# FILED
December 29, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

STATE OF TENNESSEE ) FOR PUBLICATION ) ) FILED: DECEMBER 29, 1997 Appellant ) ) PICKETT COUNTY v. ) ) HON. LEON BURNS, JR., BILLY O. WINNINGHAM ) JUDGE ) ) NO. 01-S-01-9701-CC-00008 Appellee )

For Appellee : For Appellant : PHILLIPS M. SMALLING JOHN KNOX WALKUP Byrdstown, TN Attorney General and Reporter MICHAEL E. MOORE Solicitor General DARYL J. BRAND Assistant Attorney General Nashville, TN WILLIAM E. GIBSON District Attorney General ANTHONY W. HUDDLESTON Assistant District Attorney General Livingston, TN

OPINION

JUDGMENT REVERSED; INDICTMENT REINSTATED BIRCH, J.1 Other conduct supporting the contempt conviction included:

threats to Ms. Winningham’s life, trespass upon her property, and shots fired at her car. 2

BillyO. Winningham, the appellee, was adjudicated i n contempt of court for having violated an order of protection issued at the request of his estranged wife. The contemptuous conduct allegedincluded setting the fire that burne d down his wife’s house. 1 This same conduct also served as the basis for an arson indictment later returned against him.

The trial court, upon the appellee’s motion, dis miss ed the indict ment o n double jeopardy grounds; the Court of Criminal Appeals affirmed that judgment. We granted the State’s application for review under Rule 11, Tenn. R. App. P., in order to determine whether the double jeo par dy provisions of the United States and Tennessee Constitutions bar a subsequent criminal prosecution when the conduct underlying the charge in the indictment also served as the evidentiary basis for anearlier contempt conviction. Because
arsonand contempt are, in the context presented, significantly different offenses under double jeopardy analyses, we find no double jeopardy violation here and reverse the judgment of the Court of Criminal Appeals.

I

The protective order in question was entered on October 15, 1993, by the Circuit Court of Pickett County in the matter of Mary S. Winningham v. Billy O. Winningham . It provided:3 the respondent is enjoined from coming about petitioner [Ms. Winningham] for any purpose and specifically fr om ab using , threatening to abuse petitioner, or committing any acts of violence upon petitioner upon penalty of contempt.

OnNovember 19, 1993, Ms. Winningham’s house burned, and the appellee was arrested and incarcerated the same day on a contempt charge for violation of the protective order. On November 23, 1993, the trial court held a hearing on the contempt charge and foundthe appellee guilty of civil and criminal contempt. The trial court delineated the factual basis for its ruling:

The proof in this case satisfies the Court both by a preponderance of the evidence for civil contempt and beyonda reasonable doubt for criminal contempt that the defendant didin fact violate this order. I’m satisfiedthat the proof, by both direct and circumstantial evidence, indicates that the defendant threatened Ms. Winningham’s life on the telephone, that he came around there, that he came back onto the back porc h and cut the wires. I’m satisfiedthat by direct and circumstantial evidence that he came back to the property and set the fire that led to this house being burned down. The Court finds in this case that the aggrieved party has suffered damages in the burning of her home andin the shooting of her car, both of which in the Court’s opinion, and the Court finds both by a preponderance of the evidence and beyonda reasonable doubt, was at the hand of the defendant.
The trial cour t i mposed punishment for both civil contempt and criminal contempt, pursuant to Tenn. Code Ann. §§ 36-2 Tennessee Code Annotated § 36-3-610 (1991) provides: “Upon

violation of the order of protection . . . the court may hold the defendant inci vil or criminal contempt and punish him in accordance with the law.” Tennessee Code Annotated § 29-9-105 (1980) provides: “If the contempt consists in the performance of a forbidden act, the person may be imprisoned un til the act is rectified by placing matters and person in statu quo [sic], or by the payment of damages.”

