### IN THE COURT OF APPEALS OF TE NNESSEE AT KNOX VILLE Jul y 23

, 200 8 S es sio n

STATE OF TENNESS EE v . RANDY GEO RGE ROG ERS

Direc t Appeal from the Circ uit Court forMcM inn County No. 26969 Hon. Riley Anderson, Circuit Judge, by Design ation

No. E2007-02535-COA- R3-CV - FILED SEPT EMBER 29, 2008

Th e Tr ia l Co urt he ld d e fe nd a nt i n c on te mpt . O n a pp e a l, w e a ff

ir m.

Te nn. R . A pp. P .3 App e al a s o f R igh t; Judg me nt of th e Ci r c uit

Co ur t A ff

ir me d.

H ER S CHEL P ICK EN S F R ANKS , P.J., delivered the opinion of the Court, in which C H A RL ES D. S US ANO , J R ., J., and D. M I CHAEL S W I NEY , J., joined.

Cha rl e s C. Bur

ks , K no xv ill e , T e nn e sse e , f or app e lla nt, Ra nd y G e or ge Rog e rs

.

Robert E. Cooper, Jr., Attorney Gene ral and Reporter
, and Juan G. Villasenor, Assistant Attorney Gene ral, Na shville, Tennessee , for a ppellee, State of

Tenne ssee.

OP IN ION

This case orig inated whe n the Trial Judge filed a detailed Show Cause Or der r e: Alleg ed C riminal Contempt of Att orney Randy Geor g e R og ers. The Order a sserted that on J anuar y 19, 2007, at about 11:00 a.m., Judge H ag ler a nnounced the Court was in rec ess and lef t the bench. The Show Cause O rder

states t hat R og ers called out to the J udg e about a mot ion he had noticed for hear ing, a nd the J udg e indi cate d a desire t o rec ess rather than he ar it, at whic h time the J udg e turne d his back a nd Roge rs t hrew his file on the t able, made a vulga r g esture, a

nd used the “ f” w ord. The Sho w C a us e Or de r s ta te s Ro g e rs did thi s in fro nt oth e rs pr e se nt i n th e c ourt ro om, bu t th e Judg e did not see or he ar it.

Fur ther, the Show Cause Orde r states that Rog ers then went t o the J udg e’s c hamber s-2-

a n d t h e J u d g e t o l d

h i m h e d i d

n o tl i k e t o b e s t o p p e d

w h i l e l e a v i n g t h e b e n c h
, b u tw a s a l w a ys available in chamber s, and that Roge rs was very defe rential. The Show Cause O rder states that the J udg e did not lear

n of Rog ers’ behavior

until later that day , conclude s that R o ger s was guilty of contempt, and c reated a se curity risk for the judg e.

Rog e rs fi le d a

Re sp on se , a

nd a dmi tte d th e be havio r but state d th a t he tho ug ht h e sa id the expletive to hims elf. He stated that on J anuar y 26, 2007, he sent a letter to the J udg e explaining his conduct and a

pologizing, but de nied that he c ommitt ed cr iminal contempt pursuant to Tenn. Code Ann. §29-9- 102, and aske d for the Show Cause Orde r to be dismissed.

A substitute judge w as appointed to he ar the case and at the hear ing, Rhonda Cooley was the f irst witness. She testified t hat s he wa s the cler k of the c ircuit court of

McMinn County , and was sitting in the court with the Trial J udg e, when about 10:55 a.m., the Judge told her he nee ded to take a shor

t break and announc ed that he was taking a short rec ess. She testified that as he star ted of f t he be nc h, Rog e rs a tte mpt e d to tell the Judg e so me thi ng , an d the Judg e pu t hi s arm ou t and sa id “I need a minute” and continued to e x it. She testified that Roge rs beca me ag itated and shot a bird at the judg e and said “f— y ou”. She testified that she could see and hear this we ll f rom the cle rk’s bench.

She explai n e d th e r e w e r e s e v e r a l p e o p le p r e s ent in the cour troom when this happene d, both attorney s and litiga

nts, and that the Judge wa s at the threshold of the door when this occurr ed, but there w as no disruption to the rest of the c ourt docke t.

T h e n ex t wi t n es s wa s J u d ge W at s o n wh o t es t i fi edt h at h e h adb ee n a S es s i o n s j u d ge for Mc Minn County

for 21 y ear s, and that he kne w Rog ers, a nd knew Rog ers ha d been ve ry ill.

Sue Mart in t e sti fi e d th a t sh e wo rk e d f or the Mc Minn County She ri ff ’s De pa rtme nt, and wa s working in court on the da y in question. Martin testified the Judge announced a re cess, a nd

a s h e wa s st e pp inga c ro ss t he thr e sh old , Roge rs sh ot h im a bir d a nd us e d th e “ f” wo rd . M a rt in testified that other people we re in the c ourtroom, and that the da y befor e she ha d to help Roge rs out of the c ourt ro om i n Ch a nc e ry

c ourt be c a us e he wa s v e ry

ill

.

