Becker v. Commonwealth

64 Va.App. 481

769 S.E.2d 683

Andrew BECKER, s/k/a Andrew Ira Becker

v.COMMONWEALTH of Virginia.

Record No. 1611–13–4.

Court of Appeals of Virginia, Richmond.

March 24, 2015.

Robert L. Lichtenstein, Hopewell, for appellant.

Elizabeth C. Kiernan, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: HUMPHREYS, PETTY and DECKER, JJ.

Opinion

PETTY, Judge.

Andrew Becker, a Virginia Beach attorney, was convicted by the Fairfax County Circuit Court, sitting without a jury, of criminal contempt for misbehavior as an officer of the court, in violation of Code § 18.2–456(4).¹ On appeal, Becker assigns two errors to the trial court's judgment. First, Becker argues the trial court erred in finding evidence beyond a reasonable doubt that he intentionally and willfully misbehaved as an officer of the court in his official character. Second, Becker argues the trial court erred by accepting into evidence the certification and transcripts from the general district court because they “included impermissible reference to [Becker's] prior disciplinary record, as well as, irrelevant opinion” of the general district court judge; additionally, Becker argues that this error was not harmless. We disagree and affirm Becker's conviction.

I. Background

“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’ ” Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987) ). “Furthermore, an appellate court's ‘examination is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling.’ Rather, ‘an appellate court must consider all the evidence admitted at trial that is contained in the record.’ ” Perry v. Commonwealth, 280 Va. 572, 580, 701 S.E.2d 431, 436 (2010) (quoting Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008) ). The following evidence is set out with these principles in mind.

Becker was retained by a judgment creditor to collect money owed by a judgment debtor. On November 8, 2012, Becker, through his legal assistant, mailed to the Fairfax County General District Court a “Suggestion for Summons in Garnishment” and a “Garnishment Summons.” Becker used the district court's forms DC–450 and DC–451. The garnishment summons listed a return date,² a case number, and the name and address of the garnishee, who was the debtor's employer. Becker filled in “Irvine, Texas” as the address for the garnishee/employer. Becker included a prepaid certified envelope addressed to the garnishee/employer in Irvine Texas, “Attn: Payroll,” with the documents sent to the district court.

That same day, and before he mailed the garnishment documents to the district court, Becker also sent a facsimile of the garnishment summons, form DC–451, to Automatic Data Processing, Inc. (“ADP”). ADP served as the payroll administrator for the garnishee/employer.³ As a result, ADP received the facsimile garnishment summons before the garnishment documents had even been mailed to the district court. The cover letter to the facsimile stated, “Attached is a complimentary copy of the Garnishment Summons for: [debtor's information] Thanks in advance for your assistance with this matter.” The garnishment summons included the case number and return date that Becker had filled in on the district court form. The summons did not include either a judge's signature or a clerk's signature, nor did it include a date of issuance. Nevertheless, relying on the “complimentary copy” of the garnishment summons, ADP began withholding the debtor's wages.

About two weeks after Becker sent the garnishment packet to the district court, the district court returned it unfiled. The clerk's cover letter noted that the documents were being returned because the garnishee had an out-of-state headquarters. Becker testified that he subsequently “determined that there was a Virginia location,” by which he apparently meant a registered agent, but he did not re-file the garnishment with the correct address.

Becker failed to notify ADP that the garnishment summons was rejected by the district court. Consequently, four times between November 12, 2012 and January 25, 2013 the employer filed a Garnishee's Answer form, using the case number and return date supplied by Becker. These documents indicated that a total of $1278.01 was withheld from the debtor's wages. Checks totaling that amount were made payable to Becker's client and sent to the district court.

On January 30, 2013, after receiving the checks, the district court issued an order requiring the garnishee to stop withholding funds of the judgment debtor and noting that no garnishment was pending or had been filed. Additionally, the court returned the checks to the employer.

Also on January 30, 2013, the district court issued a Show Cause Summons (Criminal) to Becker for “[f]orwarding the attached garnishment summons, not issued by this court, to the Defendant's employer, resulting in funds being held without authority of law.” The date set for the show cause hearing was March 7, 2013. When Becker failed to appear on that date, the district court issued a capias, which was later withdrawn, and rescheduled the hearing for April 11, 2013.

