Tokora-Mansary v. Commonwealth, Record No. 2494-08-4 (Va. App. 12/29/2009), Record No. 2494-08-4.
| Decision Date | 29 December 2009 |
| Docket Number | Record No. 2494-08-4. |
| Court | Court of Appeals of Virginia |
| Parties | MARIE CAMARA TOKORA-MANSARY, S/K/A MARIE C. TOKORA-MANSARAY v. COMMONWEALTH OF VIRGINIA. |
Appeal from the Circuit Court of Stafford County, Charles S. Sharp, Judge.
John A. Keats for appellant.
Gregory W. Franklin, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.
Present: Judges Kelsey, Petty and Senior Judge Clements.
At a bench trial, the trial court convicted Marie Camara Tokora-Mansary of various misdemeanor offenses. On appeal, Tokora-Mansary argues the trial court erroneously denied her request for a jury trial. She also challenges the sufficiency of the evidence supporting her disorderly conduct conviction and the trial court's refusal to apply the other-crimes proviso of Code § 18.2-415. Agreeing with her jury waiver argument, but disagreeing with her challenges to the disorderly conduct conviction, we reverse her convictions and remand.
I.
Tokora-Mansary was convicted in general district court of obstruction of justice in violation of Code § 18.2-460(B) and disorderly conduct in violation of Code § 18.2-415. Each conviction carries a possible incarceration term exceeding six months. She appealed to the circuit court seeking a trial de novo. Over the course of a year, the trial date was scheduled continued, and rescheduled five times. Each of the judge's orders scheduled the matter for "trial without a jury." None of the orders, however, stated Tokora-Mansary had expressly waived her right to a trial by jury.
Two days before trial, Tokora-Mansary filed another continuance motion requesting the case be rescheduled for a jury trial. On the morning of trial, the trial court denied her request, stating:
[I]n view of the history of this case, in view of the Defendant's appearance on frequent occasions with other attorneys having this case continued with — for trial without a jury over some period of time, that request was not appropriate at this time which constituted a waiver of a jury.
The trial court then conducted a bench trial and found Tokora-Mansary guilty as charged.1 The court entered conviction orders using standard forms. Each order included various blank check boxes, including one titled "jury waived."
On appeal, Tokora-Mansary contends she never expressly waived her right to a jury and nothing in the trial court record reflects she did so. See Va. Const. art. I, § 8; Rule 3A:13(b).2 We agree. Standing alone, a "scheduling order" merely setting a case down on the court's docket for a bench trial does not suffice because it does not show a "deliberate action by the accused indicating an election to forego her right to a jury trial." Jones v. Commonwealth, 24 Va. App. 636, 639, 484 S.E.2d 618, 620 (1997) (quoting Wright v. Commonwealth, 4 Va. App. 303, 306, 357 S.E.2d 547, 549 (1987)). Such an order could suggest as little as the prediction of defense counsel that his client will accept his jury-waiver recommendation and, at the appropriate time, say as much when the trial court engages the defendant in the colloquy required by Rule 3A:13(b).
In addition, no transcript or statement of facts indicates Tokora-Mansary waived her right to a jury. Nor do we see anything in this record like the "jury waiver form" found acceptable by Commonwealth v. Williams, 262 Va. 661, 668, 553 S.E.2d 760, 763 (2001). The transcript of the trial court's remarks from the bench do not imply that on some prior occasion TokoraM-ansary expressly waived her right to a jury or, if she had, that the court satisfied itself that she did so knowingly, voluntarily, and intelligently.3
Instead, the trial court expressly denied her jury trial demand "in view of the Defendant's appearance on frequent occasions with other attorneys [and] having this case continued" for a bench trial. If a mere scheduling order does not satisfy the recordation requirement, however, neither will a multitude of such orders. That is particularly true where, as here, the conviction orders conspicuously suggest (by their blank check boxes) the defendant did not waive her right to a jury.
