Rozario v. Com., Record No. 1433-05-2.

• Docket Nº: Record No. 1433-05-2.
• Citation: 50 Va. App. 142, 647 S.E.2d 502
• Case Date: July 24, 2007
• Court: Court of Appeals of Virginia

647 S.E.2d 502 50 Va. App. 142 Anselmo M. ROZARIO
v.
COMMONWEALTH of Virginia. Record No. 1433-05-2. Court of Appeals of Virginia, Richmond. July 24, 2007.

[647 S.E.2d 503]

John L. Squires (Nachman & Squires, LLP, on briefs), for appellant.

Josephine F. Whalen, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FELTON, C.J., BENTON, ELDER, FRANK, HUMPHREYS, CLEMENTS, KELSEY, McCLANAHAN, HALEY, PETTY and BEALES, JJ.

UPON REHEARING EN BANC

RANDOLPH A. BEALES, Judge.

50 Va. App. 143

Anselmo M. Rozario (appellant) was convicted by the Chesterfield County Circuit Court, sitting as the fact finder, of

50 Va. App. 144

contempt of court under Code § 18.2-456.¹ He argues that the trial court should not have considered the results of an Alcosensor test as evidence that he appeared intoxicated before the trial court. He also argues that, if the Alcosensor test results were not admissible, then the evidence was insufficient to convict him of contempt. A panel of this Court in a memorandum opinion found the evidence was insufficient to convict appellant of contempt. Rozario v. Commonwealth, No. 1433-05-2 (Va.Ct.App. Nov. 14, 2006). The Commonwealth petitioned for review of this case en banc, which was granted, and we stayed the mandate of the panel. After consideration by the full Court and for the reasons stated herein, we now affirm appellant's conviction.

BACKGROUND

On February 7, 2005, appellant appeared in the General District Court for Chesterfield County on a traffic offense. Based on appellant's bloodshot eyes and the odor of alcohol emanating from him, the general district court judge asked the bailiff to take appellant and have him undergo an Alcosensor test, which came back with a reading of .107% blood alcohol content (BAC). The general district court convicted appellant of contempt pursuant to the provisions of Code § 18.2-456.

Appellant appealed the conviction to the Chesterfield Circuit Court. The general district court, pursuant to Code § 18.2-459,² submitted to the circuit court a "certificate of the

50 Va. App. 145

conviction and the particular circumstances of the offense" with the record from the general district court. The certificate read:

On February 7, 2005 while holding traffic court, I noticed Mr. Anselmo Rozario when he appeared in front of me with bloodshot eyes and an odor of alcohol about him. I had my deputy test him and the reading was .10. I then gave him ten days in jail for Summary Contempt of Court.

The Commonwealth introduced this certificate and rested its case. Appellant then introduced the Alcosensor certificate, showing the .107 BAC results of the Alcosensor test.

The circuit court found appellant was in contempt of the general district court on February 7, 2005, and sentenced him to ten days in jail with five days of that sentence suspended.

647 S.E.2d 504

THE ALCOSENSOR RESULTS

First, appellant asks this Court to find that the trial court inappropriately considered the results of the Alcosensor test. We find the trial court properly considered the Alcosensor results.

Appellant did not object to the admission of the general district court certificate filed pursuant to Code § 18.2-459, which referred to the Alcosensor test. Appellant himself introduced the Alcosensor certificate. In addition, he did not ask that the trial court limit its consideration of the Alcosensor certificate when he introduced the document. Appellant cannot ask for the admission of evidence and then complain when the trial court considers it. See Billips v. Commonwealth, 48 Va.App. 278, 295, 630 S.E.2d 340, 348 (2006) ("It is well settled in Virginia that an appellate court will not `notice error [that] has been invited by the party seeking to take advantage

50 Va. App. 146

thereof on appeal.'" (quoting Saunders v. Commonwealth, 211 Va. 399, 400, 177 S.E.2d 637, 638 (1970))).

As appellant introduced the Alcosensor certificate himself (without asking the trial court to limit its consideration of the document) and he did not object to the introduction of the certificate from the general district court, we find the trial court did not err in considering the results of the Alcosensor test.

SUFFICIENCY

Appellant's second Question Presented asks, "In the absence of evidence of the results of the chemical test for blood alcohol content, was the information contained in [the court's] Statement of Facts sufficient to support the Circuit Court's finding of guilt?" (Emphasis added.)

