                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                August 20, 2014 Session

             MARIA BETH REYNOLDS v. WILLIAM REYNOLDS

                  Appeal from the Circuit Court for Davidson County
                      No. 12D843     Phillip R. Robinson, Judge


              No. M2013-01912-COA-R3-CV - Filed December 12, 2014


Wife filed a criminal contempt petition against Husband alleging seven violations of the
order of protection she obtained against him. The trial court found Husband guilty of six of
the seven counts of criminal contempt and, after considering each count of contempt
individually, sentenced him to a total of 28 days in jail to be served consecutively. Husband
challenges five of the six findings of criminal contempt and the sentence. Husband also
challenges the exclusion of his witness based on her violation of Tennessee Rule of Evidence
615. We have determined the trial court did not abuse its discretion in excluding Husband’s
witness for violating Rule 615. We have also determined the evidence supports the finding
that Husband violated the order of protection on each of the five counts he challenges and
that the sentence imposed is appropriate. Therefore, we affirm the trial court in all aspects.

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

F RANK G. C LEMENT, J R., P.J., M.S., delivered the opinion of the Court, in which A NDY D.
B ENNETT and R ICHARD H. D INKINS, JJ., joined.

Trudy L. Bloodworth and Robert Thomas Vaughn, Nashville, Tennessee, for the appellant,
William Christopher Reynolds.

Allison Elizabeth Cooley and David A. Kozlowski, Nashville, Tennessee, for the appellee,
Maria Beth Reynolds.

                                         OPINION

       Maria Beth Reynolds (“Wife”) and William Christopher Reynolds (“Husband”) were
married in 2009. During the pendency of their divorce, Wife was granted an order of
protection on March 21, 2012, that was extended to September 28, 2013, which directed
Husband to stay away from and neither directly nor indirectly contact Wife.
       On February 8, 2013, Wife filed a petition for criminal contempt for violation of the
order of protection. In an amended petition, filed on May 17, 2013, Wife alleged that
Husband violated the order of protection on seven different occasions, of which the
following six counts are at issue in this appeal:

        Count I: On or about March 30, 2012, Husband emailed Wife;

        Count II: On or about April 11, 2012, Husband emailed Wife;

        Count III: On or about April 17, 2012, Wife observed Husband near the entrance of
        her apartment building. Husband blocked Wife’s car with his car and attempted to
        have a conversation with Wife;

        Count IV: On or about April 17, 2012, Husband called Wife from a blocked number
        and texted Wife “all of my future plans are with you [Wife]” and that he wants to
        speak with Wife;

        Count V: On or about April 18, 2012, Husband emailed Wife;
        ....

        Count VII: On or about April 26, 2012, Husband emailed Wife.

        The hearing was held on May 23, 2013, at which time Wife testified and presented
documentation of the emails from Husband; also testifying were Officer William J. Caluette,
and Brandon Wayne Boenstein, a resident of Wife’s apartment complex. Husband did not
testify.1 Husband had planned to present the testimony of witness Debra Scott, Husband’s
mother; however, her testimony was excluded by the trial court for reasons identified below.

       With respect to Counts I, II, V, and VII (“the emails”), Wife testified that she received
four emails from Husband’s known email address in violation of the order of protection.
Wife testified she was familiar with his email address because it was the same email address
he had used throughout the marriage. Copies of the emails submitted into evidence indicated
the emails were sent to her email address from the email address Wife identified to be the
email address of Husband.2



        1
          Husband’s counsel informed the trial court at the hearing that Husband would not testify due to the
fact that criminal charges were pending.
        2
            Taking into consideration the parties’ privacy, we use fictitious email addresses.

                                                       -2-
        Wife testified that she knew the password to Husband’s email account because the
couple shared their account information with one another, and that she occasionally accessed
his email account. After their separation, Husband did not change his password, and Wife
admitted that she continued to access his email account for her own safety. Specifically, she
testified that she reviewed his account for “diary entries”3 to determine Husband’s “mental
state,” and if he was in town or threatening her. Wife admitted that with access to Husband’s
email account, she had the ability to send an unsent email, i.e., a “diary entry,” from
Husband’s account to herself which would give the appearance that Husband sent the email
to Wife. Moreover, Wife admitted she did forward “really scary” unsent emails from
Husband’s account to her mother’s email. However, Wife insisted that she did not send the
four emails at issue from her Husband’s account to her account.




        3
         The “diary entries” consisted of Husband composing an email and then sending it from his email
address, CR@. . . .com, to the same email address, CR@. . . .com; the email was then time stamped with a
specific date and time. Then, the emails were sent with an indication that they were “forwarded” from
Husband’s email address to Wife’s email address. An example of the “diary entry” format is as follows:

        Subject: Fw: Maria
        From: Chris Reynolds (CR@. . . .com)
        To: MBR@. . . .com;
        Date: Wednesday, April 4, 2012 3:20 PM
        ________________________________________________________________________

        From: CR@. . . .com <CR@. . . .com>;
        To: <CR@. . . .com>;
        Subject: Maria
        Sent: Fri, Mar 30, 2012 12:01:09 AM

        Maria are you happy? Is that what you wanted? I’m not, and this is not what i [sic] wanted
        ....

