          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE           FILED
                            APRIL 1997 SESSION       February 25, 1998

                                                    Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk
STATE OF TENNESSEE,                 )
                                    )     NO. 03C01-9601-CC-00044
      Appellee,                     )
                                    )     MONROE COUNTY
VS.                                 )
                                    )     HON. MAYO L. MASHBURN,
DAVID GARY MILLSAPS,                )     JUDGE
                                    )
      Appellant.                    )     (Child Abuse)



FOR THE APPELLANT:                        FOR THE APPELLEE:

CHARLES M. CORN                           JOHN KNOX WALKUP
District Public Defender                  Attorney General and Reporter

WILLIAM C. DONALDSON                      CLINTON J. MORGAN
Assistant Public Defender                 Assistant Attorney General
110 ½ Washington Ave N.E.                 Cordell Hull Building, 2nd Floor
Athens, TN 37303                          425 Fifth Avenue North
                                          Nashville, TN 37243-0493

                                          JERRY N. ESTES
                                          District Attorney General

                                          AMY ARMSTRONG
                                          Assistant District Attorney General
                                          P.O. Box 647
                                          Athens, TN 37303-0647




OPINION FILED:



CONVICTION AFFIRMED;
REMANDED FOR RESENTENCING


JERRY L. SMITH,
JUDGE
                                           OPINION



       The defendant, David Gary Millsaps, was convicted by a jury of simple

child abuse. He was sentenced to eleven (11) months and twenty-nine (29)

days. On appeal, he contends the evidence adduced at trial is not sufficient to

support a guilty verdict and his sentence is excessive. The conviction is

affirmed, but for reasons hereinafter stated, the case is remanded for

resentencing.



                                 FACTUAL BACKGROUND



       The defendant and Tammy Millsaps were divorced. On June 9, 1995,

eight (8) year-old G.M.1 spent the day with his father, the defendant. Tammy

Millsaps, the victim's mother, picked him up that afternoon and noticed what

appeared to be bruises on the victim's legs, back and arms. Tammy Millsaps

took the victim to the Sweetwater Emergency Room where the police were

summoned. Sergeant Gary Newman of the Sweetwater Police Department

observed several bruises and welts on the child. The victim's injuries were

photographed by the police at the hospital. 2 The defendant arrived at the

hospital, was read his Miranda rights and subsequently gave a written statement

that he had given the child a "whippin’."



                            SUFFICIENCY OF THE EVIDENCE



       The defendant contends the circumstantial evidence presented at trial

does not support a guilty verdict because the victim did not testify, there was no

medical testimony that the injuries rose to the level of child abuse, and medical



       1
           It is the policy of this Court not to reveal the names of minor victims.
       2
        The photographs depict substantial bruising and discoloration of the skin
on the child’s legs, back and arm.

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testimony was not introduced to show the injuries were other than accidental.

       Although the evidence of the defendant’s guilt is circumstantial in nature,

circumstantial evidence alone may be sufficient to support a conviction. State v.

Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Gregory, 862 S.W.2d

574, 577 (Tenn. Crim. App. 1993); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn.

Crim. App. 1988). However, in order for this to occur, the circumstantial

evidence must be not only consistent with the guilt of the accused but it must

also be inconsistent with innocence and must exclude every other reasonable

theory or hypothesis except that of guilt. Tharpe, 726 S.W.2d at 900. In

addition, “it must establish such a certainty of guilt of the accused as to convince

the mind beyond a reasonable doubt that [the defendant] is the one who

committed the crime.” Tharpe, 726 S.W.2d at 900 (quoting Pruitt v. State, 460

S.W.2d 385, 391 (Tenn. Crim. App. 1970)).

       While following the above guidelines, this Court must remember that the

jury decides the weight to be given to circumstantial evidence and that “[t]he

inferences to be drawn from such evidence, and the extent to which the

circumstances are consistent with guilt and inconsistent with innocence are

questions primarily for the jury.” Marable v. State, 313 S.W.2d 451, 457 (Tenn.

1958); see also State v. Gregory, 862 S.W.2d at 577; State v. Coury, 697

S.W.2d 373, 377 (Tenn. Crim. App. 1985); Pruitt v. State, 460 S.W.2d at 391.

       Where sufficiency of the evidence is challenged, the relevant question for

an appellate court is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime or crimes beyond a reasonable doubt. Tenn. R.

App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61

L.Ed.2d 560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996).

       Neither the testimony of the victim nor medical testimony was necessary

in this case. The defendant arrived at the hospital shortly after the victim. After

being read his rights, the defendant admitted physically striking the victim. The

jury in this case obviously believed the defendant knowingly inflicted the injuries



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on the victim, and that those injuries rose to the level of simple child abuse as

provided in Tenn. Code Ann. § 39-15-401. The evidence was sufficient to

support the guilty verdict.



