### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E Ass ig ne d o n B rie fs Jan ua ry 28 , 20 09

STATE OF TENNESS EE v . JUST IN K. B OLDUS

Direc t Appeal from the Circ uit Court for Dickson Coun ty No. 22CC- 2008-CR- 173 RobertBurch, Jud ge

No. M2008- 01274-CCA -R3-C D - F iled Augu st 18, 2009

The appellant, J ustin K. Boldus, appea ls the Dickson County Circuit Court’s judgme nt aff irming the Dickson County Gene ral Sessions Court’s finding him in contempt of court and sentenc ing him to t en d ay s in jail. On appea l, the appellant raises various issues, including that the evidenc e i s insufficient to support the conviction. We ag ree that t h e evidenc e is insufficient to support a conviction for criminal contempt of court. There fore
, the judgme nt of the circ uit c ourt is r ever sed and the c ase is dismissed.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court is Reve rsed.

N O R M A M C G E E O G L E , J
., delivere d the opinion of the court, in which J A M E S C U R W O O D W I T T , J R ., and D. K E L L Y T H O M A S , J R ., J J ., joined.

Mitchell B. Dug an, Dickson, Te nnessee , for the a ppellant, J ustin K. Boldus.

Robert E

. Co o p e r , J r., Attorney Gene ral and Reporter ; L acy Wil ber, Assistant Attorney Gene ral; Dan Mitchum Alsobrooks, District Attorney Gene ral; and W. Ray Crouch, Assis tant District At t o rn ey Gene ral, for

the appe llee, State of Te nnessee

.

OP INION

I. F acts

The fac ts in the rec ord befor e us are sparse

. Acc ording to the appellant’ s brief, on J anuar y 18, 2008, the then eig hteen- y ear -ol d ap p el l ant was arr ested for trespassing

. During his initial
appea ranc e in g ener al sessions court, the appellant was order ed to return to court on Marc h 14, 2008, for the dispositi on of his case

. The appellant returne d to court as direc ted. W h en t h e general sessions court order ed the appellant to approa ch the bench, the court n o t i ce d t h at the appellant’ s pupils were dilate d and orde red him to have a drug test. Acc ording to the g ener al sessions court’s Marc h 14, 2008 “ORDER OF CONTEMPT” in the appellate rec ord, the court found the appellantto have obstructed justice by testing positive for marijuana

. The appellant appea led to the Dickson

County Circuit Court.

The appellate rec ord does not include a transcr ipt of the circ uit court proce eding

. Howeve r, 1 pursuant to Tenne ssee Rule of Appellate Procedur e 24(c)
, the appellant included a statement of the

ev i d ence. Acc ording to the statement, Dickson County Gene ral Sessions Court J udg e Dur wo o d Moore testified that while the appellant was standing in front of him o n M ar ch 14, 2008, the appellant’ s ey es appea

red to be dilated. J udg e Moore order ed the appellant to submit to a drug test, and the appellant’ s urine tested positive for marijuana. Judge Moor e said he held the appellant in
contem p t o f court and order ed him to serve ten day s in jail. Cindy Fur lough, a probation office r, testified that she administered the drug test to t h e appellant and that the test was positive for marijuana

. On cross-e x amination, Fur lough testified that the drug test indicated a positive result for

a “re sidual” of marijuana
, which could remai n i n a person’ s body for about thirty day s. The appellant testif

i ed t h at he smoked marijuana on the night of Marc h 12, 2008, prior to his g ener al sessions court appea

ranc e on the morning of Marc h 14, 2008. I n closing arg ument, defe nse counsel
argued that the drug test o n l y d etec ted drug residuals and, therefor e, could not deter mine whether the appellant was under the influence of marijuana during his g ener al sessions court appea ranc e; that the appellant did not say or do any thing that rose to the level of “willful misbehavior in the prese nce of the court” ; and that the drug tes t was a random drug scre en prohibited on pretria l rele ase. Acc ording to the s tatement of the evidence, the circ uit court affirmed t h e gener al s essions court’s ruling

. II. Analysi s

The appellant contends that (1) the evidenc e is insufficient to support his conviction, (2) he

was denied due proce ss beca use the g ener al sessions court sentenc ed him to jail without g iving him

an opportunity to addre ss the alleg ations ag ainst him, (3) the g ener al sessions court’s order ing him
to submit to a drug test amounted to a ra ndom drug scre en on pretria l rele ase, which is prohibited by law, and (4) his sentenc e is excessive. The State does not addre ss any of the appellant’ s claims. I nstead, the State contends that this court should aff irm the judgme nt of the circ uit court beca use the appellant f

ailed to include the c ircuit court’ s findings in the r ecor d on appea l.

