COURT OF APPEALS OF VIRGINIA Present: Chief Judge Felton, Judges Elder, Frank, Kelsey, Haley, Petty, Beales, Powell and Re tired Judge Clements ∗ Argued at Richmond, Virginia

CLAUDE M. SCIALDONE

v. Record No. 1737-06-1 COMMONWEALTH OF VIRGINIA OPINION BY JUDGE D. ARTHUR KELSEY

JANUARY 13, 2009 BARRY R. TAYLOR v. Record No. 1738-06-1 COMMONWEALTH OF VIRGINIA

EDWARD JONES, S/K/A EDWARD S. JONES v. Record No. 1739-06-1 COMMONWEALTH OF VIRGINIA

UPON REHEARING EN BANC FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Patricia L. West, Judge Marvin D. Miller (Heather Golias; Law Offices of Marvin D. Miller, on briefs), for appellants. Donald E. Jeffrey, III, Senior A ssistant Attorney Ge neral (Robert F. McDonnell, Attorney General, Karri B. Atwood, Assistant Attorney General; Gregory W. Franklin, Assistant Attorney General, on briefs), for appellee.

The trial court found Claude M. Scialdone, Barry R. Taylor, and Edward S. Jones in contempt of court. On appeal, a panel of this Court held the evidence wa s sufficient to support the

∗ Judge Clements participated in the hearing an d decision of this case prior to the effective date of her retirement on December 31, 2008, and thereafter by designation pursuant to Code § 17.1-400(D).contempt findings. Scialdone v. Commonwealth , 51 Va. App. 679, 724-27, 660 S.E.2d 317, 340-41 (2008). The panel remanded the cases for re trial, however, ruling that the trial court improperly conducted a summary contempt proceedi ng and thereby deprived appellants of due process rights associated with plenary contempt. Id. at 718-24, 660 S.E.2d at 337-41. At the Commonwealth’s request, we agreed to rehear the cases en banc . Having done so, we now hold appellants failed to preserve for app eal their argument that the trial court deprived them of due process rights asso ciated with plenary contempt. At no point during the contempt proceeding did appellants object to its summary nature or assert any entitlement to plenary due process rights. Instead, appellants raised these points for the first and only time solely in support of a request under Code § 19.2-319 for bail and a st ay of the judgments pending appeal. A motion under Code § 19.2-319, standing alone, does not preserve issues for a ppeal not previously raised

in the trial court.

I. On July 11, 2006, the trial court began the jury tr ial of Frankie Dulyea on various criminal charges. Scialdone served as lead defense counsel at trial. Jones, a third-year law student, and Taylor, Scialdone’s law partner, as sisted the defense. During the course of the trial, the court suspected Scialdone and Taylor had altered a doc ument offered into evidence. The court also became concerned Jones had added insulting langua ge to an exhibit offered for admission into evidence. The court investigated these conc erns by examining the documents and by summoning additional witness testimony and documentary eviden ce. The court heard some of this evidence while Taylor and Jones were not present in the courtroom. Anticipating where the court’s investigation mi ght end, Scialdone stated he would “like to know what [he’s] being charged with” because he “may want to have a lawyer for that.” In

-2-response, the trial court ruled: “I’m finding you in summary contem pt, all three of you . . . . At this point in time that’s what’s happening.” U pon being advised of this finding, neither Scialdone, Taylor, nor Jones objected to the summary nature of the contempt findings. Nor did they request any procedural rights associated with plenary contempt. Dulyea’s jury trial ended three days later. S hortly after the jury ha d been discharged, the trial court referred back to its ruling made the fi rst day of trial and stat ed: “Pursuant to Code § 18.2-456, I found all three of you in contempt of court.” Upon explaining the rationale behind its ruling, the court sentenced Scialdone, Taylor, a nd Jones to each serve ten days in jail and pay a $250 fine. Once again, none of the appellants obj ected to the summary nature of the contempt findings. Nor did they request any of the procedural protections associated with plenary contempt. That same day, appellants filed notices of appeal. A few days later, appellants filed with the trial court “Motions for Stay of Execution of

Sentence.” 1 Relying on Code § 19.2-319, they requested a “stay of execution of the sentence pending appeal of the contempt c onviction to the Court of Appeals. ” On July 18, appellants also filed a “Motion for Emergency Stay of Sentence” in this Court requesting that we exercise our authority under Code § 19.2-319 to stay the sentences pending app eal. The motions alleged the trial court had not ruled on the motions to stay pending in the trial court. We issued an order noting that “the circu it court’s oral ruling from the bench” found appellants in contempt of court and se ntenced them to an active jail term. See Temporary Stay Order (July 19, 2006). In response, we further noted, appellants ha d “filed motions, pursuant to Code § 19.2-319, with the circuit cour t asking that court for a stay of each of the ten-day sentences for contempt of court pending th e appeals of these cases.” Id. We granted “a temporary stay of

1 Scialdone and Taylor filed their motions in the trial court on July 17. Jones filed his motion on July 18.

-3-the execution of the jail sentences until such time that the circuit court rules on the pending motions filed before it pursuant to Code § 19.2-319.” Id. Our remand was specific and limited:

“We direct the clerk of the circuit court to forward a copy of the written orders addressing these

motions ” to our clerk of court within 14 days. Id. (emphasis added). In response to our remand order, the trial court conducted a heari ng on the request for a stay pending appeal. At that he aring, appellants argued they shoul d be granted bail in order to pursue an appeal challenging the factual sufficiency of the contempt findings and legal validity of the summary contempt procedures. For the first tim e during the trial court proceedings, appellants argued the court improperly found them guilty of summary contempt without providing them with prior notice of the charge, an oppor tunity to prepare a defense, or the benefit of legal counsel. Appellants, however, did not ask the court withdraw its contempt findings, issue a show-cause order outlining the charges, or continue the proceedings so they could reta in counsel and prepare a defense. Instead, appellants criticized the summary nature of the contempt proceedings solely as a preview of the arguments they intended to make on appeal. “[B]ased upon the foregoing,” appe llants argued, they were entit led to “an order of stay of execution of the sentence[s] pending appeal of the contempt conviction[s] to the Court of Appeals of Virginia.” Motions for Stay of Execution of Sentence (July 17-18, 2006). In their attachment to the motions, appellants specifically made clear the scope of their argument to the trial court: “This Court is respectfully requested to consider these authorities in support of the Motion to Stay Execution of Sentence pending appeal.” Id. at Attachment A. The trial court denied the motion for a stay pe nding appeal. Appellant s appealed the trial court’s Code § 19.2-319 ruling and eventually secured from the Vi rginia Supreme Court an order staying execution of the se ntences pending appeal.

-4-With the sentences stayed, the appeal con tinued. Scialdone, Taylor, and Jones filed appellate briefs contending the evidence was insufficient as a matter of law to find them guilty of contempt of court. They also argued that, even if the evidence were su fficient, the trial court erroneously conducted a summary contempt proceed ing that, in effect, de prived them of due process rights available unde r plenary contempt law. A panel of this Court rejected appellants’ ch allenge to the sufficiency of the evidence,

Scialdone , 51 Va. App. at 724-27, 660 S.E.2d at 340-41, 2 but accepted appellants’ due process argument and remanded the cases for retrial using plenary contempt procedures. The Commonwealth filed a petition for en banc rehearing contesting the panel’s decision to remand the cases for retrial. We granted the Commonwealth’s petition for rehearing en banc to reconsider

this issue.

II. Appellants did not petition for en banc rehearing of the panel’s decision finding the evidence sufficient and, thus, we need not r eengage that aspect of these appeals. See generally Ferguson v. Commonwealth , 51 Va. App. 427, 432-33, 658 S.E.2d 692, 695 (2008) ( en banc ) (holding the en banc court would not address issues “affi rmed by the panel opinion” for which appellant “did not pe tition for rehearing en banc ”). We reinstate the panel opinion as to those

issues. Id. We limit our en banc review to the question whethe r appellants properly preserved their appellate challenge to the summary nature of the contempt proceeding and, if so, whether the trial court deprived appellants of procedural rights a ssociated with plenary contempt. Because we answer the first question in the negative, we do not reach the second.

2 The panel reviewed in detail the circumstan ces justifying this conclusion as applied to Scialdone and Taylor. Scialdone , 51 Va. App. at 724-27, 660 S.E.2d at 340-41. The Court had earlier refused to consider Jones’s sufficiency cha llenge and that issue was not before the panel. Id. at 724 n.12, 660 S.E.2d at 340 n.12.

-5-III. Appellants contend the trial court erroneously conducted a summary contempt proceeding and thereby deprived them of due process rights associated with plenary contempt. See generally Int’l Union, United Mine Wo rkers of Am. v. Bagwell , 512 U.S. 821, 826-34 (1994). Nothing in the record, however, shows that appellants ever asked the trial court to recognize any specific procedural right associated with plenary contempt. In other words, appellants argue the trial court erroneously deprived them of proce dural rights they never requested. Rule 5A:18 applies to appellate challenges of summary contempts, Singleton v.