The trial court found Tokora-Mansary guilty of disorderly conduct under Code § 18.2-415. Tokora-Mansary argues the evidence was insufficient to support her conviction. She also contends that even if the court finds the evidence sufficient, her conviction should be overturned because her case fits within the other-crimes proviso of Code § 18.2-415. We disagree with both assertions.
On appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). Viewing the record through this evidentiary prism requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted). Our examination of the record, moreover, Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008), aff'g, 49 Va. App. 285, 640 S.E.2d 526 (2007) (emphasis added).
This case stemmed from a two-vehicle accident involving Tokora-Mansary at a busy intersection in Stafford County. A sergeant with the local fire and rescue department arrived at the scene of the accident and encountered Tokora-Mansary who quickly became "very belligerent." The sergeant called the local sheriff's department seeking assistance. Officer Jamie Walker of the Stafford County Sheriff's Office was sent to the scene. Agitated, TokoraM-ansary curtly asked him if he would be "witnessing" the accident. He initially suggested the Virginia State Police would probably conduct the investigation. Officer Walker later decided to investigate the accident himself.
After inspecting the damaged vehicles, Officer Walker attempted to interview TokoraM-ansary. She refused to answer because he was not "witnessing" the accident and then instructed Officer Walker not to speak to her. Her husband, standing nearby, exclaimed to Tokora-Mansary, "[a]re you out [of] your f-ing mind"? Tokora-Mansary then exploded into a loud and profane tirade against her husband. While this outburst continued, Officer Walker noticed the traffic at the intersection was backing up "as far as you could see." Drivers were stopping their vehicles in a nearby parking lot to watch the spectacle of Tokora-Mansary lashing out profanities at her husband. At one point, Tokora-Mansary had put on such a "show" that it "ground the area to a halt" at the intersection.
Officer Walker interrupted the tumult saying, In reply, Tokora-Mansary cursed at the officer and told him to leave. When she told him he "had no business asking her any questions," Walker ordered her to "calm down" because she was behaving in a disorderly manner. Tokora-Mansary insisted she did not have to calm down, and then continued cursing at both her husband and Officer Walker.
Officer Walker repeatedly tried to de-escalate the situation, but Tokora-Mansary would not regain any semblance of self-control. Walker seized Tokora-Mansary by the hand and told her she was under arrest for disorderly conduct. She responded, "no, I'm not." She then "swung away" from Walker and jerked her hand free from his grasp.
Walker again attempted to seize Tokora-Mansary while "continually telling her to stop resisting." While Walker had control of one of her hands, Tokora-Mansary reached into her pocket with her free hand. She "came out with something in her hand" which Walker feared might be a weapon. Reacting quickly, he attempted to employ pepper spray to "get control of her and hopefully incapacitate her long enough to get control of both of those hands." TokoraM-ansary swung upward and struck Walker's hand causing the pepper spray to deploy in his face and eyes. Officer Walker lost his vision at that point, but nonetheless managed to handcuff Tokora-Mansary.
Officer Walker ordered Tokora-Mansary to sit on the curb while he awaited backup. She refused. Walker then pushed her into a sitting position. After a state trooper arrived, Walker received treatment from the rescue squad for his eyes. Afterward, he attempted to complete his interview of Tokora-Mansary who was seated in the state trooper's patrol car. He asked for her identification, but she refused to give it. She also refused to remove her feet from the car door opening to allow Walker to close the door. Walker had to strap her legs together and forcibly move them so the car door could be shut.
At trial, Tokora-Mansary called her husband to the stand. He testified that his wife was not at all belligerent or angry on the day of the accident. Nor did she speak to anyone (including him) in a rude, loud, or profane manner. Tokora-Mansary also testified on her own behalf, likewise disagreeing with Officer Walker's description of the incident. Both Tokora-Mansary and her husband specifically denied that any altercation caused Walker to be affected by the pepper spray.
Sitting as factfinder, the trial court observed "[t]here is no way of reconciling the testimony between the two sides here" as each is "completely inconsistent" with the other. Assessing the "candor of the testimony of the witnesses," the trial court found that the testimony of Tokora-Mansary and her husband was "simply incredible." "The court finds...
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