Abdo v. Commonwealth

• Decision Date: 24 March 2015
• Docket Number: Record No. 0965–14–4.
• Citation: 769 S.E.2d 677,64 Va.App. 468
• Parties: Alexy J. ABDO, a/k/a Alexi J. Abdo v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

64 Va.App. 468

769 S.E.2d 677

Alexy J. ABDO, a/k/a Alexi J. Abdo

v.COMMONWEALTH of Virginia.

Record No. 0965–14–4.

Court of Appeals of Virginia, Alexandria.

March 24, 2015.

L. Steven Emmert, Virginia Beach (Sykes, Bourdon, Ahern & Levy, P.C., on briefs), for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: HUMPHREYS, BEALES and McCULLOUGH, JJ.

Opinion

McCULLOUGH, Judge.

Alexy J. Abdo appeals from a conviction of criminal contempt. He argues that (1) the evidence does not establish that he possessed the requisite intent for conviction; (2) the circuit court erroneously refused to apply Singleton v. Commonwealth, 278 Va. 542, 685 S.E.2d 668 (2009), to a police officer; and (3) the circuit court erred in considering prior unadjudicated acts. We find no error and affirm the decision of the circuit court.

BACKGROUND

Appellant is a police officer for the Town of Remington, in Fauquier County. On November 22, 2013, he had scheduled several cases on the town traffic docket. He was not present in the courthouse when the cases were called. The general district court granted the Commonwealth's motion for a nolle prosequi. Appellant arrived nine minutes late, after the court had granted the “nol pros.” The court issued a show cause order for appellant to explain why he should not be held in contempt.

At the contempt hearing, appellant apologized for his tardiness and “tendered a reason for his non-appearance,” which the court found unsatisfactory. The court noted that appellant had “on several occasions, failed to appear or appeared late” and that “[t]his ha[d] routinely resulted in the nolle prosequi of his cases.” In its written order, the general district court recounted three prior instances of tardiness. On the first such occasion, appellant tendered a handwritten apology, in which he stated that he had “overslept and have no other excuse. It will not happen again.” Another time, appellant explained that his vehicle had broken down. In a later instance of tardiness, he stated that “his wife had taken his car, which had his copies of the summonses he wrote for court that day.” The general district court observed that, “[o]n none of these occasions, either the ones for which he offered an excuse or the others for which no excuse was offered, did the court issue any contempt process against Officer Abdo after receiving an apology and further assurances of timely attendance to his court obligations.” The court concluded that “[t]his recurring misbehavior by a law enforcement officer cannot be ignored by the court, lest it send a message that such conduct will be countenanced.”

Based on the evidence and the testimony presented at the hearing, the general district court found appellant in contempt and imposed a $25 fine, which the court suspended upon twelve months of good behavior. The general district court prepared a certificate of conviction based on Code § 18.2–459 memorializing the court's rationale for finding appellant in contempt.

Appellant appealed this decision to circuit court. In addition to the certificate, the circuit court received stipulated evidence that, on November 22, 2013, appellant called another police officer, Officer Bryan Reese, and asked him to inform the court that appellant would be running a few minutes late. Officer Reese testified that, at 9:00 a.m., he informed the general district court judge that appellant was running late. Appellant also testified and explained that his tardiness was inadvertent and that he had no intent to delay, obstruct, or harass the proceedings of the general district court. He stated that he was late because “his wife had taken the vehicle that contained his paperwork for the cases on that morning's docket.”

The circuit court found appellant guilty of contempt and imposed a $25 fine, which the court suspended. The court observed that, “if this were the first time the defendant had been late to court, its ruling would be different; but because of the previous instances set out in the Certificate of Conviction, it found the defendant guilty as charged.” Appellant moved to set aside this order or stay the sentence's execution. The circuit court denied that motion. This appeal followed.

ANALYSIS

I. Instances of Appellant's past tardiness were relevant and admissible .

At the outset, we examine whether the circuit court properly admitted evidence of appellant's previous instances of tardiness.¹ Appellant argues that the court cannot consider such “prior unadjudicated acts,” which were “used for the impermissible purpose of suggesting criminal propensity.”

