        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 17, 2011

            STATE OF TENNESSEE v. KAREN ANN MATTHEWS

                Appeal from the Criminal Court for Davidson County
                    No. 2010-C-2482     Monte Watkins, Judge




                No. M2010-02601-CCA-R3-CD - Filed August 26, 2011


Following her Davidson County General Sessions Court conviction of criminal contempt
based upon the violation of an order of protection, the defendant, Karen Ann Matthews, was
charged via an indictment returned by the Davidson County grand jury with violating an
order of protection, see T.C.A. § 39-13-113 (2006). The trial court granted the defendant’s
motion to dismiss the indictment as violative of double jeopardy principles. In this State
appeal, the State contends that the trial court erred by dismissing the indictment because
convictions for criminal contempt and violating an order of protection do not violate double
jeopardy principles. Discerning no error in the judgment of the trial court, we affirm.

            Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and J.C. M CL IN, JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Hugh Ammerman, Assistant
District Attorney General, for the appellant, State of Tennessee.

Patrick Johnson, Nashville, Tennessee, for the appellee, Karen Ann Matthews.

                                        OPINION

              On March 24, 2010, the Davidson County General Sessions Court issued an
order of protection ordering the defendant to have no further contact with her former
roommate, Sarah Derrick, for a period of one year. On the following day, Ms. Derrick
obtained two warrants for the defendant’s arrest. The first, numbered GS485014, charged
the defendant with “Criminal Contempt T.C.A. 36-3-612 (Violation of Order of Protection)”
and contained the following factual allegations:

                     On the above date at 408 2nd Ave. N in Davidson County
              Tennessee Karen Matthews violated the order of protection I
              have on her. I had just left the order of protection hearing and
              Karen Matthews approached me and said I’m still going to get
              you. She was shaking her fist at me when she said this. The
              order of protection prohibits her from threatening and contacting
              me.

The second, numbered GS485015, charged the defendant with “Order of
Protection/Restraining Order Violation 39-13-113” and contained the following factual
allegations:

                     On the above date at 408 2nd Ave. N in Davidson County
              Tennessee Karen Matthews violated the order of protection I
              have on her. She approached me after the order of protection
              hearing. She told me I’m still going to get you. She was
              shaking her fist at me when she said this. The order of
              protection prohibits her from contacting and threatening me.
              The order of protection is valid till 03-24-2011.

A document titled “General Sessions Disposition” and bearing case number GS485014
establishes that on June 14, 2010, the defendant was sentenced to 10 days for criminal
contempt with four days to be served in confinement. Case number GS485015 was bound
over to the grand jury, and on September 10, 2010, the Davidson County grand jury returned
a single-count indictment charging the defendant with violating a valid order of protection.

               The defendant filed a motion in criminal court to dismiss the indictment,
alleging that dual convictions for criminal contempt and violating an order of protection
would violate principles of double jeopardy. At the October 15, 2010 hearing on the
defendant’s motion, the defendant testified that Ms. Derrick obtained a single order of
protection barring the defendant from having any contact with Ms. Derrick. The defendant
stated that she was later convicted in the general sessions court of criminal contempt and that
she served four days of her 10-day sentence in confinement. The defendant also submitted
the order of protection, the two arrest warrants, and the general sessions court disposition as
exhibits to the hearing.

               At the conclusion of the hearing, the trial court granted the defendant’s motion
to dismiss, finding that dual convictions for criminal contempt and violating the order of

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protection would violate double jeopardy principles. In a later-issued written order, the trial
court, following the analysis established in State v. Denton, 938 S.W.3d 373, 378 (Tenn.
1996), concluded that the two offenses contained the same elements, would be proven using
the same evidence, had the same victim, and were aimed at the same purpose. Consequently,
the court ruled that “the act committed by the defendant cannot be the subject of two separate
prosecutions and is a violation of double jeopardy.” The trial court dismissed the indictment.

              The State filed a timely notice of appeal pursuant to Rule 3 of the Tennessee
Rules of Appellate Procedure. See Tenn. R. App. P. 3(c)(1). In this appeal, the State
contends that the trial court erred by dismissing the indictment because dual prosecutions in
this case do not violate double jeopardy principles.