Reg arding t he State’s argument, Rule 24(c)
, Tenne ssee Rules of Appellate Procedur e, provides as f

ollows:

I f no stenog raphic repor

t, substantially

verbatim recital or tra

nscript of the evidenc e or proce eding s is available
, the appellant shall prepa re

a statement of the evidenc e or proce eding s from the best av ailable
means, including the appellant’ s rec ollection. The statement should
convey a fair, acc urate and complete acc ount of what transpire d with
respe ct to those issues that are the bases of appea l. The s t atement,

A c c o r d i n g t o t h e S t a t e ’ s b r i e f
, a c o u r t r e p o r t e r w a s n o t p r e s e n t a t t h e h e a r i n g

. 1

-2-cer tified by the appellant or the appellant’ s counsel as an ac cu rate

acc ount of the proce eding s, shall be filed with the cler k of the trial
court within 60 day s afte r filing the notice of appea l. Upon filing the statement, the appellant shall simult aneously serve notice of the filing

on the appellee
, acc ompanied by a short and plain decla ration of the issues the appellant intends to presen t o n appea l. Proof of service shall be filed with the cler k of the trial court wi t h t he filing of the
statement. I f the appellee has objections to the statement as filed, the appellee shall file obj ections t here to with the clerk of t he trial court within fiftee n day s afte r service of the decla ration and notice of the filing of the statement. Any differ ence s reg arding the statement shall be settled a s set forth in subdivision (e) of this rule.

I n addition to the fac ts included in the appellant’ s statement of the evidenc e, the statement provides that the circ uit court “c onfirmed the lowe r C ourt’s decision stating that intox ication in public was

a form of contempt.” The as s i s t ant district attorney signe d the statement and did not make any objections reg arding its account of the evidenc e or the proce eding s as Rule 24(c) , Tenne ssee Rule of Ap p ellate Procedur e, direc ts. The appellant’ s statement of the evidenc e provides a very brief

acc ount of the circ uit court’s conclusion and provides enoug h information, albeit bare ly
, to prese rve his sufficie ncy of the evidenc e claim. Ho we v er , t h e statement does not provide any evidenc e reg arding the appellant’ s rema ining issues or the circ uit court’s conclusions reg arding those issues. There fore
, all issues other than sufficie ncy of t he evidence have been waived. See Tenn. R. App. P. 36(a).

When an appellant challeng es the s ufficie ncy of the convicting evidenc e, the standard for revie w by an appe llate cour

t is “whe ther, after viewing the evidenc e in the lig ht most favorable to the prosec ution, any rational trier of fac t could have found the essential elements of the crime bey ond

a rea sonable doubt.” J ackson v. Virg inia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Tenn. R. Ap p

. P. 13(e)

. The State is entitled to the strong est leg itimate view of the evidenc e an d al l

rea sonable or leg itimate infere nces which may be draw n there from. State v. Cabbag e, 571 S.W .2d 832, 835 (Tenn. 1978). Questions conce rning the cre dibilit y of witnesses and the weig ht and value to be aff orded the evidenc e, as well as all fac tual issues raised by the evidenc e, are resolved by the trier of fac t. State v. Bla

nd, 958 S.W .2d 651, 659 (Tenn. 1997). Acc ording ly
, in a bench trial, the trial judge
, as the trier of fac t, must resolve all questions conce rning the cre dibilit y of witnesses and the wei g ht and value to be given the evidenc e, as well as all fac tual issues raised by the evidence. State v. Ba ll, 973 S.W .2d 288, 292 (Tenn. Crim. App. 1998). The trial judg e’s ve rdict ca rries the

same we ight a s a jury

verdic t. State v. Hatche tt, 560 S.W .2d 627, 630 (Tenn. 1978)

.

As applicable to this case , the contempt of court statute provides that “[t] he power of the

sever al courts to issue attachme nts, and inflict punishments for contempts of co u rt , shall not be construed to extend to any except . . . the willful misbehavior of any person in the presence of t he court, or so near there to as to obstruct the administration of justice.” Tenn. Code Ann. § 29-9-102. I n State v. Maddux, our supreme cour t expl ained a s follows:

-3-[T] here are two specie s of contempt, direc t and indirect, which differ
, among other way s, in the minimal proce dures that will satisfy the require ments of due pr ocess in the c ase of eac h. Direc t contempt is based upon a cts committed in the prese nce of the cour t, and may

be punished summarily

. I ndirec t contempt is based upon acts not committed in the prese nce of the court, and may be pu n i s h ed only afte r the offe nder has been g iven notice, and the opportunity to respond to the char g es at a hear ing. Wit h respe ct to these criter ia, an act not com m i t t ed in the prese nce of the court is trea ted as indirect contempt even though the act may be admitted by the offe nder i n open cour t.