3 Tennessee Code Annotated § 29-9-103 (Supp. 1993) provides: (a) The puni shment for contempt may be by fine or by imprisonment, or both. (b) Where not otherwise specially provided, the circuit, chancery, and appellate courts are limited to a fine of fiftydollars ($50.00), and imprisonment not exceeding ten (10) days . . . . 4 3-610 (1991) and 29-9-105 (1980). 2 The order of civil contempt was vacatedon January 24, 1994. As of that date, the appellee had beeni ncar cerated longer than the maximum sentence allowable for criminal contempt under Tenn. Code Ann. § 29-9- 103 (S upp. 1993). 3

On January 3, 1994, the appellee was indicted for arson inthe alleged burning of Ms. Winningham’s house. The Criminal Court of Pickett County found that the trial court’s prior contempt judgment was based on the same facts upon which the arson indictment had been grounded. C onse quently, the court dismissed the arson indictment on double jeopardy grounds, and the Court of Criminal Appeals affirmed the dismissal.

II

Because this appeal presents a question of law, our reviewis de novo wit h no presu mption of correctness. State v. Davis , 940 S.W.2d 558, 561 (Tenn. 1997. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution,5

applicable to the states through the Fourteenth Amendment, provides that no person shall “be subject for the same offense to be twice put injeopardyof life or limb . . . .” Article 1, § 10 of the Tennessee Constitution provides that “no personshall, for the same offence, be twice put in jeopardy of li fe or limb.” As we have statedmany times, three fundamental principles underlie doub l e jeopardy: (1) protecti on against a second prosecution after an acquittal; (2) protection against a second prosecution after conviction ; a nd (3) protection against multiple punishments for the same offense. State v. Denton , 938 S.W. 2d 373, 378 (Tenn. 1 996) (citing, among others, North Carolina v. Pearce , 395 U .S . 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed.2d 656, 664-65 (1969)).

Under the Tennessee Constitution, this Court inquires further than do federal courts in determining whether a defendant has been unconstitutionally subjected to double prosecution for the same conduct. According to Denton , 938 S.W.2d at 381, resolution of a double jeopardy issue requires the following:

(1) a Blockburger analysis of the statutoryoffenses; (2) an analysis, guided by the principles of Duchac , of the evidence used to prove the offenses; (3) a consideration of whether there were multiple victims or discrete acts; and(4) a comparison of the purposes of the respective statutes. None of t hes e steps i s determinative; rather the results of each must be weighed and considered in relation to each other.4 Our Blockburger analysis is guided by United States v. Dixon ,

509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed.2d 556 (1993). In Dixon , the United States Supreme Court held that double jeopardy protectionattaches to nonsummary criminal contempt proceedings in the same way it a ttaches to other criminal prosecutions. Nonsummarycontempt proceedings address contemptuous conduct occurring outside of the court’s presence. As such, the contempt hearing is usually conducted before a different judge at a date subsequent to the conduct. In contrast, summary contempt refers to misbehavior occurring in the presence of the court, which the court addresses immediately. This court has previously held that imposing two punishments for the same offense through summary contempt and a criminal prosecution does not violate double jeopardy principles. Maples v. State , 565 S.W.2d 202, 203 (Tenn. 1978). The instant case involves nonsummary contempt proceedings.

5 Prior to Dixon , the United States Supreme Court also included the “same-conduct” test in the double jeopardy analysis: if, to establish an essential element of an offense, the government will prove conduct that constitutes another offense for whi ch the defendant has already been prosecu te d, the second prosecution violates double jeopardy. Gradyv. Cortin , 495 U.S. 508, 510, 109 L. Ed.2d 548, 557, 110 S. Ct. 2084, 2087 (1990). The Dixon majority, however, explicitly overruled Grady , leaving Blockburger as the sole measure of federal double jeopardy violations. Dixon , 509 U.S. at 704, 113 S. Ct. at 2806, 125 L. Ed.2d at 573. Thus, courts are no longer required to determine whether both prosecutions were based on the same underlying conduct. 6 A
Thus, we begin with the first Dentonfactor, an analysis under the t est established in Blockburger v. United States , 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932). 4 In the context of both double punishment and double prosecution cases, the subject offenses must survive the Blockburger “same-elements” test in order to satisfy the requirements of the Double Jeopardy Clause. United States v. Dixon , 509 U.S. 688, 696, 113 S. Ct. 2849, 2856, 125 L. Ed.2d 556, 568 (1993). This test asks “whether eachoffense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.” Id. 57 Dixonincluded appeals by Alvin Dixon and Michael Foster; their cases were consolidated on appeal. Dixon was released under
anorder whic h spec ified that the commission of “any criminal offense” could subject him t o pros ecution for contempt of court. While on bond under the release order, he was indicted for a felony drug offense. This indictment triggered Dixon’s conviction for criminal contempt of court for violation of the release order.

