                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
    ASSIGNED ON BRIEFS TO WESTERN SECTION ON MARCH 30, 2007

            STATE OF TENNESSEE v. SCOTTY HENRY PACE, JR.

                  Direct Appeal from the Circuit Court for Davidson County
                     Nos. 04D-326 & 04D-327      Muriel Robinson, Judge



  Nos. M2004-02156-COA-R3-CV & M2004-02157-COA-R3-CV - Filed on July 30, 2007


The appellant’s former girlfriend obtained an order of protection against the appellant in June of
2003. In August of 2003, the former girlfriend filed warrants alleging two separate violations of the
order of protection by the appellant. The general sessions court found the appellant guilty of
criminal contempt for both violations and sentenced the appellant to ten days in jail for each offense.
The appellant appealed to the circuit court, which held a hearing and affirmed the convictions.
Because the appellant has failed to include in the appellate record the June 2003 order of protection
which he was found to have violated, we affirm.


     Tenn. R. App. P. 3.; Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

Paula Ogle Blair, Nashville, TN, for Appellant

Robert E. Cooper, Jr., Attorney General & Reporter; Pamela Hayden-Wood, Senior Counsel,
Nashville, TN, for Appellee
                                     MEMORANDUM OPINION1

                                I. FACTS AND PROCEDURAL HISTORY

        This is a consolidated appeal of two convictions for criminal contempt for violations of a
protective order. Stacy Hill obtained an order of protection against her former boyfriend, Scotty
Henry Pace, Jr.(“Appellant”), on June 3, 2003, from the General Sessions Court for Davidson
County, Tennessee. In August of 2003, Ms. Hill filed two warrants for criminal contempt against
Appellant, alleging two separate violations of the protective order.

        One warrant filed by Ms. Hill, G.S. 140896, alleged that Mr. Pace violated the order of
protection on August 15, 2003, through actions described by Ms. Hill as follows:

               The Respondent indirectly contacted the victim on 08/15/03 at Mega-
               Tan (a business the victim frequents). The Respondent told “Zack”[,]
               an employee at Mega-Tan to tell the victim “he loved her and was
               sorry that the whole thing happened.” The Respondent told “Zack”
               not to tell the victim that he left the message.

       Another warrant, G.S. 140897, was based upon Ms. Hill’s allegations that on August 17,
Appellant had come to a Nashville tanning salon, “Mega Tan,” where both she and Appellant were
apparently frequent customers, while Ms. Hill and her daughter were present. Ms. Hill again swore
by oath that the following events took place:

               The Respondent came to Mega-Tan (a place the victim frequents).
               He contacted the victim’s daughter (who was in the lobby). The
               daughter became frightened and went to the victim. The Respondent
               then went to the parking lot and contacted Mega-Tan and asked how
               long the victim was going to be at the business. The victim then left
               the business. The Respondent was in the parking lot (by the victim’s
               car). He honked as she was leaving the parking lot.


       On October 14, 2003, Mr. Pace was found guilty of criminal contempt by the General
Sessions Court for two violations of an order for protection. Mr. Pace appealed to the Davidson


       1
                        Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

               This Court, with the concurrence of all judges participating in the case, may affirm,
               reverse or modify the actions of the trial court by memorandum opinion when a
               formal opinion would have no precedential value. W hen a case is decided by
               memorandum opinion it shall be designated “MEMORANDUM OPINION”, shall
               not be published, and shall not be cited or relied on for any reason in any unrelated
               case.

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County Circuit Court. The Honorable Muriel Robinson conducted a bench trial in circuit court on
September 2, 2004, at which the only two witnesses were Ms. Hill and Mega Tan employee Zach
Turner. At the beginning of the hearing, counsel for Mr. Pace acknowledged that he had been under
an order of protection during the time period in question. Ms. Hill testified that she had been at
Mega Tan on August 17, in a tanning room, while her daughter had been sitting in the lounge. She
claimed that her daughter had come into the tanning room, “obviously upset and shaking and scared
. . . crying, telling [her] how Scotty had come in and talked to her.” Ms. Hill testified that she then
gathered her things and left the building with her daughter. She claimed that when she and her
daughter were running to their vehicle, she saw Mr. Pace sitting in his truck in the Mega Tan parking
lot, and that Mr. Pace honked his horn. Ms. Hill also briefly testified regarding another alleged
incident occurring two days earlier in which Mr. Turner, the Mega Tan employee, delivered a
message to her regarding a phone conversation he had with Appellant.