               Because the question whether the defendant’s prosecution in this case violated
principles of double jeopardy is a question of law, our review is de novo with no presumption
of correctness afforded to the ruling of the trial court. See State v. Winningham, 958 S.W.2d
740, 742-43 (Tenn. 1997) (citing State v. Davis, 940 S.W.2d 558, 561 (Tenn. 1997)).

                 Both the federal and state constitutions protect an accused from being “twice
put in jeopardy of life or limb” for “the same offence.” U.S. Const. Amend. V; Tenn. Const.
art. 1, sec. 10. The United States Supreme Court has observed of the double jeopardy clause:

              Our cases have recognized that the Clause embodies two vitally
              important interests. The first is the ‘deeply ingrained’ principle
              that ‘the State with all its resources and power should not be
              allowed to make repeated attempts to convict an individual for
              an alleged offense, thereby subjecting him to embarrassment,
              expense and ordeal and compelling him to live in a continuing
              state of anxiety and insecurity, as well as enhancing the
              possibility that even though innocent he may be found guilty.’
              The second interest is the preservation of ‘the finality of
              judgments.’

Yeager v. United States, — U.S. —, 129 S. Ct. 2360, 2365-66 (2009) (citations omitted). To
these ends, our state supreme court has “noted many times, three fundamental principles
underlie double jeopardy: (1) protection against a second prosecution after an acquittal; (2)
protection against a second prosecution after conviction; and (3) protection against multiple
punishments for the same offense.” State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996)
(citing Whalen v. United States, 445 U.S. 684, 688 (1980); United States v. Wilson, 420 U.S.
332, 343 (1975); North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). At issue here are
both the second (successive prosecutions) and the third (multiple punishments) of the three

                                              -3-
principles of double jeopardy.

              Our supreme court has crafted the “analytical framework” for a considering a
plea of former jeopardy:

              The courts must consider 1) the statutory elements of the
              offenses, guided by the principles in Blockburger v. United
              States, 284 U.S. 299 (1932); 2) the evidence used to establish
              the offenses, guided by the principles in Duchac v. State, 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.

Cable v. Clemmons, 36 S.W.3d 39, 42 (Tenn. 2001) (citing 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.” Id. (citing State v. Beauregard, 32 S.W.3d 681
(Tenn. 2000)).

                             Blockburger “Same-Elements” Test

               The first step in our analysis is examination of the two offenses under the
“same-elements” test established in Blockburger. Initially, “[i]t is well established that
criminal contempt, at least the sort enforced through nonsummary proceedings, is ‘a crime
in the ordinary sense,’” United States v. Dixon, 509 U.S. 688, 696 (1993) (quoting Bloom v.
Illinois, 391 U.S. 194, 202-04 (1968)), and subject to scrutiny under double jeopardy
principles.

               “In both the multiple punishment and multiple prosecution contexts, [the
United States Supreme Court] has concluded that where the two offenses for which the
defendant is punished or tried cannot survive the ‘same-elements’ test, the double jeopardy
bar applies.” Dixon, 509 U.S. at 696 (citing Brown v. Ohio, 432 U.S. 161, 168-69 (1977);
Blockburger, 284 U.S. at 304; Gavieres v. United States, 220 U.S. 338, 342 (1911)). “The
applicable rule is that where the same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a fact which the other does not.”
Blockburger, 284 U.S. at 304. Thus, “separate statutory crimes need not be identical -- either
in constituent elements or in actual proof -- in order to be the same within the meaning of the
constitutional prohibition [against double jeopardy].” Brown, 432 U.S. at 164 (citations
omitted). Simply stated, unless each offense contains an element the other does not, “double

                                               -4-
jeopardy bars additional punishment and successive prosecution.” Dixon, 509 U.S. at 696.

