State v. Winningham

IN THE SUPREME COURT OF TENNESSEE FILED
AT NASHVILLE
December 29, 1997

Cecil W. Crowson
Appellate Court Clerk
STATE OF TENNESSEE ) FOR PUBLICATION
)
) FILED: DECEMBER 29, 1997
Appellant )
) PICKETT COUNTY
v. )
) HON. LEON BURNS, JR.,
BILLY O. WINNINGHAM ) JUDGE
)
) NO. 01-S-01-9701-CC-00008
Appellee )

For Appellee: For Appellant:

PHILLIPS M. SMALLING JOHN KNOX WALKUP
Byrdstown, TN Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

DARYL J. BRAND
Assistant Attorney General
Nashville, TN

WILLIAM E. GIBSON
District Attorney General

ANTHONY W. HUDDLESTON
Assistant District Attorney
General
Livingston, TN

OPINION

JUDGMENT REVERSED; INDICTMENT REINSTATED BIRCH, J.
 Billy O. Winningham, the appellee, was adjudicated in

contempt of court for having violated an order of protection issued

at the request of his estranged wife. The contemptuous conduct

alleged included setting the fire that burned down his wife’s

house.1 This same conduct also served as the basis for an arson

indictment later returned against him.

The trial court, upon the appellee’s motion, dismissed

the indictment on double jeopardy grounds; the Court of Criminal

Appeals affirmed that judgment. We granted the State’s application

for review under Rule 11, Tenn. R. App. P., in order to determine

whether the double jeopardy provisions of the United States and

Tennessee Constitutions bar a subsequent criminal prosecution when

the conduct underlying the charge in the indictment also served as

the evidentiary basis for an earlier contempt conviction. Because

arson and contempt are, in the context presented, significantly

different offenses under double jeopardy analyses, we find no

double jeopardy violation here and reverse the judgment of the

Court of Criminal Appeals.

I

The protective order in question was entered on October

15, 1993, by the Circuit Court of Pickett County in the matter of

Mary S. Winningham v. Billy O. Winningham. It provided:

1
Other conduct supporting the contempt conviction included:
threats to Ms. Winningham’s life, trespass upon her property, and
shots fired at her car.

2
 the respondent is enjoined from
coming about petitioner [Ms.
Winningham] for any purpose and
specifically from abusing,
threatening to abuse petitioner, or
committing any acts of violence upon
petitioner upon penalty of contempt.

On November 19, 1993, Ms. Winningham’s house burned, and

the appellee was arrested and incarcerated the same day on a

contempt charge for violation of the protective order. On November

23, 1993, the trial court held a hearing on the contempt charge and

found the appellee guilty of civil and criminal contempt. The

trial court delineated the factual basis for its ruling:

The proof in this case satisfies the
Court both by a preponderance of the
evidence for civil contempt and
beyond a reasonable doubt for
criminal contempt that the defendant
did in fact violate this order. I’m
satisfied that the proof, by both
direct and circumstantial evidence,
indicates that the defendant
threatened Ms. Winningham’s life on
the telephone, that he came around
there, that he came back onto the
back porch and cut the wires. I’m
satisfied that by direct and
circumstantial evidence that he came
back to the property and set the
fire that led to this house being
burned down.

The Court finds in this case that
the aggrieved party has suffered
damages in the burning of her home
and in the shooting of her car, both
of which in the Court’s opinion, and
the Court finds both by a
preponderance of the evidence and
beyond a reasonable doubt, was at
the hand of the defendant.

The trial court imposed punishment for both civil

contempt and criminal contempt, pursuant to Tenn. Code Ann. §§ 36-

3
3-610 (1991) and 29-9-105 (1980).2 The order of civil contempt was

vacated on January 24, 1994. As of that date, the appellee had

been incarcerated longer than the maximum sentence allowable for

criminal contempt under Tenn. Code Ann. § 29-9-103 (Supp. 1993).3

On January 3, 1994, the appellee was indicted for arson

in the alleged burning of Ms. Winningham’s house. The Criminal

Court of Pickett County found that the trial court’s prior contempt

judgment was based on the same facts upon which the arson

indictment had been grounded. Consequently, the court dismissed

the arson indictment on double jeopardy grounds, and the Court of

Criminal Appeals affirmed the dismissal.