Above the line indicates when the email was forwarded and, thus, sent from Husband’s email address to
Wife’s email address. Below the line is what appeared in the body of the email received by Wife which
demonstrates the “diary method” utilized by Husband. The information indicates Husband composed and
then sent the email to himself prior to forwarding the email to Wife’s email address.

        Three of the four emails reflect that the date Husband sent the email to his account was prior to
delivery into Wife’s email account; however, the April 11, 2012 email, appears to indicate that Wife received
the email the day before Husband sent it to himself. Wife testified she received the email on April 10th, but
could not explain the discrepancy. The court noted that Wife was not qualified as an expert in computers,
and Husband did not offer an expert or any explanation for the discrepancy.

                                                    -3-
        In Count III4 , Wife alleged on April 17, 2012, Husband was at her apartment building,
blocked her car with his car, and attempted to have a conversation with her. Wife testified
that Husband yelled at her and when she screamed for help he drove off. The testimony of
Brandon Wayne Borenstein, a resident of the same apartment complex as Wife, corroborated
the testimony of Wife. Wife testified she then called law enforcement to report Husband’s
violation of the order of protection. Officer William Caluette was the responding officer; the
allegations in Count IV arose while he was making the report.

        In Count IV, Wife alleged that Husband telephoned her from a blocked number on
April 17, 2012. At the time Wife received the phone call, she was reporting the events in
Count III to Officer Caluette. Wife testified that after she answered the call from the blocked
number she recognized Husband’s voice as the caller. Officer Caluette testified that he did
not know the identity of the caller, nor did he speak with the caller, but he heard a male voice
on the phone and the male making statements to the effect of, “I want to be with you, why
won’t you talk to me?” Wife told the officer that it was Husband, and Officer Caluette
testified that he found Wife credible as the situation was consistent with what she told him
had happened.

        Prior to the beginning of the hearing, the trial court ordered the witnesses to be
sequestered, and the court explained what was expected of the sequestered witnesses. The
court also informed the witnesses they would be held in contempt and incarcerated if they
were seen speaking to each other or anyone from inside the courtroom, or using their cell
phones or tablets. The court noted, “We’ve had people texting information out of the
courtroom, back and forth, we’re not going to put up with that. So we’re giving you fair
warning.” During the hearing, Wife’s attorney brought to the trial court’s attention a possible
violation of the court’s sequestration order. A legal aid representative testified that she
observed Husband’s witness, Debra Scott, speaking to an officer who was sworn in as a
hostile witness and someone from inside the court room, who was later identified as a family
friend of Ms. Scott, Cynthia Fontana. The legal aid further testified that she observed one of
the ladies, either Ms. Scott or Ms. Fontana, pointing to certain things in a notebook. The
court questioned Ms. Fontana who stated that Ms. Scott handed her a notebook and asked her
to hold it while she used the restroom. When asked by the court, Ms. Scott admitted to
violating the court’s order when she spoke to and accepted a notebook from someone inside
the courtroom. After the trial court questioned all of the individuals, the court found its
sequestration instructions were clear, and that Ms. Scott violated those instructions. As a


        4
          Husband does not appeal the trial court’s finding of contempt in Count III; however, the events are
discussed to give a complete account of the incidents that took place and the testimony heard by the trial
court. Further, the events surrounding Count III are relevant insomuch as the trial court considered them in
its sentencing decision which is challenged by Husband.

                                                    -4-
result, the court disqualified Ms. Scott and excluded her testimony.

       At the conclusion of the hearing, the trial court found Husband willfully violated the
court’s order of protection in six of the seven allegations and, thus, guilty of six counts of
criminal contempt; the court imposed a total sentence of 28 consecutive days in jail. The trial
court further found Wife to be a credible witness and that her testimony was unrebutted.

      Husband filed a motion for new trial and/or reduction of sentence; the trial court
denied Husband’s motion. Husband timely appealed; he concedes one finding of criminal
contempt, but challenges the other five and the sentence imposed.

                                           A NALYSIS

       Husband presents this court with the following issues: (1) whether the evidence was
insufficient to conclude that Husband was guilty beyond a reasonable doubt concerning
violations of the order of protection on Counts I, II, IV, V, and VII; (2) whether the trial court
erred by not applying enhancing and/or mitigating factors to Husband’s sentence and
sentencing him to consecutive sentencing; and (3) whether the trial court erred when it
disqualified Husband’s witness from testifying during the May 23, 2012 hearing. We will
discuss each in turn.