                                   SENTENCING



       The defendant contends his sentence was excessive because the trial

court improperly considered two previous convictions and failed to consider one

mitigating factor. In our review of the record, it is unfortunately apparent the

sentencing hearing had flaws much greater than the application of mitigating and

enhancement factors.

       Prior to the hearing the trial court had an ex parte conversation with

Sheriff’s Detective George Williams. It further appears from the record that

neither the state nor defense counsel was made aware of this conversation prior

to the hearing. The court began the hearing by announcing, “[a]ll right. Ladies

and Gentlemen, it has been brought to my attention by an officer here in Bradley

County that he has certain information concerning Mr. Millsaps and a threat that

he’s made.” At this point the trial court called and examined the detective

regarding an alleged threat by the defendant to “blow the courthouse up and kill

everybody in the courthouse.” After examining the witness, the trial court asked

the defendant if he wished to cross-examine the witness. The defendant,

apparently representing himself, began to make statements to the detective and

the court. This prompted the public defender to ask if his office was relieved of

representation. The court replied negatively. The public defender at that point

examined the detective.

       Next, the Monroe County Sheriff was called by the trial court to testify.

The trial judge had also spoken with the sheriff ex parte before the hearing. The

court examined the Sheriff about the defendant’s alleged threat. At this point the

public defender objected to the trial court’s presentation of evidence that was

properly the responsibility of the District Attorney General’s office.



                                          4
       Mr. Donaldson:        In all fairness, Judge, I think we should be
                             made aware of any evidence that’s gonna be
                             presented against Mr. Millsaps. This is really
                             a sentencing hearing by ambush.

       The Court:            That’s right. Have a seat.



       Most of the remaining testimony in the hearing consisted of whether the

officers believed the alleged threat was serious enough to have the defendant or

his home searched for explosives. One conversation centered around the

defendant alleging numerous unrelated illegal activities committed by officers of

the Monroe County Sheriff’s Department. The sentencing hearing consisted

entirely of testimony and discussions about the alleged threat and unrelated

matters. There was no testimony or argument by counsel concerning the facts,

enhancement factors or mitigating factors relating to the case upon which the

defendant was being sentenced.

       When passing sentence on the defendant, the trial court stated it found no

mitigating factors, yet a fairly extensive record of prior criminal activity. The trial

court then stated:

              Now let me say this, and it’s not necessary for me to say it,
       but I want to be perfectly candid with everybody. I sat down and
       read this presentence report on you about two or three weeks ago.
       And then I sat down and read it again last night. And while I’m
       somewhat reluctant to admit it, I’ve got to be honest with
       everybody, and I can tell you that before I came up here today, I
       had pretty much made up my mind what your sentence was gonna
       be. (Brief pause) And all of you can read it right here, “Approve
       fine, $1250, 11 months and 29 days suspended.” But that’s not the
       sentence of this Court today. The sentence of this Court today is
       11 months and 29 days to serve at 75%, and you go into custody
       right now. That’s the sentence of the court.


       Clearly, a judge may neither permit nor consider ex parte communications

in a sentencing proceeding. Sup. Ct. Rules, Rule 10, Canon 3, B(7)(1997); State

v. Cash, 867 S.W.2d 741, 749 (Tenn. 1993). Just as importantly, a trial judge

should call and examine witnesses only in rare instances, it being better practice

to suggest to counsel that certain questions be asked of a witness. State v.

Brock, 940 S.W.2d 577, 581 (Tenn. Crim. App. 1996).

       We in no way intend to diminish the responsibility of a trial court to

                                           5
maintain security. Security should always be a paramount concern and is indeed

the trial court’s responsibility. The crucial matter leading to the problem in this

case, however, was the failure of the trial court to advise counsel of the ex parte

communications prior to the hearing. As a result the trial court elicited this

information during the sentencing hearing from witnesses called by the court.

Furthermore, the hearing was consumed with accusations and cross-accusations

of unrelated past events. In light of the trial court’s comments, he obviously

considered these matters in imposing the maximum sentence. Therefore, this

case must be remanded for a new sentencing hearing.



                                   CONCLUSION



       We find the evidence was sufficient in this case for the jury to have found

the defendant guilty of the offense charged. However, because the sentencing

hearing was fraught with error, we remand for a new sentencing hearing.




                                                ____________________________
                                                JERRY L. SMITH, JUDGE




CONCUR:



______________________________
JOE G. RILEY, JUDGE




______________________________
CHRIS CRAFT, SPECIAL JUDGE




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