                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                  September 13, 2005 Session

   TRISTA LARAE DENTON, ET AL. v. CHRISTOPHER LORN PHELPS

                         Appeal from the Circuit Court for Knox County
                                No. 94704    Bill Swann, Judge



                 No. E2005-00101-COA-R3-CV - FILED OCTOBER 12, 2005


Orders of Protection were either largely ignored or scornfully defied by the defendant with the
sometime quiescense of the plaintiff who was possibly afflicted with the Stockholm Syndrome. Her
father intervened and presented a motion for contempt against the defendant which resulted in the
defendant’s conviction of eleven (11) instances of criminal contempt. The defendant refused to
attend the trial because of his later asserted and ill-based fear that he would not have a fair trial, and
he was tried in absentia. Days later, he was tried and convicted of another nine (9) discrete
violations of the Order of Protection. The defendant assails the first convictions as violative of his
constitutional rights. In light of State v. Far, 51 S.W.3d 222 (Tenn. Ct. Crim. App. 2001) “that a
trial in absentia [is allowable] only when the defendant is first present at trial” the eleven (11)
convictions at the first trial are reversed. The nine (9) convictions at the second trial are affirmed.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed in Part,
                             Reversed in Part and Remanded

WILLIAM H. INMAN , SR. J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
and CHARLES D. SUSANO , JR., J., joined.

James M. Crain, Knoxville, Tennessee, attorney for appellant, Christopher Phelps.

John D. Lockridge, Knoxville, Tennessee, attorney for appellee, Trista Denton.

William C. Cremins, Knoxville, Tennessee, attorney for intervening appellee, Harley Denton.

                                               OPINION

        An Order of Protection was issued on September 24, 2003 against the respondent [“Phelps”]
pursuant to Tenn. Code Ann. § 36-3-601, et seq. The statutory scheme provides a “swift and
efficient summary proceeding” for victims of domestic abuse with enhanced protection from such
abuse, and to prevent further harm to the victim. See, Clark v. Crow, 37 S.W.3d 919 (Tenn. Ct. App.
2000).
        The plaintiff appears to have become addicted to Phelps notwithstanding his propensity for
violent conduct and his inhumane treatment of her. She is thirty years old, unmarried and has one
child. Phelps is her intermittent boyfriend, and is thirty-six years old. The Order of Protection
prohibited domestic abuse, threats of abuse, stalking, coming about, telephoning, or communicating
with the plaintiff in any way. The plaintiff’s father was allowed to intervene on behalf of his
daughter, alleging that Phelps was manipulating and controlling her, and abusing and imprisoning
her. The intervention was not objected to.

         The intervenor filed a motion for criminal contempt against Phelps, alleging that he was
violating the Order of Protection by living with her, menacing her, and committing acts of violence.
The motion was scheduled for hearing on August 13, 2004, but neither the plaintiff nor Phelps
appeared. At the second hearing on September 20, 2004 the plaintiff testified, when asked about her
failure to appear for the earlier hearing, that “Phelps wouldn’t allow me to.”

        Phelps, by counsel, moved for a continuance which was denied.1 The hearing was conducted
and Phelps was found guilty of eleven (11) instances of violating the Order of Protection and was
sentenced to ten (10) days imprisonment and a $50.00 fine for each violation. The investigating
officer’s testimony - replete with hearsay - established the violations of the Protective Order. A
capias was issued for Phelps, and a new Protection Order was entered.

         On September 10, 2004, the plaintiff filed a motion alleging further acts of contempt by
Phelps. Five days later, the intervenor filed a motion seeking to reopen the first hearing to allow her
to testify. These motions were heard on September 30, 2004, and resulted in a judgment that Phelps
was guilty of nine (9) additional violations of the Order of Protection. He was sentenced to ten (10)
days imprisonment for each violation, but only one fine of $50.00 was assessed.2

        Phelps appeals and presents for review thirty-five (35) issues, only a few of which require
appellate review. Factual findings are reviewed de novo, with a presumption that the judgment is
correct unless the evidence otherwise preponderates, Rule 13(d) Tenn. R. App. P., subject to the
constitutional principle that findings of guilt in a case of criminal contempt must be supported by
proof beyond a reasonable doubt. State v. Matthews, 805 S.W.2d 776 (Tenn. Crim. App. 1990).