                                         I. C ONTEMPT

       The willful disobedience of a lawful court order or decree is punishable as criminal
contempt. Tenn. Code Ann. § 29-9-102(3). The maximum sentence for each act of criminal
contempt is ten days of confinement in jail and the maximum fine is $50.00. Tenn. Code
Ann. § 29-9-103. The person accused of criminal contempt is presumed to be innocent and
the prosecution bears the burden of proving guilt beyond a reasonable doubt. Cottingham v.
Cottingham, 193 S.W.3d 531, 538 (Tenn. 2006) (citing Shiflet v. State, 400 S.W.2d 542, 544
(Tenn. 1966)). To convict a person of criminal contempt of a court order, four essential
elements must be established:

       First, the order alleged to have been violated must be “lawful.” Second, the
       order alleged to have been violated must be clear, specific, and unambiguous.
       Third, the person alleged to have violated the order must have actually
       disobeyed or otherwise resisted the order. Fourth, the person’s violation of the
       order must be “willful.”

Konvalinka v. Chattanooga-Hamilton Cnty. Hosp. Auth., 249 S.W.3d 346, 354-55 (Tenn.
2008) (internal citations omitted).

                                               -5-
        Once convicted of criminal contempt, the defendant loses the presumption of
innocence and bears the burden of overcoming the presumption of guilt. See Thigpen v.
Thigpen, 874 S.W.2d 51, 53 (Tenn. Ct. App. 1993). Thus, on appeal, the issue is whether,
considering the evidence in the light most favorable to the prosecution, any trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. Cottingham, 193
S.W.3d at 538 (citing Tenn. R. App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319 (1979);
State v. Davidson, 121 S.W.3d 600, 614 (Tenn. 2003); Black v. Blount, 938 S.W.2d 394, 399
(Tenn. 1996)).

                             A. S UFFICIENCY OF THE E VIDENCE

        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, 191 S.W. 974, 974 (Tenn.1917); State v. Creasy,
885 S.W.2d 829, 831 (Tenn. Crim. App.1994)).

       1. T HE E MAILS: C OUNTS I, II, V, AND VII

       Husband contends the evidence concerning the emails is insufficient, as a matter of
law, for the trier of fact to find Husband was guilty beyond a reasonable doubt. Specifically,
Husband asserts Wife’s testimony creates reasonable doubt, and she failed to show Husband
“actually” sent the emails. Husband solely relies upon Wife’s testimony that she “could have”
sent the emails to herself to show the evidence was insufficient.

       Wife testified she received the emails from Husband’s known email address, and the
face of the emails reflect they were sent from Husband’s known email address to Wife’s
email address. Although Wife admitted to sending emails from Husband’s account to her
mother and herself in the past, she was adamant in her testimony that she did not send the
emails at issue, and the trial court found Wife to be a credible witness. In its determination
of Wife’s credibility, the trial court’s order reads:

       In determining the weight of the emails in question, the Court acknowledges
       that the credibility of [Wife] is paramount. Based on the testimony of [Wife],
       that she had access to [Husband’s] email account and had forwarded emails in

                                              -6-
       the past to her mother, but that she did not forward these specific emails to
       herself, and based on her testimony surrounding the events on April 17, 2012,
       which were corroborated by the testimony of Mr. Bornstein and Officer
       Caillouette [sic], the Court finds [Wife] to be a credible witness and that her
       testimony was unrebutted[.]

        Because a trial court’s findings of fact are often dependent on the credibility of
witnesses, we give great weight to the trial court’s determination that Wife is a credible
witness. See Estate of Walton v. Young, 950 S.W.2d 956, 959 (Tenn.1997); B & G Constr.,
Inc. v. Polk, 37 S.W.3d 462, 465 (Tenn. Ct. App. 2000). Moreover, Husband offered no other
evidence to show he did not send the emails at issue, and as the trial court correctly noted,
“if one is interested in challenging the validity of this, I would suggest that it may have been
appropriate to bring someone who knows more than the rest of us in the courtroom about
emails if they’re wanting to put some other spin on this.” Based upon the face of the emails
submitted into evidence and Wife’s testimony, the trial court found Husband willfully sent
the emails to Wife. The trial court found that the emails constituted indirect contact with
Wife in violation of the order of protection, and, thus, Husband guilty of criminal contempt
for each email sent.

       Husband bears the burden of illustrating to this court why the evidence is insufficient
to support the trial court’s finding that he willfully sent the emails to Wife in violation of the
order of protection, and he failed to carry this burden. Further, we have determined the
evidence fully supports the trial court’s factual finding that Husband willfully sent the emails
to Wife. We further conclude those factual findings are sufficient to support the
determination that there was proof beyond a reasonable doubt that Husband violated the
order of protection when on four separate occasions he indirectly contacted Wife through
email. Therefore, we affirm the finding of criminal contempt in Counts I, II, V, and VII.