The trial court did not err in considering the evidence placed before it, as we discussed supra. Therefore, because the results of the chemical test for blood alcohol content were properly admitted and considered by the trial court, appellant's sufficiency argument is moot as the argument's very premise — that the Alcosensor results were admitted in error — is untrue. See, e.g., Midkiff v. Commonwealth, 223 Va. 1, 3 n. *, 286 S.E.2d 150, 151 n. * (1982) (explaining that Midkiff's constitutional argument was premised on a finding that good faith was not an element of Code § 18.2-271.1; therefore, as the Court found good faith was an element of that statute, his constitutional argument was moot). We cannot consider moot arguments on appeal, see Commonwealth v. Harley, 256 Va. 216, 219-20, 504 S.E.2d 852, 854 (1998) (noting that appellate courts do not consider moot issues), and so we do not address appellant's sufficiency question.

CONCLUSION

We find the trial court did not err in considering the Alcosensor evidence. The remaining question is moot.

50 Va. App. 147

Therefore, we affirm appellant's conviction for contempt of court.

Affirmed.

---------------

Notes:

1. Code § 18.2-456 reads, in pertinent part, "The courts and judges may issue attachments for contempt, and punish them summarily, only in the cases following: (1) Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice...."

2. Code § 18.2-459 reads:

Any person sentenced to pay a fine, or to confinement, under § 18.2-458, may appeal therefrom to the circuit court of the county or city in which the sentence was pronounced.... If such appeal be taken, a certificate of the conviction and the particular circumstances of the offense, ... shall forthwith be transmitted by the sentencing judge to the clerk of such circuit court, who shall immediately deliver the same to the judge thereof. Such judge may hear the case upon the certificate and any legal testimony adduced on either side, and make such order therein as may seem to him proper.

---------------

BENTON, J., with whom ELDER and CLEMENTS, JJ., join, dissenting.

Anselmo M. Rozario appealed to the circuit court from an order entered by a judge of the general district court convicting him of summary contempt and imposing a sentence of ten days in jail. See Code §§ 18.2-456, 18.2-458, and 18.2-459 (authorizing district court judges to punish contempt and providing that such convictions can be appealed to circuit court). Rozario contends the circuit court judge erred in ruling that (1) the district court judge properly relied upon the results of an Alcosensor testing device and (2) the evidence was sufficient to prove an act of contempt. I would hold the district court judge erred in relying on the Alcosensor test results and the evidence was insufficient to prove contempt beyond a reasonable doubt.

I.

I disagree with the majority opinion's ruling that Rozario invited the error that he now complains of by introducing into evidence in the circuit court the Alcosensor Worksheet, which the district court judge relied upon and put into the district court file when he convicted Rozario of summary contempt.

647 S.E.2d 505

In the circuit court, the trial judge considered Rozario's appeal at a trial without a jury. In a fairly perfunctory proceeding, the prosecutor offered as evidence a document styled "Statement of Facts," which the circuit court judge apparently accepted as "a certificate of the conviction and the particular circumstances of the offense" pursuant to Code § 18.2-459. The document, which was signed by the district court judge, reads in its entirety as follows:

Statement of Facts

On February 7, 2005[,] while holding traffic court, I noticed Mr. Anselmo Rozario when he appeared in front of

50 Va. App. 148

me with bloodshot eyes and an odor of alcohol about him. I had my deputy test him and the reading was .10. I then gave him ten days in jail for summary contempt of court.

The prosecutor offered no other evidence in his case-in-chief.

In a motion to strike the evidence for insufficiency, Rozario's attorney argued that nothing in the district court judge's statement indicates Rozario "did anything to obstruct the court," that the alcohol test result was inadmissible because it was obtained from an Alcosensor device, that the district court judge had improperly relied upon the test result, and that the evidence failed to establish Rozario obstructed the administration of justice. When Rozario's attorney made this argument, the circuit court judge had no basis to know from the prosecutor's evidence the source of the district court judge's finding because the district court judge's statement did not disclose the type of "test" he had ordered. The "Statement of Facts" merely recited tersely that the district court judge "had [a] deputy test [Rozario] and the reading was .10."

Specifically noting that "nothing in this certificate ... says anything [about an Alcosensor]," the circuit court judge observed "it just says ... he took a test and the reading was .10." The circuit court judge then acknowledged "there's [a document] in the [district court's] file, but that's not in evidence." After Rozario's attorney and the prosecutor disagreed about whether another prosecutor had agreed to stipulate as evidence the "Alcosensor IV Worksheet" that was in the district court's file, the circuit...