At the April 11, 2013 hearing, documents related to the garnishment summons and suggestion were admitted into evidence, and Becker testified. Becker stated that he had not intended to mislead ADP by use of the “complimentary copy” of the summons. The district court, nonetheless, found Becker guilty of criminal contempt.

Becker appealed the conviction to the Fairfax County Circuit Court. Becker did not contest the admission of “the underlying documentation” presented in district court, but argued the certification of the district court's order and the district court transcripts were inadmissible because the contempt, if any, was indirect rather than direct.⁴ Becker was concerned that the district court's certification contained the judge's personal opinion, which was irrelevant to the issue of indirect contempt because the conduct for which he was charged did not happen in the presence of the court. Likewise, Becker argued the transcripts that were incorporated into the district court's certification contained opinion commingled with the facts and included references to Becker's prior disciplinary record. Nevertheless, Becker conceded that the transcripts should be admitted as evidence, albeit with “a big yellow caution light with respect to the court being able to parse out what are facts and what are opinions.”

The court ruled that the certification and the incorporated transcripts were properly admissible because they contained Becker's explanation of his actions. Nevertheless, the court stressed that it would “make an independent assessment as to whether [Becker's] conduct was contemptible” and would “not consider[ ] [Becker's] prior disciplinary record.” After hearing testimony from Becker, the circuit court found beyond a reasonable doubt that Becker was guilty of contempt. The court specifically noted that its decision rested on the “absolutely misleading” nature of the “complimentary summons.” Further, the court emphasized, “Let me be clear, I have read [the district court judge's] statement. Even absent that statement I would reach the same conclusion. I want to be absolutely clear that this is an independent judgment I'm making based on my assessment of the document.” Becker now appeals his conviction to this Court.

II. analysis

A. The Evidence Was Sufficient to Show Intent

In his first assignment of error, Becker argues the evidence was not sufficient to find him guilty beyond a reasonable doubt of criminal contempt because he did not intentionally and willfully misbehave as an officer of the court. We disagree.

“On review of an insufficiency claim, ‘this Court does not substitute its judgment for that of the trier of fact.’ ” Robinson v. Commonwealth, 41 Va.App. 137, 142, 583 S.E.2d 60, 62 (2003) (quoting Jett v. Commonwealth, 29 Va.App. 190, 194, 510 S.E.2d 747, 748 (1999) (en banc)). “ ‘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.’ ” Id. (quoting Brown v. Commonwealth, 26 Va.App. 758, 762, 497 S.E.2d 147, 149 (1998) ).

“ ‘Contempt is defined as an act in disrespect of the court or its processes, or which obstructs the administration of justice, or tends to bring the court into disrepute.’ ” Id. at 142–43, 583 S.E.2d at 63 (emphasis added) (quoting Carter v. Commonwealth, 2 Va.App. 392, 396, 345 S.E.2d 5, 7 (1986) ).

“ ‘Contempt is, itself, a frame of mind’ that consists in ‘an unwillingness to recognize the authority and dignity of the court.’ ” Abdo v. Commonwealth, 64 Va.App. 468, 477, 769 S.E.2d 677, 681, 2015 WL 1292788 (Mar. 24, 2015) (quoting John L. Costello, Virginia Criminal Law and Procedure § 26.4[1] (4th ed.2014)).

“All courts in this Commonwealth have the power to impose penalties for contemptuous conduct. A court's authority to punish contemptuous conduct is exercised to preserve the power of the court and to vindicate the court's dignity.”

Gilman v. Commonwealth, 275 Va. 222, 227, 657 S.E.2d 474, 476 (2008) (citations omitted). “[I]n criminal contempt proceedings, it is essential to consider whether the accused intended to undermine this authority.” Singleton v. Commonwealth, 278 Va. 542, 550, 685 S.E.2d 668, 672 (2009).

“[W]hether the required intent exists is generally a question of fact for the trier of fact.” Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977). “ ‘Intent in fact is the purpose formed in a person's mind and may be, and frequently is, shown by circumstances.’ ” Abdo, 64 Va.App. at 475, 769 S.E.2d at 680 (quoting Vincent v....