       2. T HE T ELEPHONE C ALL: C OUNT IV

        Husband contends the evidence concerning the telephone call, Count IV, is
insufficient as a matter of law for the trier of fact to find Husband was guilty beyond a
reasonable doubt. Specifically, Husband asserts Wife failed to show Husband “actually”
placed the telephone call. Husband contends there is no evidence showing he placed the call
because Wife testified the call was from a blocked number, and she submitted no other
evidence, e.g., Husband’s telephone call log or records, to show he placed the call. Further,
Husband contends Officer Caluette testified that he did not speak to the caller, and he did not
know Husband’s voice, and, thus, could not verify it was Husband calling. Husband asserts
the testimony of Wife and Officer Caluette is insufficient to show beyond a reasonable doubt
he placed the telephone call.

                                               -7-
        The trial court relied upon Wife’s testimony and Officer Caluette’s corroborating
testimony in finding Husband willfully called Wife from the blocked number. Wife testified
that she is familiar with Husband’s voice, and after she answered the blocked call she
recognized his voice as the caller. Firsthand voice identification is sufficient to support a
finding by the trier of fact that the matter is what its proponent claims. See Tenn. R. Evid.
901(a). The “trier of fact then makes the ultimate decision of whether the item is actually
what it purports to be.” State v. Hinton, 42 S.W.3d 113, 127 (Tenn. Crim. App. 2000).
Further, and contrary to Husband’s assertion, the trial court did not make a finding that
Officer Caluette identified Husband’s voice; rather, the court found that Officer Caluette’s
testimony corroborated the testimony of Wife except for identifying Husband as the caller.
Officer Caluette testified that he could not identify Husband as the caller; however, he
testified that he heard a male voice on the phone and the caller made statements to the effect
of “I want to be with you, why won’t you talk to me?” Wife told the officer Husband was the
caller, and Officer Caluette testified that he found Wife credible as the situation was
consistent with what she had informed him was going on.

       In light of the trial court’s implicit credibility determination of Wife, and Wife’s
unrebutted detailed testimony as to Husband’s violation of the order of protection, the
evidence supports the trial court’s factual finding that Husband willfully called Wife from
the blocked number. We further conclude those factual findings are sufficient to support the
determination that there was proof beyond a reasonable doubt that Husband violated the
order of protection when he indirectly contacted Wife when he called. Therefore, we affirm
the finding of criminal contempt in Count IV. We will now turn to the sentence imposed for
the findings of criminal contempt.

                                      II. S ENTENCING

       The standard we apply in reviewing sentencing decisions, including the determination
to impose consecutive sentences, is abuse of discretion, accompanied by a presumption of
reasonableness. See State v. Bise, 380 S.W.3d 682 (Tenn. 2012); State v. Pollard, 423S.W.3d
851 (Tenn. 2013). Where the trial court states in the record the reasons it has imposed a
particular sentence, we are able to afford the sentencing decision the presumption of
reasonableness; where it fails to do so, we may conduct a more detailed review of the record
and uphold the decision “so long as the statutory purposes and principles, along with any
applicable enhancement and mitigating factors, have been properly addressed.” Bise, 380
S.W.3d at 706; see also Pollard, 432 S.W.3d at 862. “If, however, the trial court applies
inappropriate mitigating and/or enhancement factors or otherwise fails to follow the
Sentencing Act, the presumption of correctness fails.” State v. Carter, 254 S.W.3d 335, 345
(Tenn. 2008) (citing State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992)). “In
that event, ‘our review is simply de novo.’” Id. (citing State v. Pierce, 138 S.W.3d 820, 827

                                             -8-
(Tenn. 2004)). Husband contends our review of the sentencing decision should be de novo
asserting the trial court failed to sentence him in accordance with the Tennessee Criminal
Sentencing Reform Act of 1989, Tenn. Code Ann. § 40-35-101 through § 40-35-505
(“Sentencing Act”). We find the trial court properly followed the Sentencing Act and
articulated in the record the reasons it imposed each particular sentence; accordingly, our
review of the sentence imposed is the abuse of discretion standard, accompanied by a
presumption of reasonableness. Bise, 380 S.W.3d at 706; see also Pollard, 432 S.W.3d at
862.

       Husband asserts the trial court failed to sentence him in accordance with the
Sentencing Act when it failed to apply all mitigating factors in its sentencing consideration.
Husband further contends the sentence is excessive, and that the trial court could have used
alternatives such as probation, anger management classes, or community service, instead of
incarceration.

                          A. M ITIGATING/E NHANCEMENT F ACTORS

       The trial court sentenced Husband to a total of twenty-eight days for the six counts of
contempt, with the sentence to be served consecutively. Husband contends the sentence is
excessive in light of three mitigating factors he identified at the sentencing hearing. The three
factors he relied on read as follows:

       (1) The defendant’s criminal conduct neither caused nor threatened serious
       bodily injury; . . .
       (8) The defendant was suffering from a mental or physical condition that
       significantly reduced the defendant’s culpability for the offense . . . ; and
       (13) Any other factor consistent with the purposes of this chapter.

