State of Tennessee v. Elder Mark Anthony Thornton

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 19, 2012
STATE OF TENNESSEE v. ELDER MARK ANTHONY THORNTON
Direct Appeal from the Criminal Court for Davidson County
No. 4374 Monte Watkins, Judge
No. M2011-02444-CCA-R3-CD - Filed January 29, 2013
Appellant, Elder Mark Anthony Thornton,1 was convicted in Davidson County General
Sessions Court of eighty counts of criminal contempt after violating an order of protection.
He appealed those convictions to the Davidson County Criminal Court and, following a
bench trial, was found guilty of criminal contempt for 180 separate violations of the order
of protection. Appellant was pro se at trial. The trial court sentenced Appellant to ten
calendar days per incident consecutively, for a total of 1800 days of incarceration. Appellant,
still proceeding pro se, filed a timely notice of appeal. After a review of the original and the
supplemented record, we determine that ten of the convictions and sentences are proper and,
thus, are affirmed. However, the balance of the convictions, 170 in total, which were not
listed in the charging notice can not stand, as proper notice was not given to Appellant. As
such, those convictions are reversed, and the resulting sentences are vacated.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed in
Part and Reversed in Part
D ANIEL, J.S. (“S TEVE”), Sp. J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and J OHN E VERETT W ILLIAMS, JJ., joined.
Elder Mark Anthony Thornton, Nashville, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
1
Appellant’s proper name is unclear from our review of the record. On the Appellant’s brief
he lists his name as Elder Mark Anthony Thornton. On the jacket of the technical record, he is
referred to as Anthony Mark Elder. Appellant is also referred to as Elder Mark Anthony, Anthony
Elder, Mark Thornton, Elder Mark Anthony Thornton, Elder M. Anthony, and Anthony M. Elder.
For the sake of consistency, we will refer to Appellant as Elder Mark Anthony Thornton or
Appellant.
General; Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual Background
The record reveals that Ms. Robyn Michelle Thornton, Appellant’s former wife,
sought an order of protection in the Wilson County General Sessions Court. That order was
entered on March 2, 2010, and prohibited Appellant from “contacting, or otherwise
communicating with the Petitioner, directly or indirectly, or coming about Petitioner or
Petitioner’s residence or place of employment for any purpose.” The order was to remain in
effect until December 9, 2014. On October 1, 2010, Ms. Thornton filed an affidavit for
criminal contempt in the Davidson County General Sessions Court against Appellant alleging
that he had violated the order of protection. The record indicates that this was not the first
order of protection entered against Appellant, nor his first violation. The last violation
appears to have occurred on August 22, 2009, for acts of violence committed by Appellant.
The charging instrument for the contempt action in the instant case was a warrant
issued October 1, 2010, which was issued on the affidavit of Ms. Thornton and alleged that
she had been “receiving phone calls from the suspect on several different days. After the
fifth time or so the suspect called and started to become angry . . . .” Attached to the warrant
was a form with the title “NOTICE,” which had a section to allow the complainant to
describe what Appellant did that was a basis of the issuance of the warrant. In this form Ms.
Thornton wrote, “Violation of OOP- started calling last week 9/21/10, called approx. 10
times, last night left disturbing vm.” A hearing was held on July 15, 2011, and Appellant
was found guilty of eighty counts of criminal contempt in the Davidson County General
Sessions Court and sentenced to ten days per count consecutively for a total sentence of 800
days, with the sentence to be served day for day. Appellant appealed his conviction as a pro
se litigant, and his case was heard by the Davidson County Criminal Court. A bench trial
was held October 17, 2011 to consider the appealed convictions in a trial de novo.
Ms. Thornton testified that Appellant had been in custody in both Wilson and
Davidson County over other incidents of the violation of the orders of protection in 2010 and
was released from custody at some point in mid-2010. The record demonstrates that Ms.
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Thornton testified that in September and October of 2010 she started receiving text messages
and phone calls at home and her place of employment from Appellant, which she considered
threatening. Ms. Thornton and Appellant had been divorced for five years at the time of the
trial. Ms. Thornton resides in Wilson County but is employed in Davidson County. Ms.
Thornton testified that during September and October 2010, she received more than 450 text
and phone messages, of which 180 were received in Davidson County. Appellant did not
cross examine Ms. Thornton about the calls and/or text messages, nor did he testify. Ms.
Thornton was the only witness that testified, and she introduced the only exhibit in the record
which was the March 2, 2010 order of protection. Appellant presented no proof but insisted
that the charges of violation of the order of protection were barred based on double jeopardy.