       When Mr. Turner took the stand, he testified that Mr. Pace had entered Mega Tan on August
17, and that Mr. Turner advised Mr. Pace to leave until Ms. Hill and her daughter left in
approximately five or ten minutes. Mr. Turner testified that Mr. Pace briefly spoke to Ms. Hill’s
daughter on his way back out to the parking lot, “asking about his little girl.” Mr. Turner testified
that Ms. Hill’s daughter “seemed fine” after this occurred, and that she continued reading a
magazine. Regarding the phone conversation that he had with Mr. Pace on August 15, Mr. Turner
responded to questioning as follows:

               Q. All right. And I want to ask you also about a phone call. Did you
               receive a phone call from Mr. Pace around that time?
               A. Yes.
               Q. And what did he say in that phone call?
               A. The best I remember is just that, you know, sorry about all of this.
               And I mean, you know, he still loved her.
               Q. And who was he referring to?
               A. Stacy [Hill].
               Q. Sorry about all of this and that he still loved her?
               A. Yeah.
                                                ...
               Q. What did you do as a result of that?
               A. I just told Stacy about it.
               Q. You told Ms. Hill about it?
               A. Yeah.
               Q. Did Mr. Pace tell you to say anything or not to say anything to
               Ms. Hill?
               A. No, ma’am. Not to the best of my recollection.



       After hearing testimony, the trial court announced its ruling as follows:


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                        COURT: All right. There are two charges of violation of this
               order of protection. This is what [t]his Court finds based on the
               testimony, excluding the witness [Ms. Hill’s ten-year-old daughter]
               that was not ruled competent to testify.
                        The Court’s findings are there was a valid order of protection
               that was issued. Mr. Pace was aware of that order of protection. The
               proof shows that Mr. Pace has violated that order of protection by
               going to this tanning bed. This proof shows to this Court that she was
               at the tanning salon. Her car was visible. He went there. He talked
               to the child, knowing he was under an order of protection. He
               engaged in conversation with her before leaving. This constitutes a
               violation of this order of protection, him being on the premises and
               talking to the child. Therefore, [t]he Court rules that the guilty pleas
               and the sentencing from the General Sessions Court is correct.
                        So if you will take him into custody. Twenty days.
                        MS. BLAIR [Appellant’s attorney]: Did your Honor find him
               guilty on the other one as well?
                        COURT: Guilty on the other one.

The trial court entered judgment finding Mr. Pace guilty of contempt for both violations of the order
of protection and affirmed the judgment of general sessions imposing a ten-day sentence in jail for
each offense. Mr. Pace filed a timely notice of appeal of both convictions to this Court.

                                       II. ISSUE PRESENTED

           The sole issue presented for review by this Court on appeal is whether the evidence
presented at trial in circuit court was sufficient to sustain the convictions for criminal contempt.
Because Appellant has not included a copy of the order of protection from June 3, 2003, in the record
filed on appeal, we affirm.

                                         III. DISCUSSION

       Tenn. Code Ann. § 36-3-606(a) (Supp. 2001) provides in relevant part:
              A protection order granted under this part to protect the petitioner
              from domestic abuse may include, but is not limited to:
              (1) Directing the respondent to refrain from committing domestic
              abuse or threatening to commit domestic abuse against the petitioner
              or the petitioner’s minor children;
              (2) Prohibiting the respondent from telephoning, contacting, or
              otherwise communicating with the petitioner, directly or indirectly;
              (3) Prohibiting the respondent from stalking the petitioner, as defined
              in § 39-17-315 . . . .