Tenn. Code Ann. § 40-35-113(1), (8), and (13).

       In its bench ruling, the trial court addressed the sentence imposed for each separate
finding of contempt and stated the reasons for its determination.

       For Count I, which was the first email sent to Wife, the trial court sentenced Husband
to two days in jail. The court’s reasoning for the sentence reads as follows:

       The Court’s reasoning has to do with the circumstance, actually, that
       [Husband’s counsel] pointed out, in part. The court notes that it was not a
       personal contact with the [Wife] where he could have done physical harm to
       her, although the Court notes that one of the problems in domestic violence is

                                               -9-
       the emotional impact and the fear that is generated by the constant stalking or
       harassing. The Court does not mean to indicate that emotional upset and fear
       is any less when you receive an email than it is when you see someone out in
       the front yard. But the ability of the [Husband] to actually do physical harm is
       reduced.

(Emphasis added).

       For Count II, which was the second email sent to Wife, the court’s reasoning was
consistent with that in Count I, however, the trial court enhanced the sentence for Count II
to three days finding because “[the email] constituted a second offense days later. . . .”
(Emphasis added).

       As for Count III, Husband contends the eight-day sentence was excessive. In
rendering this sentence, the trial court stated that it considered the direct versus indirect
nature of Husband’s contact and explained: “Because he was there in person, the Court feels
he deserves an enhanced punishment and the Court sentences him to eight days for that
violation. The court’s reasoning for the sentence imposed in Count III was based upon
Husband being at the apartment complex in person.”

       As for Count IV, the telephone call, the trial court once again noted the contact was
indirect, but because it was Husband’s fourth violation of the order, it found an enhancement
was necessary, and sentenced him five days in jail.

       The trial court’s reasoning was the same for Count V and Count VII, both of which
involved emails to Wife, and sentenced Husband to five days for each count.

       Contrary to Husband’s contentions that the trial court failed to consider the mitigating
factors he presented in its determination of the sentence, we have determined the trial court
did, indeed, give appropriate consideration to the appropriate mitigation and enhancement
factors. As Tenn Code. Ann. § 40-35-210(c) directs, “the trial court ‘shall consider, but is not
bound by’ an ‘advisory sentencing guideline’ that suggests an adjustment to the defendant’s
sentence upon the presence or absence of mitigating and enhancement factors.” Carter, 254
S.W.3d at 344. Moreover, the statutory scheme only requires a determination on the record
of “what enhancement or mitigating factors were considered [by the trial court], if any, as
well as the reasons for the sentence . . . .” Tenn. Code Ann. § 40-35-210(f); see also State v.
Boshears, No. CCA01C01-9412CR00402, 1995 WL 676402, at *4 (Tenn. Crim. App. Nov.
15, 1995). Thus, the statutory scheme does not require the sentencing court to specifically
address each and every claimed mitigating factor. Boshears, 1995 WL 676402, at *4.



                                              -10-
        Here, the trial court stated its decision to impose a reduced sentence for the emails and
telephone call, as compared to Husband’s encounter with Wife at her apartment complex,
was based “in part” on the lack of direct contact pointed out by Husband’s counsel. Further,
the trial court stated its reason in enhancing a sentence was based upon either the direct
nature of the contact as for Count III or the repeated contemptuous actions arising under
Counts II, IV, V, and VII.

        The trial court’s imposition of a reduced sentence along with its articulated reasons
clearly reveal the fact that the trial court considered the relevant mitigating and enhancement
factors in its sentencing determination in accordance with the Sentencing Act. We will now
address whether the sentence imposed is excessive.

                                        B. S ENTENCE IMPOSED

        The record before us reveals that Husband’s acts were clearly in willful violation of
the order of the protection for which he should be sanctioned, because if a party knowingly
engages in contemptuous conduct, sanctions are appropriate, including incarceration, if
justified by the circumstances. See Tenn. Code Ann. § 29-9-102; Tenn. Code Ann. §
29-9-103(b). “However, not every contemptuous act, or combination of contemptuous acts,
justifies the imposition of a maximum sentence, particularly when consecutive sentencing
is in play.” Simpkins v. Simpkins, 374 S.W.3d 413, 422 (Tenn. Ct. App. 2012). Therefore, if
we determine that a sentence is excessive, it is incumbent upon this court to reduce or
otherwise modify an excessive sentence for contempt. Id. (citations omitted). Although there
are no specific guidelines for sentencing one found to be in criminal contempt, the Supreme
Court’s decision in In re Sneed, 302 S.W.3d 825 (Tenn. 2010) provides guidance. Id.