               The defendant was charged with criminal contempt via Code section 36-3-612,
which provides that “[a] person arrested for the violation of an order of protection issued
pursuant to this part or a restraining order or court-approved consent agreement, shall be
taken before a magistrate or the court having jurisdiction in the cause without unnecessary
delay to answer a charge of contempt for violation of the order of protection.” T.C.A. § 36-
3-612. Our Code defines criminal contempt, as charged in this case, as “[t]he willful
disobedience or resistance of any officer of the such courts, party, juror, witness, or any other
person, to any lawful writ, process, order, rule, decree, or command of such courts.” T.C.A.
§ 29-9-102(3) (2000). Thus, the “four essential elements” of contempt in section 29-9-
102(3) are (1) “the order alleged to have been violated must be ‘lawful’”; (2) “the order
alleged to have been violated must be clear, specific, and unambiguous”; (3) “the person
alleged to have violated the order must have actually disobeyed or otherwise resisted the
order”; and (4) “the person’s violation of the order must be ‘willful.’” Konvalinka v.
Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346, 354-55 (Tenn. 2008). Code
section 39-13-113 provides that “[i]t is an offense to knowingly violate . . . [a]n order of
protection issued pursuant to title 36, chapter 3, part 6.” T.C.A. § 39-13-113(a)(1) (2006).
In order to sustain a conviction under this section, the State must also establish that

                     (1) The person must have received notice of the request
              for an order of protection or restraining order;

                      (2) The person must have had an opportunity to appear
              and be heard in connection with the order of protection or
              restraining order; and

                     (3) The court made specific findings of fact in the order
              of protection or restraining order that the person committed
              domestic abuse, sexual assault or stalking as defined in §
              36-3-601.

Id. § 39-13-113(f).

               Although the two crimes significantly overlap – indeed one could rarely
commit the offense of violating an order of protection without also committing criminal
contempt – differences exist. The two offenses contain different scienter requirements, with
criminal contempt requiring willful conduct and violation of an order of protection requiring
knowing conduct. “[I]n order for a party’s disobedience of a court order to be ‘willful’ and
subject to criminal contempt under section 29-9-102(3), the act must be ‘done voluntarily and

                                               -5-
intentionally and with the specific intent to do something the law forbids.’” State v. Lisa
Renae Smith, No. E2009-00202-CCA-R3-CD, slip op. at 9 (Tenn. Crim. App., Knoxville,
Dec. 17, 2010) (quoting Konvalinka, 249 S.W.3d at 357). Knowing, on the other hand,
“means that a person acts knowingly with respect to the conduct or to circumstances
surrounding the conduct when the person is aware of the nature of the conduct or that the
circumstances exist.” T.C.A. § 39-11-106(20). In addition, violation of an order of
protection requires that the specific order violated be one issued “pursuant to title 36, chapter
3, part 6”; that the order be issued only after the accused was given notice of the application
for the order and an opportunity to be heard; and that the order contain a specific finding that
the accused “committed domestic abuse, sexual assault or stalking as defined in § 36-3-601”
while criminal contempt contains no such requirements.

              By virtue of these differences, the two statutes pass Blockburger’s same-
elements test, and, as a result, prosecution of the defendant for violation of an order of
protection following her conviction of criminal contempt does not violate the Double
Jeopardy Clause of the United States Constitution.

                               Duchac “Same-Evidence” Test

              Next we must determine, using the principles of Duchac v. State, 505 S.W.2d
237 (Tenn. 1973), as a guide, whether the same evidence will be used to establish the
offenses. There is no need to tarry long over this portion of our Denton analysis because
here, as in Duchac, the defendant’s conduct consists of a single instance of threatening
behavior directed at Ms. Derrick. Thus, the evidence supporting both offenses is identical.
As such, this factor weighs in favor of a finding that dual prosecutions violate the double
jeopardy protection of the Tennessee Constitution.

                                Multiple Victims/Discrete Acts

              Next, we must examine whether the defendant’s conduct involved multiple
victims or discrete acts. As indicated above, the defendant’s conduct consists of a single
instance of threatening conduct and does not involve discrete acts. Whether the conduct
involved multiple victims, however, requires closer examination.

