Rozario v. Commonwealth, Record No. 1433-05-2 (Va. App. 11/14/2006)

• Decision Date: 14 November 2006
• Docket Number: Record No. 1433-05-2.
• Parties: ANSELMO M. ROZARIO v. [PG] COMMONWEALTH OF VIRGINIA
• Court: Virginia Court of Appeals

Page 1

Unpublished Opinion

ANSELMO M. ROZARIO v. [PG] COMMONWEALTH OF VIRGINIA

Record No. 1433-05-2.

Court of Appeals of Virginia, Richmond.

November 14, 2006.

Appeal from the Circuit Court of Chesterfield County, Herbert C. Gill, Jr., Judge.

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

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

Present: Judges Benton, Clements and Beales.

MEMORANDUM OPINION^*

JUDGE JAMES W. BENTON, JR.

A judge of the general district court convicted Anselmo M. Rozario of summary contempt of court. Rozario contends the circuit court judge erred in ruling that (1) the general 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. We hold the evidence was insufficient to prove contempt beyond a reasonable doubt.

I.

Anselmo M. Rozario appealed to the circuit court from an order entered in the general district court convicting him of summary contempt and imposing a sentence of ten days in jail. See Code §§ 18.2-428 and 18.2-459 (authorizing district court judges to punish contempt and providing that such convictions can be appealed to circuit court). In the circuit court, the prosecutor offered as evidence a certificate of the conviction prepared by the district court judge pursuant to Code § 18.2-459. The certificate reads as follows:

Statement of Facts

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

In a motion to strike, Rozario's attorney argued the alcohol test result was inadmissible because it was obtained from an Alcosensor device, and he contended the evidence failed to establish Rozario obstructed the administration of justice. Specifically noting that "nothing in this certificate . . . says anything [about an Alcosensor]," the circuit court judge overruled the motion to strike the evidence. Rozario's attorney then offered as evidence a copy of the "Alcosensor Worksheet" the general district court judge relied upon in finding "the reading was.10." Rozario's attorney offered no other evidence, rested his case, and renewed his motion to strike.

The circuit court judge ruled that the result of the Alcosensor test was admissible and that the facts in the certificate were sufficient to prove contempt under Code § 18.2-456.

II.

On brief, Rozario presents the following matters for our consideration in this appeal:

ASSIGNMENT OF ERROR

1. The Circuit Court of Chesterfield County improperly convicted Appellant of summary contempt of court because the evidence introduced by the Commonwealth at trial was legally insufficient to support a conviction pursuant to [Code] § 18.2-456.

QUESTIONS PRESENTED

1. Did Judge Laney, in General District Court, and Judge Gill, in Circuit Court, improperly rely on the results of a chemical test for blood alcohol content in finding that Rozario was intoxicated in Judge Laney's court on February 7, 2005?

2. In the absence of evidence of the results of the chemical test for blood alcohol content, was the information contained in Judge Laney's Statement of Facts sufficient to support the Circuit Court's finding of guilt?

Rozario's petition for appeal contained only the two questions presented and did not reference an "assignment of error." The Rules of Court provide that "[o]nly questions presented in the petition for appeal will be noticed by the Court of Appeals." Rule 5A:12(C). For these reasons, we limit our review to the issues fairly presented in the two questions presented, which were raised in the petition for appeal and accepted for review. See Selph v. Commonwealth, 48 Va. App. 426, 434, 632 S.E.2d 24, 28 (2006) (holding that our consideration of an "assignment of error" was barred because it was not presented in the petition).¹

III.

Before commencing the analysis of the substantive issues raised on appeal, we address the suggestion that Rozario invited the errors that he now complains of by introducing the Alcosensor Worksheet into evidence.

Rozario argued at trial, as he does now, that the district court judge improperly relied upon an Alcosensor test result to determine Rozario's blood alcohol content. When Rozario's attorney first made this argument in circuit court, 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 record was silent as to the basis for the judge's factual finding. As his sole evidence in the circuit court, the prosecutor relied on the general district court judge's certificate of conviction, which alleged "the particular circumstances of the offense" in accordance with Code § 18.2-459. The certificate tersely recited that the district court judge "had [a] deputy test [Rozario] and the reading was .10." Thus, the circuit court judge said, "[T]here is nothing in this certificate that says anything [about an Alcosensor test], . . . . it just says . . . he took a test and the reading was.10."

