### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

STATE OF TENNESSEE v. CHARLES B. BRYAN

Direct Appeal from the Criminal Court for Shelby County

No. C98-01955 W. Otis Higgs, Judge

No. W1999-00620-CCA-R3-CD - Decided June 27, 2000

The defendant appeals his summary conviction of criminal contempt. Because we conclude that the trial court use

d an improper basi

s for convicting th

e defendant and

erroneously den

ied him a hearing, the conviction is reversed and vacated, and the case is remanded to the trial court for further procee

dings.

Tenn .R. App. P. 3 Appeal as of Right; Judgmen

t of the Criminal C

ourt is Reversed a

nd Vacated.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the cour

t, in which S MITH , J., and W EDEMEYER , J., joined.

William D. Massey a

nd Lorna S. McClusky , Memphis, Tenness ee, for the appe

llant.

Paul G. Summers, Attorney General & Reporter, Nashville, Tenne ssee, J. Ross Dyer, Assistant Attorney General, Nashville, Tennessee, William L. Gibbons, District Attorney General, Memphi s, Tennessee, Rhea Clift, Assistant District Attorney General, Memphi

s, Tennessee, for

the appellant, State of Tennessee.

OPINION

The defendant, Charles B. Bryan, app eals fro m his Shelby County Criminal Court convi c tion of criminal contempt. See Tenn. Code Ann. § 29-9-102, -103 (1980). The conviction followed a summary proceeding in which the trial judge held the defendant in contempt of court for failing to appear in the trial court the previou s day for a scheduled court appearance in a pending criminal matter. In this appeal, the defendant argues that the trial court’s determination of contempt lacks a necessary fin

ding that the failur

e to appear in court was willful and that the trial court wrongfully

denied him a hear

ing before imposin

g judgment. Essentia

lly, the state acc

edes to th e defendant’s claims, although th e parties have no

t agreed as to the

proper dispositi

on of the c ase. After review, we reverse and vacate the trial court’s judgment and reman d the c ase for further contempt proceedings upon notice and a hearing.-2- The sparse record indicates that the defendant had a criminal case p

ending in the trial
court and was in the process of seeking judicial diversion. He was scheduled to appear in the trial
court on July 6, 1999 and failed to do so. On July 7, 1999, he appeared in court to addr ess th e diversion application. The trial court indicated its displeasure with the defendant’s failure to appear

on the previous day. Despite defense counsel’s stateme

nts that the failur

e to appear was t

he result of the defendant wo

rking in his hay crop and f

orgetting to

come to court, the

trial court summar

ily held the defendant in contempt and imposed a fine of $50.00, based upon the court’s observation that it was “irresponsib

le just to forget.” Counsel requested that the defendant be afforded a hearing on the matter before the court imposed judgment, but the trial court denied the request. The trial judge said the sanction was necessary in order to assure that the defendant receive the same treatment as do other defendants and to address the “epitome of irresponsibility” demonstrated by the defendant forgetting to come to court. Upon this record, we review the defendant’s claims that the trial court

wr ongfully held him in contempt of court without finding that his misfeasance was willful and without availing to him a hearing on the matter.

In his first issue, the

defendant argu

es that the scope o

f the trial court’ s pow er to impose a judgment for criminal contempt is limited and controlled by Tennessee Code Annotated section 29-9-102 , which provides:

The power of the several courts to issue attachments, and inflict punishments for co

ntempts of court, s

hall not be constru

ed to extend to any exc

ept the following c

ases:
(1) The willful misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice. (2) The willful misb

ehavior of any of

the officers of

said courts, in their of

ficial transact

ions. (3) The willful disobedience or resistance of any officer of the said courts, party, juror, witness, or any other person, to any lawful writ, proc

ess, order, rule

, decree, or co

mmand of said
courts. (4) Abuse of, or unlawful interference with, the process or proceedings of th

e court. (5) Willfully conv

ersing with jurors

in relation to the me

rits of the cause in the

trial of which the

y are engaged, o

r otherwise tampering with the

m. (6) Any other act or omission declared a contempt by law.

Tenn. Code Ann. § 29-9-102 (1980). The defendant rightly point s o ut that the statutory grounds which could serve to support his conviction require that the misbehavior be willful. See Ahern v. Ahern
, 15 S.W.3d 73, - - -, No. W1997-00233- SC-R11-CV, slip op. a t 6 (Tenn., Mar. 20, 2000) (“an
act of contempt is a

wilful or intentional act that offends the court and its administration of justice”); Black v. Blount , 938 S.W.2d 394, 397 (Tenn. 1996) (commenting that Code section 29-9-102 limits-3-

and defines the “vas

t and undefined”

power of the cour

ts at common law to pu

nish contempts); State

v. Turner
, 914 S.W.2d 951, 956 (Tenn. Crim. App. 1995) (criminal “contemptuous conduct must fall within a statut ory provision” and the conduct must have been willful) (emphasis added). As the defendant argues, the trial court based its contempt determination upon the defe ndant ’s irresponsibility

in forgetting his

court date, rather than upon a finding that the failure to appear was willful. The state agree

s and concedes th

at the criminal co

ntempt judgment in t his case must be grounded upon willful misbehavior and cannot be justified by the defendant’s neglect.