Commonwealth , 52 Va. App. 665, 672-73, 667 S.E.2d 23, 26 (2008) , just as it does to any other non-jurisdictional claim of trial court error. See , e.g. , Nusbaum v. Berlin , 273 Va. 385, 406, 641 S.E.2d 494, 505 (2007) (barring argument that the tr ial court violated de fendant’s due process rights “by summarily convicting hi m of indirect [plenary] crim inal contempt”). Appellants acknowledge this point but argue their motions under Code § 19.2- 319 to stay their sentences satisfy Rule 5A:18. We disagree. Under Rule 5A:18, raising a legal argument in support of one type of relief does not preserve for appellate review th e same argument in support of another type of relief which was

never requested. Put another way, when a “party doe s not simply disagree with the action of the trial court, but seeks the trial court to take action, that action must be expressly sought.” Parker v.

Commonwealth , 14 Va. App. 592, 596, 421 S.E.2d 450, 453 (1992). Thus, a litigant who has merely “ questioned the correctness” of the court’s order bu t did not “expressly indicate the action [he] wanted the trial court to take” cannot appe al on the ground that the trial court erroneously failed to take some required action. Widdifield v. Commonwealth , 43 Va. App. 559, 562-63, 600 S.E.2d 159, 161-62 (2004) ( en banc ) (emphasis in original).

-6-This principle uniformly applies to objections to seating jurors, 3 objections to the same evidence from different witnesses, 4 requests for cautionary instructions, 5 objections alleging witness perjury, 6 and objections to irregularities in jury deliberations. 7 In each example, the point is the same: Except in the most egregious of ci rcumstances, a litigant cannot argue on appeal that the trial court erroneously denied him relief which he never specifically asked fo r in the trial court.

See , e.g. , Bennett v. Commonwealth , 29 Va. App. 261, 280, 511 S.E.2d 439, 448 (1999) (holding “the objecting party must expressly seek the action that it desires the judge to take”); cf. Gray v.

Netherland , 518 U.S. 152, 167-69 (1996) (holding a moti on to exclude evidence does not require a trial court to grant a continuance sua sponte when the court denies the motion).

3 A party who unsuccessfully object s to rulings made during the voir dire of a prospective juror has no appellate complaint as to that juror unless he specifically asked the trial court to strike that juror. See Mu’Min v. Commonwealth , 239 Va. 433, 445 n.6, 389 S.E.2d 886, 894 n.6 (1990); Spencer v. Commonwealth , 238 Va. 295, 306-07, 384 S.E.2d 785, 793 (1989). 4 Thus, an unsuccessful objection “to the admissibility of certain evidence [is] waived by the failure to object to the same evidence subsequently introduced.” Philip Greenberg, Inc. v. Dunville , 166 Va. 398, 404, 185 S.E. 892, 894 (1936). This is true even if “precisely the same fact” was involved and the trial court had ear lier rejected precisely the same objection. Id. ; see also Portner v. Portner’s Ex’rs , 133 Va. 251, 263, 112 S.E. 762, 766 (1922) (holding that, “if it had been error to admit [the challenged evidence] in the first place, subsequent introduction of the same evidence without objection constituted a waiv er of the previous objection”); Charles E. Friend, The Law of Evidence in Virginia § 8-4, at 295 (6th ed. 2003) (“Waiver is found where . . . [t]he objecting party fails to object to the same evidence when subsequently introduced by the opponent.” (emphasis omitted)). 5 A party who unsuccessfully objects to evid ence cannot appeal on the ground the trial court failed to give a cautionary instruction unless he as ked the trial court to give a cautionary instruction. Largin v. Commonwealth , 215 Va. 318, 321, 208 S.E.2d 775, 777 (1974); Berry v. Commonwealth , 22 Va. App. 209, 214, 468 S.E.2d 685, 687-88 (1996). 6 A defendant’s notice to the court that a witness has likely perjured herself is not tantamount to asking the court for a mistri al, an order, or “an y specific remedy.” Elliott v. Commonwealth , 267 Va. 396, 422, 593 S.E.2d 270, 286 (2004). 7 A party cannot appeal the trial court’s failure to take specific ac tion in response to an irregularity in jury deliberations unless the party asked the trial court to do something about it. See , e.g. , Parker , 14 Va. App. at 596, 421 S.E.2d at 453.

-7-This principle, so basic to the nature of the judicial process, underg irds our application of procedural default law. Like most courts, we believe “[o]ur a dversary system is designed around the premise that the parties know wh at is best for them, and are re sponsible for advancing the facts and arguments entitling them to relief.” Greenlaw v. United States , 128 S. Ct. 2559, 2564 (2008) (citation omitted). For this re ason, courts rely “chiefly on the parties to raise significant issues and present them to the courts in the appropriate manner at the appropriate time for adjudication.” Sanchez-Llamas v. Oregon , 548 U.S. 331, 356 (2006) (emphasis in original). In this case, appellants filed motions under Code § 19.2-319 asking the trial court to stay their sentences and admit them to bail pending app eal. We remanded the case for the trial court to address those motions. “Code § 19.2-319 allows for a person who has been convicted of an

offense to be released on bail duri ng the pendency of an appeal.” Bowling v. Commonwealth , 51 Va. App. 102, 108 n.4, 654 S.E.2d 354, 357 n.4 (2007). In this respect, “a ba il proceeding is not an integral part of the guilt-innocence determination. Rather, it is ancillary to the criminal prosecution.” Askew v. Commonwealth , 49 Va. App. 127, 138, 638 S.E.2d 118, 123 (2006) (quoting Commonwealth v. Smith , 230 Va. 354, 357, 337 S.E.2d 278, 279 (1985)) (emphasis added by Askew ). A motion under Code § 19.2-319 does not expressly or implicitly call upon the

trial court to reconsider it s prior rulings or vacate the judgment being appealed. In short, appellants never asked the trial court to grant them any proce dural right associated with plenary contempt. 8 It would be altogether wrong for us to recast the Code § 19.2-319 motions to stay into de facto motions for reconsideration of the merits of the case. Out of “fairness to the trial judge” appell ate courts should not “put a diffe rent twist on a question that is

8 Appellants do not argue that a ny exception to Rule 5A:18 applies, and we will not invoke one sua sponte

. See Edwards v. Commonwealth , 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) ( en banc ), aff’d by unpublished order , No. 040019 (Va. Oct. 15, 2004).

-8-at odds with the question pres ented to the trial court.” Commonwealth v. Shifflett , 257 Va. 34, 44, 510 S.E.2d 232, 237 (1999). If we were to accept appellants’ argume nt, we would impose upon trial courts the sua sponte obligation to vacate a conv iction on grounds raised for the first and only time during a motion for stay pending appeal when the party standing to benefit from the vacature, the defendant, conspicuously chose not to seek such relief. Doing so would be as unprecedented as it would be problematic — particularly in cases where, as here, appe llants “may have had a perfectly good reason” for not specifically asking the tr ial court to proceed under plenary contempt proceedings. Singleton , 52 Va. App. at 672 n.3, 667 S.E.2d at 26 n.3. “One such reason is that the statutory ‘constraints’ of Code §§ 18.2-456 and 18.2-457 do not apply to plenary, indirect contempt proceedings.” Id. (citing Robinson v. Commonwealth , 41 Va. App. 137, 146, 583 S.E.2d 60, 64 (2003)). In many respects, our case parallels Nusbaum . There, a lawyer was held in summary contempt and argued on appeal he was entitled to due process protections available for plenary contempt. Prior to the entry of the final order, the lawyer st ated “specific objections” to the summary proceeding (similar to the ones asserted here) claiming the trial court “violated his due process rights.” Nusbaum , 273 Va. at 404, 641 S.E.2d at 504. The lawyer advised the trial court that he presented his specific objections to “make sure” he “preserved any right of appeal” of the summary contempt finding. Id. The court agreed and invited the lawyer “to state on the record his objections to the contempt of court finding.” Id. at 406, 641 S.E.2d at 505. The lawyer in Nusbaum , however, did not ask the trial co urt to “reconsider and set aside the finding of contempt of court for those reasons.” Id. Stating that “he was not requesting the

circuit court to reconsider its ruli ng,” the lawyer advised the court th at he merely wanted to ensure

-9-that the final order “include the ‘particulars’ of his objecti on” to the summary contempt

conviction. Id. After hearing the lawyer’s specific objections to the contempt finding, the trial court entered a final order confirming its previo us bench ruling finding th e lawyer in contempt. On appeal, the lawyer argued that “having ma de the circuit court aw are of his objections, he had no obligation to ask the court to reconsid er any matter since the co urt had the opportunity, within 21 days of entering the final order, to vacate that order and change its rulings.” Id. at 402, 641 S.E.2d at 503. The Virginia Supreme Court fla tly disagreed. The lawyer could not claim the trial court erred in not vacating its contempt finding on due process grounds, Nusbaum held, because the lawyer never once aske d the court to do so. “Those i ssues, whether the circuit court violated his due process rights by summarily convicting him of indi rect criminal contempt, with no notice of the charge, no plenary criminal h earing, and no substitution of the Commonwealth as the prosecuting party, are ther efore waived on appeal.” Id. at 406, 641 S.E.2d at 505. Like the lawyer in Nusbaum , appellants in this case never as ked the trial court to vacate its oral contempt findings. 9 Nor did they ever seek permission to relitigate the charges using plenary contempt procedures. Both the lawyer in Nusbaum and appellants in this case raised their arguments solely for appellate purposes: the former in an ineffectual effort at preserving the issue for appeal, the latter in an unpersuasive effort to obtain bail pending appeal . In neither instance, however, were the trial courts asked to supply an y neglected due process protection. To be sure, the only difference between Nusbaum and this case is the lawyer in Nusbaum said he was not

9 The trial court’s oral contempt pronouncemen ts were not merely forewarnings of the court’s ultimate decision. In Virginia, contempt orders “orall y pronounced from the bench” are immediately effective and enforceable. Rollins v. Bazile , 205 Va. 613, 616, 139 S.E.2d 114, 116 (1964). A written order memoralizin g an oral contempt finding “doe s not constitute an integral part of, and should not be confus ed with, the judgment itself.” Id. at 617, 139 S.E.2d at 117; see also Jefferson v. Commonwealth , 269 Va. 136, 139-40, 607 S.E.2d 107, 109 (2005) (“[T]he Rollins principle does not affect th e rule that: ‘A court spea ks only through its orders.’”).