Gr e g Walker testif

ie d th a t he wa s th e c ourt

se c ur ity su pe rv iso r, and

that he wa s in char g e of the secur ity came ras, etc. He identified the DVD f rom the cour

t security came ra f or that da y . Wh ile the DV D h a s n o a ud io, a re vie w of the same sh ow s Rog e rs thr ow ing his fi le on the ta ble in frustration.

Judg e Ha g le r t e sti fi e d th a t w he n he c a lle d th e do c ke t th a t mo rn ing , th e re wa s a c a se inv olv ingRog e rs a nd

Parr , a nd he te sti fi e d the y sa id t he y tho ug ht t he y c ou ld w or

k s ome thi ngou t, and he told them to let him know as soon a s p o s s i b l e. He late r took a re cess a fter a n hour-long hear ing, a nd Roge rs ca lled out to him as he was lea ving the courtroom. Ha g ler testified that he did n’ t w a nt t o be sto pp e d, so he sim ply pu t his ha nd up a nd ind ic a te d tha t Ro g e rs c ou ld c ome to h is chambe rs. Hag ler tes t i fi ed t h at R og ers c ame to cha mbers almost immediately , and Judge H ag ler-3-

a po log ize d f

or c utt inghim

of f, a nd tol d h im h e wa s si mpl y tr y ingto g e t o ut of th e co ur tr oo m. Hag ler testified that their conver sation was cordia l, a nd that when later in the day he wa s advised by the cler k and cour

t office rs of Rog ers’ behavior , he wa s very surprised.

Roge rs was the next wit ness, and he testified that he had been license d to prac tice law since 1978, ha d signific ant hea lth problems, and had been very ill the day befor e. He testified that he wa s sick on the day in que stion, a nd thought he and Parr could ag ree to continue the ca se they had on the docke t that day , so he told J udg e Ha g ler that a nd J udg e Ha g ler said, “ well, l et m e k n ow as soon as possible, Mr. Rog ers, whe ther we can take this off the doc ket.”

Roge rs testified that af

ter he talked to Parr, Par

r aske d him to tell the J udg e to take the matter of

f the doc ket, and he had to wait beca use there was a

matter be ing he ard. H e explained that he wa s fee ling ve ry

ill, and testified that he had only sat there a fe w minutes, but it felt like fore ver, a nd he fe lt the need to get out of t he courtroom befor e he “cr ashed”

. He testified that when J udg e Ha g ler c alled re cess, he said “may it please the c ourt, J udg e” a s the judg e wa s leaving the

ro om, be c a

us e he wa nte d to make his ann ounc e me nt a nd le a ve . H e re la te d th a t Judg e Ha g le r h e ld his ha nd up a nd wa ve d it tw ic e , a nd tol d h im n ot to add res s him a ft e r h e ha d d e c lare d a

re c e ss. Roge rs furthe r testified he thought it wa s rude how J udg e Hag ler “fla g g ed me twice” , and he tossed his file on the table, a

nd muttered (he thought to himself) “what a f---- a-- --”

. He admitted he flipped a bird a fter the J udg e was g one, as the door wa s closing, a nd conclude d that he should not have done
any of these thing s, and did not intend to disrupt any thing, but wa s frustrated and ill.

R o ger s t es t i fi edt h a t h e wa s as h am edo f h i s b eh av i o r, an d t h at h e w en tt o J u d ge Hag ler’s c hamber s with the intent of apolog izi ng , but Judge Hag ler apolog ized for chiding him, and at that point he was too e mbarra ssed to tell the J udg e what he had done

.

Jame s L og a n, Jr., the ne xt wit ne ss, te sti fi e d th a t he h a d k no wn Rog e rs fo r 3 7 y e a rs , a nd that he pr a c tic e d with Rog e rs

. L og a n tes tif ie d he tho ug ht R og e rs ha d a lw a y s c on du c te d h ims e lf profe ssionally , and Rog ers’ behavior that day was ve ry out of cha

rac ter.

The Tr ial J udg e issued a Me morandum Opinion and Fi n d i ng s of Fa ct, wher ein he found beyond a rea sonable doubt that Rog ers wa s g uilty of cr iminal contempt in violation of Tenn. Cod e Ann. §2 9- 9- 10 2, a nd that his be havio r wa s wi llf ul. Th e Court

fo un d th a t Ro g e rs thr e w h is f ile on the table, flipped a bird, and a ddresse d J udg e Ha g ler obsce nely . The Court found that the c ourt office r’s testimony was cre dible reg arding the fac t that Judge Hag ler was crossing the threshold at the tim e , a

nd that th e re we re se ve ra l pe op le in t he c ourt roo m. Th e Cou rt he ld t hat Ro g e rs ’ misbehavio r a f

f e c te d th e a d mi n is tr a ti o n o f ju s ti c e , a n d th is w a s s u f f ic ie n t to s a ti s f

y Ru le 42

re g a rd ingno tic e . T he Court fo un d th a t Black v . Blount
, 9 3 8 S .W.2d 394 (Tenn. 1996) c ontrolled, and that eve n behavior which occur red outside the course of court proce eding s was ac tionable. The Court assessed a

$50.00 fine a g ainst Roge rs, and se ntence d him to 10 day s in jail, but sus pended the
sentenc e.