571 S.W .2d 819, 821 (Tenn. 1978) (citations omitted).

Reg ardin g d i rec t criminal contempt of court, Rule 42(a)
, Tenne ssee Rules of Criminal Procedur e, provide s that

A j udg e may summarily punish a person who commits crim i n al contempt in the judg e’s pr esenc e if the judg e ce rtifies that he or she

saw or hear d the conduct constituting the co n t empt. The contempt order shall rec ite the fa cts, shall be sig ned by the judg e, and e ntere d in the rec ord.

I n order to support a conviction for direc t criminal contempt pursuant to Tenne ssee Code Annotated section 29-9-102, “the conduct must have been ‘willful,’ and it must have caus ed an ac t u al obstruction of the administration of justice.” State v. Turner
, 914 S.W .2 d 9 5 1
, 956 (Tenn. Crim. App. 1995). In discussing summar y contempt, this court ca

utioned as follows:

[ T]he summary contempt authority must be viewed in light of its
express p u rpose and function. Tenne ssee’ s summary contempt mecha nism

. . . is desig ned to punish cer tain conduct when nece ssary to vindicate the dignity and autho ri t y o f the court. Thus, it may be i n v o k ed when there is a need to “ac t swiftly and firmly to pre v en t contumacious conduct fro m d i s rupting the order ly prog ress of a criminal trial.” United States v. Wil son, 421 U.S. 309, 319, 95 S. Ct. 1802, 1808 (1975).

. . . .

. . . As a result, co urts universally ag ree that summary

co n t empt power s should be used sparing ly
, and even then only in

case s of “exceptional circ umstance s

. ” Har ris v. United States, 382 U.S. 162, 164-65, 86 S. Ct. 352, 354 (1965).

-4-I d. at 956-57 (most citations omitted). Examples of direct c ontemptible conduct include

“disrespe ctful, unrea sonable or conte mp tu o u s c o n d u c t in the prese nce of the court,” State v. J ones, 726 S. W

. 2 d [ 5 1 5, 519 (Tenn. 1987)], “cla morous and violent lang uag e” in the prese nce of the court, Har well v. State, 78 Tenn. [544, 546 (1882)], and “turbulent conduct” in the prese nce of the court, or so near there to, as to interrupt the
proce eding s, id. The supreme court has also said that s u b s ec tion 102(1) “re lates to direc t persona l misbehavi o r, for example, loud speaking or making any

noise in the courtroom or so near there to as to interfe re with the procedure of the c ourt . . . .” [I n re H ickey
, 258 S.W . 417, 425 (Tenn. 1923) ].

Turner , 914 S.W .2d at 958.

Turni n g t o t he present case, t he gene ral sessions court’s order of contempt form provides that “I
, Durwood G. Moore, Dickson County Gene ral Sessions Court J udg e, here by cer tify that I did

see or hear conduct constituting contempt of the Gene ral Sessions Court

. . . and state the following fac ts.” The judge then hand-w rote on the form “Obstruc tion of J ustice Tested positive to marijuana .” Given that the g ener al sessions court judge cer tified the appellant’ s contemptuous conduct pursuant to the proc edure in Tennesse e Rule of Criminal Proce dure 42( a), the appellant wa s prosec uted for direc t contempt. Whil e not condoning the fac t that the appellant smoked marijuana two day s befor e his court ap p ear ance , we are perple x ed as to what behavior war rante d a filing of contempt in this

case

. Other than dilated ey es, no evidenc e was prese nted that the appella n t s h owed any signs of being under the influence of an illega l drug

. There was no testimony that the appellant could not understand the proce eding s ag ain s t h im, that he was bellige rent to the court, or that he used foul lang uag e. I n fac t, there is no evidenc e that the appellant dis ru p t ed the s essions court procee dings in any way

. Given t h at n o “e x ceptional circ umstances” exis t in this case to justify a finding of contempt of court, the judgme nt of the circ uit court aff irming the g ener al sessions court’s contempt of cour t order is re verse d.

III. Conclusi on

Ba sed upon the re cord a

nd the par ties’ brief s, the judg ment of the c ircuit court is r ever sed.

___________________________________ NORMA McGEE OGL E, J UDGE

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