COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Bumgardner Argued at Rich mond, Virginia

WILLIAM EDWA RD LALIK MEMORANDUM OPINION * BY v. Record No. 1855-99-3 JUDGE RICHAR D S. BRAY MAY 9, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Robert P. Doherty, Jr., Judge Peter H. White (Leisa Kube Ciaffone ; Hunton & Williams; Gentry , Locke, Rakes & Moore, on briefs), for appellant. Thomas M. McKenna, As sistant Attorn ey General (Mark L. Earley, Attorney General; Jeffrey S. Shapiro, Assistant At torney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. William Edward Lalik (defenda nt) was convicte d in a bench trial for contempt of court in violation of Code § 18.2 -456(5). On appeal, he challeng es the sufficie ncy of the evid ence to prove the existence of "a definite and express order" of th e court and the requisite inte nt to disobey su ch alleged order. Finding no error, we affirm the trial court. The parties ar e fully conversa nt with the re cord, and this memorandum opinion re cites only those fa cts necess ary to a disposition of the appeal.In reviewing the suff iciency of the eviden ce, we consider the record "'in the light most favorable to the Commonweal th, giving it all reasonable infe rences fairly deducibl e therefrom. In so doing, we must discar d the evidence of the accused in conflict with that of the Common wealth, and rega rd as true al l the credible evidence favorable to the Commonwealth . . . .'" Watkins v. Commonwealth , 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998) (citation omit ted). The credibil ity of the witnes ses, the weight accorded the testimony, and the infere nces drawn from the proven facts are matter s to be determ ined by the fact finder. See Long v. Commonwealth , 8 Va. App. 194, 199, 379 S.E.2d 47 3, 476 (1989). The judgment of the trial court will not be di sturbed unless plainly wrong or unsupp orted by evidence. See Code § 8.01-680.

I. On the afternoon of July 27, 1999, de fendant, a Roanoke elementary school principal, appeared volunt arily before the court as a witness for a loca l teacher, then on tr ial for "sol icitation of a felony." Defendant had prev iously advised bo th the teacher and his attorney that defendant wa s required to at tend a meeting elsewhere at 3:00 p.m. However, with the "court appearance supposed to be around 1:00 p.m.," defendant "thought he could do both." Defendant arri ved at the courthouse several minu tes before 1:00 p.m. and was fi rst called to testify at "approximately"

- 2 -1:45 p.m. After seve ral questions on direct examination, the court interrup ted the procee dings briefly to consider an objection by the Commonweal th, releasing de fendant from the witness stand with the follow ing admonition: Mr. Lalik, if you'll step down and step outside and we'll call you back in, in just a second. Within five to ten minutes, around 2:00 p.m., defendant was recalled and resumed the witness stand. However, further issues pertaining to his testimony soon confronted the court, necessitating a second interruption of trial at "about" 2:10 p.m. Again, defendant was released from the witness box and instructed by the court: Mr. Lalik, would you please step down and step outside. We'll call you back in one--- in just a second. After waiting outside the courtroom for approximately ten minutes, defendant advised Roanoke Sheriff's Sergeant J.P. Dame of his 3:00 p.m. appointment and requested Dame to "see . . . the judge and . . . defense attorney" and "let them know [he] really needed to leave." In response, Dame recalled to defendant that "the Judge had basically told him to go outside and wait a minute and he would get him back . . . as soon as possible." Nevertheless, Dame acceded to the request, spoke with the trial judge, and reported to defendant that "it would be a few minutes."

- 3 -Dame testified that defendant then "said something about leaving," and Dame answered, "[you don't] want to ride in a one-way brown taxi . . . and sort of laughed." Defendant admitted responding, "That sounds like a great ride, something I wouldn't want to do." Dame explained that his comment referenced "being arrested and brought to jail if [defendant] didn't wait . . . and testify," and defendant acknowledged that he "understood it" to mean "somebody would . . . come after me." However, when "nothing [had] happened by 2:40 p.m., defendant, although admittedly "familiar with court proceedings" and aware he "had not . . . completed [his] testimony," departed the courthouse for his meeting. 1 At a later hearing on the instant offense, defendant recalled that he "didn't understand" the court's instructions to him "as an order," rather "just a statement" "to go out and wait." He further testified that he construed Dame's mention of a "brown taxi" as "light conversation," not a "serious . . . possibility." Defendant acknowledged "concern[] about leaving and not finishing the testimony . . . that was important" but was "conflicted" by "something important in [his] own life . . . to deal with."

1 As a result of defendant's absence from the criminal trial, the court subsequently declared a mistrial and initiated the subject prosecution.

- 4 -II. Code § 18.2-456(5), in pertinent part, invests "courts and judges" with the power of contempt, together with summary punishment, for "[d]isobedience . . . of . . . [a] witness . . . to any lawful . . . decree or order of the court." Thus, "[a] trial court 'has the authority to hold an offending party in contempt for acting in bad faith or for willful disobedience of its order.'" Alexander v. Alexander , 12 Va. App. 691, 696, 406 S.E.2d 666, 669 (1991) (citation omitted). This "principle applies to the oral orders, commands and directions of the court" as well as written orders. Robertson v. Commonwealth , 181 Va. 520, 537, 25 S.E.2d 352, 359 (1943). An adjudication of contempt will be reversed "only if we find that [the court] abused its discretion." Barnhill v. Brooks , 15 Va. App. 696, 704, 427 S.E.2d 209, 215 (1993). Defendant first argues that the words spoken by the judge, "please step down and step outside[,] [w]e'll call you back . . . in just a second" did not constitute an order. He relies

upon French v. Pobst , 203 Va. 704, 127 S.E.2d 137 (1962), in support of the principle that "'[t]he process for contempt lies for disobedience of what is decreed, not for what may be decreed'" and that "there must be an express command or prohibition." Id. at 710, 127 S.E.2d at 141 (citation omitted). However, the facts of the instant appeal are easily

- 5 -distinguishable from French , an erroneous contempt conviction resulting from a failure to pay money, despite the absence of a predicate "command or direction." Id. Here, the court's command to defendant was clear: "step down and step outside." The court will "call you back . . . in just a second." Significantly, a like directive by the court, which preceded the subject order by only minutes, had been honored by defendant and followed by resumption of his testimony. In both instances, although the court did not designate the instruction as an order that defendant "wait," the import of the words is made manifest by both definition and context. Clearly, nothing in the record would suggest to defendant that he was free to elect whether to go or stay. 2 The court, therefore, correctly concluded, "as a matter of fact[,] that it was a valid order of the court." Thus, confronted with an unambiguous command by the court, the evidence supports the further finding that defendant intentionally disobeyed the order. The record discloses that he appreciated the importance of his presence to the proceedings, was aware that his testimony was incomplete and recall to the

2 Defendant's argument that the absence of a subpoena compromises the sanctity of the order is without merit. Persons "present in court may . . . be called upon to testify although . . . not . . . served with a subpoena," thereby becoming witnesses before the court and subject to attendant jurisdiction. Robertson , 181 Va. at 532, 25 S.E.2d at 357.

- 6 -witness stand was eminent and that consequences would result if he absented himself from the courthouse. Such circumstances provide ample support to the court's factual finding that defendant "understood what was going on" and "knew [he was] violating the court's order." Accordingly, we find that the evidence supported the conviction and affirm the trial court. Affirmed.

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