- 10 -asking the trial court to vacate its earlier rulings based upon his obj ections to the summary process whereas, here, appellants made no such objections in the first place and thus had no reason to

disavow them later. For these reasons, we find it inconsequentia l that “the trial judge acknowledged she

received and read appellants’ motions for stay before she entered the order finding the men in contempt on Wednesday, July 19.” Post at 23 (emphasis in original ). Exactly the same thing could be said about the trial judge in Nusbaum . Prior to the entry of th e final order, he heard in open court each of the lawyer’s arguments challenging the summary contempt. The objections appeared on the later writte n order. Yet, like appellants, the lawyer in Nusbaum never asked the trial court to vacate its summary contempt findings so the case could be relitigated using plenary contempt procedures. This disconnect fully nega tes the assertion that appellants gave the trial court a sufficient opportunity to “correct the alleged error.” Post at 28. In Nusbaum , as here, the only opportunity being presented to the trial court was the opportunity to sua sponte vacate its earlier rulings when the complaining partie s conspicuously had not asked it to do so.

IV. Because appellants never asked the trial co urt to employ plenary contempt procedures, they will not now be heard to assert the trial court erred by failing to do so. We reinstate the panel’s sufficiency holdings and affirm the trial court’s findings of cont empt against Scialdone, Taylor, and Jones.

Affirmed.

- 11 -Beales, J., concurring, in pa rt, and dissenting, in part. In this difficult case, I have concluded that th e three appellants did, in fact, preserve their objections to the “summary” contempt proceeding used by the trial court, as the trial court explicitly ruled that the h earing was conducted under the su mmary contempt statute and reaffirmed that ruling after the appellants presented their written motions discussing the

inconsistencies between the tria l court’s stated intention to hold a summary proceeding and the actual hearing that the court held. The trial court said at the final hearing: Although you’ve been found in summary contempt and thus have no right to counsel, I have, in f act, read all of the papers and information submitted by Mr. Miller and I’ve also reviewed a memorandum of law submitted by the National Association of Criminal Defense Lawyers. It appears that their position is that this is not summary contempt but some other form of contempt. But I do not find their arguments persuasive. Although this hearing was held to address appell ants’ motion to stay th e execution of their sentences, the trial court clearly considered the substance of appellants’ arguments regarding the procedure used by the court to find them in contempt. Given the recent Supreme Court of Virgin ia decision in George v. Commonwealth , 276 Va. 767, 773, 667 S.E.2d 779, 782 (2008), although the appellants’ arguments and timing in this case were not as specific as we might prefer (and as the majority of this Court would require), I agree with the conclusion of the dissenting opinion that appellants’ argument regarding the contempt procedure used here was preserved as the trial court knew of and ruled on appellants’ objections. Contrast Nusbaum v. Berlin 273 Va. 385, 402-04, 641 S.E.2d 494, 503-04 (2007) (finding Nusbaum specifically told the court that he was not asking that the court reconsider its contempt ruling, thus his argument regarding the court’s procedure wa s not preserved for appeal). Consequently, I believe appellants ’ Question Presented regarding due process must be addressed.

- 12 -Contempt charges are tried either with a su mmary proceeding wherein the trial court acts

based on its own observations from the bench or with a plenary proceeding wherein evidence is presented to the trial court and the accused is afforded the trad itional due process rights of a defendant. Normally, this difference reflects the nature of the contempt – whether the accused’s actions were “direct,” i.e., before the court, or “i ndirect,” i.e., outside the presence of the court:

“The substantial differen ce between a direct and a constructive [indirect] contempt is one of procedure. Where the contempt is committed in the presence of the court, it is competent for it to proceed upon its own knowledge of the facts, and to punish the offe nder without further proof, and without issue or trial in any form.” (Citations omitted). “In dealing with indirect cont empts -- that is, such as are committed not in the presence of the court -- the offender must be brought before the c ourt by a rule or some other sufficient process; but the power of the court to punish is the same in both cases.” [Burdett’s Case ,] 103 Va. [838,] 845-46, 48 S.E. [878,] 880-81 [(1904)].

Davis v. Commonwealth , 219 Va. 395, 398, 247 S.E.2d 681, 682 (1978). Indirect or constructive contempt charges, therefore, are not brought summarily, but must proceed under a more formal procedure than an immediate adjudicati on by the court.

Robinson v. Commonwealth , 41 Va. App. 137, 145-46, 583 S.E.2d 60, 64 (2003) (footnote omitted; alterations in original); see also Cooke v. United States , 267 U.S. 517, 535-37 (1925). Here, the trial court insisted that it was acting un der its summary contempt authority. However, as the court took evidence from people who were not in the courtroom when the offending documents were offered into evidence, these proceedings simply could not have been summary in nature. Therefore, I would find that the trial co urt erred in using the pr ocedure that it followed

here.

- 13 -To determine the appropriate remedy for this procedural error, the sufficiency of the evidence must be considered. Although the majority opinion cite s Ferguson v. Commonwealth , 51 Va. App. 427, 432-33, 658 S.E.2d 692, 695 (2008) ( en banc ), to explain why it does not discuss the sufficiency of the evidence to suppor t appellants’ convictions, the due process and sufficiency arguments are intertwined in this app eal, as the various issues were not in Ferguson

. Id. at 430-32, 658 S.E.2d at 693-95. In addition, Fe rguson’s remaining questions presented, the

ones that the Court en banc did not address, related to different convictions than the one that the

Court en banc did consider. Compare Ferguson v. Commonwealth , 50 Va. App. 351, 355, 649 S.E.2d 724, 726 (2007) (three-judge panel), to Ferguson , 51 Va. App. at 430-32, 658 S.E.2d at 693-95 (sitting en banc ). Here, the sufficiency and due process arguments relate to the same conviction for each appellant, as evidenced by the thre e-judge panel’s explanation in this case that it addressed the sufficiency questi on only “insofar as necessary to assure that their retrial on remand will not violate double jeopardy.” Scialdone v. Commonwealth , 51 Va. App. 679, 724, 660 S.E.2d 317, 340 (2008). Finally, appellants here w on their appeal at the panel level, and, as a result, the one conviction of each appellant was reversed. Conversely, the Ferguson panel opinion reversed only two of Ferguson’s convictions and affirmed the other three convictions. Ferguson did not ask for review of any of the three affirmed convictions, and the Commonwealth in appealing the panel’s decision re garding one of the felony child neglect convictions did not implicate any of the affirmed convictions or the overturned malicious wounding conviction. Therefore, in Ferguson , 51 Va. App. at 432-33, 658 S.E.2d at 695, the Court appropriately decided

that reexamination of the convict ions that the three-judge panel affirmed was not appropriate. That same analysis, for the foregoing reasons, do es not apply in this case, and, therefore, the sufficiency of the evidence must be addressed.

- 14 -In the case of appellant Scialdone, the evid ence was sufficient to convict him of summary contempt, even if the evidence collected by the tr ial court about events th at occurred outside its presence were excluded. Based solely on the docum ents presented to the trial court by Scialdone himself as part of his client’s defense, the trial court had sufficient evidence to find him guilty of summary contempt of court. The first day of the trial, Scialdone attempted to introduce an exhibit (Exhibit 1), dated July 11, 2006, that listed the rules for a Yahoo chat room. The trial court ruled

that Exhibit 1 was irrelevant as the offense for which Scialdone’ s client was being prosecuted

occurred in 2005. Scialdone told the court that he hoped to have the rules for the relevant time period later in the trial. Afte r the lunch break, Scialdone attemp ted to introduce into evidence a second exhibit (Exhibit 2) that th e trial court noted looked exactly like Exhibit 1, ex cept the date was missing from the bottom of Exhibit 2. The c ourt also noticed that the sign-in name for the

chat room was different. Scial done then represented to the cour t that Exhibit 2 was the document that his client’s “father brought to my office when [the client] was arrested .” Scialdone repeated this representation later, duri ng argument over admission of Exhibit 2. The court then told Scialdone that he could put his client’s father on the stand to provide a foundation for admission of the document. The father testified that, after his son was arrested, he and a relative used his wife’s sign-in name, found the chat room rules, printed out two pages, stapled them together, and brought them to Taylor to use in his son’s defense. The trial court noted that Exhibit 2 had only one page and that the sign-in name was di fferent from the name that the father testified he had used.