              Although, “[i]n general terms, criminal conduct offends the State as the
sovereign,” Winningham, 958 S.W.2d at 746, categorization of the State as a “victim” as that
term is used in Denton is somewhat specious. Clearly, this portion of the Denton analysis
is designed to distinguish offenses. To rely on such a broad interpretation of the term
“victim” would result in every criminal offense involving the same victim. Similarly,
categorizing “the court and the judicial process,” id., as the only “victims” of criminal

                                               -6-
contempt is tenuous.1 Indeed, as the Supreme Court has observed, “criminal contempt, at
least the sort enforced through nonsummary proceedings, is ‘a crime in the ordinary sense,’”
Dixon, 509 U.S. at 696 (quoting Bloom, 391 U.S. at 202-04), and, as such, “offends the State
as the sovereign.”

              Some crimes simply have no victim as that term is generally used in the
criminal law, see, e.g., Bowers v. Hardwick, 478 U.S. 186, 195 (1986), overruled on other
grounds by Lawrence v. Texas, 539 U.S. 558, 578 (2003) (recognizing the existence of
victimless crimes), and attempts to shoehorn these crimes by creating “victims” can only lead
to absurd results. In the sense that neither charged offense truly involved a “victim” as that
term is used in Denton, they necessarily cannot have involved different victims.

               To the extent that there is any victim to either offense in this case, that victim
is surely Ms. Derrick, at whom the defendant’s conduct was directed. Cf. Cable, 36 S.W.3d
at 42-43 (holding that “[a]n order of protection is aimed at protecting the petitioner from
abuse,”and that, as a result, the victim of abuse perpetrated in violation of an order of
protection was the “victim” for purposes of the defendant’s convictions of criminal contempt
for violating the order). As a result, we cannot say that the offenses involved different
victims, and this factor weighs in favor of finding that a prosecution for violating the order
of protection after the defendant’s conviction of criminal contempt violates state double
jeopardy protections.

                                          Same-Purposes Test

               Despite that the Supreme Court has held that the interests served by two
statutes “is of no moment for purposes of the Double Jeopardy Clause, the text of which
looks to whether the offenses are the same, not the interests that the offenses violate,” Dixon,
509 U.S. at 699, our own high court has ruled that we must discern whether the purpose of
the respective statutes at issue is the same or different to determine whether dual prosecutions
will offend the double jeopardy clause of the state constitution, Denton, 938 S.W.2d at 378.2



        1
          Regarding the same-victim question, Winningham, relying on State v. Sammons, 656 S.W.2d 862
(Tenn. Crim. App. 1982), stated that the victim of a contempt conviction is “the court as an organ of public
justice.” Winningham, 958 S.W.2d at 746. Sammons, however, predated the ruling in Dixon and relied, at
least in part, on “[t]he traditional view . . . that ‘former jeopardy cannot be invoked on the ground the same
act is punishable both as a contempt of court and as a crime.’” State v. Sammons, 656 S.W.2d 862, 868
(Tenn. Crim. App. 1982) (citation omitted).
        2
        The supreme court has noted that the state and federal double jeopardy protections “are distinct,
independent protections that, at times, differ in their details,” State v. Thompson, 285 S.W.3d(continued...)
                                                                                                840, 847 n.6

                                                     -7-
               Although the legislature declared no purpose in passing the current versions
of Code sections 36-3-612 or 39-13-113,3 which were part of the same piece of legislation,
the primary purpose of the criminal contempt provision utilized in this case 4 is to “enable[]
the courts to maintain the integrity of their orders.” Konvalinka, 249 S.W.3d at 354. The
purpose of a criminal contempt prosecution when the order violated is an order of protection
is also the protection of the person to whom the order was granted and deterrence of further
violations. See T.C.A. § 36-3-618 (“The purpose of this part is to recognize the seriousness
of domestic abuse as a crime and to assure that the law provides a victim of domestic abuse
with enhanced protection from domestic abuse. A further purpose of this chapter is to
recognize that in the past law enforcement agencies have treated domestic abuse crimes
differently than crimes resulting in the same harm but occurring between strangers.”); see
also Cable, 36 S.W.3d at 42. Code section 39-13-113 shares these same purposes.5 In
consequence, this factor weighs in favor of finding that dual prosecutions in this case would
violate double jeopardy principles.