In the defendant’s second issue, he argues that the trial court erred when it failed to afford him a hearing on the criminal contempt charge. He relies upon Tennessee Rule of Criminal Procedure 42, wh

ich provides in per

tinent part:

Criminal Contempt . – (a) Summary Dispositions.–A criminal contempt may be punished summarily if the judge certifi es that he or she saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of con tempt shall recite

the facts and shall be signed by the judge and entered of record. (b) Disposition upon Notice and Hearing. –A criminal contempt except a

s provided in subdiv

ision (a) of this rule shall be prosecuted on notice . The notice shall state the time and place of hearing , allowing a reas onable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and describe it as such. The notice shall be given orally by the judge in open court in the presence of the defendant or, on application of the district attorney general or of an attorney appointed by the court for that purpose, by an order to show cause or an order of arrest. . . . Upon a verdict of finding of guilt the court shall enter an order fixing the punishment.

Tenn. R. Crim. P. 42 (emphasis added). Again, the state agrees and concedes that the defendant’s misbehavior

fell within

subdivision (b) of

the rule and that the trial court erred in not affording the defendant a hearing.

We conclude that the parties are correct in their assessment of both issues. In view of the explicit provis

ions of Code sectio

n 29-9-102 and Rule

42, the tria

l court’s contempt determination is not supportable in the absence of a finding, made after a hearing that is held upon reasonable

notice, that the defendant w as guilty of willful m

isbehavior that c

ontemns the court. Accordingly, the trial court’s judgment of contempt must be reversed and vacated.

The parties have not agreed, however, as to the disposition of the case following the vacating of the contempt judgment. The defendant asks for a reversal

and, implicitly, a dismissal-4-

of the contempt char

ge, “or in the alte

rnative, to rema

nd the matter to

th e trial court for a full and fair hearing .”

The state “submits

that his case should be remanded to the trial court for a hearing

on the criminal contempt charge” and does not allow that

the charge should be dismissed. Neither party has addressed the issue of disposition by further argument or with citation to relevant authorities.

Our

analysis of the disposition issue begins with a recognition o f estab lished rules defining the nature of criminal contempt proceedings. “Criminal contempt convictions are punitive in character, an

d their primary purpose is to vindicate the court’s authority.” Thigpen v. Thigpen
, 874 S.W.2d 51, 53 (Tenn . Ct. App. 1993). Criminal con tempt is a concept

that is “intended to preserve the power and vindicate the dignity and authority of the law[] and the court as an organ of society.” Black , 938 S.W.2d at 398. Criminal contempt proceedings “‘in a very true sense raise an issue between the public and the accused.’” Id . (citation omitted). Thus, the proceedings are essentially

criminal in nature: A defendant in a criminal contempt procee

ding is presumed innoce

nt, and the state must

prove him or her “guilty beyond a reasonable doubt.” Id .; see also Thigpen
, 874 S.W.2d at 53.

Constitu ti onal provisions protec t a person from mor

e than once being

placed in jeopardy of conviction of a crime. U.S. Const. amend. V, amend XIV; Tenn. Const. art I, sec. 10. Principles of doubl

e jeopardy apply

to criminal contem

pt proceedings. See generally Ahern

. One principle of the double

jeopardy provision is that a person may not be re-prosecuted for an offense after he or she has been acquitted of that offense. North Carolina v. Pearce , 395 U.S. 711, 717, 89 S. Ct. 2072, 2076 (1969) ; State v. Todd , 654 S.W.2d 379, 381 (Tenn.1983); State v. Boggs , 865 S .W.2d 920, 921 (Tenn. Crim. App. 1992). “There can be no acquittal, however, u ntil jeopard y attaches.” State v. Todd , 654 S.W.2d 379, 382 (Tenn. 1983).