       The sentencing guidelines for misdemeanor crimes have been applied when
appropriate to sentence for criminal contempt. Sneed, 302 S.W.3d at 828. Moreover, the
court may order sentences for criminal contempt to run consecutively. See Tenn. Code Ann.
§ 40-35-115(b)(7). Accordingly, we look to the Sentencing Act5 for guidance. Sneed, 302
S.W.3d at 828.

      Tennessee Code Annotated § 40-35-103 provides the following sentencing
considerations:


        5
         However, the portions of the criminal code that require the court to set a percentage of the sentence
that must be served, Tenn. Code Ann. § 40-35-302(d), and that allows a misdemeanant to earn good conduct
credits while serving time in a local jail, Tenn. Code Ann. § 41-2-111(b), do not apply to a defendant
convicted of criminal contempt arising out of a civil matter. Sneed, 302 S.W.3d at 828 (citing State v. Wood,
91 S.W.3d 769, 776 (Tenn. Ct. App. 2002)).

                                                    -11-
       (1) Sentences involving confinement should be based on the following
       considerations:

              (A) Confinement is necessary to protect society by restraining a
              defendant who has a long history of criminal conduct;
              (B) Confinement is necessary to avoid depreciating the seriousness of
              the offense or confinement is particularly suited to provide an effective
              deterrence to others likely to commit similar offenses; or
              (C) Measures less restrictive than confinement have frequently or
              recently been applied unsuccessfully to the defendant;

       (2) The sentence imposed should be no greater than that deserved for the
       offense committed;

       (3) Inequalities in sentences that are unrelated to a purpose of this chapter
       should be avoided;

       (4) The sentence imposed should be the least severe measure necessary to
       achieve the purposes for which the sentence is imposed;

       (5) The potential or lack of potential for the rehabilitation or treatment of the
       defendant should be considered in determining the sentence alternative or
       length of a term to be imposed. The length of a term of probation may reflect
       the length of a treatment or rehabilitation program in which participation is a
       condition of the sentence; and

       (6) Trial judges are encouraged to use alternatives to incarceration that include
       requirements of reparation, victim compensation, community service or all of
       these.

        Here, in making it’s sentencing determination, the trial court, on the record,
considered the extent of the willful and deliberate defiance of the court’s order, whether the
contact was direct or indirect, the seriousness of the consequences of the contemptuous
behavior, the necessity of effectively terminating Husband’s defiance as required by public
interest, and the importance of deterring such acts in the future. The trial court did not hand
down a maximum sentence for each act of contemptuous behavior; instead, as discussed
earlier, it reduced the sentences based on the extent of contact, and increased sentences based
upon direct contact and repeated violations. Given the trial court’s reasoning and thorough
consideration of the nature and extent of each violation, we have determined the sentence
imposed for each criminal contempt conviction is appropriate. Further, given Husband’s

                                             -12-
repeated and deliberate violations of the order of protection, we find the trial court did not
abuse its discretion in ordering each of the sentences to be served in jail.

       Having determined the sentences imposed were appropriate for each contemptuous
act, our analysis now turns to the trial court’s determination that the multiple sentences be
served consecutively. See Simpkins, 374 S.W.3d at 422-23; Sneed, 302 S.W.3d at 828.

                       C. C ONCURRENT/C ONSECUTIVE S ENTENCING

       “If a defendant is convicted of more than one (1) criminal offense, the court shall
order sentences to run consecutively or concurrently as provided by the criteria in this
section.” Tenn. Code Ann. § 40-35-115(a). “The decision to impose concurrent or
consecutive sentences is a matter entrusted to the sound discretion of the sentencing court.”
Sneed, 302 S.W.3d at 829 (citing State v. Nelson, 275 S.W.3d 851, 870 (Tenn. Crim. App.
2008)).

       The court is to determine whether the sentences are to run consecutively or
concurrently based on criteria set forth in Tennessee Code Annotated § 40-35-115 and the
court may order sentences to run consecutively if any one of the factors provided in
subsection (b) is found. See State v. Dickson, 413 S.W.3d 735, 748 (Tenn. 2013) (citing State
v. Mickens, 123 S.W.3d 355, 394 (Tenn. Crim. App. 2003)). One of the factors is that “[t]he
defendant is sentenced for criminal contempt.” Tenn. Code Ann. § 40-35-115(b)(7).

       In ordering Husband’s twenty-eight day sentence to be served consecutively, the trial
court stated from the bench:

       [T]he Court specifically finds by a preponderance of the evidence that, and
       actually beyond a reasonable doubt in this case, that the Defendant is being
       sentenced for criminal contempt. That’s exactly why we’re here. So the Court
       finds that it can run consecutive sentences. But, more importantly, let me
       explain the very basis of the Court’s concern here. The purpose of an Order of
       Protection is to direct people to leave people alone. They represent some threat
       of harm or danger to the person. That’s exactly what has occurred in this case.
       In this particular case, the Court finds that on six of the seven allegations
       against him, he has knowingly, intentionally violated the Court’s Order and it
       doesn’t seem to matter what the Order is to him. So the fact of the matter is if,
       frankly, if he’d done this one time with one email, this Court’s position may
       be somewhat different. . . . Because many of these people, even though they’re
       dangerous, they’re emotionally upset in divorce cases because of that and they
       do represent a danger to themselves or other people. So the Court is

                                             -13-
       comfortable with running the sentences consecutive in this situation.