II

Because this appeal presents a question of law, our

review is de novo with no presumption of correctness. State v.

Davis, 940 S.W.2d 558, 561 (Tenn. 1997. The Double Jeopardy Clause

of the Fifth Amendment to the United States Constitution,

2
Tennessee Code Annotated § 36-3-610 (1991) provides: “Upon
violation of the order of protection . . . the court may hold the
defendant in civil or criminal contempt and punish him in
accordance with the law.” Tennessee Code Annotated § 29-9-105
(1980) provides: “If the contempt consists in the performance of
a forbidden act, the person may be imprisoned until the act is
rectified by placing matters and person in statu quo [sic], or by
the payment of damages.”
3
Tennessee Code Annotated § 29-9-103 (Supp. 1993) provides:

(a) The punishment for contempt may be by fine or by
imprisonment, or both.
(b) Where not otherwise specially provided, the circuit,
chancery, and appellate courts are limited to a fine of
fifty dollars ($50.00), and imprisonment not exceeding
ten (10) days . . . .

4
applicable to the states through the Fourteenth Amendment, provides

that no person shall “be subject for the same offense to be twice

put in jeopardy of life or limb . . . .” Article 1, § 10 of the

Tennessee Constitution provides that “no person shall, for the same

offence, be twice put in jeopardy of life or limb.” As we have

stated 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, among others, North Carolina v. Pearce, 395 U.S.

711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed.2d 656, 664-65 (1969)).

Under the Tennessee Constitution, this Court inquires

further than do federal courts in determining whether a defendant

has been unconstitutionally subjected to double prosecution for the

same conduct. According to Denton, 938 S.W.2d at 381, resolution

of a double jeopardy issue requires the following:

(1) a Blockburger analysis of the
statutory offenses; (2) an
analysis, guided by the principles
of Duchac, of the evidence used to
prove the offenses; (3) a
consideration of whether there were
multiple victims or discrete acts;
and (4) a comparison of the
purposes of the respective statutes.
None of these steps is
determinative; rather the results of
each must be weighed and considered
in relation to each other.

5
 A

Thus, we begin with the first Denton factor, an analysis

under the test established in Blockburger v. United States, 284

U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932).4 In

the context of both double punishment and double prosecution cases,

the subject offenses must survive the Blockburger “same-elements”

test in order to satisfy the requirements of the Double Jeopardy

Clause. United States v. Dixon, 509 U.S. 688, 696, 113 S. Ct.

2849, 2856, 125 L. Ed.2d 556, 568 (1993). This test asks “whether

each offense contains an element not contained in the other; if

not, they are the ‘same offence’ and double jeopardy bars

additional punishment and successive prosecution.” Id.5

4
Our Blockburger analysis is guided by United States v. Dixon,
509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed.2d 556 (1993). In Dixon,
the United States Supreme Court held that double jeopardy
protection attaches to nonsummary criminal contempt proceedings in
the same way it attaches to other criminal prosecutions.
Nonsummary contempt proceedings address contemptuous conduct
occurring outside of the court’s presence. As such, the contempt
hearing is usually conducted before a different judge at a date
subsequent to the conduct. In contrast, summary contempt refers to
misbehavior occurring in the presence of the court, which the court
addresses immediately. This court has previously held that
imposing two punishments for the same offense through summary
contempt and a criminal prosecution does not violate double
jeopardy principles. Maples v. State, 565 S.W.2d 202, 203 (Tenn.
1978). The instant case involves nonsummary contempt proceedings.

5
Prior to Dixon, the United States Supreme Court also included
the “same-conduct” test in the double jeopardy analysis: if, to
establish an essential element of an offense, the government will
prove conduct that constitutes another offense for which the
defendant has already been prosecuted, the second prosecution
violates double jeopardy. Grady v. Cortin, 495 U.S. 508, 510, 109
L. Ed.2d 548, 557, 110 S. Ct. 2084, 2087 (1990). The Dixon
majority, however, explicitly overruled Grady, leaving Blockburger
as the sole measure of federal double jeopardy violations. Dixon,
509 U.S. at 704, 113 S. Ct. at 2806, 125 L. Ed.2d at 573. Thus,
courts are no longer required to determine whether both
prosecutions were based on the same underlying conduct.

