                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                        Submitted on Briefs, January 11, 2011

     APRIL AMANDA WORLEY, v. RICHARD THOMAS WHITAKER

                   Appeal from the Circuit Court for Knox County
                   No. 113375 & 116115     Hon. Bill Swann, Judge


                No. E2010-00153-COA-R3-CV - Filed March 31, 2011




Plaintiff sought and obtained an Order of Protection from the Trial Court against defendant,
Subsequently, following an evidentiary hearing, the Court found defendant in contempt of
the Order of Protection, and sentenced him to 1830 days in prison. Defendant has appealed
to this Court inter alia, seeking a reduction in the sentence. We affirm the Judgment of the
Trial Court, but modify by reducing his sentence to 730 days.


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


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., J., and D. M ICHAEL S WINEY, J., joined.


Zachariah N. Stansell, Knoxville Tennessee, for the appellant, Richard Thomas Whitaker.

Thomas F. diLustro, Knoxville, Tennessee, for the appellee, April Amanda Worley.


                                        OPINION


       Plaintiff filed a petition seeking an ex parte Order of Protection against Richard
Thomas Whitaker, alleging that the two had a daughter together but had never been married,
and that Whitaker had grabbed her, choked her, threatened her, stalked her, etc. Plaintiff
alleged that Whitaker used drugs and alcohol, and that he would drive in front of her home,
call and leave messages, and texted her frequently. An ex parte Order of Protection was
entered on March 10, 2009, and on March 26, 2009, plaintiff filed a Motion for an Order to
Show Cause and/or Writ of Attachment, alleging that Whitaker was in contempt because
when they came to court to have the hearing, Whitaker followed her, jumped in her car,
threatened her, etc.

        Counsel was appointed to represent Whitaker, and an Order of Protection was entered
on April 30, 2009. The order states that the parties agreed to the same, but with social
contact. The Order goes on to state that the parties were advised against social contact, but
the parties agreed they could have social contact and be in each other’s presence, but that this
was “wholly against the wisdom of the Court.” It also states that the issue of Whitaker’s
alleged violation of the ex parte Order is reserved, and would be dismissed after one year if
he strictly complied with the Order of Protection. Further, the Court ordered the parties to
begin legitimation and child support proceedings, and to attend a 12-hour parent education
seminar. Plaintiff was ordered to attend weekly meetings of a domestic violence support
group, and Whitaker was ordered to get a substance abuse assessment, to complete an
intervention program for violence and control issues, and to attend 45 weekly meetings of
the Domestic Violence Intervention Group for men.

       Subsequently, plaintiff filed a Motion to Amend Order of Protection to change the
Order of Protection to a no-contact order, because Whitaker forced his way into her
apartment after smoking crack, called her names, threatened her, and that she feared for her
safety. She filed yet another Motion a few days later, stating that Whitaker had walked into
her apartment uninvited and that on the night her apartment was broken into, Whitaker texted
her one hour before asking if she was home.

       Plaintiff alleged that Whitaker had broken into her apartment, and had stolen her
clothing, underwear, shoes, camera, cd’s, legal documents, and her notebook where she was
keeping notes of the case, and that he had been to her workplace and had called her
repeatedly. Plaintiff stated that she had also had three tires on her car slashed, her fuel line
was cut, a rock was thrown through the back window of her car, and her license plate had
been stolen.

       The Court issued a Writ of Attachment for Whitaker for criminal contempt, and set
bond. The Court issued an Order stating that all of the previous allegations regarding
Whitaker’s violations of the ex parte Order (which had been reserved in the Order of
Protection) would be tried along with the current allegations in the Motions. Plaintiff filed
a Statement and Clarification, and gave a timeline of the events contained in her motions, and
also provided additional information on the burglary of her home, including that the
perpetrator had left a dead rose and a condom wrapper on her pillow. She also filed an

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extensive list of the phone calls made to her by Whitaker, and concluded that she feared for
her life and the life of her daughter.

       Following the hearing, the Court issued a Mittimus to Jail after Hearing, finding
Whitaker in willful contempt of court on 183 counts, and ordered that he be placed in custody
for 1830 days, with no eligibility for “good time” credit or work release program.

       Whitaker has appealed. While the record contains a transcript of the Court's
memorandum opinion, wherein the Court stated that it heard testimony from the parties and
from Officer Gentry of the Knoxville Police Department, the Court found beyond a
reasonable doubt that Whitaker had burglarized plaintiff’s apartment and damaged her car,
and found that the evidence proved that he committed the burglary because he took her
clothing and intimate items, all the legal papers, the notes she was keeping in regard to his
behavior, her camera, her birth certificate and the daughter’s. Also he left a dead rose and
condom wrapper on her pillow, and cut the crotch out of a pair of pants. The Court held the
evidence was “absolutely damning and conclusive.” Further, the Court found one count of
contempt for the taking of plaintiff’s shoes, two counts for destruction of property, one count
for placing in fear, one count for stalking, and one count for threatening.

