IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

September 7, 2000 Session

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 the 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 counseling. 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 impose 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 evidence supports three convictions in this case. We further hold

that although the legislature has not specifically authorized domestic violence counseling as a

sentence for 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. RILEY ANDERSON, C.J., delivered the opinion of the court, in which ADOLPHO A. BIRCH, JR.,

JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined. FRANK F. DROWOTA, III, not

participating.

Oliver S. Thomas, John A. Bell, Catherine P. Kligerman, and Theodore R. Kern, Knoxville,

Tennessee, for the appellant, Regina L. Cable.

Jonathan A. Moffatt, Knoxville, Tennessee, for the appellee, Charles E. Clemmons, Jr.
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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 her 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, threatening to abuse, or committing any

acts of violence upon [Cable] upon penalty of contempt.” The order further prohibited Clemmons

from contacting 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 the way to the motel, Cable declined to spend the night with Clemmons.

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 out of 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 drank 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 motel room after dinner and was later arrested by police 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 Cable while 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; the 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 conviction to be served consecutively; ordered Clemmons 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 appellate court determined that the underlying acts were so closely
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related as to time, place, and proximity that they constituted only one violation of the order of

protection and, therefore, 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 appeal to address these important issues.

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 legislature as “inflicting or attempting to inflict physical

injury on an adult or minor by other than accidental means, placing an adult or minor in 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 alleging such domestic abuse by the respondent. See Tenn. Code Ann. § 36-

3-602 (Supp. 1999). 

Upon the filing of a petition, a court may issue an ex parte order of protection for “good

cause,” which is defined as an “immediate and present danger of abuse to the petitioner.” 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 exceed 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 communicating with the petitioner directly 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 of 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

“available counseling programs that address violence and control issues or substance abuse

problems.” Tenn. Code Ann. § 36-3-606(a)(8) (1996 & Supp. 1999).

When a person is arrested for violating an order of protection, the court shall conduct a

hearing to determine whether to hold that person in contempt of court. See Tenn. Code Ann. §§ 36-
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3-611 and -612 (1996 & Supp. 1999). The court “may hold the defendant in civil or criminal

contempt and punish the 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 protection violate double jeopardy principles.

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

. . . be subject for the same offense to be twice put in jeopardy of life or limb . . . .” U.S. Const.

amend. V. Similarly, the Tennessee Constitution states that “no person shall, for the same offense,

be twice put in jeopardy of life or limb.” Tenn. Const. art. I, § 10. 

The constitutional right againstdouble jeopardy protects against 1) a second prosecution after

an acquittal; 2) a second prosecution after a conviction; and 3) multiple punishments for the same

offense. State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996);see alsoWhalen 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 these protections: that is, whether Clemmons’ multiple convictions for contempt constitute

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

In State v. Denton, we established the analytical framework for determining 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 offenses,

guided by the principles in Duchac v. State, 505 S.W.2d 237 (Tenn. 1973); 3) whether the

defendant’s conduct involved multiple victims or discrete 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 observe that only one statute is involved because each conviction was for criminal

contempt. Included in the statutory elements of the single contempt statute is the phrase “willful

disobedience . . . to [a] lawful . . . [court] order.” See Tenn. Code Ann. § 29-9-102(3) (1980).

Accordingly, we also need not compare the purpose of the contempt statute with any other statute

as is ordinarily required by the fourth Denton factor. In short, Clemmons’ convictions do not

involve multiple or distinct statutes.

With regard to the second Denton factor, however, we find that different evidence was used

to establish three convictions for violating the order of protection. 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 Clemmons
1 Moreover, this Court has repeatedly rejected the view that multiple offenses must be considered the

same offense if occurring as part of the “same transaction.” State v. Duchac, 505 S.W.2d at 239 (“The majority rule and

. . . the rule in Tennessee is that the ‘same transaction ’ test is not the law . . . .”). This Court explained that “[i]f the same

evidence is not required, then the fact that both charges relate to, and grow out of, one transaction, does not make a

single offense where two are defined by the statutes.” Id. at 239; see also State v. Denton, 938 S.W.2d at 380.

2

In our view, and as Cable concedes on appeal, the evidence does not warrant separate convictions for

Clemm ons’ grabbing of Cable and pushing her head against the window, nor d oes the ev idence w arrant sep arate

convictions for Clemmons’ producing a knife and threatening the victim. Moreover, although Clemmons’ initial contact

with Cable itself appeared to violate the terms of the order of protection, and would have served as a fourth conviction,

the petition did not allege and the trial court did no t find a violation on this ba sis.