The other defendant, Foster, consented to a pr otec tion order obtained by his estranged wife. This order required that he not “molest, assa ult, o r in any manner threaten or physically abuse” his wife. Alleging several episodes of assaults and threats, his wife filed three motions to have Foster held in contempt. The court held a hearing an d found him guilty of criminal contempt for violation of the order. Subsequently, he was indictedon three counts of threatening to injure, one count of simple assault, and one count of assault with intent to kill. All five counts were based on episodes for which he was either acquitted or convicted in the previous contempt hearing.

Onappeal, each defendant contended that prosecution under his respective indictment constitu ted a second prosecution for the same offense--the first having bee n the contempt conviction. This procedure, they asserted, violated d oub le jeopardy principles. Id. at 691-93, 2853-55, 564-66.

Amajority of the DixonCourt disagreed about the application of the Blockburger test to the facts described above.6 Justice Scalia, joined by Justice Kennedy, proffered t h e

first approach, a Blockburger analysis modified to fit the context of a contempt proceeding followed by a prosecution for the underlying substantive offense. Chief Justice Rehnquist, joined by Justice O’Connor and Justice Thomas, proffered the second approach, a traditional Blockburger analysis. The third opinion, written by Justice White, and the fifth opinion, written by Justic e Souter, are arguably the least viable approaches in light of the majority decisionto overrule Grady . Both utilized a Grady -type analysis of the conduct at issue, rather than focusing on the statutory elements of each offense, a nd concluded that all the subsequent prosecutions violated double jeopardy. Writing the fourth opinion separately, Justice Blackmun found no double jeopar dy v iolations without actually applying Blockburger . 8 As a result, not one of the five separate approaches in Dixon gained support sufficient to constitute a majority view. 6

Ne vert heless, in the matter under review, the Court of Criminal Appeals adopted Justice Scalia’s approach to t he Blockburger test and concluded that the arson indictment violated double jeopardy principles. Under Scalia’s approach, the language of a court order may, but does not always, “incorporate” statutory offenses into the order. If an offense is deemed to have been “incorporated,” then application of double jeopardy principles wouldpermit but one prosecution, which could be for either the contempt of cour t or the incorporated offense--whichever one was first prosecuted.

The rationale is that when the underlying offense is incorporatedinto the order, it becomes anelement of contempt. As
anelement of contemp t, the underlying offense involved must be includedin the Blockb urger analysis. In effect, the underlying offense becomes a lesser-included offense of contempt. Consequently, the underlying offense does not have an element not9

containedin the contempt offe nse, and subsequent prosection for the underlying offense violates double jeopardy prin ciples under Blockburger . Id. at 697-98, 2856-57, 569-70.

As a result of the “incorporation” approach, the outcome of a case would necessarily depend on the language of the order at issue, and the consequence of such dependence is not easily predictable. According to Justice Scalia, the language of the protective order prohibiting Foster from assaulting or threatening his wife did not incorporate all criminal statutes concerning assaults and threats. Id. at 700-02, 2858-59, 570-72. In contrast, the language of the order prohibit ing Dixon from committing criminal offenses didincorporate all criminal statutes. Id. at 698, 2857, 569. The result of this approachis not one that is readily predictable or consistent.

The protective order issued against Winningham enjoined him from “committing any acts of violence upon petitioner.” This language va ries slightly from the language of the orders issued against Foster and Dixon. Consequently, application of the “incorporation” approach to the protection order in the instant
case is unworkable. The problem with the “incorporation” approach is that no matter how carefully protective orders may be crafted, theymay nevertheless incorporate the elements of a crim inal offense and therebyunwittingly bar subsequent prosecutionfor the underlying offense--a result certainly not intended.7 Defendant Dixon was actuall y su bject to a release order.