6
 Dixon included appeals by Alvin Dixon and Michael Foster;

their cases were consolidated on appeal. Dixon was released under

an order which specified that the commission of “any criminal

offense” could subject him to prosecution for contempt of court.

While on bond under the release order, he was indicted for a felony

drug offense. This indictment triggered Dixon’s conviction for

criminal contempt of court for violation of the release order.

The other defendant, Foster, consented to a protection

order obtained by his estranged wife. This order required that he

not “molest, assault, or in any manner threaten or physically

abuse” his wife. Alleging several episodes of assaults and

threats, his wife filed three motions to have Foster held in

contempt. The court held a hearing and found him guilty of

criminal contempt for violation of the order. Subsequently, he was

indicted on three counts of threatening to injure, one count of

simple assault, and one count of assault with intent to kill. All

five counts were based on episodes for which he was either

acquitted or convicted in the previous contempt hearing.

On appeal, each defendant contended that prosecution

under his respective indictment constituted a second prosecution

for the same offense--the first having been the contempt

conviction. This procedure, they asserted, violated double

jeopardy principles. Id. at 691-93, 2853-55, 564-66.

A majority of the Dixon Court disagreed about the

application of the Blockburger test to the facts described above.

7
As a result, not one of the five separate approaches in Dixon

gained support sufficient to constitute a majority view.6

Nevertheless, in the matter under review, the Court of

Criminal Appeals adopted Justice Scalia’s approach to the

Blockburger test and concluded that the arson indictment violated

double jeopardy principles. Under Scalia’s approach, the language

of a court order may, but does not always, “incorporate” statutory

offenses into the order. If an offense is deemed to have been

“incorporated,” then application of double jeopardy principles

would permit but one prosecution, which could be for either the

contempt of court or the incorporated offense--whichever one was

first prosecuted.

The rationale is that when the underlying offense is

incorporated into the order, it becomes an element of contempt. As

an element of contempt, the underlying offense involved must be

included in the Blockburger analysis. In effect, the underlying

offense becomes a lesser-included offense of contempt.

Consequently, the underlying offense does not have an element not

6
Justice Scalia, joined by Justice Kennedy, proffered the
first approach, a Blockburger analysis modified to fit the context
of a contempt proceeding followed by a prosecution for the
underlying substantive offense. Chief Justice Rehnquist, joined by
Justice O’Connor and Justice Thomas, proffered the second approach,
a traditional Blockburger analysis. The third opinion, written by
Justice White, and the fifth opinion, written by Justice Souter,
are arguably the least viable approaches in light of the majority
decision to overrule Grady. Both utilized a Grady-type analysis of
the conduct at issue, rather than focusing on the statutory
elements of each offense, and concluded that all the subsequent
prosecutions violated double jeopardy. Writing the fourth opinion
separately, Justice Blackmun found no double jeopardy violations
without actually applying Blockburger.

8
contained in the contempt offense, and subsequent prosection for

the underlying offense violates double jeopardy principles under

Blockburger. Id. at 697-98, 2856-57, 569-70.

As a result of the “incorporation” approach, the outcome

of a case would necessarily depend on the language of the order at

issue, and the consequence of such dependence is not easily

predictable. According to Justice Scalia, the language of the

protective order prohibiting Foster from assaulting or threatening

his wife did not incorporate all criminal statutes concerning

assaults and threats. Id. at 700-02, 2858-59, 570-72. In

contrast, the language of the order prohibiting Dixon from

committing criminal offenses did incorporate all criminal statutes.

Id. at 698, 2857, 569. The result of this approach is not one that

is readily predictable or consistent.

The protective order issued against Winningham enjoined

him from “committing any acts of violence upon petitioner.” This

language varies slightly from the language of the orders issued

against Foster and Dixon. Consequently, application of the

“incorporation” approach to the protection order in the instant

case is unworkable. The problem with the “incorporation” approach

is that no matter how carefully protective orders may be crafted,

they may nevertheless incorporate the elements of a criminal

offense and thereby unwittingly bar subsequent prosecution for the

underlying offense--a result certainly not intended.