         Each of the offenses of which Husband stands convicted is criminal contempt;
accordingly, as the trial court found, he automatically qualified for consecutive sentencing
as to all counts. See Tenn. Code Ann. § 40-35-115(b)(7). However, the trial court’s reasoning
did not stop with the finding of that factor alone. The trial court further discussed the purpose
of an order of protection, and how Husband did not seem to care that an order was in place
evidenced by the repeated contemptuous behavior of Husband. Accordingly, the trial court
found it could order consecutive sentences based on these factual findings and the findings
of criminal contempt.

        The maximum sentence under Tenn. Code Ann. § 29-9-103 for six counts of criminal
contempt would be sixty days served consecutively in jail. Keeping in mind the limitation of
the sentencing statutes that the total punishment must be no greater than that deserved under
the circumstances, Sneed, 302 S.W.3d at 829, we are persuaded that the trial court did not
abuse its discretion in ordering the twenty-eight day sentence to be served consecutively.
Further, we commend the learned trial judge for his thorough and thoughtful consideration
of the appropriate sentence.

                               III. D ISQUALIFICATION OF W ITNESS

        Husband contends the trial court erred when it excluded the testimony of his witness,
Debra Scott, due to a violation of Tennessee Rule of Evidence 615 (“the Rule”).6 He asserts
the inquiry by the trial court into the alleged conduct was insufficient to disqualify her as a
witness, and that she should have been allowed to testify because her testimony was material
to the case.


       6
           Tennessee Rules of Evidence 615 reads:

       At the request of a party the court shall order witnesses, including rebuttal witnesses,
       excluded at trial or other adjudicatory hearing. In the court’s discretion, the requested
       sequestration may be effective before voir dire, but in any event shall be effective before
       opening statements. The court shall order all persons not to disclose by any means to
       excluded witnesses any live trial testimony or exhibits created in the courtroom by a witness.
       This rule does not authorize exclusion of (1) a party who is a natural person, or (2) a person
       designated by counsel for a party that is not a natural person, or (3) a person whose presence
       is shown by a party to be essential to the presentation of the party’s cause. This rule does
       not forbid testimony of a witness called at the rebuttal stage of a hearing if, in the court’s
       discretion, counsel is genuinely surprised and demonstrates a need for rebuttal testimony
       from an unsequestered witness.

Tenn. R. Evid. 615.

                                                    -14-
        The trial court has broad discretion in determining whether the Rule has been violated.
Robinson v. State of Tenn., 340 F.Supp. 82, 85 (1972). Moreover, the Rule “does not set forth
any particular sanctions that should be imposed for its violation.” State v. Jordan, 325
S.W.3d 1, 41 (Tenn. 2010). “Accordingly, trial courts have significant discretion when
deciding how best to deal with its violation.” Id. (citing State v. Upchurch, 620 S.W.2d 540,
543 (Tenn. Crim. App. 1981) (“[W]hether to allow or not allow the testimony of a witness
who has violated the rule is within the discretion of the trial court.”); Jones v. State, 548
S.W.2d 329, 332 (Tenn. Crim. App. 1976) (recognizing that “it remains a matter of the Trial
Judge’s discretion as to whether the witness who violated the rule will be permitted to
testify”)). “This discretion should be exercised in light of both the policies at issue as well
as the particular facts and circumstances of the case.” Id. Accordingly, we review for an
abuse of discretion. Id. “Reviewing courts will find an abuse of discretion only when the trial
court applied incorrect legal standards, reached an illogical conclusion, based its decision on
a clearly erroneous assessment of the evidence, or employed reasoning that causes an
injustice to the complaining party.” Id. at 39 (citing Konvalinka, 249 S.W.3d at 358).

        Prior to the beginning of the trial, the trial court explained the Rule and what was
expected of the sequestered witnesses. The court also notified the witnesses that they would
be held in contempt and incarcerated if they were seen speaking to each other or anyone from
inside the courtroom, or using their cell phones or tablets. When the possible violation of the
Rule was brought to the trial court’s attention, it questioned all individuals involved. Ms.
Scott admitted to violating the court’s order when she spoke to and accepted a notebook from
someone inside the courtroom. The court found its sequestration instructions were clear, that
Ms. Scott violated those instructions, and as a result tainted herself as a witness. The court
determined the proper sanction was to disqualify Ms. Scott as a witness and excluded her
testimony. Subsequent to this ruling, there was no objection made by Husband’s counsel, and
no offer of proof as to Ms. Scott’s anticipated testimony. Husband did, however, raise the
issue in his motion for new trial and asserted the exclusion of the witness was “highly
prejudicial” as Ms. Scott was the only witness for the defense. The trial court denied
Husband’s request for a new trial based upon this ground, and affirmed its finding that Ms.
Scott violated the Rule and the sanction it imposed. The trial court further found Ms. Scott’s
testimony was to give background information of the parties’ relationship and that she had
no personal knowledge of the violations set forth in the contempt petition.