       The Court found that Whitaker had known since August that plaintiff wished to have
no contact from him, but he repeatedly called her. The Court noted that in the Cable case,
it was held there had to be a period of reflection in between the acts of contempt for them to
be considered separate counts, and the Court imposed a ten-minute period of reflection “as
a courtesy to Mr. Whitaker” on the list of phone calls, such that certain calls within a ten-
minute window were lumped together as one count. Thus, the Court found that when adding
the phone calls to the above counts of contempt, there were a total of 183 counts. The Court
then imposed a ten-day sentence for each, and sentenced Whitaker to 1830 days.

      There was no transcript of the hearing or statement of the evidence filed, but appellant
attempted to append a “Statement of Evidence” to his brief, but it was not filed with the Trial
Court or approved by the Trial Court, and cannot be considered by this Court, pursuant to
Tenn. R. App. P. 24.

       Appellant raises these issues:

       1.     Whether the Trial Court erred in granting the five year order of protection as
              to the minor child?

       2.     Whether the Trial Court erred in considering the phone calls from before the
              motion to amend was served?

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       3.     Whether the Trial Court erred in sentencing the respondent for the alleged
              burglary charges?

       4.     Whether the Trial Court erred in sentencing the respondent to 1830 days of
              incarceration?

       The Trial Court sentenced Whitaker to 1830 days’ incarceration, and then stated that
Whitaker would be banned from coming around the minor child until he was released from
incarceration and attended his 12 hour parenting class. The Court recognized that this was
a “severe” order, but that it was necessary because Whitaker had terrorized the child’s
mother, and his conduct was unfit for the society of the child.

        Whitaker argues the Trial Court erred in this ruling, because there was no testimony
about his relationship with the child, or that he had abused or neglected the child. Whitaker’s
argument does not address the fact that petitioner had alleged in her pleadings that Whitaker
was on drugs, that she found a crack pipe in his vehicle, that he once passed out for five
hours while he was supposedly caring for this very young child, and that he once took her for
a visit and refused to return her to the mother, causing petitioner to file charges against him
for custodial interference.

        This Court has often observed, in the absence of a transcript or a statement of the
evidence, the Court must conclusively presume that “every fact admissible under the
pleadings was found or should have been found favorably to the appellee.” Leek v. Powell,
884 S.W.2d 118, 121 (Tenn. Ct. App.1994). Accordingly, we assume that all of petitioner’s
allegations regarding Whitaker’s abuse of her, his neglect/abuse of the child, and his drug
use were proven, and there was sufficient evidence to support the Trial Court’s ruling on
these issues. As the Trial Court noted, it is not only Whitaker’s behavior toward the child
that must be considered, but also his behavior toward the mother. This issue is without merit.

       Whitaker next argues that it was error for the Trial Court to consider the phone calls
that Whitaker made to petitioner before the Motion to Amend the Order of Protection was
served, because the original Order of Protection allowed for social contact. Whitaker’s
argument fails to recognize that the Order of Protection that allowed social contact was still
an Order of Protection, and prevented the defendant from threatening the petitioner, stalking
the petitioner, or placing the petitioner in fear, as the Order of Protection expressly did.
Petitioner alleged that she began to be in fear of Whitaker after they had a confrontation in
August 2009, wherein he admitted he was using illicit drugs and she told him to stay away
from her and her child, resulting in Whitaker “backhanding” petitioner across the face. All
of the phone calls began to take place after this confrontation, and petitioner alleged some
300+ phone calls, some of which were threatening, and in addition, petitioner stated that

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Whitaker sent her threatening text messages, burglarized her apartment, invaded her
apartment when she was home, banged on her window, stalked her at work, and vandalized
her car, etc.

        When considering the totality of the circumstances, petitioner had reason to feel
threatened by Whitaker and his consistent phone calls were a large part of that threatening
behavior which placed her in fear. Clearly Whitaker’s phone calls were in violation of the
earlier Order of Protection, and went beyond the realm of normal social contact. The Trial
Court did not err in considering the phone calls.

       Whitaker argues that the Trial Court cannot sentence him for the burglary of
petitioner’s apartment and find separate counts of contempt for the destruction of her
personal property, because these were not separate and distinct acts, and because he is being
charged in criminal court for burglary for the same acts. He argues that double jeopardy
prevents him from being punished twice for the same offense.