9
 We find that Chief Justice Rehnquist’s application of

Blockburger is better-reasoned and more easily adaptable to

Tennessee case law. Under this approach, protection orders7 do not

implicitly incorporate the statutory elements of any crime into the

offense of contempt. The Blockburger test focuses not on the terms

of the particular order involved, but on the statutory elements of

contempt in the ordinary sense. Further, the underlying criminal

offense is not viewed as a lesser-included offense because it is

not necessarily included within the statutory elements of contempt.

Id. at 716-20, 2867-68, 579-82 (Rehnquist, C.J., concurring and

dissenting).

Current Tennessee case law parallels Rehnquist’s approach

to the double jeopardy issue created by criminal prosecution

following contempt proceedings. See State v. Wyche, 914 S.W.2d 558,

560-61 (Tenn. Crim. App. 1995); State v. Sammons, 656 S.W.2d 862,

866-69 (Tenn. Crim. App. 1982). In Sammons, the defendant violated

an order awarding custody of his daughter to his former wife. The

violations included his having abducted the daughter several times;

he was cited for contempt of court for this conduct. Subsequently,

he was indicted on charges of kidnaping and burglary based on the

same conduct which resulted in his contempt conviction. Id. at

864-66.

Because of a procedural irregularity, the court was

unable to determine whether a double jeopardy violation had

7
Defendant Dixon was actually subject to a release order.
Dixon, 509 U.S. at 698, 113 S. Ct. at 2857,125 L.Ed.2d at 565.

10
occurred in that case. Id. at 866. Nevertheless, the court

proceeded to find that under Blockburger there would have been no

double jeopardy bar to the subsequent prosecutions. Id. at 868.

The court based its finding on the principle that contempt and

kidnaping statutes serve entirely different purposes:

The purposes of the general statutes
authorizing a court to punish for
abuse of its processes and those
creating and prescribing punishment
for various indictable offenses are
so entirely different, and designed
to accomplish such wholly different
purposes, that we do not find any
violation of constitutional
principles in imposing punishment
upon an offender under both sets of
statutes.

Id. at 867 (quoting Maples v. State, 565 S.W.2d 202 (Tenn. 1978).

This reasoning represents the prevailing view, as the

Sammons court explained:

The traditional view has long been
that “former jeopardy cannot be
invoked on the ground the same act
is punishable both as a contempt of
court and as a crime.” The reason
underlying the rule is a recognition
that the two offenses are not the
same for constitutional purposes.
Thus, the courts have concluded,
“the fact that an act constituting a
contempt is also criminal and
punishable by indictment or other
method of criminal prosecution does
not deprive the outraged court from
punishing the contempt.”

Id. at 868 (citations omitted). Furthermore, whether the same

conduct can be subject to multiple punishment is a matter of

legislative intent, and the legislature clearly intended that the

11
kidnaping statute and the contempt statute address totally separate

and independent concerns. Id. at 869.

Applying Justice Rehnquist’s approach to the instant

case, we find that the arson indictment does not violate federal

double jeopardy principles. Tennessee Code Annotated § 29-9-102(3)

(1980) provides the elements of contempt: (1) willful

disobedience or resistance and (2) to any lawful writ, process,

order, rule, decree, or command of said courts. The statutory

elements of arson, however, are (1) the knowing damage of any

structure by means of a fire or explosion, and (2) without the

consent of all persons who have a possessory, proprietary, or

security interest therein, or (3) with intent to damage the

structure to collect insurance or for any unlawful purpose. Tenn.

Code Ann. § 39-14-301(a) (1991). Clearly, both statutes contain

elements which the other does not; in fact, they have no common

elements. Thus, application of the Blockburger test strongly

suggests that the legislature intended to impose separate

punishment for each of these offenses. With this conclusion, the

analysis under the Double Jeopardy Clause of the United States

Constitution is now complete, and the arson indictment withstands

federal constitutional scrutiny.

B

Continuing the inquiry under the Double Jeopardy Clause

of the Tennessee Constitution, the next step is the Duchac analysis

of the evidence used to prove each offense. If the same evidence

12
is not required to prove each offense, “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.” Denton,

938 S.W.2d at 380 (quoting Duchac v. State, 505 S.W.2d 237, 239

(Tenn. 1973)). The particular facts underlying each case must be

examined to determine whether one conviction will bar the other.