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(emphasis added). When a person is arrested for violating an order of protection, the court shall
conduct a hearing to determine whether to hold that person in contempt of court. Cable v.
Clemmons, 36 S.W.3d 39, 42 (Tenn. 2001); see also Tenn. Code Ann. §§ 36-3-611, -612 (Supp.
2001). “Upon violation of the order of protection or a court-ordered consent agreement, the court
may hold the defendant in civil or criminal contempt and punish the defendant in accordance with
the law.” Tenn. Code Ann. § 36-3-610(a) (Supp. 2001).

        Violation of a court’s lawful orders is contemptuous conduct, and persons who do so may
be found guilty of criminal contempt and, in the absence of a specific statute, may be imprisoned for
ten days and fined $50 or both. Thigpen v. Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App. 1993).
“[C]riminal contempts are ‘intended to preserve the power and vindicate the dignity and authority
of the law, and the court as an organ of society.’” Doe v. Bd. of Prof’l Responsibility of the
Supreme Court of Tenn., 104 S.W.3d 465, 474 (Tenn. 2003) (quoting Black v. Blount, 938 S.W.2d
394, 398 (Tenn. 1996)). “Punishment for criminal contempt is both punitive and unconditional in
nature and serves to adjudicate ‘an issue between the public and the accused.’” Id. (quoting Black,
938 S.W.2d at 398)). In the trial of a criminal contempt case, guilt of the accused must be
established by proof beyond a reasonable doubt. Black, 938 S.W.2d at 398. A guilty verdict
removes the presumption of innocence, and it is replaced with a presumption of guilt. Id. at 399;
see also Thigpen, 874 S.W.2d at 53 (“Persons convicted of criminal contempt lose their presumption
of innocence . . . and bear the burden of overcoming their presumption of guilt on appeal.”).

        When the sufficiency of the convicting evidence is raised as an issue on appeal, this 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 (citing Tenn. R. App. P. 13(e)).
We do not reweigh the proof, and the defendant has the burden of illustrating to this Court why the
evidence is insufficient to support the verdict. Id. We will not disturb a verdict of guilt for lack of
sufficient evidence unless the facts contained in the record and any inferences which may be drawn
from the facts are insufficient, as a matter of law, for a rational trier of fact to find the defendant
guilty beyond a reasonable doubt. Id. (citing State ex rel. Anderson v. Daugherty, 137 Tenn. 125,
127, 191 S.W. 974, 974 (Tenn. 1917); State v. Creasy, 885 S.W.2d 829, 831 (Tenn. Crim. App.
1994)).

        In this case, Appellant contends in his brief that the State had to prove beyond a reasonable
doubt that he violated the order of protection by telephoning, contacting, or otherwise
communicating with the petitioner, directly or indirectly. However, Mr. Pace has not included in
the appellate record a copy of the order of protection entered in June 2003. Therefore, although
Appellant correctly cites Tenn. Code Ann. § 36-3-606(a)(2) for one condition that may be imposed
in a protective order, we are unable to review the actual scope of the protective order at issue. Rule
24 of the Tennessee Rules of Appellate Procedure allocates the primary responsibility of preparing
the transcript or statement of the evidence to Mr. Pace as the appellant. See, e.g., Troglen v.
Troglen, No. E2004-00912-COA-R3-CV, 2005 Tenn. App. LEXIS 255, at *17 (Tenn. Ct. App. Apr.
28, 2005). Additionally, the appellant has the primary burden of seeing that a proper record is
prepared on appeal and filed in this Court. Id. (citing Tenn. R. App. P. 24; McDonald v. Onoh, 772


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S.W.2d 913, 914 (Tenn. Ct. App. 1989)). In the absence of an adequate record on appeal, this Court
will presume that the trial court’s rulings were supported by sufficient evidence. Hamrick’s, Inc.
v. Shepherd, 115 S.W.3d 468, 478 (Tenn. Ct. App. 2002). Therefore, we affirm the judgment of the
trial court.

                                         IV. CONCLUSION

        For the foregoing reasons, we affirm the judgment of the trial court. Costs are assessed
against Appellant, Scotty Henry Pace, Jr., and his surety, for which execution may issue if necessary.




                                                       ___________________________________
                                                       ALAN E. HIGHERS, JUDGE




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