COURT OF APPEALS OF VIRGINIA Present: Judges Kelsey, Pe tty and Senior Judge Clements Argued at Richmond, Virginia MARIE CAMARA TOKORA-MANSARY, S/K/A MARIE C. TOKORA-MANSARAY MEMORANDUM OPINION * BY v. Record No. 2494-08-4 JUDGE D. ARTHUR KELSEY DECEMBER 29, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T 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.

At a bench trial, the trial court convic ted 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 challenge s the sufficiency of th e 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. A. W AIVER OF J URY T RIAL R IGHT Tokora-Mansary was convicted in general district court of obstruction of justice in violation of Code § 18.2-460(B) a nd disorderly conduct in violat ion of Code § 18.2-415. Each conviction carries a possible in carceration 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,

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.continued, and rescheduled five times. Each of th e judge’s orders scheduled the matter for “trial without a jury.” None of the orders, however, stated Tokora-Ma nsary had expressly waived her right to a trial by jury. Two days before trial, Tokora-Mansary file d another continuance motion requesting the case be rescheduled for a jury tria l. On the morning of trial, th e 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 with out 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. E ach 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 reco rd reflects she did so. See Va. Const. art. I, § 8; Rule 3A:13(b). 2 We agree. Standing alone, a “scheduling or der” 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 co uld suggest as little as the prediction of

1 The trial court also convicted Tokora-Mansary of failing to identify herself to a law enforcement officer in violation of Stafford Coun ty Code § 17-7. We dismissed that aspect of the appeal because she neglected to name Staffo rd County as a party in her notice of appeal. See Woody v. Commonwealth , 53 Va. App. 188, 200, 670 S.E.2d 39, 45 (2008). We later granted her a delayed appeal on this issue which will be decided by another panel of this Court.

2 A trial court’s concurrence with the defenda nt’s waiver is implie d by the very act of presiding over a bench trial. See Catlett v. Commonwealth , 198 Va. 505, 507, 95 S.E.2d 177, 178-79 (1956). No specific recordation requireme nt applies to the court’s concurrence. Id. - 2 -defense counsel that his client will accep t his jury-waiver recommendation and, at the appropriate time, say as much when the trial c ourt engages the defendant in the colloquy required by Rule 3A:13(b). In addition, no transcript or statement of f acts 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 notimply that on some prior occasion TokoraMansary expressly waived her right to a jury or, if she had, that th e court satisfied itself that she did so knowingly, voluntarily, and intelligently. 3 Instead, the trial court expressly denied her ju ry trial demand “in view of the Defendant’s appearance on frequent occasions with other atto rneys [and] having this case continued” for a bench trial. If a mere scheduling order does not satisfy the recordat ion requirement, however, neither will a multitude of such orders. That is particularly true where, as here, the conviction orders conspicuously suggest (by their blank ch eck boxes) the defendant did not waive her right to a jury.
B. D ISORDERLY C ONDUCT C ONVICTION The trial court found Tokora-Mansary guilty of disorderly conduct under Code § 18.2-415. Tokora-Mansary argues the evidence was insuffi cient to support her conviction. She also contends that even if the cour t finds the evidence sufficient, her conviction should be overturned

3 We agree with the Commonwealth that T okora-Mansary, as the appellant, has the duty to provide a sufficient record for us to intelligently rule on the issues presented on appeal. See Commonwealth Transp. Comm’r v. Target Corp. , 274 Va. 341, 348, 650 S.E.2d 92, 96 (2007) (citing Williams , 262 Va. at 669, 553 S.E.2d at 764). This principle applies to appeals claiming a trial court violated a defendant’s jury tria l right no less than app eals challenging any other claimed deprivation of a constitutional right. Williams , 262 Va. at 669, 553 S.E.2d at 764. We nonetheless disagree with the Commonwealth that Tokora-Mansary failed to shoulder her burden of producing an adequate record for us to rule on the jury trial issue. Th e court’s orders, read in the context of the trial judge’s re marks in the transcript, provide a sufficient basis for us to rule. - 3 -because her case fits within the other-crimes pr oviso of Code § 18.2-415. We disagree with both assertions. (i) Sufficiency of the Evidence 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 “dis card 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 inferenc es 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, “is not limited to the eviden ce mentioned by a party in trial argument or by the trial court in its ruling. In determining whether there is ev idence to sustain a conviction, an appellate court must consider all the evidence admitted at trial that is contained in the record.” 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 tw o-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 sher iff’s department seeking assistance. Officer Jamie Walker of the Stafford County Sheriff’s Office was sent to the scene. Agitated, TokoraMansary curtly asked him if he would be “witnes sing” the accident. He initially suggested the Virginia State Police would probably conduct the i nvestigation. Officer Wa lker later decided to investigate the accident himself. After inspecting the damaged vehicles, Offi cer Walker attempted to interview TokoraMansary. She refused to answer because he was not “witnessing” th e accident and then

