Session Date: August 20, 2014
Appeal from the Circuit Court for Davidson County No. 12D843 Phillip R. Robinson, Judge
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.
Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.
FRANK G. CLEMENT, JR., JUDGE
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. 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.
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" 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.
In Count III, 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 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.
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.
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).
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, ...