Dixon , 509 U.S. at 698, 113 S. Ct. at 2857,125 L.Ed.2d at 565. 10 We find that Chief Justice Rehnquist’s application o f Blockbu rge r is better-reasoned and more easily adaptable to Tennessee case law. Under this approach, protection orders 7 do not implicitlyincorporate the statutory elements of any crime into the offense of contempt. The Blockburger test focuses not on the terms of the particular order involved, but on the statutory elements of contempt in the ordinary sense. Further, the underlying criminal offense is not viewed as a lesser-included offense because it is not necessarilyincluded within the statutory elements of contempt. Id. at 716-20, 2867-68, 579-82 (Rehnquist, C.J., concurring and dissenting).

Current Tennessee case law parallels Rehnquist’s approach to the doubl e je opardy issue created by criminal prosecution following contempt proceedings. See State v. Wyche , 914 S.W.2d 558, 560-61 (Tenn. Crim. App. 1995); State v. Sammons , 656 S.W.2d 862, 866-69 (Tenn. Crim. App. 1982). In Sammons , the defendant violated
anorder awarding custody of his daughter to his former wife. The violations included his having abducted the daughter several times; he was cited for contempt of court for this conduct. Subsequently, he was indicted on charges of kidnaping and burglary based on the
same conduct which resulted in his contempt conviction. Id. at 864-66.

Because of a procedu ra l irregularity, the court was unable to determine whether a double jeopardy violation had11

occurredin that case. Id. at 866. Nevertheless, th e court proceeded to find that under Blockburger there would have been no double jeopardy bar to the subsequent prosecutions. Id. at 868. The court based its finding on the principle that contempt and kidnaping statutes serve entirely different purposes:

The purposes of the general statutes authorizing a court to punish for abuse of its processes and those creating and prescribing punishment for various indictable offenses are so entirely different, and designed to accomplish such wholly different purposes, that we do not find any violation of co nstitution a l principles in imposing punishment upon an offender under both sets of statutes.
Id. at 867 (quoting Maples v. State , 565 S.W.2d 202 (Tenn. 1978).

This reasoning represents t h e prevailing view, as the Sammons court explained:

The traditional view has long been that “former jeopardy cannot be invokedon the ground the same act is punishable both as a contempt of court and as a crime .” The reason underlying the rule is a recognition that the two offenses are not the same for constitutional purposes. Thus, the courts have concluded, “the fact that an act constituting a contempt is also criminal and punishable by indictment or other method of criminal prosecution does not deprive the outraged court from punishing the contempt.”
Id. at 868 (citations omitted). Furthermore, whether the same conduct can be subject to multiple punishment is a matter of legislative intent, and the legislature clearly intended that the12

kidnaping statute and the contempt statute address totally separate and independent concerns. Id. at 869.

Applying Justice Rehnquist’s approach to the instant case, we find that the arson indictment does not violate federal double jeopardy principles. Tennessee Code Annotated § 29-9-102(3) (1980) provides the elements of contempt: ( 1) willful disobedience or resistance and (2) to any lawful wr it, process, order, rule, decree, or command of said courts. The statutory elements of arson, however, are (1) the knowing damage of any struct ure by means of a fire or explosion, and (2) without the consent of all persons who have a possessory, pr opriet ary, or securityinterest therein, or (3) with intent to damage the structure to collect insurance or for any unlawful purpose. Tenn. Code Ann. § 39 -14-30 1(a) (1991). Clearly, both statutes contain element s which the other does not; in fact, they have no co mmo n elements. Thus, application of the Blockburger test strongly suggests that the legislature intended t o impose separate punishment for each of these offenses. With this conclusion, the analysis under the Double Jeopardy Clause of the United States Constitution is now complete, and the arson indictment withstands federal constitutional scrutiny.

B
Continuing the inquiry under the Double Jeopardy Clause of the Tennessee Constitution, the next step is the Duchac analysis of the evidence used to prove each offense. If the same evidence13

is not re quired to prove each offense, “then the fact that bot h charges relate to, andgrow out of, one transaction, does not make a single offense where two are defined by the statutes.” Denton , 938 S.W.2d at 380 (qu oting Duchac v. State , 505 S.W.2d 237, 239 (Tenn. 1973)). The particular facts underlying each case must be examinedto de termine whether one conviction will bar the other. Id. (quoting Duchac , 505 S.W.2d at 240). In Denton , because defendant Denton’s conduct consisted of a single attack on a single victim, this Court found that the charges of aggravated assault and attemptedvoluntary manslaughter ne c essarily relied on the same evidence. Thus, applic ation of Duchac indicated that the two offenses were the same for double jeopardy purposes. Id. at 382.

