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 used an improper basis for convicting the defendant and erroneously denied him a

hearing, the conviction is reversed and vacated, and the case is remanded to the trial court for

further proceedings.

Tenn .R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed and

Vacated.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which SMITH, J., and

WEDEMEYER, J., joined.

William D. Massey and Lorna S. McClusky, Memphis, Tennessee, for the appellant.

Paul G. Summers, Attorney General & Reporter, Nashville, Tennessee, J. Ross Dyer, Assistant

Attorney General, Nashville, Tennessee, William L. Gibbons, District Attorney General, Memphis,

Tennessee, Rhea Clift, Assistant District Attorney General, Memphis, Tennessee, for the appellant,

State of Tennessee.

OPINION

The defendant, Charles B. Bryan, appeals from his Shelby County Criminal Court

conviction 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 previous 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 finding that the failure to appear in court was willful and that the trial court

wrongfully denied him a hearing before imposing judgment. Essentially, the state accedes to the

defendant’s claims, although the parties have not agreed as to the proper disposition of the case.

After review, we reverse and vacate the trial court’s judgment and remand the case for further

contempt proceedings upon notice and a hearing.
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The sparse record indicates that the defendant had a criminal case pending 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 address the

diversion application. The trial court indicated its displeasure with the defendant’s failure to appear

on the previous day. Despite defense counsel’s statements that the failure to appear was the result

of the defendant working in his hay crop and forgetting to come to court, the trial court summarily

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

it was “irresponsible 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

wrongfully 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 argues that the scope of the trial court’s power 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 contempts of court, shall not be construed to

extend to any except the following cases:

(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 misbehavior of any of the officers of said

courts, in their official transactions.

(3) The willful disobedience or resistance of any officer of

the said courts, party, juror, witness, or any other person, to any 

lawful writ, process, order, rule, decree, or command of said

courts.

(4) Abuse of, or unlawful interference with, the process or

proceedings of the court.

(5) Willfully conversing with jurors in relation to the merits 

of the cause in the trial of which they are engaged, or otherwise

tampering with them.

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

Tenn. Code Ann. § 29-9-102 (1980). The defendant rightly points out 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. at 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
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and defines the “vast and undefined” power of the courts at common law to punish contempts); State

v. Turner, 914 S.W.2d 951, 956 (Tenn. Crim. App. 1995) (criminal “contemptuous conductmust fall

within a statutory provision” and the conduct must have been willful) (emphasis added). As the

defendant argues, the trial court based its contempt determination upon the defendant’s

irresponsibility in forgetting his court date, rather than upon a finding that the failure to appear was

willful. The state agrees and concedes that the criminal contempt judgment in this 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, which provides in pertinent part:

Criminal Contempt. – (a) Summary Dispositions.–A criminal

contempt may be punished summarily if the judge certifies 

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 contempt 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 as provided in subdivision (a) of this 

rule shall be prosecuted on notice. The notice shall state

the time and place of hearing, allowing a reasonable 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 provisions of Code section 29-9-102 and Rule 42, the trial 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 was guilty of willful misbehavior that contemns 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
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of the contempt charge, “or in the alternative, to remand the matter to the 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 of established rules

defining the nature of criminal contempt proceedings. “Criminal contempt convictions are punitive

in character, and their primary purpose is to vindicate the court’s authority.” Thigpen v. Thigpen,

874 S.W.2d 51, 53 (Tenn. Ct. App. 1993). Criminal contempt 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 proceeding is presumed innocent,

and the state must prove him or her “guilty beyond a reasonable doubt.” Id.; see also Thigpen, 874

S.W.2d at 53. 

Constitutional provisions protect a person from more 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 double jeopardy apply to criminal contempt 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, until jeopardy

attaches.” State v. Todd, 654 S.W.2d 379, 382 (Tenn. 1983).

Next, our analysis of the issue of disposition of the case reveals that divergent results

are suggested by two basic rules of law. On the one hand, it can be posited that the trial court’s

judgment of criminal contempt is not supported by sufficient evidence because the record is devoid

of any evidence or judicial notice that establishes 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 determine 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. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 2789 (1979). If the

evidence under this standard is insufficient to support the criminal conviction, the remedy 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 (1978); State v. Maupin, 859 S.W.2d 313, 316 (Tenn. 1993); State v.

Anderson, 985 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 evidence being insufficient, criminal contempt convictions

were ordered “set aside and for naught held”); State v. Alfred B. Rollins, No.01C01-9304-CR00114, slip op. at 5 (Tenn. Crim. App., Nashville, Sep. 5, 1996) (criminal contempt conviction

reversed and charge dismissed by appellate court upon determination that the convicting evidence

was insufficient). For double jeopardy purposes, a holding that the evidence is insufficient is

essentially an acquittal. Anderson, 985 S.W.2d at 17; State v. Burlison, 868 S.W.2d 713, 718 (Tenn.
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Crim. App. 1993); State v. Hulse, 785 S.W.2d 373, 374 (Tenn. Crim. App. 1989). 

On the other hand, the trial court received no evidence, took the defendant’s

characterization of his misbehavior as true, and erroneously determined that the defendant was guilty

as a matter of law. Moreover, given the dictates of Criminal Rule of Procedure 42, the trial court

erred when it proceeded summarily. Hence, this court’s reversal of the contempt conviction 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 principles of

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 accordingly 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 hearing mandated by Rule 42(b), the court pretermitted the

process by which evidence could be presented. Thus, the nature and character of the flaw in the trial

court’s proceedings is legal error 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

previously placed in jeopardy 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. 1055,

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 proceeding when 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. 1997). 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 nonsummary criminal contempt proceedings, jeopardy

attaches “as it attaches to other criminal prosecutions”), rev’d in part on other grounds, 15 S.W.3d

73, No. W1997-00233-SC-R11-CV (Tenn., Mar. 20, 2000); see also Todd, 654 S.W.2d at 382-83

(in a guilty plea submission hearing, jeopardy does not attach “until the plea is unconditionally

accepted” by the trial court.) However, in the present case, the trial court’s summary declaration of

contempt was error. In other words, jeopardy only attached when the erroneous conviction was

imposed. Under the circumstances, this analysis points to a reversal that poses no bar to retrial.

Accordingly, the judgment of the trial court is reversed and vacated, and the case is

remanded for further contempt proceedings upon notice and a hearing.