IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED APRIL 1997 SESSION February 25, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) NO. 03C01-9601-CC-00044 Appellee, ) ) MONROE COUNTY VS. ) ) HON. MAYO L. MASHBURN, DAVID GARY MILLSAPS, ) JUDGE ) Appellant. ) (Child Abuse)
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES M. CORN JOHN KNOX WALKUP District Public Defender Attorney General and Reporter
WILLIAM C. DONALDSON CLINTON J. MORGAN Assistant Public Defender Assistant Attorney General 110 ½ Washington Ave N.E. Cordell Hull Building, 2nd Floor Athens, TN 37303 425 Fifth Avenue North Nashville, TN 37243-0493
JERRY N. ESTES District Attorney General
AMY ARMSTRONG Assistant District Attorney General P.O. Box 647 Athens, TN 37303-0647
OPINION FILED:
CONVICTION AFFIRMED; REMANDED FOR RESENTENCING
JERRY L. SMITH, JUDGE OPINION
The defendant, David Gary Millsaps, was convicted by a jury of simple
child abuse. He was sentenced to eleven (11) months and twenty-nine (29)
days. On appeal, he contends the evidence adduced at trial is not sufficient to
support a guilty verdict and his sentence is excessive. The conviction is
affirmed, but for reasons hereinafter stated, the case is remanded for
resentencing.
FACTUAL BACKGROUND
The defendant and Tammy Millsaps were divorced. On June 9, 1995,
eight (8) year-old G.M.1 spent the day with his father, the defendant. Tammy
Millsaps, the victim's mother, picked him up that afternoon and noticed what
appeared to be bruises on the victim's legs, back and arms. Tammy Millsaps
took the victim to the Sweetwater Emergency Room where the police were
summoned. Sergeant Gary Newman of the Sweetwater Police Department
observed several bruises and welts on the child. The victim's injuries were
photographed by the police at the hospital. 2 The defendant arrived at the
hospital, was read his Miranda rights and subsequently gave a written statement
that he had given the child a "whippin’."
SUFFICIENCY OF THE EVIDENCE
The defendant contends the circumstantial evidence presented at trial
does not support a guilty verdict because the victim did not testify, there was no
medical testimony that the injuries rose to the level of child abuse, and medical
1 It is the policy of this Court not to reveal the names of minor victims. 2 The photographs depict substantial bruising and discoloration of the skin on the child’s legs, back and arm.
2 testimony was not introduced to show the injuries were other than accidental.
Although the evidence of the defendant’s guilt is circumstantial in nature,
circumstantial evidence alone may be sufficient to support a conviction. State v.
Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Gregory, 862 S.W.2d
574, 577 (Tenn. Crim. App. 1993); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn.
Crim. App. 1988). However, in order for this to occur, the circumstantial
evidence must be not only consistent with the guilt of the accused but it must
also be inconsistent with innocence and must exclude every other reasonable
theory or hypothesis except that of guilt. Tharpe, 726 S.W.2d at 900. In
addition, “it must establish such a certainty of guilt of the accused as to convince
the mind beyond a reasonable doubt that [the defendant] is the one who
committed the crime.” Tharpe, 726 S.W.2d at 900 (quoting Pruitt v. State, 460
S.W.2d 385, 391 (Tenn. Crim. App. 1970)).
While following the above guidelines, this Court must remember that the
jury decides the weight to be given to circumstantial evidence and that “[t]he
inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are
questions primarily for the jury.” Marable v. State, 313 S.W.2d 451, 457 (Tenn.
1958); see also State v. Gregory, 862 S.W.2d at 577; State v. Coury, 697
S.W.2d 373, 377 (Tenn. Crim. App. 1985); Pruitt v. State, 460 S.W.2d at 391.
Where sufficiency of the evidence is challenged, the relevant question for
an appellate court is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime or crimes beyond a reasonable doubt. Tenn. R.
App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61
L.Ed.2d 560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996).
Neither the testimony of the victim nor medical testimony was necessary
in this case. The defendant arrived at the hospital shortly after the victim. After
being read his rights, the defendant admitted physically striking the victim. The
jury in this case obviously believed the defendant knowingly inflicted the injuries
3 on the victim, and that those injuries rose to the level of simple child abuse as
provided in Tenn. Code Ann. § 39-15-401. The evidence was sufficient to
support the guilty verdict.
SENTENCING
The defendant contends his sentence was excessive because the trial
court improperly considered two previous convictions and failed to consider one
mitigating factor. In our review of the record, it is unfortunately apparent the
sentencing hearing had flaws much greater than the application of mitigating and
enhancement factors.