Id. (quoting Duchac, 505 S.W.2d at 240). In Denton, because

defendant Denton’s conduct consisted of a single attack on a single

victim, this Court found that the charges of aggravated assault and

attempted voluntary manslaughter necessarily relied on the same

evidence. Thus, application of Duchac indicated that the two

offenses were the same for double jeopardy purposes. Id. at 382.

In the cause before us, evidence of the following

conduct formed the grounds for contempt: threats to Ms.

Winningham’s life, trespass upon her property, shots fired at her

car, and the setting of the fire that destroyed her house. The

house-burning incident served also as the grounds for the arson

indictment. Thus, in order to prove arson, the State must rely on

evidence which necessarily includes some of the same evidence used

to establish the appellee’s conduct as contemptuous.

We are mindful that evidence in addition to the arsonous

conduct supported the contempt conviction. However, the various

acts upon which the contempt conviction was based are, for purposes

of a Duchac analysis, inseparable. We cannot ascertain whether any

one of the factual findings, including the finding that the

appellee burned his wife’s house, was truly necessary to establish

13
contempt, and we decline to speculate. In sum, the application of

Duchac principles suggests that the two offenses in the case under

review are the same for double jeopardy purposes.

C

We now turn to Denton’s third double jeopardy factor, the

consideration of whether there were different victims or discrete

acts. The charges of contempt and arson both involve the same act

of burning a house. However, the contempt conviction was also

based on other discrete acts, such as threats and trespass.

Second, different victims are involved. In general terms, criminal

conduct offends the State as the sovereign. Also offended by arson

would be the owner of the structure and, perhaps, the community-at-

large. In contrast, “‘[t]he proceeding in contempt is for an

offense against the court as an organ of public justice, and not

for violation of the criminal law.’” Sammons, 656 S.W.2d at 868

(quoting State v. Howell, 69 A. 1057, 1058 (Conn. 1908)) (emphasis

added). Thus, the court and the judicial process are “victims” of

the act of contempt. The fact that different victims are involved

suggests that separate prosecutions would not violate double

jeopardy principles under the Tennessee Constitution.

D

The fourth and final step under Denton requires an

analysis of the purposes sought to be accomplished by the enactment

of each of the two statutes. Here, the arson statute and the

14
contempt statute serve vastly dissimilar purposes. Obviously, the

prohibition against arson is intended to deter the destruction of

property and the endangerment of human life. In marked contrast,

the offense of contempt of court has as its purposes the

maintenance of the integrity of court orders and the vindication of

the court’s authority. Dixon, 509 U.S. at 742, 113 S. Ct. at 2880,

125 L. Ed.2d at 597-98 (Blackmun, J., concurring and dissenting);

Sammons, 656 S.W.2d at 869. So essential is this purpose to the

proper functioning of the court that even erroneous orders must be

obeyed. Id. The fact that the two statutes serve vastly different

purposes suggests that separate prosecutions would not violate

double jeopardy principles under our state constitution.

III

To summarize, through our analyses under Denton we have

found both similarities and significant differences between the

crime of contempt and arson, as presented in the context of this

case. In the final analysis, we conclude that the Denton factors

weigh in favor of allowing the prosecution for arson to follow the

appellee’s contempt conviction. Concededly, because the contempt

conviction and arson indictment both involve the same act of

burning Ms. Winningham’s house, some of the same evidence used to

prove contempt may also be used to prove arson. This merely

underscores the similarity of the two offenses under Duchac.

However, the vast differences in the elements of each statute, the

victims of each statute, and the purposes of each statute

demonstrate the legislature’s intent to allow separate punishment

15
for both arson and contempt. Therefore, we hold that the

prosecution for arson, in the context of the facts and

circumstances here presented, does not violate the Double Jeopardy

Clause of the Tennessee Constitution.

In conclusion, neither the Double Jeopardy Clause of the

United States Constitution nor that of the Tennessee Constitution

bars separate proceedings and punishments for contempt and the

substantive offense underlying the contempt. The judgment of the

Court of Criminal Appeals is reversed, and the indictment for arson

is reinstated. Costs of this cause are taxed against the appellee,

for which execution may issue if necessary.

_________________________________
ADOLPHO A. BIRCH, JR., Justice

CONCUR:
Anderson, C.J.
Drowota, Reid, Holder, JJ.

16