                                                                                           10/01/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs June 26, 2018

  STEVE ANDERSON v. ESCO JARNIGAN, SHERIFF, AND STATE OF
                       TENNESSEE

                Appeal from the Criminal Court for Hamblen County
                    No. 17CR441        Alex E. Pearson, Judge
                     ___________________________________

                           No. E2017-02534-CCA-R3-HC
                       ___________________________________


JOHN EVERETT WILLIAMS, J., concurring in part and dissenting in part.

       I agree with the majority opinion affirming the habeas corpus court’s dismissal of
the Petitioner’s habeas corpus petition on the basis that the petition fails to state a
colorable claim. However, I disagree that the evidence is insufficient to support the trial
court’s finding of direct criminal contempt.

        When a defendant convicted of criminal contempt challenges the sufficiency of
the evidence, the defendant “bears the burden of overcoming the presumption of guilt on
appeal.” State v. Beeler, 387 S.W.3d 511, 519 (Tenn. 2012). “A conviction will be
reversed for insufficient evidence only when the facts in the record, and any inferences
that may be drawn therefrom, are insufficient as a matter of law for a rational trier or fact
to find the accused guilty of the crime beyond a reasonable doubt.” Id.

       The majority concludes that the evidence is insufficient to support the habeas
corpus court’s finding of contempt because the court’s order providing that the Petitioner
referred to the court and the personnel as “a bunch of crooks” while the transcript
reflected that the Petitioner stated, “Crooks.” I cannot conclude that such an insignificant
variance rendered the evidence insufficient. The offending language in both the habeas
corpus court’s order and the transcript is the word “crooks.” The habeas corpus court
was able to observe the Petitioner’s demeanor and tone when the Petitioner used such
language. As the majority recognizes, “disrespectful, unreasonable or contemptuous
conduct” supports a finding of direct criminal contempt. See State v. Turner, 914 S.W.2d
951, 958 (Tenn. Crim. App. 1995). While there is a minor discrepancy between the
transcript and the order regarding whether the Petitioner used the phrase “bunch of
crooks” or merely “Crooks,” a rational trier of fact could find beyond a reasonable doubt
that the Petitioner engaged in disrespectful and contemptuous conduct by referring to
court personnel as “crooks.” Based upon the confines of this court’s standard of review
on appeal, I conclude that the evidence is sufficient to support the habeas corpus court’s
finding of summary criminal contempt.

       The majority also holds that the habeas corpus judge failed to certify in his written
order that he personally heard the Petitioner make the statement and that the conduct
occurred in the judge’s presence as required by Tennessee Rule of Criminal Procedure
42(a). However, “Tennessee courts have declined to require strict compliance with Rule
42(a)’s requirements for a written order.” In re Brown, 470 S.W.3d 433, 449 (Tenn. Ct.
App. 2015). Rather, courts have held that a defendant is not entitled to relief unless the
defendant establishes harm by the “technical deficiency” or “technical omission.” State
v. Jimmy Paul Provencio, No. E2005-01253-CCA-R3-CD, 2005 WL 3088078, at *3-4
(Tenn. Crim. App. Nov. 18, 2005) (holding that while “the preferred practice is certainly
to include the requisite factual detail in the order,” the defendant failed to show that he
was harmed by the “technical omission”); State v. Charles Johnson, No. E2002-02028-
CCA-R3-CD, 2003 WL 23094414, at *4-5 (Tenn. Crim. App. Dec. 30, 2003) (declining
to reverse the trial judge’s finding of contempt due to the trial judge’s failure to state in
its order the factual basis for the contempt and certify that the judge saw or heard the
contemptuous conduct or that the conduct occurred within the judge’s presence because
the defendant failed to establish that he was harmed by the “technical deficiency”). In the
present case, while the habeas corpus judge did not assert that he heard the Petitioner’s
remarks, such an assertion was implicit in the habeas corpus court’s order finding the
Petitioner in contempt “for saying that you all are ‘a bunch of crooks’ after the court
dismissed his habeas corpus petition.” Furthermore, the transcript demonstrates that the
Petitioner made the statements in the habeas corpus judge’s presence and that the judge
heard the conduct. The deficiency was merely the omission of this information from the
written order. See Charles Johnson, 2003 WL 23094414, at *5. The Petitioner did not
allege on appeal that the habeas corpus court’s order failed to comply with Rule 42(a)
and, therefore, failed to establish that he was harmed by any omission.

       On review, we are not tasked with substituting our judgment for that of the trier of
fact but with determining whether a rational trier of fact could have found the accused
guilty beyond a reasonable doubt. Beeler, 387 S.W.3d at 519. Accordingly, I
respectfully dissent from the majority’s opinion reversing the Petitioner’s contempt
conviction.



                                  _____________________________________________
                                   JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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