Scialdone then claimed he first saw the document during lunch. At this point, the trial court discovered a c onnection between Scialdone ’s secretary and the sign-in name on Exhibit 2, told Scialdone to call his secretary and have her come to the courthouse, and also told Scialdone to have Taylor come to the c ourthouse. The trial court then

- 15 -proceeded to take testimony from the secretary and Taylor, asked questions of Scialdone and Jones, and accepted various additional documents that were printed out from the computers in

Scialdone’s law office. Alt hough both Taylor and Jones were excluded during much of this testimony, Scialdone’s counsel acknowledged dur ing oral argument before this Court en banc that

Scialdone was not excluded from the courtroom by the trial court and was, therefore, present during the entire contempt procee ding as it related to him. Although Scialdone represented to the trial court that Exhib it 2 had been provided to his office by his client’s father, that exhibit was clear ly not the one provided by the father, but instead was a copy of Exhibit 1, altered to omit the date. As an attorney and an officer of the court, Scialdone owed a duty of truthfulness and honest y to the trial court. Scialdone’s cavalier representation to the trial court that Exhibit 2, a document that he wanted to present to the jury, was authentic – when it clearly was not – violated this duty. Therefore, although the trial court continued to investigate the production of Exhi bit 2, that deviation fr om summary contempt procedure did not unduly affect Scialdone’s conv iction. Even if the additional testimony and evidence were excluded, the remaining evidence was still sufficient to convict Scialdone of summary contempt of court. Therefore, as th e error in these proceedings was harmless beyond a

reasonable doubt in rela tion to Scialdone, see Dearing v. Commonwealth , 259 Va. 117, 123, 524 S.E.2d 121, 124-25 (2000), I agree with the majo rity opinion’s basic conclusion that his conviction should be affirmed, although I reach th is conclusion for different reasons. In contrast, the trial court f ound Taylor guilty of summary contempt based on the evidence produced by the witnesses that the court examined in its efforts to invest igate the production of Exhibit 2 – not based on the documents proffere d by Scialdone in open court as evidence in the criminal jury trial over which the court was pres iding. The evidence that Scialdone introduced in

- 16 -an attempt to have Exhibit 2 admitted did not im plicate Taylor in any wrongdoing before the trial court. In fact, Taylor was not even in the cour troom until the trial court ordered Scialdone to call

and tell him to come to the courtroom. 10 Only after the trial court as ked questions of the secretary, Scialdone, Taylor, and Jones did th e trial court find that the evid ence implicated Taylor in the commission of a fraud on the court. Therefore, th e error in relation to Ta ylor’s conviction was not

harmless. See id. As the error was not harmless, and as Taylor argues that the evidence was insufficient to convict him of contempt, I believ e we should also consider the sufficiency of the evidence to

convict him in order to determine if the convic tion should be remanded for retrial or dismissed. See, e.g. , Leybourne v. Commonwealth , 222 Va. 374, 377, 282 S.E.2d 12, 14 (1981). After reviewing the totality of the evidence ag ainst Taylor, I would fi nd that the trial court

had sufficient facts before it to allow a rationa l factfinder to conclude that Taylor acted in contempt of court. Taylor was the first person in the law office to see the original document, as the client’s father gave the copy of the chat room’s guidelines to Taylor rath er than to Scialdone. In addition, when the secretary returned to the offi ce at the court’s direction to attempt to replicate Exhibit 2, Taylor’s computer produced a documen t exactly like Exhibit 2, except that document had a date at the bottom. Taylor himself admitte d that he was in the office when his partner and Jones were working on the case and that he helped th em prepare. He also testified that Exhibit 2 was the document given to him by the client’s fath er, and he claimed that, after Scialdone called and asked him to look for it, he found it on a tabl e in their conference room during the criminal trial’s lunch break. The secretary testified that Taylor was the atto rney who asked her to print off

the chat room rules.

10 Although Taylor came to the courthouse w ith Scialdone’s secretary, the trial court excluded Taylor from the courtroom duri ng the secretary’s and Jones’s testimony.

- 17 -Considering all these facts, I would find that the evidence was sufficient to support the trial court’s finding of contempt. However, this eviden ce was not properly before the court in Taylor’s summary contempt proceedings, and Taylor was improperly excluded from the courtroom during the contempt hearing when the trial court heard important parts of the testimony concerning him. Therefore, I would reverse and remand Taylor’s c onviction for a new plenary contempt hearing if the trial court or the Commonwealth be so inclined, rather than dismiss the conviction outright based on the procedural errors. Id. Consequently, I must dissent from the majority opinion’s affirmation of Taylor’s conviction. Finally, Jones also was found in contempt base d on evidence presented after the trial court began taking evidence and questioning witnesses. The trial court had Jones sworn as a witness after hearing testimony from Taylor and the secret ary. Jones admitted that he helped prepare the case before trial, but told the trial court that he was not present in the office during lunch. Instead,

he went out to eat with his wife and her sister. Jones then admitted that he created and used the offending sign-in name that appeared on Exhibit 1 a nd that he printed out that document. The trial court then ordered Jones to go outside the courtr oom while Scialdone presented his explanations

for Exhibits 1 and 2. Prior to the confession by Jones, the trial co urt did not have sufficient evidence to convict him of summary contempt. Theref ore, the trial court’s error was not harmless error in relation to Jones, especially as the trial court also imprope rly excluded him from the courtroom during part of the contempt proceedings against him. However, unlike Taylor, the sufficien cy of the evidence to convict Jones was not actually before us in his appeal, and so, consequently, I would presume that

- 18 -the totality of the evidence was sufficient to convict him. 11 Thus, for the foregoing reasons, I would also reverse Jones’s conviction and remand the conviction for a new plenary contempt hearing, if the trial court or the Commonwealth be so inclined. See id. Based on the foregoing analysis, I concur in the majority opinion’s conclusion affirming the trial court’s conviction of Scialdone, alt hough I do so on alternate grounds. However, as I cannot agree with the majority opinion’s affirm ation of Taylor’s and Jones’s convictions, I respectfully dissent in relation to t hose appeals, for the foregoing reasons.

11 Jones’s petition for appeal regarding the su fficiency of the evidence to convict was not granted. (Thus, he did not argue to the panel or to the Court en banc that the evidence was insufficient to support his conviction. ) Therefore, I agree with the conclusion of the majority that, in relation to Jones, we should notconsider the sufficiency of the evidence to support the contempt finding.

- 19 -Elder, J., with whom Felton, C.J., and Clements, J., join, dissenting. I believe the majority’s application of Rule 5A :18 to bar this appeal reaches new heights in elevating form over substance and extends the boundaries of the rule far beyond those previously set out in Virginia’s appellate decisions. Here, appellants objected to th e trial judge’s finding of contempt when she sentenced them. Although they did not detail the basis for their objection at that time, they did so just a few days later in written motions for stay of execution of sentence, which they filed before the trial judge entered an order memorializing her contempt ruling. More importantly, the trial judge acknowledged she read the motions prior to entering the contempt order. The motions specifically challenged the validity of the contempt rulings, alleging the trial judge, by calling witnesses and gathering eviden ce, exceeded the bounds of summary contempt proceedings without affording appellants the a dditional procedural rights to which they were entitled in non-summary proceedings. The trial judge was clearly made aware of appellants’ specific objections to the contempt findings at a time when the matte rs were still within the breast of the court, and the trial judge expressly rejected those arguments in a later ruling on the record denying the motions for stay of exec ution of sentence. On these fact s, I do not believe appellants were required to request a partic ular form of relief—the vacating or setting aside of the findings of contempt and the related sentences made from th e bench but not yet memorialized in a written ruling—in order to satisfy Rule 5A:18. For the reas ons set out in the major ity opinion at the panel stage, Scialdone v. Commonwealth , 51 Va. App. 679, 710-24, 660 S.E.2d 317, 332-40 (2008), I continue to believe each appellant was denied his right to due process in proceedings that clearly exceeded the bounds appropriate for summary contempt. I also continue to believe remand of Scialdone and Taylor for retrial in proceedings comporting with due pr ocess would not offend double jeopardy principles. Id. at 724-27, 660 S.E.2d at 340-41. Thus, I respectfully dissent.

