IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT KNOXVILLE January 29, 1999
Cecil Crowson, Jr.
Appellate C ourt
Clerk
ANGIE COOPER MACKLIN, ) C/A NO. 03A01-9807-CV-00232
)
Petitioner-Appellee, )
)
)
)
) APPEAL AS OF RIGHT FROM THE
v. ) KNOX COUNTY CIRCUIT COURT
)
)
)
)
TIMMY RAY MACKLIN, )
) HONORABLE GEORGE S. CHILD,
Respondent-Appellant.) By Designation
For Appellant For Appellee
PATRICK T. PHILLIPS TRAVIS G. BRASFIELD
Knoxville, Tennessee Knoxville, Tennessee
O P I N IO N
REVERSED
PETITION DISMISSED
REMANDED Susano, J.
1
Following a bench trial, the respondent, Timothy Ray
Macklin, was adjudged guilty of criminal contempt for violating
an order of protection previously issued at the behest of his
wife, the petitioner Angie Cooper Macklin. He was sentenced to
ten days in jail, all of which was “suspended pending his not
doing anything in the future.” The respondent appeals,1 raising
the following issues:
1. Whether the evidence is insufficient to
support the findings of the court below of
guilty of contempt beyond a reasonable doubt.
2. Whether the conduct complained of
constitutes a violation of the order of
protection statute.
We find the first issue dispositive.
The petitioner contends that on May 23, 1998 -- after
the issuance of the order of protection on March 26, 1998 -- the
respondent drove to her mother’s house where the petitioner was
living, got out of his car, and threw a partially-filled gas can
into the yard.2 The petitioner was not at the house when the
incident allegedly occurred -- “[s]ometime after 12:00 noon” on
Saturday, May 23, 1998. Shortly after pulling away from the
front of the mother’s house, the respondent supposedly turned
around and again passed in front of the house.
1
The appellee filed a one-paragraph brief in which she states that “she
is not resisting the appeal of this matter.” While this appears to be
tantamount to a confession of error, we have chosen to decide this appeal
because a criminal contempt involves an affront to the authority of the court.
2
The petitioner’s mother and the mother’s stepdaughter both testified
that they saw the respondent; however, their testimony was conflicting on a
number of points.
2
The respondent testified that, at the time of the
alleged incident, he was at Norris Lake, some 50 minutes by car
from the home of the petitioner’s mother. He tendered witnesses
to the court to substantiate this alibi. When the respondent
actually attempted to call one of these witnesses, the following
colloquy occurred:
MR. PHILLIPS: David Johnson.
THE COURT: Are you putting on more alibis,
sir?
MR. PHILLIPS: Yes, sir. I mean, my client
wasn’t there and didn’t do it.
THE COURT: Okay.
MR. PHILLIPS: I don’t know of any other way
to raise the defense.
THE COURT: I believe your alibi. Do you have
anything else?
Shortly thereafter, counsel for the respondent and the trial
judge engaged in the following exchange:
THE COURT: I find that there’s a reason for
an order of protection.
MR. PHILLIPS: This is a show cause, Your
Honor. There is an order of protection down.
THE COURT: All right. I find a reason to
find that he has violated the order.
MR. PHILLIPS: Your Honor please, I’d ask to
put on my entire defense. I thought you said
you believed my alibi.
THE COURT: I believe it, and I also believe
what she said. And he will be sentenced to
jail for 10 days. It will be suspended
pending his not doing anything in the future.
3
It appears that the trial court thought that it was
being asked to issue an order of protection. This was not the
case. The order of protection had been issued some two months
earlier. As counsel for the respondent correctly advised the
court, the lower court was being asked to find the respondent
guilty of criminal contempt based upon his alleged violation of
the earlier-issued order of protection.
The respondent’s conviction for criminal contempt
cannot stand. At two places in the record, the trial court said
that it believed the respondent’s alibi. It is clear, at least
in this case, that if the respondent was not at the scene of the
incident -- and the trial court twice stated that it believed
that he was not -- it is impossible to conclude that a rational
trier of fact could find him guilty beyond a reasonable doubt of
violating the order of protection. Black v. Blount, 938 S.W.2d
394, 399 (Tenn. 1996).
Accordingly, the respondent’s conviction for criminal
contempt is reversed and the petition dismissed. Costs on appeal
are taxed against the appellee. This case is remanded to the
trial court for the entry of an order consistent with this
opinion, with costs below also being taxed to the appellee.
__________________________
Charles D. Susano, Jr., J.
4
CONCUR:
______________________
Herschel P. Franks, J.
______________________
Don T. McMurray, J.
5