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produced a knife and threatened to kill Cable. Finally, the evidence of the third conviction was that

after Cable pulled over and fled from the scene, Clemmons vandalized her car by kicking it and

striking it with a knife. 

With regard to the third Denton factor, we also conclude that although the offenses involved

a single victim, they consisted of separate and distinct acts. As noted above in our analysis of the

second Denton factor, Clemmons abused Cable physically; produced a knife and threatened to kill

her; and then vandalized Cable’s personal property. These acts constituted separate and distinct

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 closely 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 court.2 As we have discussed above, there were three distinct and separate acts

committed by Clemmons – physically abusing Cable, threatening to kill her with a knife, and

damaging her personal property – that violated the order of protection and supported a separate

conviction for contempt. See Black v. Blount, 938 S.W.2d 394 (Tenn. 1996) (evidence supported

three contempt convictions); 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 protection . . ., the court may hold

the defendant in civil or criminal contempt and punish the defendant in accordance with the law.”

Tenn. Code Ann. § 36-3-610(a) (1996). The statutes also provide that the failure to attend
3

The judgment included a condition that 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 not

chang e our co nclusion that the judg ment w as for crim inal contem pt.

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counseling sessions as directed in an order of protection “may be punished as 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 or fails to comply with

a court order and a contempt action is brought to enforce private

rights. If imprisonment is ordered in a civil contempt case, it is

remedial and coercive in character, designed to compel [a defendant]

to comply with the court’s order. Compliance will result in

immediate release from prison. Therefore, it has often been said that

in a 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 authority of the law, and the

court as an organ of society. 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 trial court’s judgment referred to criminal

contempt; concluded that the allegations were proven beyond a reasonable doubt; and imposed a

definite sentence that would not be terminated upon Clemmons’ compliance with an order.3 The

applicable statute provides that “punishment for contempt may be by fine or by imprisonment, or

both.” Tenn. Code Ann. § 29-9-103(a) (1980 & Supp. 1999). The statute further states:

Where not otherwise specifically provided, the circuit, chancery, and

appellate courts are limited to a fine of fifty dollars ($50.00), and

imprisonment not exceeding ten (10) days . . . .

Tenn. Code Ann. § 29-9-103(b) (1980 & Supp. 1999).
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As we have said, the statutory provisions regarding domestic abuse and orders of protection

indicate that violations of an order of protection may be punished as civil or criminal contempt. See

Tenn. Code Ann. §§ 36-3-606(a)(8) and -610(a) (1996 & Supp. 1999). It is also provided that “[i]n

addition to the authorized punishments for contempt of court, the judge may assess any person who

violates an order of protection . . . a civil penalty of fifty dollars ($50.00).” Tenn. Code Ann. § 36-3-

610(b) (1996). Although there is no dispute that the court may impose counseling for domestic

abuse or substance abuse 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 part of the sentence for contempt.

Cable nonetheless argues on appeal that allowing counseling to be part of an order of

protection but not for a violation of an order of protection is illogical and inconsistent with the

legislative purpose 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 counseling to

be ordered as part of the punishment for contempt. It is the legislature’s responsibility to set the

limits for punishment and 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 entitled to 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 “this is a highly aggravated case” and noted that the

“counseling provisions . . . will be strictly applied against the defendant in the hope he may be able

to rehabilitate himself.” In our view, by issuing a new order of protection, the trial court’s

requirement that Clemmons undergo counseling for domestic abuse 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). 

Accordingly, we agree with the Court of Appeals’ conclusion that counseling is not

specifically authorized as a punishment for contempt pursuant to Tenn. Code Ann. § 29-3-103 (1980

& Supp. 1999), but disagree that the counseling requirement must be vacated under the facts 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 three convictions in this case. We further hold that although
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the legislature has not authorized domestic violence counseling as a sentence for criminal contempt,

the trial court properly imposed such a requirement as part of a new order of protection. We

therefore reverse the judgment of the Court of Appeals, and remand the case to the trial court for

further proceedings consistent with this opinion. Costs of the appeal are taxed to the appellee,

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

____________________________________

RILEY ANDERSON, CHIEF JUSTICE