- 20 -I. Because I believe the majority opinion fails adequately to recount the sequence of events and some of the key facts related to t hose events, I briefly detail those here: When the underlying criminal trial of Fra nkie Dulyea began in July 2006, Scialdone and third-year law student Jones serv ed as trial counsel. Taylor, Scialdone’s law partner, was not present in the courtroom for any of the proceedings in Dulyea’s case. Taylor appeared only when, in the midst of trial on Wednesday, July 12, the j udge directed Scialdone to use the telephone in the courtroom to summon Taylor and one of the firm ’s secretaries to come immediately to court. The judge ordered Scialdone not to provide them with any explanation for the judge’s demand. Once Taylor and the secretary ar rived, a significant portion of th e judge’s inquiry concerning the questionable exhibit occurred outside the presence of all but Scialdone and before the trial judge ever used the word contempt. Once she did stat e she was finding the men in contempt, Scialdone and Taylor both challenged the sufficiency of the evidence to support a finding of contempt, arguing the evidence amounted to neg ligence at most. Scialdone also inquired about the nature of the proceedings and said, “I may want a lawyer,” which prompted a ruling from the trial court that the proceedings were for summary contempt. Th e judge indicated, “We will finish [Mr. Dulyea’s criminal] trial and then we will have hearings on [the contempt] matter as far as . . . anything else you might want to say.” Immediately following the conclusion of Du lyea’s trial on Friday, July 14, 2006, the trial judge stated the basis for finding each man in c ontempt and pronounced a sentence of ten days and a $250 fine for each. She ordered Scialdone and J ones to begin serving their sentences on Sunday, July 16, and allowed Taylor to delay reporti ng until July 24. Taylor responded, “Note our exception for the record please.” The three men then filed notices of appeal of the judge’s

- 21 -contempt findings. 12 However, because the trial cour t did not enter an order embodying the contempt rulings and sentences until after the notices of appeal were filed, the notices of appeal did not take effect until Wednesday, July 19, the date on which the final order was entered. See

Saunders v. Commonwealth , 12 Va. App. 154, 155, 402 S.E.2d 708, 709 (1991). On Monday, July 17, two days prior to the trial judge’s entry of the contempt order, Scialdone and Taylor filed motions for stay of execution of their sent ences pursuant to Code § 19.2-318. On Tuesday, July 18, Jones filed an identical motion. Each of the motions averred that, although the proceedings were conducted in a summary fa shion, “[t]he conduct upon which the Court relied was not wholly contained w ithin the record of th e [underlying criminal] proceedings [against] Dulyea” and that “[t]he Court conducte d an investigation that included [summoning and] interrogat[ing] . . . witnesses who were not participants in the trial proceedings” and using the court’s deputy sheri ff to gather evidence from comput ers at counsel’s law office. Appellants alleged that because the proceedings were not in fact summary proceedings, they

should have been allowed time to obtain counsel a nd prepare a defense. Thus, the basis of the motions for stay of execution of sentence pending appeal constituted a claim of the likelihood of success on the merits of the appeals. On Wednesday, July 19, appellants filed in the Court of Appeals an emergency motion for stay of execution of sentence indi cating two of them were already serving their sentences and that the circuit court “ha[d] been unwilling to say yes or no” to th eir motions for stay filed in that court, which they alleged “[was] tantamount to a denial” of those motions. The Court of Appeals, in the course of attempting to resolve appellan ts’ emergency motions, learned the trial court had

12 Scialdone and Taylor filed their notices of appeal on Friday, July 14. Jones filed his notice of appeal on Tuesday, July 18.

- 22 -not yet prepared or entered a writ ten order finding the men in contempt. In response to the Court of Appeals’ inquiry, the trial judg e prepared and entered the written contempt order that day. The record clearly indicates the trial judge acknowledged she received and read appellants’ motions for stay before she entered the order finding the men in contempt on Wednesday, July 19. Manifestly, then, at a time when the trial judge retained authority to set aside the contempt findings and initiate plenary proceedings, she was aware of appellants’ clai ms that the contempt proceedings should not have been conducted summa rily and that appellants should have been allowed time to obtain counsel and prepare a defense.

II. Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objecti on was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of App eals to attain the ends of justice.” The purpose of the rule is to avoid unnecessary appeals, reversals, and mistrials by requiring litigants to inform the trial judge of the action complain ed of so that the judge has the opportunity to consider the issue intelligently and ta ke timely corrective action. See, e.g. , Robinson v.

Commonwealth , 13 Va. App. 574, 576, 413 S.E.2d 885, 886 (1992). Formal exceptions to rulings are not necessary as long as the party “makes known to the court [ either (1)] the action which he

desires the court to take or [(2)] his objections to the action of the court and his grounds therefor.” Code § 8.01-384(A). The majority holds that “Under Rule 5A:18, raising a legal argume nt in support of one type of relief does not preserve for appellate re view the same argument in support of another type of relief which was never requested.” (Emphasi s omitted.) Although this has been the practical

result in some prior cases under particular factual scenar ios, until today, neither this Court nor any

- 23 -higher appellate court whose decisions are binding upon us has held such a principle must be applied in all cases. In announcing such a rule, the majo rity unnecessarily tightens procedural bar boundaries well beyond the text of Rule 5A:18 and Code § 8.01-384(A), which, as quoted above, expressly provides that either a statement of the action the object ing party desires the court to take,

i.e. , the relief he seeks, or a statement of his objection to the court’s action and the grounds for that objection is sufficient to pres erve the objection for appeal. The cases upon which the majority relies ar e factually distinguishable and do not dictate the result the majority reaches in this case. In a few well-defined areas, established principles require the objecting party to request a specific form of relief. A classic example is the requirement that a defendant who desires a mistri al must request one promptly upon occurrence of

the event on which he claims entitlement to the mi strial; a mere objection to the event or a request for a cautionary instruction is insufficient to pres erve the mistrial claim for appeal. See, e.g. , Bennett v. Commonwealth , 29 Va. App. 261, 280, 511 S.E.2d 439, 448 (1999); see also Manetta

v. Commonwealth , 231 Va. 123, 127 n.2, 340 S.E.2d 828, 830 n.2 (1986) (recognizing the well-settled principle that, where a defendant successfully objects to the admission of evidence and requests that it be stricken or obtains a ru ling that evidence is admissible for only a limited purpose, a court has no duty to give a cautionary or limiting instruction unless the defendant specifically requests one). The majority cites Bennett for the general proposition that “‘the objecting party must expressly seek the action that it desires the judge to take.’” However, Bennett involved a very specific factual context—allegedly objectionable comments made by a prosecutor during closing argument in a jury trial. 29 Va. App. at 280, 511 S.E.2d at 448. We made the statement quoted by the majority in that unique context, holding that “ [w]hen allegedly improper comments are made

- 24 -during closing argument in the guilt phase of a [jury] trial , the objecting party must expressly

seek the action that it desire s the judge to take.” Id. (emphasis added). We listed as the only two choices under those circumstances making a moti on for a mistrial or requesting a cautionary

instruction. Id. at 280-81, 511 S.E.2d at 448. The Court ack nowledged that requiring a defendant to make a prompt, specific request for a mistrial under these particular circumstances is a rule requiring “strict application,” to wh ich “[t]here appears to be no exception in Virginia law.” Id. at 281, 511 S.E.2d at 449. Thus, our holding in Bennett belies the majority’s assertion that such a strict rule applies in every case

. The majority focuses on this and other situations in which Virginia’s appellate decisions have held that a prompt request for a specific type of relief is pa rticularly important to avoid the need for retrial. However, not a ll situations require a re quest for a specific form of relief, as Code § 8.01-384(A) expressly acknowledges, or require that the ob jection be stated at a particular point in time and no other. Unless a more specific rule applies, as is the case for certain mistrial motions, a party challenging a court’s determinati on “may meet the mandat es of Rule 5A:18 in many ways.” Lee v. Lee , 12 Va. App. 512, 515, 404 S.E.2d 736, 738 (1991) (en banc). For instance, counsel may make cl ear the ground for his objection in a motion to strike the evidence or in closing argument. Counsel may also state the grounds therefor during a moti on to set aside the verdict or a motion to reconsider. Likewise, counsel may . . . include an objection and reasons theref or in the final order or at least tender such an order to the trial judge.

Id. at 515-16, 404 S.E.2d at 738 (citations omitted); see George v. Commonwealth , 276 Va. 767, 773, 667 S.E.2d 779, 782 (2008) (reversing the decisi on of this Court applying Rule 5A:18, holding that “[a]lthough [the defe ndant] did not use the phrase ‘f atal variance,’ his arguments before the trial court [in objecting to a jury instruction and moving to set aside the jury’s verdict] were sufficient to put that cour t on notice of his position regardi ng the inconsistency between the

- 25 -indictment and the jury instruction”); cf. Jay v. Commonwealth , 275 Va. 510, 517-20, 659 S.E.2d 311, 315-17 (2008) (holding that th e Court of Appeals may not dismiss on jurisdictional grounds appeals that fail to comply with the requirement of Rules 5A:12(c) and 5A :20(e) that a petition include “[t]he principles of law, the argument, and the auth orities relating to each question presented” and that, although the Court may deny such appeals on waiver pr inciples, it “should . . . consider whether any failure to strictly adhere to the requi rements of Rule 5A:20(e) is insignificant, thus allowing the court to addr ess the merits of a question presented”). Where a party wishes to preserve objections for appeal through a mo tion filed after entry of the final decree or order, he must obtain a ru ling from the trial court in compliance with Rule 1:1 in order to preserve the issue for appeal. See Weidman v. Babcock , 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991); Smith v. Smith , 18 Va. App. 427, 433, 444 S.E.2d 269, 274 (1994). However, where a party makes his objections known to the court prior to or at the time of entry of

a final order or decree and does not specifically disclaim the desire to have the court rule on those objections, entry of a final order or decree adverse to those objections constitutes a rejection of them and preserves them under Rule 5A :18 for purposes of appeal. Compare Kaufman v.

