COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Elder 

Argued at Richmond, Virginia 

DEBORAH HINTON COURTNEY 

 OPINION BY 

v. Record No. 2481-95-2 JUDGE JAMES W. BENTON, JR. 

 DECEMBER 3, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

L. A. Harris, Jr., Judge 

 Craig S. Cooley for appellant. 

 Richard B. Smith, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 The trial judge found Deborah Hinton Courtney guilty of 

criminal contempt of court. Courtney contends that (1) the 

prosecution was barred by the Double Jeopardy Clause, (2) the 

trial judge erred by refusing to allow Courtney's counsel to 

withdraw, (3) the trial judge erred by refusing Courtney's 

request for a jury trial, and (4) the evidence was insufficient 

to support the conviction. We hold that the prosecution violated 

the Double Jeopardy Clause of the United States Constitution, and 

we reverse the conviction. 

 I. 

 The evidence proved that on December 5, 1994, the trial 

judge entered an order establishing a schedule for Courtney's 

former husband to visit their two children. The order stated 

that Courtney, the father, and their counsel had met with a youth 

service assessment team and that a family service plan had been 
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prepared as a result of that meeting. Consistent with the plan, 

the order granted the father visitation with the children, who 

were in Courtney's physical custody. Emily Blankinship, a 

licensed clinical social worker, was designated to supervise the 

initial visits. 

 The order further provided as follows: 

 2. [Courtney] shall select the name of an in 

home provider who will facilitate the 

father's visitation with the children. The 

in home provider shall be selected from a 

list of names available from the Richmond 

Youth Service Assessment Team case manager. 

[Courtney] shall make her selection and shall 

inform the case manager; Emily Blankinship, 

LCSW; and the father's counsel of the name, 

address and telephone number of the in home 

provider by December 15, 1994. In the event 

[Courtney] does not make her selection by 

December 15, 1994, then the case manager 

shall select the in home provider. 

 3. Beginning January 1, 1995, the in home 

provider shall facilitate and supervise the 

father's visitation with the children for a 

period of three hours each week, at such 

times and places as the in home provider 

directs. Both parties are ordered to 

cooperate fully with the in home provider. 

 4. The children shall continue to have 

counselling sessions with Emily Blankinship, 

LCSW, and [Courtney] shall cooperate fully in 

making the children available for counselling 

at such times and places as Ms. Blankinship 

directs. 

 Upon the father's motion, the trial judge entered an order 

on June 19, 1995, requiring Courtney to appear at a hearing on 

July 17, 1995, "to show cause . . . why she should not be held in 

contempt of court and punished by fine or imprisonment or both 
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for failure to comply with the terms of a plan for providing 

services to the Courtney family and for denying visitation to 

. . . [the father] since December 15, 1994, as ordered by this 

Court on December 5, 1994." At the hearing on July 17, 1995, 

Courtney was present with her counsel. Also present and 

participating as opposing counsel was the Assistant 

Commonwealth's attorney. 

 At the beginning of the hearing, the trial judge stated the 

following: 

 [T]his is a matter that originally started 

out as Joseph Courtney versus Deborah Hinton 

Courtney and by previous orders it was 

transferred to the criminal side of the court 

and styled Commonwealth of Virginia versus 

Deborah Courtney, was a criminal show cause 

where evidence has previously been heard 

pursuant to certain orders of the court and 

we're back for review of that. 

 Called as a witness by the Commonwealth, the father 

testified concerning the plan developed by the youth service 

assessment team and the hearing on December 5, 1994 that 

culminated in the visitation order. He further testified that he 

had supervised visitation with his children until December 18, 

1994 and that he had no visitation after that date. 

 Blankinship testified for the Commonwealth that the last 

visitation she supervised was on December 18, 1994. She also 

testified that Courtney was "absolutely terrorized" about having 

contact with the father. She added that Courtney perceived that 

the children were in "a very, very dangerous environment" when 
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they were having visitation with their father. She testified 

that Courtney "seemed much more distraught, more confused, much 

more agitated than . . . in the past." 

