611 and -6 12 ( 1996 & Supp. 1999). The court “may hold the defendant in civil or criminal contempt an d punish t he defendant in accordance with the law.” Tenn. Code Ann. § 36-3-610(a) (1996). Double Jeopardy
We now turn to the first issue in this case, which is whether Clemmons’ multiple convictions for contempt based on his violations of the order of prot

ection violate dou

ble jeopardy princip

les.
The double jeopardy clause in the United States Constitution provides that no person “shall

. . . be subje ct fo r the same offen se to be twice put in

jeopardy of life

or limb . . . .” U.S. Con st. amend. V. Similarly, the Tenn essee Constitution s

tates that “no per

son shall, for the same offense, be twice put in jeopardy of life or limb.” Tenn. Const. art. I, § 10.
The constitutional ri ght against double jeopardy protects against 1) a second prosecution after an acquittal; 2) a

second prosecut

ion after a convi

ction; and 3) multipl

e punishments for the same offense. State v. Denton , 938 S.W.2d 373, 378 (Tenn. 1996); see also Whalen v. United States , 445 U.S. 684, 688, 100 S. Ct. 1432, 1435-36, 63 L. Ed. 2d 715 (1980). The issue here concerns the third of th ese prote ctions: that is, whe ther Clemmons’ multi

ple convictions fo

r contempt constitu

te punishment for the same offense under the facts of this case.

In State v. Denton , we established the analytical framework for de terminin g whether a defendant has received multiple punishments for the “same offense.” The courts must consider 1) the statutory elements of the offenses, guided by the principles in Blockburger v. United States , 284 U .S. 299, 52 S. Ct. 180, 76 L. Ed. 2d 306 (1932); 2) the evidence used to establish the offe nses , guided by the principles in Duchac v. State , 505 S.W.2d 237 (T enn. 1973); 3) whether the defendant’s conduct involved m ultiple victims or d iscrete acts; and 4) whether the purpose of the respective statutes at issue is the same or

different. Denton , 938 S.W.2d at 381. No single aspect of this analysis is given controlling weight; each factor must be weighed and considered in relation to the others. See State v. Beauregard , ___ S.W.3d ___ (Tenn. 2000). Applying the first factor of the Denton analysis – the statutory elements of the offenses – to this case, we observ

e that only one st

atute is i nvolved because each conviction was for criminal contem pt. Included in the statutory elements of the single contempt statute is the phrase “willfu l disobedience . . . to [a] lawfu l . . . [court] order.” See Tenn. Code Ann. § 29-9-102(3) (1980). Accordingly, we

also need not comp

are the purpose

of the contempt sta

tute with any other statute
as is ordinarily required by the fourth Denton factor. In s hor t, Clemmons’ convictions do not involve multiple or d

istinct statutes.
With regard to the second Denton

factor, however, we

find that different evidence was used to est a blish three convic tions for violating t

he order of prote

ction. For example, evidence to establish the first conviction occurred when an argument began

and Clemmons grabbed Cable and pushed her head against the car window. The evidence of the second conviction was that Clemmons1 Moreover, this Court has repeat

edly reje cted the vi

ew that multi

ple offens es must be cons idered the
same offense if occurri

ng as part of the “same tr ansaction.” State v. Duchac , 505 S.W.2d at 239 (“The majorit y rule and

. . . the rul

e in Tennessee is t

hat the ‘same transaction ’ test is not the l aw . . . .”) . This Cour

t e xpl ain ed t hat “[i ]f t he s ame evidence is not r

equired, t

hen the fact

that bot h charges rel

ate to, and grow out of, one

transact ion, doe s not make a single offense where t

wo are defined by the statut es.” Id . at 239; see also State v. Denton , 938 S.W.2d at 380.
2 In our view, and as Cable concedes on appeal, t

he evidence does

not warrant

separate convicti ons for Clemm ons’ grabbing of Cabl e and pushing her

head against

the window, nor d oes the ev idence w arrant sep arate convicti ons for Clemmons’ producing a knife and threateni ng the vict im . Moreover, although Clemmons’ initial contact with Cable it