Inthe cause before us, evidence of the following conduct formed the grounds for contempt: threats to Ms. Winningham’s life, trespass upon her property, shots fired at her car, and the setting of the fire that destroyed her house. The house-burning incident served also as the grou nds for the arson indictment. Thus, in order to prove arson, the State must rely on evidence which necessarily includes some of the same evidence used to establish the appellee’s conduct as contemptuous.

We are mindful that evidence in additionto the arsonous conduct supported th e co ntempt conviction. However, the various acts upon which the contempt conviction was based are, for purposes of a Duchac analysis, inseparable. We cannot ascertain whether any
one of the factual findings, including the finding that the appellee burned his wife’s house, was truly necessary to establish14

contempt, and we decline to speculate. In sum, the application of Duchac principles suggests that the two offenses in the case under review are the same for double jeopardy purposes.

C

We now turn to Denton’s thirddouble jeopardy factor, the consideration of whether there were different victims or discrete acts. The charges of contempt and arson both involve the same act of burning a house. However, the contempt conviction was also basedon other discrete acts, such as threats and trespass. Second, different victims are involved. In general terms, criminal conduct offends the State as the sovereign. Also offended by arson wouldbe the owner of the structure and, perhaps, the community-atlarge. In contrast, “‘[t]he proceeding in contempt is for an offense against the court as an orga n of public justice , and not for violation of the criminal law.’” Sammons , 656 S.W.2d at 86 8 (quoting State v. Howell , 69 A. 1057, 1058 (Conn. 1908)) (emphasis added). Thus, the court andthe judicial process are “victims” of the act of contempt. The fact that different victims are involved suggests t hat se parate prosecutions would not violate double jeopardy principles under the Tennessee Constitution.

D

The fourth and final step unde r De ntonrequires an analysis of the purposes sought to be accomplished by the enactment of each of the two statutes. Here, the arson statute and the15

contempt statute serve vastly dissimilar purposes. Obviously, the prohibition against arson is intended to deter the destruction of property and the endangerment of human life. In marked contrast, the offense of contempt of court has as its purposes the maintenance of the integrity of court orders and the vindication of the court’s authority. Dixon , 509 U.S. at 742, 113 S. Ct. at 2880, 125 L. Ed.2d at 597-98 (Blackmun, J., concurring and dissenting); Sammons , 656 S.W.2d at 869. So essential is this purpose to the proper functioning of the court that even erroneous orders must be obeyed. Id. The fact that the two statutes serve vastly different purpos es su ggests that separate prosecutions would not violate double jeopardy principles under our state constitution.

III
To summarize, through our analyses under Dentonwe have foundboth similariti e s and significant differences between the crime of contemp t and arson, as presented in the context of this case. In the final analysis, we conclude that the Dentonfactors weighin favor of allowing the prosecution for arson to followthe appellee’s contempt conviction. Concededly, because the contempt convictionand arson indictment both involve th e same act of burning Ms. Winningham’s house, some of the same evidence used to prove contempt may also be used to prove arson. Thi s m erely underscores the similarityof the two offenses under Duchac . However, the vast differences in the elements of each statute, the victims of each statute, and th e purposes of each statute demonstrate the legislature’s intent to allow separate punishment16

for both arson and contempt. Therefore, we hold that the prosec uti onfor arson, in the context of the facts and circumstances here presented, does not violate the Double Jeopardy Clause of the Tennessee Constitution.

Inconclusion, neither the Double Jeopardy Clause of the United States Constitution nor that of the Tennessee Constitution bars separate proceedings and punishments for cont empt and the substantive offense underlying the contempt. The judgment of the Court of Criminal Appeals is reversed, and the indictment for arson is reinstated. Costs of this cause are taxed against the appellee, for which execution may issue if necessary.

_________________________________ ADOLPHO A. BIRCH, JR., Justice
CONCUR: Anderson, C.J. Drowota, Reid, Holder, JJ.