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Abdo v. Commonwealth

Court of Appeals of Virginia

March 24, 2015

ALEXY J. ABDO, A/K/A ALEXI J. ABDO
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY. Herman A. Whisenant, Jr., Judge Designate.

Affirmed.

L. Steven Emmert (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: Judges Humphreys, Beales and McCullough.

OPINION

Page 678

[64 Va.App. 471] STEPHEN R. 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 [64 Va.App. 472] 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

Page 679

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 ...


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