Kaufman , 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3 (1991) ( holding objections we re preserved for appeal where the party “made known to the tr ial court his position through his memoranda and other written correspondence with the court prio r to the court’s issuan ce of its amended final decree” and “the trial judge specifically acknow ledged the existence of [his] objections”), with

Nusbaum v. Berlin , 273 Va. 385, 406-06, 641 S.E.2d 494, 503-05 (2007) (holding the appellant waived the right to challenge his contempt conviction on due process grounds where, inter alia , he objected to the trial court’s ruling on due proce ss grounds prior to entry of the final order but specifically stated he was not as king the trial court to change th e oral ruling already pronounced

- 26 -and the trial court never ruled on the objections he raised), and Widdifield v. Commonwealth , 43 Va. App. 559, 562-63, 600 S.E.2d 159, 161-62 (2004) (e n banc) (in a revocation proceeding in

which the trial court ruled the defendant was not entitled to credit fo r twelve months she previously served in jail as a condition of the suspension of a two-year prison sentence, during which defense counsel said first, “I understand,” and then said, without elaboration, “I’m not sure that’s how it works,” holding counsel’s re marks did not make clear what relief, if any , counsel desired and, thus, “[a]ppellant fail ed to state an objection ‘toget her with the grounds therefor’ at the time of the ruling”). The majority’s assertion in footnote 8 that “contempt orders ‘orally pronounced from the bench’ are immediately effective and enforceable” is co rrect as far as it goes, but what the majority does not make clear is that the princi ple upon which this language is based applies to all judgments , not just those for contempt. Rollins v. Bazile , 205 Va. 613, 616-17, 139 S.E.2d 114, 116-17 (1964) (involving trial for contempt follo wing Rollins’s “refusing to . . . submit to an examination by a physician appointed by the court to determine whether he was physically able to appear in court and testify”). Further, in deciding Rollins , the Court noted the relevant sequence of events in that case included not only the or al pronouncement of the ruling but also the spreading of an unsigned order memorializing that ruli ng on the order book on a particular day. Id. at 618, 139 S.E.2d at 118. On those facts, the Court held that the lack of the judge’s signature on the order was not dispositive and that “[t]he copy of the order of conviction spread on the order book under date of August 6, 1963, was notice to the petitione r [Rollins] of the judicial determination of the matter,” after which, in fact, he filed a tim ely petition for appeal and motion for bond pending appeal. Id. at 617-18, 139 S.E.2d at 117-18. Thus, to the extent that all oral rulings are immediately effective and enforceable, this fact does not negate the principle that the date of the

- 27 -court’s endorsement of the order, or the date it is spread on the or der book without endorsement, is the date from which other relevant time periods are calculated, i.e., the 21-day time limit of Rule

1:1 or the date of effectiveness of a prematurely filed notice of appeal. Cf. Jefferson v.

Commonwealth , 269 Va. 136, 139, 607 S.E.2d 107, 109 (2005) (“[W ]e point out that the Rollins principle does not affect the rule that: ‘A court speaks onl y through its orders.’” (quoting Cunningham v. Smith , 205 Va. 205, 208, 135 S.E.2d 770, 775 (1964))). Here, appellants presented their objections to the summary nature of the proceedings in their motions to stay execution of sentence. Alt hough the motions for stay we re filed afte r the trial court’s oral pronouncement of sent ence and after appellants filed their notices of appeal, the notices of appeal did not take effect until af ter the trial court entered the written order memorializing its contempt rulings and sentences. The trial court expressly stated that, before it entered the contempt order on July 19, 2006, it read appellants’ motions for stay. The trial court clearly was aware of appellants’ claims that the contempt proceedings were not in fact summary proceedings and, thus, that they should have been afforded various rights including time to obtain counsel and prepare a defense. The judge had am ple notice and opportunity to correct the alleged error before entering the final orde r but opted to take no action becaus e, as she later detailed on the record in denying the motions for stay, she believ ed summary proceedings were proper and that appellants received all the rights to which they were entitled. The Supreme Court’s recen t holding in Nusbaum does not support a different result. In

Nusbaum , the Court relied on dual grounds for concludi ng his due process object ions were barred by that Court’s Rule 5:25. 273 Va. at 404, 641 S. E.2d at 504. It emphasized that Nusbaum did not raise his due process objections for the first time until more than two months after the court found him in contempt and that he never request ed a ruling on those objections, stating instead,

- 28 -each time he asserted his objections, that he wa s not asking the court to change its ruling. Id. at 404, 641 S.E.2d at 504. The Court also emphasized that the trial court in fact never ruled on any aspect of the due process objections Nusb aum attempted to raise on appeal. Id. at 403-04, 641

S.E.2d at 504. The Court held that because “N usbaum did not afford the circuit court an opportunity to rule intelligently on the due process issues that he now rais es,” those issues were “therefore waived on appeal.” Id. at 406, 641 S.E.2d at 505. The holding in Nusbaum is readily distinguish able from appellants’ cases. Here, during the very first stage of the contempt proceedings on July 12, Scialdone specifically inquired about the nature of the proceedings, whet her the contempt was civil or cr iminal, and said, “I may want a lawyer.” In response, the trial court ruled th at the proceedings were for summary contempt. Although Scialdone did not pursue the issue further at that point, th e men objected generally to the contempt findings and punishment pronounced orally on July 14. Further, w ithin four days after the court’s oral pronouncement of appella nts’ contempt sentences and two days before the trial

court entered the order memorializ ing its contempt findings, appell ants filed motions challenging those findings on the merits based on the specific due process claims th ey assert on appeal. Although these challenges were made via motions to stay execution of their sentences, the contents of the motions made clear that appellant s challenged the validity of their convictions and specifically articulated their r easons for that belief. Further, unlike Nusbaum, who twice specifically disclaimed a desire to have the tria l court rule on his objectio ns, the appellants never indicated that they did not wish to have the tria l court consider their due process arguments and in fact attempted to obtain a prompt ruling on the moti ons by the trial court, albeit in the context of seeking a stay of execution of their sentences. Finally, and key in distinguishing the two cases, in a proceeding held on the record, the trial court ma de clear it read those motions--and, thus, was

- 29 -aware of the appellants’ due process claims--before it ente red the July 19, 2006 order finding appellants in contempt. Unlike in Nusbaum , appellants “afford[ed] the circuit court an opportunity to rule intelligently on the due pr ocess issues that [the y] now raise[],” id. , thereby satisfying the requirements of Rule 5A:18.

III. Thus, contrary to the position taken by the majority, appellants assumed “responsib[ility] for advancing the facts and arguments entitling them to relief,” see Greenlaw v. United States , 128 S. Ct. 2559, 2564 (2008) (citation omitted), and “pre sent[ed] [those arguments] to the court[] in [an] appropriate manner at [an] appr opriate time for adjudication,” see Sanchez-Llamas v. Oregon , 548 U.S. 331, 356 (2006). To hold that our consider ation of this issue on appeal is somehow “[un]fair[] to the trial judge” because it “put[s] a different twist on a question that is at odds with the question presented to the trial court,” see Commonwealth v. Shifflett , 257 Va. 34, 44, 510 S.E.2d 232, 237 (1999), is patently wrong, and this principle should not be used to bar

consideration of this appeal on the merits. On the merits, for the reasons set out in the pa nel’s majority opinion, I continue to believe each appellant was denied his right to due proces s in proceedings that clearly exceeded the bounds appropriate for summar y contempt. Scialdone , 51 Va. App. at 710-24, 660 S.E.2d at 332-40. I

also continue to believe remand for retrial of Scialdone and Taylor in proceedings comporting with due process would not offend double jeopardy principles. See id. at 724-27, 660 S.E.2d at

340-41.

- 30 -

# VIRGINIA: In the Court of Appe als of Virginia on Tuesday 

### the 10th 

### day of June, 2008

.

Claude M. Scialdone, Appellant, against Record No. 1737-06-1 Circuit Court No. CR06-2837 Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc Before Chief Judge Felton, Judges Elder, Frank, Cl ements, Kelsey, McClanahan, Haley, Petty, Beales and Millette

On May 13, 2008 came the appellee, by the Attorney General of Virginia, and filed a petition requesting that the Court set asid e the judgment rendered herein on April 29, 2008, and grant a rehearing

en banc on the issue(s) raised in the petition. On consideration whereof, the petition for rehearing en banc is granted with regard to the issue(s) raised therein, the mandate entered herein on April 29, 2008 is stayed pending the decision of

the Court en banc , and the appeal is reinstated on the docket of this Court. Notwithstanding the provisions of Rule 5A: 35, the following briefing schedule hereby is established: Appellant shall fi le an opening brief upon rehearing en banc within 21 days of the date of entry of this order; appellee shall file an appellee’s brief upon rehearing en banc within 14 days of the date on which the opening brief is filed; and appellant may file a reply brief upon rehearing en banc within 14 days of the date on which the appellee’s br ief is filed. The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion pr eviously rendered by the-2- Court in this matter. It is further ordered that th e appellee shall file twelve additional copies of the appendix previously filed in this case.

A Copy,

Teste: Cynthia L. McCoy, Clerk By: Deputy ClerkCOURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felt on, Judges Elder and Kelsey Argued at Chesapeake, Virginia

CLAUDE M. SCIALDONE

v. Record No. 1737-06-1

COMMONWEALTH OF VIRGINIA

BARRY R. TAYLOR

v. Record No. 1738-06-1 OPINION BY JUDGE LARRY G. ELDER COMMONWEALTH OF VIRGINIA APRIL 29, 2008 EDWARD JONES, S/K/A EDWARD S. JONES

v. Record No. 1739-06-1

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Patricia L. West, Judge Marvin D. Miller (Heather Golias; Law Offices of Marvin D. Miller, on briefs), for appellants. Donald E. Jeffrey, III, Assistant Attorney General; Karri B. Atwood, Assistant Attorney General (Robert F. McDonnell, At torney General; Gregory W. Franklin, Assistant Atto rney General, on briefs), for appellee.

