1

FILED

January 29, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

ANGIE COOPER MACKLIN, ) C/A NO. 03A01-9807-CV-00232

 )

Petitioner-Appellee, )

 )

 )

 )

 ) APPEAL AS OF RIGHT FROM THE

v. ) KNOX COUNTY CIRCUIT COURT

 )

 )

 )

 )

TIMMY RAY MACKLIN, )

 ) HONORABLE GEORGE S. CHILD,

Respondent-Appellant.) By Designation

For Appellant For Appellee

PATRICK T. PHILLIPS TRAVIS G. BRASFIELD

Knoxville, Tennessee Knoxville, Tennessee

O P I N I O N

REVERSED

PETITION DISMISSED

REMANDED Susano, J.
1

The appellee filed a one-paragraph brief in which she states that “she

is not resisting the appeal of this matter.” While this appears to be

tantamount to a confession of error, we have chosen to decide this appeal

because a criminal contempt involves an affront to the authority of the court.

2

The petitioner’s mother and the mother’s stepdaughter both testified

that they saw the respondent; however, their testimony was conflicting on a

number of points.

2

Following a bench trial, the respondent, Timothy Ray

Macklin, was adjudged guilty of criminal contempt for violating

an order of protection previously issued at the behest of his

wife, the petitioner Angie Cooper Macklin. He was sentenced to

ten days in jail, all of which was “suspended pending his not

doing anything in the future.” The respondent appeals,1 raising

the following issues:

1. Whether the evidence is insufficient to

support the findings of the court below of

guilty of contempt beyond a reasonable doubt.

2. Whether the conduct complained of

constitutes a violation of the order of

protection statute.

We find the first issue dispositive.

The petitioner contends that on May 23, 1998 -- after

the issuance of the order of protection on March 26, 1998 -- the

respondent drove to her mother’s house where the petitioner was

living, got out of his car, and threw a partially-filled gas can

into the yard.2 The petitioner was not at the house when the

incident allegedly occurred -- “[s]ometime after 12:00 noon” on

Saturday, May 23, 1998. Shortly after pulling away from the

front of the mother’s house, the respondent supposedly turned

around and again passed in front of the house.
3

The respondent testified that, at the time of the

alleged incident, he was at Norris Lake, some 50 minutes by car

from the home of the petitioner’s mother. He tendered witnesses

to the court to substantiate this alibi. When the respondent

actually attempted to call one of these witnesses, the following

colloquy occurred:

MR. PHILLIPS: David Johnson.

THE COURT: Are you putting on more alibis,

sir?

MR. PHILLIPS: Yes, sir. I mean, my client

wasn’t there and didn’t do it.

THE COURT: Okay.

MR. PHILLIPS: I don’t know of any other way

to raise the defense.

THE COURT: I believe your alibi. Do you have

anything else?

Shortly thereafter, counsel for the respondent and the trial

judge engaged in the following exchange:

THE COURT: I find that there’s a reason for

an order of protection.

MR. PHILLIPS: This is a show cause, Your

Honor. There is an order of protection down.

THE COURT: All right. I find a reason to

find that he has violated the order.

MR. PHILLIPS: Your Honor please, I’d ask to

put on my entire defense. I thought you said

you believed my alibi.

THE COURT: I believe it, and I also believe

what she said. And he will be sentenced to

jail for 10 days. It will be suspended

pending his not doing anything in the future.
4

It appears that the trial court thought that it was

being asked to issue an order of protection. This was not the

case. The order of protection had been issued some two months

earlier. As counsel for the respondent correctly advised the

court, the lower court was being asked to find the respondent

guilty of criminal contempt based upon his alleged violation of

the earlier-issued order of protection.

The respondent’s conviction for criminal contempt

cannot stand. At two places in the record, the trial court said

that it believed the respondent’s alibi. It is clear, at least

in this case, that if the respondent was not at the scene of the

incident -- and the trial court twice stated that it believed

that he was not -- it is impossible to conclude that a rational

trier of fact could find him guilty beyond a reasonable doubt of

violating the order of protection. Black v. Blount, 938 S.W.2d

394, 399 (Tenn. 1996).

Accordingly, the respondent’s conviction for criminal

contempt is reversed and the petition dismissed. Costs on appeal

are taxed against the appellee. This case is remanded to the

trial court for the entry of an order consistent with this

opinion, with costs below also being taxed to the appellee.

__________________________

Charles D. Susano, Jr., J.
5

CONCUR:

______________________

Herschel P. Franks, J.

______________________

Don T. McMurray, J.