His position is best presented by his argument to the court when he stated:
This Court’s ruled that. There is no -- I’m not saying I did not make the
phone calls. I’m not arguing that I didn’t make the text messages. I’m arguing
that the order of protection in question is a fraudulent order of protection
because in October of 2009, I was before this Court. This Court had
jurisdiction of the case 2009D 3466, where the State was charging me with --
at that time it was reckless endangerment. Which May the 14th of 2010, they
retired that case. That case stems from a case of September 28th of 2009,
where the State dismissed the case of violation of order of protection with a
weapon, on September the 28th of 2009. And case law states that they --
The trial court attempted to direct Appellant to present evidence, but he insisted that
the evidence showed that this contempt prosecution was barred by double jeopardy.
Ultimately the court’s findings, including sentencing, were encompassed in the following
colloquy:
THE COURT: Alright, alright. This matter comes from actions that occurred
in September and October of 2010, subsequent to the matters that [Appellant]
was arguing about. Simple fact of the matter is that I find [Appellant] guilty
of criminal contempt, 180 counts, and he is - -
[Appellant]: I’ve been in jail for 99 days, Your Honor.
COURT OFFICER: Let him speak.
[Appellant]: I’m sorry.
THE COURT: Ten days for each count, correct.
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COURT OFFICER: You can step back.
[Appellant]: I’ll appeal, Your Honor. I appeal this ruling.
THE COURT: Okay, go right ahead.
GEN. MOORE: I take it that was consecutive, consecutive?
THE COURT: Yes, consecutive, if I didn’t say that already. . . .
Analysis
On appeal, Appellant presents nine issues, summarized as best as can be discerned by
this court, as follows: (1) whether his prosecution violated double jeopardy; (2) whether the
Davidson County Criminal Court had jurisdiction over the Davidson County General
Sessions Court appeal; (3) whether the Davidson County General Sessions Court lacked
subject matter jurisdiction; (4) whether Davidson County had jurisdiction to hear the criminal
contempt charge when both parties live in Wilson County; (5) whether the Wilson County
General Sessions Court improperly issued the order of protection; (6) whether Appellant’s
civil rights were violated because his arrest was based solely on the request of a citizen; (7)
whether the Tennessee Court of Appeals has jurisdiction over the matter; (8) whether the
Wilson County General Sessions Court had jurisdiction to issue an order of protection while
a civil matter was pending between Appellant and his ex-wife; and (9) whether Appellant’s
constitutional rights were violated “as it relates to his actions that are spiritually/religiously
motivated behavior, directly related to his inherently ecclesiastical functions and duties.”
As an initial matter, we note that Appellant has waived several of these issues,
including those concerning double jeopardy and the actions of the Wilson County courts, by
his failure to supply an adequate record for review. We are presented with a technical record
and a supplemental record, consisting of a transcript of the trial proceedings, which are
completely void of any evidence, documents, or records relating to these additional issues.
Appellant is responsible for ensuring that a complete and adequate record is prepared and
transmitted on appeal. See State v. Taylor, 992 S.W.2d 941, 944 (Tenn. 1999). If an
incomplete record is presented to this court, an appellant risks waiving issues raised on
appeal. See State v. Cindy L. Holder, No E2000-01191-CCA-R3-CD, 2003 WL 367244(Tenn. Crim. App., at Jackson, Feb. 21, 2003); State v. Roger Stephen Riner, No.
M2009-00579-CCA-R3-CD, 2010 WL 3719168, at *4-5 (Tenn. Crim. App., at Nashville,
Sept. 23, 2010), perm. app. denied, (Tenn. Feb. 17, 2011). Here Appellant has been given
ample opportunity, at the beginning of this appeal, in response to the State’s brief and in
response to this court’s Per Curiam order, to cure these defects in the record, and he has
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failed to do so. Therefore, review is precluded.
I. Jurisdiction of the Davidson County Courts
We first address the issue of the jurisdiction of the Davidson County Criminal Court
in hearing this matter. Tennessee Code Annotated section 36-3-601(3)(F) (2010) provides
that “any appeal from a final ruling on an order of protection by a general sessions court . .
. shall be to the circuit or chancery court of the county”. This statutory jurisdictional mandate
was legislated to clarify the appropriate avenue of appeal and to provide a de novo hearing
in a court of record for an appellant seeking a review of his or her conviction.
In State v. Wood, 91 S.W.3d 769 (Tenn. Ct. App. 2002), it was held that the Davidson
County Criminal Court did not have jurisdiction of an appeal of a conviction for the violation
of an order of protection. However, that case was decided prior to the effective date of
Tennessee Code Annotated section 36-3-601(3)(F) and was limited to the facts of that case.