At trial, the prosecutor did not dispute that the district court judge had based the certificate's recitation of facts upon the result of an Alcosensor test. Although the district court's file contained the "Alcosensor IV Worksheet," the prosecutor simply opted not to present it as evidence. When Rozario's attorney proffered the Alcosensor Worksheet, he expressly argued it was the basis for the district court judge's finding and said the judge improperly used it at the summary contempt proceeding.

"While the doctrine of invited error remains good law, it simply has no application where, as here, the record shows that a party clearly objected to a specific ruling of the trial court to which error is assigned on appeal." King v. Commonwealth, 264 Va. 576, 581-582, 570 S.E.2d 863, 866 (2002) (citing Wright v. Norfolk & W. Ry. Co., 245 Va. 160, 170, 427 S.E.2d 724, 729 (1993)). "In order for a procedural waiver to apply, the record must show that a litigant invited a trial court to commit error, either by failing to object or by agreeing to the ruling." State Farm Mut. Auto. Ins. Co. v. Kendrick, 254 Va. 206, 208 n.2, 491 S.E.2d 286, 287 n.2 (1997). Waiver does not apply, when, as in this case, the circuit court judge was fully aware of the objection. Id. The error to which Rozario objected was the district court judge's reliance upon an Alcosensor testing device to establish Rozario's blood alcohol content. By offering the worksheet as an exhibit, Rozario's attorney proffered the underlying support for the finding and, thus, provided proof to support this claim of error. Merely proffering for the record a document that represents a judge's prior ruling does not constitute invited error when the party has made her objection clear. See WJA-TV v. Levin, 264 Va. 140, 159, 564 S.E.2d 383, 395 (2002) (holding that by "merely proffering or agreeing to an instruction consistent with the trial court's prior ruling," a party does not waive its objection to that ruling). Significantly, the Commonwealth has not argued that Rozario has waived the issue.

If Rozario's attorney had not placed the Alcosensor Worksheet into the record, this appeal would likely be subject to dismissal for failure to provide this Court with a complete record to decide the claim of error. See LeMond v. McElroy, 239 Va. 515, 521, 391 S.E.2d 309, 312 (1990) (holding that "the responsibility for presenting an adequate appellate record is upon the appellant who seeks reversal of the decision below"); Ferguson v. Commonwealth, 10 Va. App. 189, 194, 390 S.E.2d 782, 785, aff'd in part, rev'd in part on other grounds, 240 Va. ix, 396 S.E.2d 675 (1990) (holding that "an appellant has the primary responsibility of ensuring that a complete record is furnished to an appellate court so that the errors assigned may be decided properly"). In other words, if Rozario's attorney had not proffered the Alcosensor Worksheet, he would have been precluded from asserting on this appeal that the ".10" recited in the certificate was the reported result of an Alcosensor device. By placing in the record the factual predicate that underlay the district court judge's conclusory finding that the "test . . . reading was .10," Rozario's attorney properly made a record to support the claim that the district court judge relied upon an improper testing device. For these reasons, Rozario is not procedurally barred from raising his questions presented on appeal.

IV.

Supposing that the judge erred in relying upon the results of the Alcosensor test, Rozario contends the evidence was insufficient to prove summary contempt.² Fairly understood, he contends the evidence was insufficient in any event because he argues that "even if [the Alcosensor results] were properly admitted, . . . there is no evidence in the record . . . to sustain a conviction for . . . `misbehavior in the presence of the Court, or so near thereto as to obstruct or interrupt the administration of justice.'" (Quoting Code § 18.2-456(1)). The Commonwealth contends the evidence was sufficient to prove contempt because Rozario's court appearance while under the influence of alcohol caused the judge "to stop the proceeding for the administration of an Alcosensor test to confirm the presence of alcohol."

In pertinent part, Code § 18.2-456 provides that a judge may punish a person summarily for contempt involving "[m]isbehavior in the presence of the Court, or so near thereto as to obstruct or interrupt the administration of justice." Reversing a conviction for summary contempt, the Supreme Court of the United States held that before a judge may invoke "the drastic procedures of the...