Prior to the hearing the trial court had an ex parte conversation with
Sheriff’s Detective George Williams. It further appears from the record that
neither the state nor defense counsel was made aware of this conversation prior
to the hearing. The court began the hearing by announcing, “[a]ll right. Ladies
and Gentlemen, it has been brought to my attention by an officer here in Bradley
County that he has certain information concerning Mr. Millsaps and a threat that
he’s made.” At this point the trial court called and examined the detective
regarding an alleged threat by the defendant to “blow the courthouse up and kill
everybody in the courthouse.” After examining the witness, the trial court asked
the defendant if he wished to cross-examine the witness. The defendant,
apparently representing himself, began to make statements to the detective and
the court. This prompted the public defender to ask if his office was relieved of
representation. The court replied negatively. The public defender at that point
examined the detective.
Next, the Monroe County Sheriff was called by the trial court to testify.
The trial judge had also spoken with the sheriff ex parte before the hearing. The
court examined the Sheriff about the defendant’s alleged threat. At this point the
public defender objected to the trial court’s presentation of evidence that was
properly the responsibility of the District Attorney General’s office.
4 Mr. Donaldson: In all fairness, Judge, I think we should be made aware of any evidence that’s gonna be presented against Mr. Millsaps. This is really a sentencing hearing by ambush.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED APRIL 1997 SESSION February 25, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) NO. 03C01-9601-CC-00044 Appellee, ) ) MONROE COUNTY VS. ) ) HON. MAYO L. MASHBURN, DAVID GARY MILLSAPS, ) JUDGE ) Appellant. ) (Child Abuse)
FOR THE APPELLANT: FOR THE APPELLEE:
CHARLES M. CORN JOHN KNOX WALKUP District Public Defender Attorney General and Reporter
WILLIAM C. DONALDSON CLINTON J. MORGAN Assistant Public Defender Assistant Attorney General 110 ½ Washington Ave N.E. Cordell Hull Building, 2nd Floor Athens, TN 37303 425 Fifth Avenue North Nashville, TN 37243-0493
JERRY N. ESTES District Attorney General
AMY ARMSTRONG Assistant District Attorney General P.O. Box 647 Athens, TN 37303-0647
OPINION FILED:
CONVICTION AFFIRMED; REMANDED FOR RESENTENCING
JERRY L. SMITH, JUDGE OPINION
The defendant, David Gary Millsaps, was convicted by a jury of simple
child abuse. He was sentenced to eleven (11) months and twenty-nine (29)
days. On appeal, he contends the evidence adduced at trial is not sufficient to
support a guilty verdict and his sentence is excessive. The conviction is
affirmed, but for reasons hereinafter stated, the case is remanded for
resentencing.
FACTUAL BACKGROUND
The defendant and Tammy Millsaps were divorced. On June 9, 1995,
eight (8) year-old G.M.1 spent the day with his father, the defendant. Tammy
Millsaps, the victim's mother, picked him up that afternoon and noticed what
appeared to be bruises on the victim's legs, back and arms. Tammy Millsaps
took the victim to the Sweetwater Emergency Room where the police were
summoned. Sergeant Gary Newman of the Sweetwater Police Department
observed several bruises and welts on the child. The victim's injuries were
photographed by the police at the hospital. 2 The defendant arrived at the
hospital, was read his Miranda rights and subsequently gave a written statement
that he had given the child a "whippin’."
SUFFICIENCY OF THE EVIDENCE
The defendant contends the circumstantial evidence presented at trial
does not support a guilty verdict because the victim did not testify, there was no
medical testimony that the injuries rose to the level of child abuse, and medical
1 It is the policy of this Court not to reveal the names of minor victims. 2 The photographs depict substantial bruising and discoloration of the skin on the child’s legs, back and arm.
2 testimony was not introduced to show the injuries were other than accidental.
Although the evidence of the defendant’s guilt is circumstantial in nature,
circumstantial evidence alone may be sufficient to support a conviction. State v.
Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987); State v. Gregory, 862 S.W.2d
574, 577 (Tenn. Crim. App. 1993); State v. Buttrey, 756 S.W.2d 718, 721 (Tenn.
Crim. App. 1988). However, in order for this to occur, the circumstantial
evidence must be not only consistent with the guilt of the accused but it must
also be inconsistent with innocence and must exclude every other reasonable
theory or hypothesis except that of guilt. Tharpe, 726 S.W.2d at 900. In
addition, “it must establish such a certainty of guilt of the accused as to convince
the mind beyond a reasonable doubt that [the defendant] is the one who
committed the crime.” Tharpe, 726 S.W.2d at 900 (quoting Pruitt v. State, 460
S.W.2d 385, 391 (Tenn. Crim. App. 1970)).
While following the above guidelines, this Court must remember that the
jury decides the weight to be given to circumstantial evidence and that “[t]he
inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence are
questions primarily for the jury.” Marable v. State, 313 S.W.2d 451, 457 (Tenn.
1958); see also State v. Gregory, 862 S.W.2d at 577; State v. Coury, 697
S.W.2d 373, 377 (Tenn. Crim. App. 1985); Pruitt v. State, 460 S.W.2d at 391.
Where sufficiency of the evidence is challenged, the relevant question for
an appellate court is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime or crimes beyond a reasonable doubt. Tenn. R.