As a general rule, we are of the opinion that a circuit court exercising criminal court
jurisdiction would meet the spirit and intent of the statute and fulfill the purposes of the
statute.
In this case, the order of protection that Appellant stands convicted of violating was
issued in the Wilson County General Sessions Court. However, the convictions we are
considering concern separate acts allegedly committed by Appellant in Davidson County.
Tennessee Code Annotated §36-3-612(b) expressly authorizes courts that have jurisdiction
over orders of protection to hear and decide violations of orders of protection that have been
issued in other counties. Therefore, it was proper for the General Session Court of Davidson
County to initially exercise jurisdiction over these charges and for the appeal to be taken to
the Davidson County Criminal Court.
II. Criminal Contempt and Notice
Although not raised by Appellant, our review of the record reveals a problem with
proper notice in this case. Therefore, we review the contempt statute and its notice
requirements.
a. Criminal Contempt
Punishment for the violation of an order of protection is provided for in Tennessee
Code Annotated §36-3-610(a) “in accordance with law” or by way of Tennessee Code
Annotated §39-13-113, which is a class A misdemeanor, for “knowingly” violating the order.
“In accordance with law,” is the statutory authority for the court to sentence a defendant for
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this crime in all circumstances where the statute does not establish the specific punishments.
The statute authorizes up to ten days incarceration and up to a $50 fine. See Tenn. Code
Ann. §29-9-103. In this case, Appellant was not prosecuted for ‘knowingly” violating the
order of protection, rather he was found to be in contempt of the court’s orders with the
punishment prescribed by Tennessee Code Annotated §29-9-103 as punishment for the
criminal contempt in the failure to follow the valid order of the court.
As pointed out in State v. Wood, 91 S.W.3d 769, 773 (Tenn. Ct. App. 2002):
The difficulty with contempt actions in orders of protection is
the multiple ways by which criminal contempt is treated. On one
hand we say criminal contempt is quasi-criminal, Anderson v.
Daugherty, 137 Tenn. 125, 191 S.W. 974 (1917); therefore guilt
must be proved beyond a reasonable doubt, Shiflet v. State, 217
Tenn. 690, 400 S.W.2d 542 (1966); and the prosecutor may not
appeal an acquittal, Archer v. Archer, 907 S.W.2d 412 (Tenn.
Ct. App. 1995). It is enough of a crime that the double jeopardy
provisions of the state and federal constitutions prohibit a
subsequent contempt prosecution after a contempt proceeding
starts and comes to an inconclusive end in another court. Ahern
v. Ahern, 15 S.W.3d 73 (Tenn. 2000).
On the other hand, it is not enough of a crime to prevent
a prosecution for kidnaping after the accused is found guilty and
punished for criminal contempt for the same conduct. State v.
Sammons, 656 S.W.2d 862 (Tenn. Crim. App. 1982). See also
State v. Winningham, 958 S.W.2d 740 (Tenn.1997). It does not
have to be initiated by an indictment or presentment. Green v.
United States, 356 U.S. 165 at 184, 78 S. Ct. 632, 2 L. Ed. 2d 672(1958). Nor does the right to a trial by jury, that ordinarily
attaches to any prosecution where incarceration may be
imposed, attach to a prosecution for criminal contempt under the
general contempt statutes. Pass v. State, 181 Tenn. 613, 184 S.
W.2d 1 (1944); Ahern v. Ahern, 15 S.W.3d 73 (Tenn. 2000); cf.
State v. Dusina, 764 S. W.184 S.W.2d 766 (Tenn. 1989).
The Court of Appeals has previously concluded that portions of the criminal code do
not apply to the sentencing of those convicted of criminal contempt of an order of protection.
Those sections include setting a percentage of the sentence that must be served, Tenn. Code
Ann. §40-35-302(d), and provisions authorizing the earning of good conduct credits while
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serving time in a local jail, Tenn. Code Ann. §41-2-111(b). However, it has been concluded
that some other criminal sentencing principles embodied in the criminal statutes, such as
Tennessee Code Annotated §40-35-103(4), which requires that the sentence imposed be the
least severe measure necessary to achieve the purpose for which the sentence is imposed, do
apply. Wood, 91 S.W.3d at 776.
Although complaints concerning the violation of a valid order of protection are hybrid
actions embodying both civil and criminal matters, the purpose of the complaint is to
vindicate or punish those in violation of the court order. State ex rel, Agee v. Chapman, 922
S.W.2d 516, 519 (Tenn. Ct. App. 1995); Thigpen v. Thigpen, 874 S.W.2d 51,53 (Tenn. Ct.