                                                 The First Hearing

        The principal issues concern the trial of August 13, 2004, resulting in a finding of guilt for
eleven (11) violations of the Order of Protection. As stated, Phelps did not appear for trial. He was
convicted in absentia, the asserted invalidity of which is presented for review. This issue spawned



         1
           Phelps declined to appear because of his asserted fear that he would not have a fair trial. This purported
reason was not made known to his counsel before trial, who, in any event, stated that he would not have sought a recusal.

         2
             He was also charged with and indicted for aggravated assault.

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a host of lesser included issues which need not be specifically discussed in light of our disposition
of the underlying action.

         In State v. Kirk, 699 S.W.2d 814 (Tenn. Crim.. App. 1985) the defendant had notice of the
trial but voluntarily fled. He was convicted in absentia, and the conviction was affirmed on appeal
because his flight was equated to waiver of his right to be present. Kirk was essentially premised
on the opinions of various Federal cases which were later overturned in Crosby v. United States,
506 U.S. 255, 113 S. Ct. 748, L. Ed.2d 25 (1993). In Crosby, the Court held that Rule 42 of the
Federal Rules of Criminal Procedure (which mirrors Rule 43 of the Tenn. R. Crim. P.) prohibits the
trial in absentia of a defendant “who is not present at the beginning of trial.”

        In State v. Far, 51 S.W.3d 222 (Tenn. Crim. App. 2001) the defendant was present in the
courtroom before the trial began. He objected to his assigned attorney, and engaged in calculated
conduct when the case was called for trial. He and his counsel retired from the courtroom to confer.
The defendant chose not to return to court but the trial nevertheless commenced and concluded
resulting in a verdict of guilty. On appeal, the Court of Criminal Appeals, citing Crosby, held:

         We hereby overrule the holding of State v. Kirk and adopt the reasoning of the U.S.
         Supreme Court in Crosby. We hold that Rule 43 only allows a trial in absentia
         when the defendant is first present at trial and then leaves, voluntarily or otherwise.3
         [Emphasis added.]

        Phelps was admittedly “not first present at trial” and his conviction in absentia cannot be
sustained, in light of Crosby and Far. The judgment finding Phelps guilty of eleven (11) violations
of the Order of Protection is accordingly reversed and the case is remanded for a new trial as to these
violations.

        Many of the issues Phelps presents for review are exegetic or subsumed by the dispositive
issue concerning his trial in absentia, and need not be discussed. But the issue of the intervenor’s
standing to prosecute Phelps requires a resolution.

        The plaintiff’s father was allowed, without objection, to intervene on behalf of his adult
daughter, apparently to “save her from herself” because of her seeming addiction to the purported
cruelty of Phelps. The record indicates that she was afflicted with the Stockholm Syndrome at times.
The plaintiff, apparently in better times, had given her father her power of attorney, couched in broad
language, upon which he relied to seek intervention on behalf of his daughter.

        Phelps argues that the controlling statute, Tenn. Code Ann. § 36-3-602, does not authorize
the enforcement of an Order of Protection by an agent. The statute provides that “any victim . . . .
of domestic abuse. . . . may seek relief” by filing a sworn petition alleging such domestic abuse. The


         3
            W hile Crosby and Far were expounding a Rule of Criminal Procedure, we think it clear that the rational is
entirely apposite to the case at Bar.

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intervenor, of course, is not a “victim,” but we discern no reason why, under the peculiar
circumstances, the intervenor cannot be treated as the next friend of the victim. The record indicates
that she arguably was suffering from a mental disability during her various tenures with Phelps and
the allowance of the intervention and subsequent prosecution in no way prejudiced Phelps. We hold
that the intervenor had the requisite standing to prosecute this action. On retrial, the Motion to
Enforce the Protection Order may be amended to allege with more particularity the specific
instances of purported violations of the Order.