App. P. 13(e); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61
L.Ed.2d 560 (1979); State v. Abrams, 935 S.W.2d 399, 401 (Tenn. 1996).
Neither the testimony of the victim nor medical testimony was necessary
in this case. The defendant arrived at the hospital shortly after the victim. After
being read his rights, the defendant admitted physically striking the victim. The
jury in this case obviously believed the defendant knowingly inflicted the injuries
3 on the victim, and that those injuries rose to the level of simple child abuse as
provided in Tenn. Code Ann. § 39-15-401. The evidence was sufficient to
support the guilty verdict.
SENTENCING
The defendant contends his sentence was excessive because the trial
court improperly considered two previous convictions and failed to consider one
mitigating factor. In our review of the record, it is unfortunately apparent the
sentencing hearing had flaws much greater than the application of mitigating and
enhancement factors.
Prior to the hearing the trial court had an ex parte conversation with
Sheriff’s Detective George Williams. It further appears from the record that
neither the state nor defense counsel was made aware of this conversation prior
to the hearing. The court began the hearing by announcing, “[a]ll right. Ladies
and Gentlemen, it has been brought to my attention by an officer here in Bradley
County that he has certain information concerning Mr. Millsaps and a threat that
he’s made.” At this point the trial court called and examined the detective
regarding an alleged threat by the defendant to “blow the courthouse up and kill
everybody in the courthouse.” After examining the witness, the trial court asked
the defendant if he wished to cross-examine the witness. The defendant,
apparently representing himself, began to make statements to the detective and
the court. This prompted the public defender to ask if his office was relieved of
representation. The court replied negatively. The public defender at that point
examined the detective.
Next, the Monroe County Sheriff was called by the trial court to testify.
The trial judge had also spoken with the sheriff ex parte before the hearing. The
court examined the Sheriff about the defendant’s alleged threat. At this point the
public defender objected to the trial court’s presentation of evidence that was
properly the responsibility of the District Attorney General’s office.
4 Mr. Donaldson: In all fairness, Judge, I think we should be made aware of any evidence that’s gonna be presented against Mr. Millsaps. This is really a sentencing hearing by ambush.
The Court: That’s right. Have a seat.
Most of the remaining testimony in the hearing consisted of whether the
officers believed the alleged threat was serious enough to have the defendant or
his home searched for explosives. One conversation centered around the
defendant alleging numerous unrelated illegal activities committed by officers of
the Monroe County Sheriff’s Department. The sentencing hearing consisted
entirely of testimony and discussions about the alleged threat and unrelated
matters. There was no testimony or argument by counsel concerning the facts,
enhancement factors or mitigating factors relating to the case upon which the
defendant was being sentenced.
When passing sentence on the defendant, the trial court stated it found no
mitigating factors, yet a fairly extensive record of prior criminal activity. The trial
court then stated:
Now let me say this, and it’s not necessary for me to say it, but I want to be perfectly candid with everybody. I sat down and read this presentence report on you about two or three weeks ago. And then I sat down and read it again last night. And while I’m somewhat reluctant to admit it, I’ve got to be honest with everybody, and I can tell you that before I came up here today, I had pretty much made up my mind what your sentence was gonna be. (Brief pause) And all of you can read it right here, “Approve fine, $1250, 11 months and 29 days suspended.” But that’s not the sentence of this Court today. The sentence of this Court today is 11 months and 29 days to serve at 75%, and you go into custody right now. That’s the sentence of the court.
Clearly, a judge may neither permit nor consider ex parte communications
in a sentencing proceeding. Sup. Ct. Rules, Rule 10, Canon 3, B(7)(1997); State
v. Cash, 867 S.W.2d 741, 749 (Tenn. 1993). Just as importantly, a trial judge
should call and examine witnesses only in rare instances, it being better practice
to suggest to counsel that certain questions be asked of a witness. State v.
Brock, 940 S.W.2d 577, 581 (Tenn. Crim. App. 1996).
We in no way intend to diminish the responsibility of a trial court to
5 maintain security. Security should always be a paramount concern and is indeed
the trial court’s responsibility. The crucial matter leading to the problem in this
case, however, was the failure of the trial court to advise counsel of the ex parte
communications prior to the hearing. As a result the trial court elicited this
information during the sentencing hearing from witnesses called by the court.
Furthermore, the hearing was consumed with accusations and cross-accusations
of unrelated past events. In light of the trial court’s comments, he obviously
considered these matters in imposing the maximum sentence. Therefore, this
case must be remanded for a new sentencing hearing.
CONCLUSION
We find the evidence was sufficient in this case for the jury to have found
the defendant guilty of the offense charged. However, because the sentencing
hearing was fraught with error, we remand for a new sentencing hearing.
____________________________ JERRY L. SMITH, JUDGE
CONCUR:
______________________________ JOE G. RILEY, JUDGE
______________________________ CHRIS CRAFT, SPECIAL JUDGE