Claude M. Scialdone, Barry R. Taylor, and Edward S. Jones each appeal from a finding of summary contempt for violating Code § 18.2-456. 1 On appeal, each contends the proceeding

1 Because these cases involve interrelated f acts and legal issues, we have consolidated them for purposes of decision. See, e.g. , Surles v. Mayer , 48 Va. App. 146, 155, 628 S.E.2d 563, 567 (2006).- 2 - in which he was convicted for contempt was not a summary proceeding and, thus, that he was improperly denied his due process rights, 2 including the rights to pret rial notice, to present a defense, and to be represented by counsel. We hold each of the appellants was denied his right to due process, and we reverse and remand for furt her proceedings consistent with this opinion if

the trial court and the Commonwealth be so advised.

I. BACKGROUND Beginning on July 12, 2006, Frankie Dulyea was tried by a jury for several offenses, all

of which stemmed from online conversations he had in April and May 20 05 with an undercover police officer posing as a twelve -year-old girl. Dulyea was repr esented by attorneys Claude Scialdone and Barry Taylor, of Sc ialdone & Taylor, Inc. They were assisted by a law student, Edward Jones. All three men participated in the preparation of Dulyea’s case for trial, but Taylor did not appear at trial. Scialdone served as le ad counsel at trial, and Jones was present in the

courtroom to assist him. While cross-examining the undercover police officer, Scialdone attempted to ask her about the age-limit rules applic able to the online chat room in which she and Dulyea had conversed. When Scialdone proffered a copy of the rules dated July 11, 2006, the day prior to trial, the Commonwealth objected that the docume nt was irrelevant because it did not cover the proper time period. The court sustained the objection, ruling inter alia , “[I]f you want to pursue this line of questioning . . . [,] you would have to have the rules that were in place in 2005.” Scialdone responded, “I can introduce th at in part of my case. . . . I believe we’ll have [the rules that were in place in 2005].”

2 On briefs, appellants also assert their equa l protection rights were violated. However, none has articulated any basis for this assertion either on brief or at oral argument. Thus, we conclude each has waived that argument. See Rule 5A:20(c); Littlejohn v. Commonwealth , 24 Va. App. 401, 409, 482 S.E.2d 853, 857 (1997).- 3 - Later, when Dulyea was testifying in his ow n behalf, Scialdone inquired, “After you were arrested, did you make an effort to check out the rules of Yahoo in that chat room that you were in?” The Commonwealth objected that “the rules after [Dulyea] was arrest ed are not relevant.” After excluding the jury, the tr ial court examined a second set of proffered rules and stated, “[T]he first chat rules [you proffered earlier] . . . had a date on the bottom of 7/11/06. So they were printed yesterday. You’ve now shown me what appears to be the exact same thing with just no print date on the bottom.” Dulyea indicate d that the proffered rules “were printed off by my father and my step cousin.” The court as ked, “Why is there not a print date on the bottom?” and then stated twice, “[I]t’s got to have some sort of authentication on it.” When the trial court inquired why Scialdone had “print[ed] [them] off again yesterda y,” Scialdone said they had been unable to locate the copy that Dulyea’s father had provided to them. Th e court noted “it would be very easy” to create such a document by “whit[ing] out the bottom print time and then just run[ning] a copy of it.” Scialdone said, “[I]f you want to voir di re us while we’re outside the presence of the jury, I have no problem with that.”

The trial court then asked the Commonwea lth for its position. The Commonwealth agreed with the court’s assertion, stating, “It’s very suspicious that that document is exactly the same as the document that we objected to earlier today.” The trial court then noticed the most recently proffered copy of the rules bore a different “Welcome so and so” line—a different screen name, indicating that a different pers on had signed on to access the rules. Scialdone argued the challenged document containing the rules was admissible regardless of the presence or absence of a print date because Dulyea would testify both that he was familiar with the rules in place before his online contact with the unde rcover officer and after and that the proffered document accurately set out those rules. The tria l court said, “Well, you can ask him all of those things”; “it’s just the document itself that’s ca using me the problem.” The court then indicated- 4 - that, in the absence of a print da te, the court was “not convinced th at this was done at the time –

that this is an authentic document. If it were printed out on a computer , it should have a print date on the bottom just like the one you offered a couple of hours ago.” The court noted that, although the screen name of the person who printe d it was different, that “doesn’t mean that it wasn’t just gotten. I need to know a date.” Still outside the presence of the jury, Scialdone then calle d Dulyea’s father to the stand in an attempt to authenticate the second set of rule s so that the court woul d admit it into evidence, but as the testimony of the elder Dulyea progr essed, it became apparent upon questioning from the court that the copy of the rules he obtaine d and printed in December 2005 was a two-page document that bore the screen name “pdulyea,” one of his wife’s screen names, and that the copy of the chat room rules Scialdone had most recently attempted to have admitted was a one-page document showing it had been printed by someone using the screen name “wndydpooh.” The court then inquired of Scialdone what his secretary’ s name was, and when he answered, “Wendy,” the trial court responded, “Yea h. That’s what I thought. Get her over here. . . . Right now. Call her from the court because I don’t want you to talk to her outside anyone’s presence. . . . Just tell Wendy to come over here. She’s got five minutes. . . . Tell [Mr. Taylor] to come too. . . . It is 3:19. I’m giving them until 3:30.” The court recessed and reconvened at 3:34 p.m. when secretary Wendy Suttla ge and attorney Barry Taylor arrived. The judge said, “Mr. Taylor, I need you to go wait out in the hall. . . . Wendy, I need you in here.” The judge then showed Wendy Suttlage the chat room rules sheet bearing the screen name “wndydpooh” and questioned her about it. Suttlage testif ied she printed it out on the Sunday preceding the trial at the request of Mr. Taylor. She did not recall whether the printout included

a date at the bottom of the sheet , and she denied having altered the document. The judge then- 5 - inquired whether the attorneys had any questions for her. The Commonwealth’s attorney responded, “No, Your Honor.” The trial judge then sent Suttlage out of th e courtroom and called Taylor to the stand. Taylor testified that he recogni zed the printout bear ing the chat room rules. Upon further questioning, he said he did not know when the sheet was printed but sa id, “This is the one, I think, that was given to us by our client, Mr. Duly ea.” When the trial court said “that would be very interesting since it’s under Wndydpooh’s user name” and as ked Taylor to “[e]xplain it,” he responded he “was called and asked to look for the document that the client said he dropped off” and that he “found the document in a pile on th e conference room table where they had been working on the case.” Taylor denied “whit[ing] out the date at the bo ttom” or altering the document in any way. The court then stated as follows, without mentioning the word “contempt,” “One of you - one of the three of you, I gue ss – Mr. Jones, you’re in this too – is going to come clean about this. . . . [S]omebody bette r take the fall or everybody is goi ng to take the fall for this.” The trial court attempted to press Taylor fu rther, but he insisted, “All I was asked to do was to look for the document – look for any document that talked about the adults being in the chat room.” He indicated he was very familiar with the rules page because when “we were in preparation for the case, we had looked at this very document multiple times because . . . it was

crucial to our case.” When the trial court inquired further why Taylor thought the document he retrieved was the document their client had brought to them, he said, “[It was] the only document

in the stack that had this material on it.” The trial court then had Suttlage return to the courtroom and, upon further questioning, Suttlage reiterated that she prin ted the rules the Sunday prior to trial in response to a specific request from Taylor to do so, and she said she handed the document to Taylor. The trial court- 6 - then asked Taylor why he presumed the document he received from Suttlage on Sunday was “the one your client gave you two years ago.” Taylor responded, “Well, ma’am, it’s the same document.” When the court said, “Mr. Taylor, you better come clean with me right now. What is going on?” Taylor responded, “I don’t know, ma’am,” and the j udge told him to wait in the

hall. The trial court then swore Jones and questio ned him about what it believed was the fraudulent removal of the copyright and date information from the exhibit, but he, too, denied any knowledge of it. The court then asked who “ran . . . off” “this other copy that we rejected this morning that’s dated 7/11/2006.” Jones re sponded, “Oh, I ran that off, Your Honor.” Changing focus, the trial court then inquired abou t the screen name on that copy of the exhibit, asking, “Whose idea of a joke is [t he screen name, West is a Nazi 3 ]? Mr. Scialdone, you better do some talking.” (Footnote added). Scialdone said, “Oh, I’ll answer every one of your questions,” and the court placed hi m under oath. Scialdone testified: I know Mr. Dulyea – when he had retained us, he gave Barry [Taylor] a couple of these screen things about adult chat rooms. That’s my extent of knowledge a bout it. This morning when they handed the one to me that was dated afterwards, I realized we needed to find the one that was included in the file; and I asked [Taylor] to look in the file to see if they could find it. I don’t know how to work e-mails and my little windows and stuff in my desk. I don’t go into any of that stuff. Wendy is not my secretary. Antonia is my secretary. I don’ t – I don’t know. Sunday if she printed something, she didn’t print it for me. When the trial court inquired once more about “westisanazi,” Scialdone again pleaded ignorance about computer matters , and the trial court responded: But you know how to white out a nd copy, I would assume, which is what’s been done to this docum ent that is being represented as being given to you two years ago but was actually run off by your secretary or Mr. Taylor ’s secretary on Sunday.