 Courtney's counsel did not present any witnesses at the 

conclusion of the Commonwealth's case. Courtney's counsel made a 

motion to strike the evidence and argued that the Commonwealth's 

evidence failed to prove that the "in-home provider" arranged 

visitations as required by the December 5, 1994 order. In 

response to the Commonwealth's argument that Blankinship's 

testimony was sufficient to prove noncompliance, the trial judge 

stated, "the problem is that the last order of the court, the one 

that needs to be addressed is what happened with the home 

provider." 

 The trial judge then ruled as follows: 

 Well, here's what should happen. And, you 

know, I guess you learn the hard way, but 

anyway, this case at this point is so 

confusing I'm not sure there's anybody on the 

face of this earth could ever figure it out, 

so here's what should happen: Any pending 

show causes that are now pending that start 

back in 1992 and 1993, I'm going to dismiss 

those show causes. 

 Now, there is an order entered by this 

court on December 5th, 1994, that requires 

certain things very specifically. Now, does 

the Commonwealth wish to pursue a show cause 

order based upon the Defendant's alleged 

violation of that order? 

 [ASSISTANT COMMONWEALTH'S ATTORNEY]: Yes, 

Your Honor. 

When Courtney's counsel "object[ed] to the court failing to 
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dismiss the case at this point based on the lack of evidence 

presented," the trial judge responded, "I have dismissed all 

pending show causes." 

 Three days later, the Commonwealth filed a motion to require 

Courtney to show cause why she should not be held in contempt for 

failure to abide by the December 5, 1994 order. The trial judge 

issued a show cause order. Courtney's counsel then filed a 

pleading alleging that the Double Jeopardy Clause barred the 

prosecution for any alleged violation that occurred prior to the 

July 18, 1995 dismissal order. The trial judge denied the plea. 

 At the September 1995 contempt hearing, the Commonwealth 

presented testimony from Blankinship and the father that 

parallelled their testimony at the July hearing. Blankinship 

testified that her last contact with Courtney had been in 

December 1994. Unlike the July hearing, the Commonwealth 

presented testimony from Joan Advent, the in home provider. She 

testified that she and Courtney missed each other's telephone 

calls and that her last contact with Courtney was in February 

1995. At that time, Courtney indicated that she would contact 

Advent to reschedule a meeting. Advent had not talked with 

Courtney since that date and had not attempted to call her. 

 Samuel Rubin, Ph.D., a clinical psychologist, testified as a 

witness for Courtney. He testified that Courtney was extremely 

frightened and "something short of panic[ked]" at the prospect of 

sending the children to visitation with their father. She 
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believed, based on his prior conduct, that the children's father 

would cause them great harm. Dr. Rubin testified that Courtney 

had an anxiety and thinking disorder that prevented her from 

responding rationally to the visitation order. 

 At the conclusion of the evidence, the trial judge found 

Courtney guilty of criminal contempt and sentenced her to five 

months in jail. The trial judge suspended four months of that 

sentence. This appeal followed. 

 II. 

 The Fifth Amendment to the Constitution of the United States 

states that no person "shall be subject for the same offense to 

be twice put in jeopardy of life or limb." The law is well 

settled "that jeopardy means the danger of conviction." Rosser 

v. Commonwealth, 159 Va. 1028, 1036, 167 S.E. 257, 259 (1933). 

Equally well settled is the principle that jeopardy attaches 

"[i]n a trial before a court without a jury . . . when the trial 

has reached the stage where the Commonwealth begins to introduce 

its testimony." Id.

 In opposition to Courtney's claim that she was twice placed 

in jeopardy when she was tried again in September 1995 for 

contempt of court, the Commonwealth initially contends that the 

first hearing that ended in a dismissal of the show cause order 

was not a criminal prosecution. We disagree. 

 The Commonwealth argues that Courtney was not arraigned on 

any charges at the July 17 hearing. However, we note that the 
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record also fails to establish that Courtney was arraigned on any 

charges at the September 29 hearing, which the Commonwealth 

argues was the criminal contempt proceeding. 

 Moreover, at the beginning of the July hearing, the trial 

judge stated: 

 [T]his is a matter that originally started 

out as Joseph Courtney versus Deborah Hinton 

Courtney and by previous orders it was 

transferred to the criminal side of the court 

and styled Commonwealth of Virginia versus 

Deborah Courtney, was a criminal show cause 

where evidence has previously been heard 

pursuant to certain orders of the court and 

we're back for review of that. 