self appea

red to viol

ate the t erms of the or

der of protecti on, and would have ser ved as a fourt

h convicti

on, the petition did not allege and the trial court did no t find a violation on this ba sis.
-5- produced a knife and threa

tened to kill

Cable. Finally, the evidence of the third conviction was that after Cable pulled over

and fled from the

scene, Clemmons va

ndalized her ca

r by kicking it

an d striking it with a knife.
With regard to the third Denton factor, we also conclude that although the offenses involved
a single victim, they consist ed of separate a

nd distinct acts. As

noted above in

our analysis of the second Denton

factor, Clemmons abused Cable physically; produc ed a knife and thr

eatened to kill her; and then vandalized Cable’s personal property. These acts constituted separate and dist inct types of abuse, all of which were prohibited under the order of protection. See Tenn. Code Ann. §§ 36-3-601 and -606(a) (1996 & Supp. 1999). The fact that the acts were close

ly related in time and place does not render them inseparable; indeed, emphasizing only time and place is tantamount to a “same transaction” analysis, which is not part of the Denton analysis. 1

We therefore conclude

that double jeopardy principles do not bar multiple convictions and punishments

in this case. The record, however, supports only three convictions and not six as found by the trial cour

t. 2 As we ha ve discussed abov e, there were t

hree distinct and

separate acts committed

by Clemmons – phy sically abusing Cable, threatening to kill her with a knife, and d amagi ng her personal pro perty – that violate

d the order of pro

tection and suppor

ted a separate conviction for co

ntempt. See Black v. Blount , 938 S.W.2d 394 (Tenn. 1996) (evidence supported three contempt c

onvictions); State v. Turner , 914 S.W.2d 951 (Tenn. Crim. App. 1995) (evidence supported three contempt convictions). In sum, we conclude that double jeopardy principles do not bar Clemmons’ convictions for three counts of contempt under the facts of this case. Counseling
We next turn to the issue of whether the trial court has the authority to order counseling for domestic abuse when a defendant has violated an order of

protection and has been found guilty of contempt.
The statutes provides that “[u]pon violation of the order of protec

tion . . ., the court m

ay hold the defendant in c

ivil or criminal co

ntempt and punish the

defendant in

accordance w

iththe law.” T enn. Code Ann. § 36-3-610(a) (1996). The statutes also provide that the failure to attend3 The judgment included a c ondition t hat Clemmons receive in- house c ounselin g while in jail and cou ld not be released until he did so. A lthough this con dition is in the nature of a rem edy for civil contem pt, it does n o t chang e our co nclusion that the judg ment w as for crim inal contem pt. -6- counseling sessions as directed in an order of prot ection “may be punished a s criminal or civil contempt.” Tenn. Code Ann. § 36-3-606(a)(8) (1996 & Supp. 1999).
As these statutes indicate, there are two types of contempt – civil or criminal. We have previously discussed the differences between the two:

Civil contempt occurs when a person refuses o

r fails to comply with
a court order and a contempt action is brought to enforce pri vat e rights. If imprisonment is orde red in a civil contempt ca se, it is remedial and coercive in

character, designed

to compel [a defe

ndant] to comply with the court’s order. Complianc e will result in immediate

release from

prison. Therefore, it has often been said that ina civil contempt case, [a defendant] “carries the keys to his prison in his own pocket. . . .”
Criminal contempts, on the other hand, are intended to preserve the power and vindicate the dignity and autho rity of the law, and the court as an organ of s oc iety. Therefore, sanctions for criminal contempt are generally both punitive and unconditional in nature. . . . In the trial of a criminal contempt case, therefore, guilt of the accused must be established by proof beyond a reasonable doubt.

Black v. Blount , 938 S.W.2d at 398 (all citations omitted).
This case involves criminal contempt : the tria l court’s judgment referred to criminal contempt; concluded that the allega tion s were proven beyond a reasonable doubt; and imposed a definite sentence that would not be terminated upon Clemmons’ compli ance with an order. 3 The applicable

statute provides th

at “punishment for

contempt may be by f

ine or by impriso

nmen t, or both.” Tenn. Code A

nn. § 29-9-103(a)

(1980 & Supp. 1999).