                To the extent that the passage of these two provisions in the same piece of
legislation could be read to manifest legislative intent for multiple punishments, we note that
constitutional double jeopardy protections cannot be eroded simply because the legislature
intends that it be so. Indeed, the Supreme Court has observed that there are “constitutional
limitations” on the power of the legislature “to define criminal offenses and to prescribe the
punishments to be imposed upon those found guilty of them.” Whalen, 445 U.S. at 689 n.


        2
            (...continued)

(Tenn. 2009) (citing State v. Stephenson, 195 S.W.3d 574, 586-88 (2006)), making application of “precedents
construing the similar federal constitutional provision . . . ‘useful’ but ‘not conclusive,” Id. (quoting Denton,
938 S.W.2d at 379). But see State v. Waterhouse, 8 Tenn. (1 Mart. & Yer.) 278, 284 (1827) (“[W]e did not
feel ourselves warranted in giving [the double jeopardy provision of the state constitution] a construction
different from that given to the constitution of the United States, by the tribunal possessing the power, (and
of pre-eminent qualifications) to fix the construction of that instrument.”).
        3
         Code section 36-3-612, which now contains the contempt provision in operation in this case,
previously contained the language now codified at 39-13-113.
        4
          When an order of protection has been violated, the issuing court also retains the power to charge
the violator with civil or criminal contempt under Code section 36-3-610. See T.C.A. § 36-3-610(a) (“Upon
violation of the order of protection or a court-approved consent agreement, the court may hold the defendant
in civil or criminal contempt and punish the defendant in accordance with the law.”).
        5
          We recognize that our attorney general has opined “that dual convictions for (1) criminal contempt
of court for violating an order of protection under Tenn. Code Ann. § 36-3-610 and (2) the Class A
misdemeanor offense for knowingly violating a protective order under Tenn. Code Ann. § 36-3-612 could
be constitutionally supported.” The analysis, however, acknowledged that a complete determination whether
dual convictions would violate double jeopardy principles would necessarily turn upon the facts of each case.
                                                      -8-
4 (citing Coker v. Georgia, 433 U.S. 584 (1977); Roe v. Wade, 410 U.S. 113, 164 (1973);
Stanley v. Georgia, 394 U.S. 557, 568 (1969); Loving v. Virginia, 388 U.S. 1, 12 (1967);
Robinson v. California, 370 U.S. 660, 666-67 (1962)). Moreover, we observe that the
current version of Code section 40-11-150, which was also passed as part of the same piece
of legislation as sections 39-13-113 and 36-3-612 and which concerns conditions of release
for those admitted to bail on a charge of violation of an order of protection, provides

                     (1) A person who violates a condition of release imposed
              pursuant to this section shall be subject to immediate arrest with
              or without a warrant as provided in § 40-7-103(b). If the
              violation of the condition of release also constitutes the offense
              of violation of a protective order as prohibited by § 39-13-113,
              the person shall be charged with the offense, and the bail of the
              person violating the condition of release may be revoked by the
              court having jurisdiction of the offense.

                     (2) If the violation of the condition or release does not
              also constitute a violation of § 39-13-113, the release condition
              violation shall be punished as contempt of the court imposing
              the conditions, and the bail of the person violating the condition
              of release may be revoked.

Arguably, this provision demonstrates an intent that where the facts support a charge under
39-13-113, prosecution should be pursued under that section exclusively while conduct that
does not support a charge under 39-13-113 should be prosecuted as criminal contempt.

                                         Conclusion

               Because three of the four Denton factors weigh in favor of a finding that the
defendant’s prosecution for the offense of violation of an order of protection following her
conviction of criminal contempt based upon the same exact facts violates double jeopardy
principles, the judgment of the trial court dismissing the indictment is affirmed.


                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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