       As the Trial Court mentioned, the seminal case on the contempt issue is Cable v.
Clemmons, 36 S.W.3d 39 (Tenn. 2001), wherein the Supreme Court addressed the issue of
whether double jeopardy bars multiple convictions of criminal contempt based on violations
of an order of protection. The Supreme Court explained as follows:

       The double jeopardy clause in the United States Constitution provides that no person
       “shall ... be subject for the same offense to be twice put in jeopardy of life or limb....”
       U.S. Const .Amend. V. Similarly, the Tennessee Constitution states that “no person
       shall, for the same offense, be twice put in jeopardy of life or limb.” Tenn. Const. art.
       I, § 10.

       The constitutional right against double jeopardy protects against 1) a second
       prosecution after an acquittal; 2) a second prosecution after a conviction; and 3)
       multiple punishments for the same offense. State v. Denton, 938 S.W.2d 373, 378
       (Tenn.1996); see also Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432,
       1435-36, 63 L.Ed.2d 715 (1980). The issue here concerns the third of these
       protections: that is, whether Clemmons' multiple convictions for contempt constitute
       punishment for the same offense under the facts of this case.

       In State v. Denton, we established the analytical framework for determining whether
       a defendant has received multiple punishments for the “same offense.” The courts
       must consider 1) the statutory elements of the offenses, guided by the principles in
       Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); 2) the
       evidence used to establish the offenses, guided by the principles in Duchac v. State,

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505 S.W.2d 237 (Tenn.1973); 3) whether the defendant's conduct involved multiple
victims or discrete acts; and 4) whether the purpose of the respective statutes at issue
is the same or different. Denton, 938 S.W.2d at 381. No single aspect of this analysis
is given controlling weight; each factor must be weighed and considered in relation
to the others. See State v. Beauregard, 32 S.W.3d 681 (Tenn. 2000).

Applying the first factor of the Denton analysis - the statutory elements of the offenses
- to this case, we observe that only one statute is involved because each conviction
was for criminal contempt. Included in the statutory elements of the single contempt
statute is the phrase “willful disobedience ... to [a] lawful ... [court] order.” See
Tenn.Code Ann. § 29-9-102(3) (1980). Accordingly, we also need not compare the
purpose of the contempt statute with any other statute as is ordinarily required by the
fourth Denton factor. In short, Clemmons' convictions do not involve multiple or
distinct statutes.

With regard to the second Denton factor, however, we find that different evidence
was used to establish three convictions for violating the order of protection. For
example, evidence to establish the first conviction occurred when an argument began
and Clemmons grabbed Cable and pushed her head against the car window. The
evidence of the second conviction was that Clemmons produced a knife and
threatened to kill Cable. Finally, the evidence of the third conviction was that after
Cable pulled over and fled from the scene, Clemmons vandalized her car by kicking
it and striking it with a knife.

With regard to the third Denton factor, we also conclude that although the offenses
involved a single victim, they consisted of separate and distinct acts. As noted above
in our analysis of the second Denton factor, Clemmons abused Cable physically;
produced a knife and threatened to kill her; and then vandalized Cable's personal
property. These acts constituted separate and distinct types of abuse, all of which were
prohibited under the order of protection. See Tenn.Code Ann. §§ 36-3-601 and
-606(a) (1996 & Supp.1999). The fact that the acts were closely related in time and
place does not render them inseparable; indeed, emphasizing only time and place is
tantamount to a “same transaction” analysis, which is not part of the Denton analysis.

We therefore conclude that double jeopardy principles do not bar multiple convictions
and punishments in this case. The record, however, supports only three convictions
and not six as found by the trial court. As we have discussed above, there were three
distinct and separate acts committed by Clemmons-physically abusing Cable,
threatening to kill her with a knife, and damaging her personal property-that violated
the order of protection and supported a separate conviction for contempt. See Black

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       v. Blount, 938 S.W.2d 394 (Tenn. 1996) (evidence supported three contempt
       convictions); State v. Turner, 914 S.W.2d 951 (Tenn. Crim. App. 1995) (evidence
       supported three contempt convictions). In sum, we conclude that double jeopardy
       principles do not bar Clemmons' convictions for three counts of contempt under the
       facts of this case.

Id. at 42-43.

       The Court explained in a footnote that, “this Court has repeatedly rejected the view
that multiple offenses must be considered the same offense if occurring as part of the ‘same
transaction. This Court explained that ‘[i]f the same evidence is not required, then the fact
that both charges relate to, and grow out of, one transaction, does not make a single offense
where two are defined by the statutes.’” Id. at 42-43, f.n. 1 (citations omitted).