- 4 -instructed Officer Walker not to speak to her. Her husband, standing nearby, exclaimed to Tokora-Mansary, “[a]re you out [o f] your f-ing mind”? Tokora-Ma nsary then exploded into a loud and profane tirade against her husband. Wh ile this outburst con tinued, Officer Walker noticed the traffic at the inte rsection 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, To kora-Mansary had put on such a “show” that it “ground the area to a halt ” at the intersection. Officer Walker interrupted the tumult saying, “w e can’t be doing this. You two need to separate. Everybody needs to calm down.” In re ply, Tokora-Mansary cursed at the officer and told him to leave. When she told him he “h ad no business asking her any questions,” Walker ordered her to “calm down” because she was beha ving in a disorderly manner. Tokora-Mansary insisted she did not have to calm down, and th en continued cursing at both her husband and Officer Walker. Officer Walker repeatedly tried to de-esc alate the situation, but Tokora-Mansary would not regain any semblance of self-control. Walker seized Toko ra-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, T okora-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 he r long enough to get control of both of those hands.” TokoraMansary swung upward and struck Walker’s hand cau sing the pepper spray to deploy in his face

- 5 -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 tr ooper 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 th e state trooper’s patrol car. He asked for her identification, but she refused to give it. She al so 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. Tokor a-Mansary also testified on her own behalf, likewise disagreeing with Officer Walker’s desc ription of the incident. Both Tokora-Mansary and her husband specifically denied that any alte rcation caused Walker to be affected by the
pepper spray. Sitting as factfinder, the trial court obse rved “[t]here is no way of reconciling the testimony between the two sides he re” as each is “completely in consistent” with the other. Assessing the “candor of the testimony of the witn esses,” the trial court found that the testimony of Tokora-Mansary and her husband was “simply in credible.” “The court finds as a matter of fact that the account given by the Commonwealth is a more credible version” of the events. Based upon this finding, the trial court found Tokor a-Mansary guilty of disorderly conduct in violation of Code § 18.2-415. Under settled principles, we review the trial court’s factfinding “with the highest degree of appellate deference.” Thomas v. Commonwealth , 48 Va. App. 605, 608, 633 S.E.2d 229, 231

- 6 -(2006). An appellate court does not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Williams v. Commonwealth , 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia , 443 U.S. 307, 318-19 (1979)) (emphasis in original). “Rather, the relevant question is whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Id. (citation omitted and emphasis in original). These principles recognize that we are “not permitted to reweigh the evidence,” Nusbaum v. Berlin , 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate courts have no authority “to preside de novo over a second trial,” Haskins v. Commonwealth , 44 Va. App. 1, 11, 602 S.E.2d 402, 407 (2004). Governed by this standard, we hold that ample evidence supports Tokora-Mansary’s conviction for disorderly conduct. Under Code § 18.2-415(A), a person is guilty of disorderly conduct “if, with the intent to cause public inconvenience, ann oyance or alarm, or recklessly creating a risk thereof” he public ly “engages in conduct having a dir ect tendency to cause acts of violence by the person or persons at whom, i ndividually, such conduct is directed . . . .” Applied to disorder directed at law enforcement officers, Code § 18.2-415(A) criminalizes words or conduct th at “would cause a reasonable o fficer to respond with physical force or violence” to preempt the anticipated assault or subdue the w ould-be assaulter. Ford v. City of Newport News , 23 Va. App. 137, 144, 474 S.E.2d 848, 851 (1996) (interpreting analogous ordinance); see also Mannix v. Commonwealth , 31 Va. App. 271, 280, 522 S.E.2d 885, 889 (2000); Keyes v. Virginia Beach , 16 Va. App. 198, 200, 428 S.E.2d 766, 768 (1993). As always, guilt or innocence “depends largely on the facts in the particular case, and in the determination of such question not only the nature of the particular act should be considered but also the time and place of its occurrence as well as all the surrounding circumstances.’” Keyes , 16 Va. App. at 200, 428 S.E.2d at 767 (citation omitted).