App. 1993). Therefore, the action is criminal in nature, and one accused of the violation is
entitled to proper notice of the specific charged conduct that must be defended and an
opportunity to be heard after proper notice.
b. Notice of the Contempt Action
When an action is in the form of criminal contempt, the trial court may impose
punishment for indirect criminal contempt only after providing notice pursuant to Tenn. R.
Crim. P. 42(b). Storey v. Storey, 835 S.W.2d 593, 600 (Tenn. App. 1992). This notice must
succinctly state the facts giving rise to the charge because the same conduct can constitute
both civil and criminal contempt. Providing this notice at an early stage better enables the
accused to invoke his or her procedural rights. United States v. United Mineworkers, 330
U.S. 258, 374, 67 S. Ct. 677, 736, 91 L. Ed. 884 (1947) (Rutledge, J., dissenting) (stating that
“[o]ne who does not know until the end of litigation what his procedural rights in trial are,
or may have been, has not such rights”). The notice necessary to meet the requirements of
Tenn. R. Crim. P. 42(b) has been defined in Long v. McAllister-Long, 221 S.W.3d 1, 13-14
as follows:
Adequate notice is notice that is clear and unambiguous
to the average citizen. Gompers v. Buck’s Stove & Range Co.,
221 U.S. 418, 446, 31 S. Ct. 492, 500, 55 L. Ed. 797 (1911);
Jones v. Jones, 1997 WL 80029 at *4. Because the same
conduct can constitute both civil contempt and criminal
contempt and because both contempt proceedings may carry
with them the possibility of incarceration, it is imperative that
notice specifically charge a party with criminal contempt. Jones
v. Jones, 1997 WL 80029 at *2B3. Adequate notice
encompasses, but is not limited to, the mandates of Tenn. R.
Crim. P. 42(b), which requires that notice state the time and
place of the hearing, allow the defendant reasonable time to
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prepare a defense, and state succinctly for the accused the
essential facts constituting the charge. See Jones v. Jones, 1997
WL 80029 at *3. Essential facts are those which, at a minimum,
(1) allow the accused to glean that he or she is being charged
with a crime, rather than being sued by an individual, (2) enable
the accused to understand that the object of the charge is
punishment not merely to secure compliance with a previously
existing order, and (3) sufficiently aid the accused to determine
the nature of the accusation, which encompasses the requirement
that the underlying court order allegedly violated by the accused
is itself clear and unambiguous. See Gompers v. Buck’s Stove
& Range Co., 221 U.S. at 446, 31 S. Ct. at 500; Doe v. Bd. of
Prof’l Responsibility, 104 S.W.3d at 471; McPherson v.
McPherson, 2005 WL 3479630 at *5; Jones v. Jones, 1997 WL
80029 at *3.
Here the warrant and attachments to the warrant specifically refers to ten phone calls
made by Appellant to his ex-wife. Although proof of other incidents was introduced at trial,
no mention is made in those documents of any other calls or text messages which were made
by Appellant. Although it is imperative that valid orders of protection be enforced, those
goals must be achieved only through processes that comply with basic due process as are set
forth in Tenn. R. Crim. P. 42(b). Here those provisions have been completely ignored by
failure to give Appellant proper notice, and convictions based on conduct not properly
charged can not be sustained. Therefore, all convictions of criminal contempt based on
conduct not charged, i.e., here 170 counts, are reversed, and those sentences are vacated. As
noted, proper notice was given for ten counts of violation of the order of protection by
referring to ten phone calls made in the supporting documentation. Proof was presented with
regard to those ten phone calls by Ms. Thornton at trial, and her testimony was not
contradicted in any way with regard to those calls. Therefore, those ten convictions for
violating an order of protection and their resulting sentences are affirmed.
III. Jail Credit
As a final issue, we note that the trial court made no findings as to the claim that
Appellant made at the time of his conviction regarding his service of 99 days in jail.
Although it would appear unnecessary based upon the conclusion of this appeal, the trial
court on remand is to determine the amount of jail credit Appellant is entitled to should the
State seek to initiate additional criminal contempt charges for acts occurring during this time
frame.
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CONCLUSION
Based upon the foregoing, we affirm the ten convictions and sentences for the phone
calls identified in the charging instruments. The remaining 170 convictions are reversed, and
the sentences vacated. Further, we remand the case to the trial court with instructions to
determine the jail credit earned by Appellant with a view to his immediate release.
_________________________________
J.S. “STEVE” DANIEL, SPECIAL JUDGE
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