“The admissibility of evidence is within the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Blain v. Commonwealth, 7 Va.App. 10, 16, 371 S.E.2d 838, 842 (1988). As a general proposition, evidence of prior crimes or bad acts is inadmissible to prove that the accused committed the crime charged. See Wilson v. Commonwealth, 16 Va.App. 213, 220, 429 S.E.2d 229, 233 (1993). This general rule, however, “ ‘must sometimes yield to society's interest in the truth-finding process,’ and numerous exceptions allow evidence of prior misconduct ‘whenever the legitimate probative value outweighs the incidental prejudice to the accused.’ ” Wilkins v. Commonwealth, 18 Va.App. 293, 297, 443 S.E.2d 440, 443 (1994) (quoting Lewis v. Commonwealth, 225 Va. 497, 502, 303 S.E.2d 890, 893 (1983) ). Such evidence may be admitted if offered “to prove any number of relevant facts, such as motive, intent, agency, or knowledge.” Wilson, 16 Va.App. at 220, 429 S.E.2d at 234.

Evidence of appellant's past tardiness was relevant on several grounds. First, it was relevant to establish his knowledge that being late would disrupt the court's docket. As the general district court noted, when appellant had been late in the past, his cases had to be nolle prosequied from the court's docket. Second, repeated affronts to the court's dignity are relevant in establishing intent. Prior warnings constitute evidence of willfulness when they go unheeded. For example, in In re Marshall, 549 A.2d 311, 313 (D.C.1988) (per curiam), the appellant argued that the trial judge could not consider the prior occasions on which the defendant, an attorney, had been absent or late. The court held that the prior incidents were relevant to the critical issue of the attorney's willfulness in failing to appear in the instant case and, therefore, the trial court properly considered them as evidence of his contumacious intent.Id. Similarly, in Thompson v. United States, 690 A.2d 479, 482 (D.C.1997) (quoting Williams v. United States, 576 A.2d 1339, 1342 (D.C.1990) ), the court observed that, “ ‘[i]n order to hold a defendant in [criminal] contempt for appearing late, a court must find that the defendant behaved with willful, deliberate, or reckless disregard of the obligation to appear on time.’ ” The court explained,

A wrongful intent is a state of mind, and in most cases it cannot be proved directly. Our case law makes it clear, however, that willfulness will not readily be inferred from isolated instances of late arrival. Where the defendant is a repeat offender, on the other hand, a finding that his conduct was willful has been sustained.

Id. at 483.

We do not hold that any instance of past misbehavior is relevant in contempt cases. Here, however, the behavior in question, being late for a court proceeding, was the very same misconduct that was at issue before the court. On these facts, the circuit court committed no abuse of discretion in considering appellant's past instances of tardiness.²

II. Viewed in the light most favorable to the Commonwealth, the evidence is sufficient for the court to find appellant in contempt .

“Where the court's authority to punish for contempt is exercised by a judgment rendered, its finding is presumed correct and will not be reversed unless plainly wrong or without evidence to support it.” Brown v. Commonwealth, 26 Va.App. 758, 762, 497 S.E.2d 147, 149 (1998). In considering a challenge to “the sufficiency of the evidence ..., we review the evidence in the light most favorable to the Commonwealth, according it the benefit of all reasonable inferences fairly deducible therefrom.” Singleton v. Commonwealth, 278 Va. 542, 548, 685 S.E.2d 668, 671 (2009).

Appellant argues that he lacked the intent necessary for a finding of criminal contempt.³ “Intent may, and most often must, be proven by circumstantial evidence and the reasonable inferences to be drawn from proven facts are within the province of the trier of fact.” Fleming v. Commonwealth, 13 Va.App. 349, 353, 412 S.E.2d 180, 183 (1991). “ ‘Intent in fact is the purpose formed in a person's mind and may be, and frequently is, shown by circumstances. It is a state of mind which may be shown by a person's conduct or by his statements.’ ” Vincent v. Commonwealth, 276 Va. 648, 652–53, 668 S.E.2d 137, 140 (2008) (quoting Hargrave v. Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598 (1974) ). “Circumstantial evidence is as acceptable to prove guilt as direct evidence, and in some cases, such as proof of intent or knowledge, it is practically the only method of proof.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980).

There is no question that “the element of intent” must be present for a defendant to be found guilty of contempt. Singleton, 278 Va. at 549, 685 S.E.2d at 672. Appellant states, without offering any supporting authority, that contempt “is a specific-intent crime.” We disagree. “Specific intent is the intent to accomplish the precise criminal act that one is later charged with.” Winston v. Commonwealth, 268 Va. 564, 600, 604 S.E.2d 21, 41 (2004).

The roots of the courts' contempt power run deep in the common law. Carter v. Commonwealth, 96 Va. 791, 806, 32 S.E. 780, 782 (1899) (“That the English courts have exercised the power in...