- 7 -This case involved a police officer attempting to investigate an accident in the midst of snarled traffic at a busy intersec tion. Over a sustained period of time, Tokara-Mansary screamed profanities at the officer, refused to obey any of his commands or answer any of his questions, and loudly cursed at her husband. The tumult reach ed such a level that passing vehicles stopped in a nearby parking lot to find out the cause of al arm. It became obvious to Officer Walker that he would have to use physical force to subdue Tokara-Mansary both for his own safety and the safety of those vulnerably stopped at the intersection wh ile she carried on her tirade. Under the circumstances, the trial court had a sufficient evidentiary basis to find Tokora-Mansary guilty of disorderly conduct. (ii) Code § 18.2-415’s Other-Crimes Proviso Even if the evidence supports her disorder ly conduct conviction, Tokora-Mansary argues her conduct fits within Code § 18.2-415’s proviso that precludes a disorderly conduct conviction based upon “the utterance or display of any words or to include conduct otherwise made punishable” under Title 18.2. The tria l court found the provision inapplicable. We do as well. Code § 18.2-415’s proviso reserves “disorde rly conduct convictions only for conduct not punishable elsewhere in the criminal code.” Battle v. Commonwealth , 50 Va. App. 135, 140, 647 S.E.2d 499, 501 (2007). Sometimes mistaken as a broad limitation on th e statute, the othercrimes proviso has a narrow, “finely calibrated” scope. Id. “It is not enough that the defendant could merely be prosecuted for a Title 18.2 crime because that requires only a showing of probable cause” — rather, the conduct exempted by the other-c rimes proviso “includes only Title 18.2 crimes for which the defendant could be found guilty beyond a reasonable doubt.” Id. Equally important, the other-crimes proviso precl udes a conviction only when the “convictable disorderly conduct is comprised solely of conduct ‘otherwise made punishable under this title.’” Id. at 141, 647 S.E.2d at 502 (emphasis in original). Each distinct act that, in the aggregate,

- 8 -- 9 - constitutes disorderly conduct must be otherw ise punishable under Title 18.2 for the proviso to apply. Tokora-Mansary claims the proviso applies here because she “could have been charged under [Code § 18.2-464] which punishes refusal or ne glect to obey a conservator of the peace or [Code § 18.2-416] which is the abusive language st atute.” Appellant’s Br. at 20. The issue, however, is not whether she could have been charged with other Title 18.2 offenses. It is whether she could have been found guilty beyond a reasonable doubt for such offenses. She could not be convicted under Code § 18.2-464 becau se law enforcement officers are not listed as conservators of the peace in that statute. While she arguably could have been found guilty under Code § 18.2-416 for using abusive language, a convi ction under this section would punish only one of the distinct acts that, in the aggregat e, constituted the basis for her disorderly conduct conviction. In short, Tokora-Mansary’ s disorderly conduct was not “comprised solely of conduct ‘otherwise made punishable’” under Title 18.2. See Battle , 50 Va. App. at 141, 647 S.E.2d at 502 (emphasis in original). The trial court, therefore, did not err in finding the other-crimes proviso inapplicable.
III. Because the trial court erroneously refuse d Tokora-Mansary’s jury demand, we reverse her convictions for obstruction of justice in violation of Code § 18.2-460 and disorderly conduct in violation of Code § 18.2-415. Finding no factual insufficiency or legal error in her disorderly conduct conviction (and none alleged in her obstr uction of justice conviction), we remand both charges for retrial.

Reversed and remanded.