Furthermore, the transcript of that hearing clearly establishes 

that the Assistant Commonwealth's attorney was present and 

presented evidence on behalf of the Commonwealth. Although the 

father testified, he did so as the Commonwealth's witness. The 

transcript contains no indication that the father participated as 

a litigant in his own behalf, and the transcript showed no 

appearance by the father's counsel. Indeed, all of the evidence 

establishes that the parties, including the judge, considered the 

proceeding to be one for criminal contempt. Clearly, the July 17 

hearing was a criminal contempt proceeding in which the Assistant 

Commonwealth's attorney sought to prove that Courtney had 

violated the judge's orders. 

 In addition, the record reveals that the July and September 

proceedings focused on the same alleged offense. The trial judge 

clearly indicated that the July 17 hearing was to encompass 
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allegations concerning violations of all of the orders, including 

the December 1994 order: 

 [JUDGE]: We are here for the show cause 

order for which this court has heard evidence 

from back in 1993 where she had violated at 

that time the visitation Orders of this 

Court. 

 [COURTNEY'S COUNSEL]: Will then argument be 

limited to the evidence that was put on in 

July of '93? 

 [JUDGE]: No, it's going to be heard because 

since that time there were other orders 

entered which she has violated. . . . 

 The record clearly establishes that the Commonwealth 

presented testimony at the July 17 hearing in an attempt to prove 

criminal contempt. That testimony bore exclusively upon 

violation of the December 5, 1994 order. Both the father and 

Blankinship, who supervised the initial visitations, were asked 

by the Commonwealth to testify concerning "what was supposed to 

occur from [the entry of the December 5 order] until this date." 

 Indeed, both witnesses discussed in their direct testimony the 

circumstances that gave rise to the December 5 order and events 

that occurred from December 5, 1994 to the date of the hearing. 

The record establishes beyond dispute that the testimony at the 

September hearing replicated the evidence presented at the July 

proceeding. Therefore, both proceedings focused on the same 

offense. 

 Finally, the record reveals that at the conclusion of the 

Commonwealth's evidence in the July proceeding, Courtney's 
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counsel moved to strike the evidence because of a failure of 

proof. Although the Assistant Commonwealth's attorney argued 

that the trial judge had sufficient evidence upon which to find 

Courtney in contempt, the trial judge stated his concern that the 

person who was designated in the December 5 order to arrange the 

visitations did not testify. When the trial judge dismissed "all 

pending show causes," the only reason stated for the dismissal 

was his view that "this case at this point is so confusing . . . 

[that nobody] on the face of this earth could ever figure it 

out." 

 Obviously, as to conduct that occurred prior to the July 17 

hearing, "dismissal qualifies as an acquittal for double jeopardy 

purposes . . . [because it was] granted pursuant to a factual, as 

opposed to a legal, defense." Greenwalt v. Commonwealth, 224 Va. 

498, 500, 297 S.E.2d 709, 710 (1982). After jeopardy attached at 

the July hearing, Courtney "possessed a valued right to have the 

judge decide [her] case [in] that . . . [proceeding], based upon 

the proof the Commonwealth could adduce [in that proceeding]." 

Harris v. Young, 607 F.2d 1081, 1086 (4th Cir. 1979), cert.

denied, 444 U.S. 1025 (1980). She could not be deprived of that 

right without a "manifest necessity." Arizona v. Washington, 434 

U.S. 497, 505 (1978). No "manifest necessity" for the dismissal 

is present on this record. 

 Accordingly, we hold that the evidence proved that the July 

17 hearing was a criminal contempt proceeding brought to consider 
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whether Courtney's conduct prior to July 17 violated the December 

5, 1994 order. We further hold that when the trial judge at the 

conclusion of the evidence dismissed all pending show cause 

orders, the Commonwealth was barred from relitigating whether 

Courtney's conduct prior to July 17 was criminal contempt of 

court. For these reasons, we need not address the remaining 

issues, and we reverse the conviction. 

 Reversed.