       In this case, the taking of petitioner’s personal property, the destruction of her clothing
by cutting, the taking and destroying her camera card, and the placing of a dead rose/condom
wrapper on her pillow were separate and distinct acts that constitute different types of abuse,
all prohibited by the Order of Protection. The fact that they occurred close in time does not
change the fact that they were distinct acts and that separate evidence was required for each
violation. Thus, as the Trial Court found, these acts constituted separate violations of the
Order of Protection under the Cable analysis.

       Utilizing the analysis set forth in Denton, it is clear that the Trial Court did not err in
considering the burglary allegations simply because there could be burglary charges pending
in criminal court.1 The criminal statues involving burglary and the statutes involving orders
of protection and contempt are different statutes with different elements and different
evidentiary standards. Moreover, their purposes are also quite different. Thus, the Trial
Court’s sentencing of Whitaker for the act of burglarizing petitioner’s apartment as a
violation of the Order of Protection does not run afoul of double jeopardy principles.

       Finally, Whitaker argues the Trial Court erred in imposing a sentence of 1830 days
for contempt. He concedes that the trial court can punish with a ten-day sentence for each
count of contempt, but argues that this is not the “least severe measure necessary to achieve
the purpose for which the sentence is imposed”, and that he should at least be able to receive
“good time” credits, participate in work release, etc.

        Whitaker relies on the case of State v. Wood, 91 S.W.3d 769 (Tenn. Ct. App. 2002),
for his argument that the sentence imposed of ten days per violation is too severe. In Wood,

       1
           There is no proof in the record of pending charges in criminal court.

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the husband had violated the Order of Protection numerous times by contacting the wife, but
there were no allegations of violence or threatening behavior whatsoever. Id. This Court
made it clear that criminal statutes regarding “good time” credits and similar sentence-
reduction provisions did not apply in cases of criminal contempt. Id. The Court did,
however, send the case back to the trial court for resentencing because there was not proof
that the punishment was the “least severe measure necessary to achieve the purpose for
which the sentence is imposed”, given the lack of allegations of violence/threats. Id.

       Another instructive case is that of Sliger v. Sliger, 181 S.W.3d 684 (Tenn. Ct. App.
2005), wherein the defendant repeatedly called his ex-wife in violation of an Order of
Protection, and threatened violence to her and her family, placing her in great fear. The
defendant was sentenced to ten days for every violation, for a total of 520 days, and he
argued that this was too severe. This Court reviewed the sentence, stating:

       The defendant relies on the case of State v. Wood, 91 S.W.3d 769, 776
       (Tenn.Ct.App.2002), for the proposition that “the sentence [should] be the least severe
       measure necessary to achieve the purpose for which the sentence is imposed.” The
       defendant advances the theory that, like the defendant in Wood, incarceration for well
       over a year is not the least severe measure necessary to punish him for his conduct.
       However, in Wood, the court pointed out that there were no allegations of the
       defendant engaging in violent or threatening behavior. Id. at 777. In the instant case,
       the evidence is quite to the contrary: the defendant repeatedly-and
       graphically-threatened violence against Ms. Sliger and her family. Moreover, the
       defendant was given the opportunity to avoid the stayed sentence of 310 days. This
       sentence was stayed “pending continued good behavior and obedience” to the order
       of protection. Instead, the defendant, less than eight months later, continued his
       pattern of disregarding the order of protection and made multiple threatening
       telephone calls to Ms. Sliger. In light of his continued and utter disregard for the order
       of protection, we find that the defendant's sentence is necessary “to achieve the
       purpose for which the sentence [was] imposed.” Id. at 776.

Sliger v. Sliger, 181 S.W.3d 684, 692 (Tenn. Ct. App. 2005).

       Here, Whitaker’s behavior occurred over a period of months and included multiple
acts of violence toward petitioner, repeated threats to petitioner, stalking, multiple acts of
destruction of her property, and also not returning the child from a visit. This behavior was
in flagrant violation of the Order of Protection, and his behavior demonstrated an utter
disregard for the Court’s orders.

       A Trial Judge's sentence for contempt must be reasonable and within the sound
discretion of the Trial Court, see 17 CJS §117, Contempt. From our review of the record,


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we conclude the Trial Judge abused his discretion in passing sentence on defendant, and the
sentence imposed was unreasonable to achieve the purpose for which the sentence was
imposed. State v. Woods. Accordingly, we conclude a reasonable sentence to achieve the
purpose for which it was imposed would be 730 days. Accordingly, we modify the Trial
Court's Judgment to that extent.

       We affirm the Judgment of the Trial Court as modified, and remand, with the cost of
the appeal assessed to Richard Thomas Whitaker.




                                                  _________________________________
                                                  HERSCHEL PICKENS FRANKS, P.J.




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