On appe al, t h e appellant argues he w as not g iven prope r notice that he was be ing-4-

char g ed with cr iminal contempt pursuant to Tenn. Code Ann. §29-9- 102(2). Te nn. Code Ann. §29- 9- 10 2 li sts the fo llo wi nga s b a se s f or c on te mpt :

(1) The wi llful misbehavior of any person in the pr esenc e of the court, or so ne ar there to as to obstruct the administration of justice;

(2) The willful misbehavior of any of the off

icer s of such c ourts, in t h eir official
tr a ns a c tio ns ;.

Appellant ar g ues the wor ding of the Show Ca use Orde r only led him to believe that he would be c harg ed under subsection (1), a

nd not subsection (2).

Rule 42 of the Rules of Criminal Proced u re states that a c riminal contempt notice must state the time/place of hear ing, allow the defendant a rea sonable ti me t o prepa re a defe nse; and
state t h e es s en t i al facts constituting the c ontempt char g e. The Show Cause Orde r in this case se t forth the e ssential fac ts reg ardingwhat tra nspired in cour

t on the day

in question, and makes c lear that defe ndant was be ing c harg ed with misbehavior in an official t ransa ction, as i t states t hat he wa s in court re g ardinga motion that had bee n noticed for hear ing, that he ca lled out to the J udg e as he was lea ving the benc h , and that he the n threw his file on the table, g estured vulg arly , and said the “f” word. The Trial Court pr operly found that defe ndant was g iven proper notice that he w as being

c ha rg e d und e r b oth

su bs e c tio n ( 1) a nd

su bs e c tio n ( 2) . We fi nd

thi s is su e to b e wi tho ut m e ri t.

Next, appellant argues that the evidenc e wa s insufficient to support the Tria l Court’s holding that he was g uilty of cr iminal contempt causing an obstruction of the administration of justice. As the Supreme Court ha s explained, c riminal contempt causingan obstruction of justice ha s “ g e ne ra lly

be e n define d a s any

wi llf ul m isc on du c t w hic h e mba rr a sse s, hin de rs , o r o bs tr

uc ts a court in its administration of justice or der og ates the c ourt' s authority or di gn i t y , t h ere by

bring ing the administration o f l aw i n t o d isrepute.” See Black v . Blount . Criminal contempt has also bee n d e s c r ib e d a s o c c u r

r in g “ w h e n th e d ig n it

y a n d a u th o r it y o f th e c o u rt h a s b e e n o f f e n d e d

. ” R eed v

. Hamilton , 39 S.W .3d 115, 118 (Tenn. Ct. App. 2000).

When a def

endant attacks the suff

iciency of the e vidence in a cr iminal contempt
p ro ce ed i n g, we re v i ew t h e r ec o rd “t o d et er m i n e i f t h e p ro o f a d d u ce d at t r i a l s u p p o rt s t h e f

i n d i n gs

o f t h e t ri er of fac t of g uilt bey ond a re asonable doubt.” Black v . Blount

. We d o n o t r e w e ig h the proof of fer ed at t ri al
, ra ther, the “ defe ndant has the bur den of illustrating to the Court why the evidenc e is insufficient to support the verdict.” Id. The Supreme Court w ent on to expl ain that, “[a]
g uil ty ve rd ic t r e mov e s th e pr e su mpt ion of inn oc e nc e a nd it i s r e pla c e d w itha pr e su mpt ion

of g uil t. We will not disturb a verdict of guilt for lac k of suffic ient evidenc e unless the f acts c ontained in the

rec ord and any

infere nces w hich may

be dra wn from the f

acts a re insuff icient, as a

matter of la

w, for

a rational trier of f

act to find the de fenda

nt guilty bey ond a re asonable doubt.” Id.

I n th is c a se , th e fa c ts a

re no t e sse nti a lly

in d isp ute . T he de fe nd a nt r e a c te d a ng ri ly to the Court’s proc eedingwith its re cess by throwing his f ile. He also made a vulg ar g esture a nd made-5-

obscene comments at the Judge’ s back. The defe ndant also admits this beh av i o r o ccur red. Such behavior by an officer of t he court clea rly offe nds the dig nity

and author ity

of the c ourt, and c an be

sa id t o e mba

rr a ss t he c ourt in i ts a dmi nis tr a tio n of jus tic e . Nor do e s th e fa c t th e Cou

rt c a lle d a re c e ss and the J udg e was leaving the benc h when the c onduct occ urre d, rende r the be havior e x cusable . The Supreme Court has made clear that even conduct which occur s outside a judicial proc eedingcan be actionable

. See Black . Def endant ha s not disputed that the behavior he wa s char g ed with occ urre d. Thus, the Trial Court’s c ontempt finding is aff irmed. The costs of t he appeal ar e asse ssed to Randy Geor g e Rog ers.

______________________________ H ER SCH EL P I CKE N S F RAN KS , P

. J.