The statute furth

er states:
Where not

otherwise specif

ically provided, t

he circuit, chancery, and ap pellate courts are limited to a fine of fifty dollars ($50.00), an d imprisonment not exceeding ten (10) days . . . .

Tenn. Code Ann. § 29-9-103(b) (1980 & Supp. 1999).-7-

As we have said, the statutory provisions regarding domestic abuse and orders of protection indicate that violations of a

n order of protec

tion may be punished

as civil or criminal contempt. See Tenn. Code Ann. §§ 36-3-606(a)( 8) and -610(a) ( 1996 & Supp. 1999). I t is also provided that “[i]n addition to the authorized punishments for contempt of court, the judge may assess any person who violates anorder of protection . . . a civil penalty of fifty dollars ($50.00).” Tenn. Code Ann. § 36-3- 610(b) (1996). Al though there is no d ispute that the cou

rt may impose couns

eling for domestic abuseor substance abu

se as part of

an order of protection, See Tenn. Code Ann. § 36-3-606(a)(8) (1996 & Supp. 1999), there is no specific statutory provision authorizing the imposition of counseling as par

t of the sentence

for contempt.
Cable nonetheless arg ues o n appeal that allowing counseling to be part of an order of protection

but not for a violat

i on of an order of protection is illogical and inconsistent with the legislativ e pur

pose of addressing domestic abuse. Cable also argues that the phrase “[w]here not otherwise specifically provided” as used in the contempt statute, See Tenn. Code Ann. § 29-9-103(b) (1980 & Supp. 1999), authorizes additional punishment such as counseling.
We agree that counseling would be a logical and potentially effective part of a sentence for contempt and that the legislature may wish to consider the issue. We cannot agree, however, that the legislature has “specifically provided” for counseling as an additional punishment under the present statutory provisions. As noted above, there is no specific provision allowing c

ounseling to be ordered as par

t of the punishment f

or contempt. It is t

he legislature’s responsibility to set the limits for punishment a

nd the courts are not free to impose greater punishments without statutory authority. See State v. Davis , 940 S.W.2d 558, 562 (Tenn. 1997).
This does not mean, however, that Clemmons is entitledto relief under the facts of this case. The trial court, in addition to imposing the sentences, issued a new order of protection without social contact. The trial court’s order stated that “thi s is a high ly aggravated case” and noted that the “counseling provisions . . . will be strictly applied against the defendant in the hope he may be abl e to rehabilitate hims

elf.” In our view

, by issuing a new or

der of protectio

n, the tria

l co urt’s requirement

that Clemmons undergo counseli ng for domestic ab

use falls within

the statute allowing such counseling as part of an order of protection. See Tenn. Code Ann. § 36-3-606(a)(8) (1996 & Supp. 1999). Accordingl y, we agree with the Court of Appeals’ conclusion that co unseling is n

o t specifically

authorized as a punishment for contempt pursuant to Tenn. Code Ann. § 29-3-103 (1980 & Supp. 1999), but disagree that the counseling requir ement must be vaca

ted under the fac

ts of this case. In our view, the counseling requirement is part of the new order of protection.

CONCLUSION
We conclude that

double jeopardy does not bar Clemmons’ multiple convictions for criminal contempt and that the evidence supports threeconvictions in this case. We further hold that although-8-

the legislature has not authorized domestic violence counseling as a sentence for criminal contempt, the trial c ourt properly imposed such a requirement as part of a new order of protection. We therefore reverse the judgment of the Court of Appeals, and reman d the case to the trial court for further proceedings con

sistent with this opini

on. Costs of the appe

al are taxed to th

e appell e e, Charles E. Clemmons, Jr., for which execution shall issue if necessary.

____________________________________ RILEY ANDERSON, CHIEF JUSTICE