       The possible sanctions available to a trial judge for a violation of the Rule are
numerous. Jordan, 325 S.W.3d at 41. A frequently-used sanction, and the one utilized here,
is exclusion of the witness. Although this remedy is well within the court’s discretion, our
Supreme Court has cautioned its application in criminal prosecutions as it risks conflict with
a defendant’s fundamental constitutional right to call witnesses and present a defense, and

                                             -15-
because of the availability of alternative sanctions. Id. at 42 (citations omitted). The Supreme
Court then quoted a Texas Court of Appeals case that articulated the following two part test
to determine a trial court’s error in disqualifying a witness:

       Where the “particular and extraordinary circumstances” show neither the
       defendant nor his counsel have consented, procured, connived or have
       knowledge of a witness or potential witness who is in violation of the
       sequestration rule, and the testimony of the witness is crucial to the defense,
       it is an abuse of discretion exercised by the trial court to disqualify the witness.

Id. at 44 (quoting Webb v. State, 766 S.W.2d 236, 239 (Tex. Crim. App. 1989)). The
Supreme Court cautioned that automatic exclusion of a defendant’s witness for violation of
the Rule, with no consideration given to the impact of the proffered testimony or other
relevant circumstances, risks error. Id. at 45.

       In applying the above stated rule to the trial record before us, several matters must be
considered. First, although neither Husband nor his counsel participated in Ms. Scott’s failure
to observe the Rule, there is no offer of proof as to what Ms. Scott’s testimony would have
been. Moreover, based upon representations made to the trial court in the hearing on the
motion for a new trial, the court was given the opportunity to consider the potential
importance of Ms. Scott’s testimony and the court made the express finding that “Ms. Scott’s
testimony was to only give background information of [Husband] and [Wife’s] relationship
and that Ms. Scott had no personal knowledge of the violations set forth in [Wife’s] contempt
petition.”

        Based upon the above, we find no error with the trial court’s decision to exclude Ms.
Scott. Further, had excluding her testimony been error, it would be harmless for she had no
personal knowledge of the events at issue. Accordingly, we find the trial court did not abuse
its discretion in excluding the testimony of Ms. Scott.

                             IV. A TTORNEY’S F EES ON A PPEAL

       Wife seeks to recover the attorneys’ fees she incurred in this appeal based on her
interpretation of Tenn. Code Ann. § 36-3-617(a)(1). Husband insists she is not entitled to
recover her “attorney’s fees” in this appeal because the statute only applies when a court
“issues or extends an order of protection” and this is not such an action.

       Tenn. Code Ann. § 36-3-617(a)(1) reads in pertinent part:




                                              -16-
       Notwithstanding any other law to the contrary, no domestic abuse victim,
       stalking victim or sexual assault victim shall be required to bear the costs,
       including any court costs, filing fees, litigation taxes or any other costs
       associated with the filing, issuance, registration, service, dismissal or nonsuit,
       appeal or enforcement of an ex parte order of protection, order of protection,
       or a petition for either such order, whether issued inside or outside the state.
       If the court, after the hearing on the petition, issues or extends an order of
       protection, all court costs, filing fees, litigation taxes and attorney fees shall be
       assessed against the respondent.

        In her brief, Wife states “[a]lthough the statute speaks directly to an award of
attorney’s fees in cases of an appeal from an order of protection, the statute can be
interpreted to support an award of attorney’s fees incurred in the enforcement of an order of
contempt arising out of an order of protection.” We are in agreement with Wife that the
statute only speaks directly to an award of attorney’s fees in appeals from the issuance or
extension of an order of protection; thus, this statute provides no basis for an award of
attorney’s fees in this proceeding. We also note the authority Wife relies on in her brief,
Wiser v. Wiser, No. M2010-02222-COA-R3-CV, 2011 WL 4729870 (Tenn. Ct. App. Oct.
7, 2011), does not support her argument, for the issue in that appeal pertained to the
extension of the order of protection for five years. Id. at *4.

        Finding no authority upon which Wife may be entitled to recover her attorney’s fees
in this appeal, her request is respectfully denied.

                                       I N C ONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs of
appeal assessed against the appellant, William Christopher Reynolds.


                                                         ______________________________
                                                         FRANK G. CLEMENT, JR., JUDGE




                                               -17-