                                         The Second Hearing

       The hearing of September 20, 2004 resulted in Phelps’ conviction of nine (9) violations of
the Order of Protection. The motion to enforce was filed by the plaintiff, eo nomine, and alleges:

        On 09-05-04, at approx. 5:45 am Chris assaulted Me at the Morris Motel, 6262
        Clinton Hwy. in rm# 12B. Chris struck Me and tried to knock Me down. I then tried
        to leave but He grabbed Me and threw Me on the couch. While He had Me pinned
        to the couch with His own body, He tried to cut My left wrist with His knife. After
        struggling to get loose from His hold I tried a 2nd time to leave. Striking at Me with
        His knife He slashed and ripped My sweater. Chris then grabbed Me by the hair
        jerking and pulling Me backwards, tried to punch Me in the face. Thru the entire
        attack Chris was threatening to kill Me, My Son Hunter and my Mom + Dad. The
        entire relationship I’ve had with Chris has been controlled by death treats and threats.
        He would have His Grandmother (Barbara Williford) Have me arrested for stealing.
        He held Me against my will in His Grandmother’s half sister’s Apt. (#522) (Patricia
        Burkett) in the Guy B. Love Towers. This motel rm. was one of several rented by
        His Grandmother to keep Him in hiding after being sentenced to jail on 8-13-04. He
        has kept Me from seeing or contacting My family.
                                                                Signed Trista L. Denton
                                                                      PETITIONER

        Phelps argues that the motion failed to apprise him sufficiently of the specific instances of
the violations of which he was accused and convicted. We disagree. The trial court found Phelps
guilty beyond a reasonable doubt of holding the plaintiff against her will on two occasions, and on
seven occasions committing acts of violence towards her. The evidence supports these convictions
beyond a reasonable doubt.

        Phelps argues that it is not possible “for him or for this court” to determine what “he was
convicted of doing” and for this reason he has been denied due process. The plaintiff testified that
she and Phelps had been living at the Morris Motel in South Knoxville for several weeks [in
violation of the Order of Protection]; that Phelps’ grandmother paid for the room; that on September
5, Phelps began to excoriate her by calling her a bitch, trash, and “could kill her and her family”; that
she tried to leave the motel, and Phelps pulled her to the ground; then he “cut me with a knife” and
pulled her down on a couch; that she tried to escape, and Phelps grabbed the back of her sweater


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which he cut, grabbed her by her hair; pulled her down on the couch for the third time; that she then
escaped, and saw the motel owner to whom she called for help. Phelps then left the premises.
Plaintiff further testified that Phelps threatened her if she testified against him, and that he would
“kill my family,” and that “when he gets out of jail he will come for me and will try to harm me . .
. . tomorrow or ten years from now.” These threats had been made earlier on September 5 and on
July 3, including a threat to kill her eight-year-old son, according to the plaintiff. She testified that
Phelps held her against her will “anywhere I resided with him,” specifically at 1616 Washington Pike
and at Love Tower, and other places. She testified that Phelps cursed and threatened her “every
day.” The testimony of the plaintiff is more elaborative than we have recited. Phelps did not testify,
relying upon his asserted constitutional right not to do so.

        The testimony of the plaintiff is sufficient beyond a reasonable doubt to convict Phelps on
the nine (9) violations. Phelps argues that Varley v Varley, 934 S.W.2d 659 (Tenn. Ct. App. 1996)
supports his argument that his convictions are based on “unspecified matters.” We disagree. The
testimony of the plaintiff is graphic and sufficiently specific as to time and place of the violations.
The judgment of conviction of the nine (9) instances of the violation of the Order of Protection is
affirmed.

        We have considered the remaining issues and find them to be without merit.

       The case is remanded to the trial court for such further actions as may be deemed appropriate.
Costs are assessed to the parties equally.


                                                        ___________________________________
                                                        WILLIAM H. INMAN, SENIOR JUDGE




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