IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
March 1, 2011 Session
STATE OF TENNESSEE v. KEVIN MILLEN
Direct Appeal from the Criminal Court for Shelby County
No. GS-01180 J. Robert Carter, Jr., Judge
No. W2010-02056-CCA-R3-CD - Filed May 4, 2011
The pro se defendant, Kevin Millen, appeals the order of the Shelby County Criminal Court
affirming the Shelby County General Sessions Court’s finding that he was guilty of
contempt. Following our review, we affirm the judgment of the criminal court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
Kevin Millen, Memphis, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William
L. Gibbons, District Attorney General; and David Zak, Assistant District Attorney General,
for the appellee, State of Tennessee.
OPINION
FACTS
The record in this case, which is extremely sparse, does not include a transcript of the
evidentiary hearing held by the criminal court. For the background of the case we, therefore,
must rely on the order of the criminal court, which states as follows:
This cause came to be heard on Defendant’s Appeal from an “Order of
Contempt” filed July 20, 2010.
The matter was heard in open court, de novo, based upon the original
order from General Session[s] Court, the testimony of a witness, statements of
counsel and upon all of the record. The Defendant, after having been
thoroughly advised of the risks, has again chosen to represent himself.
FROM ALL OF WHICH THIS COURT FINDS:
(1.) The Defendant has a pending matter in General Session[s] Court in which
he is charged with Disorderly Conduct.
(2.) During the course of that matter, the Defendant, who represents himself,
filed approximately (43) forty-three subpoenas of various elected officials in
Shelby County, Tennessee, including the United States Congressman for the
9th Congressional District.
(3.) The Defendant’s matter was reset for trial for some reason, and the
Defendant was specifically ordered by [the general sessions court] not to file
subpoenas for these elected officials, since it had been determined that they
were not fact witnesses to any fact in his case.
(4.) The Defendant immediately proceeded to re-file the same forty-three (43)
subpoenas.
(5.) After notice, and a hearing, the Defendant was found to be in contempt
and sentenced to ten (10) days in jail.
(6.) In the hearing on this date, when asked whether she considered ten days
necessary, [the general sessions court judge] indicated that she did so feel.
(7.) The Defendant, after consulting with his appointed “elbow counsel,” . .
., declined to offer any proof on his own behalf and stated that he wished to
rely upon the “brief” he filed.
(8.) After being advised that the brief would not be proof, but would only be
considered as argument, he again asserted that he did not wish to put on proof
or to testify.
(9.) The brief in question seems to be the Defendant’s attempt to explain his
action[s], rather than denying or disputing that they occurred.
IT IS THE OPINION OF THIS COURT:
That the Defendant was the subject of a direct Court Order, and that the
Defendant violated the Order. If aggrieved, the proper remedy was Appeal –
not willful violation. The courts must be allowed to “maintain the integrity of
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their order.” “Even erroneous orders must be obeyed, at the risk of a contempt
violation.” State v. Sammons, 656 S.W.2d 862 at 869 [(Tenn. Crim. App.
1982)] citing State v. Ragghianti, 129 Tenn. 560, 167 S.W. 689 (1914).
THEREFORE, the decision of the General Sessions Court is affirmed,
and the Defendant is found guilty of contempt beyond a reasonable doubt, and
the original sentence is affirmed.
ANALYSIS
The defendant contends that the general sessions court “heinously, viciously [and]
maliciously put bogus charges on [him],” arguing that the order he was found guilty of
violating was insufficiently clear, he was given no notice of the order, his alleged violation
of the order was not volitional, and his actions did not involve any “wrongful intent,” because
he was merely attempting to exercise his due process rights by subpoenaing essential
witnesses for his case. Because he has already served his ten-day jail sentence, the defendant
requests that he be awarded monetary compensation for his wrongful imprisonment.
The State responds by arguing, inter alia, that the defendant has waived appellate
review of his claim by his failure to provide an adequate record on appeal. We agree. It is
the duty of the appealing party to prepare a fair, accurate, and complete record on appeal, see
Tenn. R. App. P. 24(b), and when necessary parts of the record are not included, we must
presume that the trial court’s ruling was correct. See State v. Oody, 823 S.W.2d 554, 559
(Tenn. Crim. App. 1991). We conclude, therefore, that the defendant has waived his claim
by his failure to provide any meaningful record of what transpired in the lower court.
Accordingly, we affirm the judgment of the trial court.
CONCLUSION
We conclude that the defendant has waived appellate review of the trial court’s
actions by his failure to provide an adequate record on appeal. Accordingly, we affirm the
judgment of the trial court finding the defendant guilty of contempt.
PER CURIAM
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