Next, our analysis of the

issue of disposition o

f the case reve

als that divergen

t results

are suggested by two basic rules of law. On t he one hand, it can be posited that the trial court’s judgment of criminal contempt is not supported by sufficient evide nce because the

record is devoid of any evidence or judicial notice that establi shes willful misbehavior, an element of the offense. As in other criminal cases, when the sufficiency of the convicting evidence in a criminal contempt case is challenged on appeal, the appellate court “must review the record to deter

mine if the proof adduced at trial supports the findings of the trier of fact of guilt beyond a reasonable doubt.” Black

, 938 S.W.2d at 399. See Jackson v. Virgini a , 443 U.S. 307, 318, 99 S. Ct. 2781, 2789 (1979). If the eviden ce under this standar d is insufficient to

support the crimina

l conviction, the r

eme dy is a reversal of the conviction and a dismissal of the charge. Burks v. United States , 437 U.S. 1, 18, 98 S. Ct. 2141, 2150-51 (1 978); State v. Maupin , 859 S.W.2d 313, 316 (Tenn. 1993 ); Sta te v. Anderson
, 98 5 S.W.2d 9, 17 (Tenn. Crim. App. 1997). See State v. Green , 783 S.W.2d 548, 553 (Tenn. 1990) (based upon

the convicting evi

dence being insuf

ficient, criminal contempt convictions

were ordered “set as

ide and for naugh

t held”); State v. Alfred

B. Rollins , No.01C01-9304-CR

00114, slip op. at 5 (Tenn. Crim. App., Nashvil

le, Se p. 5 , 1996) (criminal contempt conviction reversed and charge dismis sed by appellate court upon determination that the convicting evidence

was insufficient). Fo

r double jeopard

y purposes, a holdi

ng that the evide nce is insufficie nt is essentially

an acquittal. Anderson , 985 S.W.2d at 17; Statev. Burlison , 868 S.W.2d 713, 718 (Tenn.-5-

Crim. App. 1993); State v. Hulse , 785 S.W.2d 373, 374 (Tenn. Crim. App. 1989).

O n the other hand, the trial court received no evidence, took the defendant’ s characterization

of his misbeh avior a s true, and erron eously determine

d that the defenda

nt was guilty

as a matter

of law. Moreover, given the dictates of Criminal Rule of Procedure 42, the trial cour t erred when it proceeded summarily. Hence, this cour t’s reversal of t

he contempt convic

tion could be viewed as based upon trial court error. Typically, reversals sought by the defendant based upon trial court error do not require dismissal of the charges, and retrial is not barred by princi ples o f double jeopardy. Maupin , 859 S.W.2d at 36; Hulse , 785 S.W.2d at 375.

We conclude that the latter rule controls the present

case, and acco

rdingly the case should be remanded for

a hearing, after notice, on the contempt charge. The trial court received no evidence to be adjudged sufficient or insufficient. The court made no findings of

fact, except for the defendant’s non-appearance in court for a scheduled hearing, a fact that was essentially stipulated by the defendant. By

denying the hear

ing mandated by Rule

42(b), the court p

rete rmitt ed the process by which evidenc e could be prese

nted. Thus, the nature and character of the flaw in the trial court’s proceedings is legal er r or and is not the imposition of a conviction based on insufficient evidence.

We believe this conclusion is supported by referring to the concept of the attachment of jeopardy. “To raise a double jeopardy objection it is fundamental that a defendant must have been previous ly placed in j eopardy on the charge. Without the risk of a determination of defendant’s guilt, jeopardy does not

attach so that an appeal or

further prosecution constitutes double jeopardy.” Todd

, 654 S.W.2d at 381 (citing Serfass v. United States , 420 U.S. 377, 391-93, 95 S. Ct. 1 05 5, 1064-65 (1975)) (other citations omitted). “Jeopardy only attaches when a defendant is put to trial before the trier of fact.” Todd , 654 S.W.2d at 381. In the present case, there was no trial by a trier of fact, and the defendant

was not in jeopardy until the trial court declared the contempt. Normally, jeopardy attaches in a non-jury procee ding wh en a witness is sworn to testify. Ahern , 15 S.W.3d
at - - -, slip op. at 9; State v. Pennington , 952 S.W.2d 420, 422 (Tenn. 1 997). When there is no witness sworn and no fact trial in a contempt proceeding, jeopardy cannot attach until the contempt is declared. See Dorothy Jane Ahern v. Robert Frances Ahern , No. 02A01-9708-CV-00190, slip op.
at 6 (Tenn. Ct. App., Sept. 11, 1998) (in nons ummary c riminal contempt proceedings, jeopardy attaches “as it

attaches to other criminal prosecutions”), rev’d in part on other grounds , 15 S.W.3d 73, No. W1997-002

33-SC-R11-CV (Ten

n., Mar. 20, 2000) ; see also Todd , 654 S.W.2d at 382-83 (in a guilty plea submiss ion hearin

g, jeopardy d oes not attach “un til the plea is uncon

ditionally accepted” by the trial court.) However, in the present case, the trial court’s summary declaration of contempt was error. In other w ords, jeopardy only attached when the erroneous conviction was imposed. Under the

circumstances,

this analysis points t

o a reversal tha

t poses no bar to re

trial.

Accordingly, the judgment of the trial court is reversed and v

acated, and the

case is remanded for further contempt proceedings upon notice and a hearing.