3 The screen name actually appeared as “w estisanazi.” Judge Patricia L. West was presiding at Dulyea’s trial.- 7 - * * * * * * *

There is a serious ethical issue here, if not criminal.

* * * * * * * Somebody in your firm, Mr. Scia ldone – and it’s Scialdone and Taylor. So it’s you and under yo ur direction, and you’re lead counsel in this case. Somebody has perpetrated a fraud on this court, and I will get to the bottom of it. . . . I am finding both you and Mr. Taylor and Mr. Jones – get them back in here – in contempt; and we will deal with it after the trial. And if it comes out that one of you may not have had any knowledge, I may reconsider; but at this point in time all of you are involved. When Taylor and Jones had come back in to the courtroom, the trial judge inquired further, “Whose idea of a joke is [w]estisanazi? Anybody want to fess up to that? . . . . You ran it off, Mr. Jones. Did you do it?” Jones admitted that he did and said he chose the screen name “westisanazi” because “I was very upset about so me of the rulings, and I thought it was unfair to

the client.” The trial court repeated that it was finding all three men in contempt, saying, “We will finish this trial and then we will have hearings on this matter as far as . . . anything else you might want to say. Otherwise, it will just be sentencing hearings. Is there anything anybody else wants to say right now?” When Mr. Scialdone objected, saying, “ I don’t think there’s any basis of you finding me in contempt,” the tria l court recited the facts as follows:

THE COURT: I have a docum ent that you tried to offer into evidence, and you argued vehemently that it was a document that your client and his father provided to you two years ago when, in fact, it’s a document that your secretary printed out on Sunday for you and Mr. Taylor. Those are the facts. MR. SCIALDONE: Judge, no one printed anything out for me. That is not true.

THE COURT: You are lead c ounsel. That was printed out for you and Mr. Taylor. And if Mr . Taylor wants to take the full fall for it, he can; but right now it’ s both of you on the line . . . and Mr. Jones as well. So if somebody wants to break ranks and rat- 8 - somebody out, they can; but othe rwise the three of you are in contempt. The court also said, “these documents will not be coming in unless you can find the ones that have at the top pdulyea and a date at th e bottom of 2005, in which case I don’t think you can actually find the true documents.” Taylor made an unsuccessful attempt to locate the document at the firm’s offices in a span of twenty-five minutes allowed by th e trial court. At that same time, at Scialdone’s request, the court agreed to break for the day and dismissed the jury, but said “you all aren’t going anywhere unt il we get those documents back over here.” When Taylor’s search failed to reveal the 2005 document, th e trial judge directed her baliff to accompany Wendy Suttlage back to the law office and asked Su ttlage to try to generate a copy of the chat

room rules that were identical to the ones with the screen name “wndydpooh” and no date line. The court recessed for this purpose from 4:49 p.m. until 5:16 p.m. The trial court ultimately concluded that “[w] hether [the 2005 ‘pdulyea’ chat room rules] actually exist[] or not, that’s to tally irrelevant” to the contempt issue because the copy of the rules Mr. Scialdone attempted to have admitted bore “a space . . . where evidently something was laid over on the copyright date and it was copied on a copier or it was wh ited out or something. Because you can see a line on the one that you gave me that is clearly where the copyright was

and it’s been altered.” Mr. Scialdone then said, “I’d like to know wh at I’m being charged with, whether it’s civil contempt, criminal contempt, or whatever it is. And I may want to have a lawyer for that.” The trial court responded, Well, right now I’m finding you in summary contempt, all three of you . . . . [O]ne of you all knows what’s going on here. It is so obvious that this document has been altered. I mean, there is no other explanation except that one of the three of you or someone in your office or someone in your di rections altered the documents and then offered them to the cour t as something that they are not.- 9 - Mr. Taylor then asked to see the document s again – the one bear ing the “wndydpooh” screen

name Scialdone had offered into evidence and the one bearing the same screen name that Suttlage had generated at the court’s request during the recess. When Taylor argued the

documents were not the same and that the court’ s emphasis on the lack of a date line was faulty because “[o]bviously, they must have different pa ges that can print differently,” the court said, “Wendy, I need you to try to get . . . this exact pa ge . . . and print it out. Because . . . when you do, I think it’s going to have . . . both the copyrig ht and the date [at the bottom] when you print it

out.” While Suttlage was gone a second time, Taylor offered additional testimony about his

retrieval of the chat room rules for Scialdone during the lunch recess that day. Taylor argued, “[I]t might be negligence on our part; but I don’t think it’s contempt judge.” The trial judge repeated her finding that the copy had clearly been altered by someone to remove the date. When Suttlage returned with additional copi es of the chat room rules printed from various computers at the law firm’s offices, the judge found that the one “printed from Mr. Taylor’s computer is the ex act replica of the one that was introduced into evidence except for the copyright is gone” where “a piece of pape r [was] placed over it and copied off.” At 6:18 p.m. the court recessed for the night. When Dulyea’s trial resumed on July 13, Sc ialdone offered a reconstructed document that appeared to be the 2005 “pdulyea” chat room rules, which he said was found in pieces during a search of his firm’s trash. When th e Commonwealth objected on grounds of relevance because the rules were dated December 10, 2005, whereas the relevant period was in March 2005, the trial court sustained the objection and refu sed to admit the copy of the rules. The court also stated, “this has nothing to do with the c ontempt issue,” which involved what the court concluded was offering “an obviously altered docu ment.” When Scialdone again protested his- 10 - innocence, the court said, “It was an obviously ma nufactured document, so stop with the charade on that.” “Now whether you knew it or not, I don’t know. And I said until someone comes clean, you are tainted with that. Unless Mr. Taylor wants to come in here and fall on his swor[d] and say he did it, you ’re tainted with it.” Following the conclusion of Mr. Dulyea’s tria l on July 14, 2005, the trial court dismissed the jury and ruled as follows on the contempt issue:

Pursuant to Code Section 18.2-456, I found all three of you in contempt of court. Mr. Tayl or and Mr. Scialdone, I found that the two of you attempted to perp etrate a fraud upon the court by you, Mr. Taylor, altering the documen t that was to be presented to this court and you, Mr. Scialdone, for offering that fraudulent document to the court. That very clearly falls under Section 4 of 18.2-456, misbehavior of an officer of the court in his official character. You, Mr. Jones, violated Sec[tion] 3 of 18.2-456 which deals with vile, contemptuous, and assaulting [sic] language addressed to or published of the j udge for or in respect of any act or proceeding had, or to be had, in such a court. It goes on, but that covers your creating a screen name, West is a Nazi, and then the document obtained with that screen name being offered to the court.

* * * * * * * I’ve given a great deal of t hought on how to deal with this matter . . . . Now, contempt can range from merely being late to court to under some circumstan ces progressing to rudeness and disrespect for the court all the way up to what the three of you have done. In looking at the continuum of acts that could be considered contempt, I can’t think of anythi ng much worse than an attorney creating a false document and offering it to the court as true. If the court can’t trust those who are offi cers of the court to be honest and professional, the whole system will fail. . . . To that end, I have come to the conclusion that your dishonesty and unprofessional be havior require the maximum punishment. I’m sentencing each of you to ten days in jail and a $250 fine with a copy of the order to be sent to the Virginia State Bar.- 11 - Taylor responded, “Note our ex ception for the record please,” and the trial court responded, “Note everybody’s exception.” That same day, Scia ldone and Taylor filed notices of appeal of the contempt finding. On July 16, 2006, Scialdone and Jones began serving their sentences as ordered. Taylor, with permission from the trial court, was scheduled to report at a later time so that he could be married and take his honeymoon as previously scheduled. On July 17, 2006, Scialdone and Taylor filed mo tions for stay of execution of sentence in which they asserted their right in the contempt proceeding to present a defense and to have counsel. On July 18, 2006, Jones filed both a noti ce of appeal and a motion for stay of execution of sentence in which he asserted the same rights Scialdone and Taylor had asserted. In addition,

the three motions averred that wh en the trial court found them in contempt at the conclusion of Dulyea’s trial, it “read a prepared ruling . . . and immediately left th e bench without giving [appellants] the opportunity to pr esent evidence, to present an y argument [or] to have the assistance of counsel.” Appellants noted they were able merely “to take exception to the [court’s] ruling as [the trial judge] was l eaving the courtroom.” In the memoranda accompanying their motions, appellants asserted that although the proceedings were conducted in a summary fashion, “[t]he conduct upon which the Court relied was no t wholly contained within the record of the proceedings of the trial in Commonwealth v. Dulyea ” and that “[t]he Court conducted an investigati on that included the [summoning a nd] interrogation of witnesses who were not participants in the trial proceedings” and the use of the court’s baliff to gather evidence from computers at counsel’s law office. Appellants alleged they should have been allowed time to obtain counsel and prepare a defense. By July 18, 2006, the men had retained couns el, Marvin Miller, whose offices were located in Alexandria, Virginia. By letter faxed to the trial court that day, Miller sought an- 12 - expedited ruling on the motions for stay and re quested that, if a hearing on the motion was required, it be conducted by telephone conference that same day. The trial court later indicated it “heard about [the faxed letter]” but that “[s]omebody . . . in th e clerk’s office said they don’t accept faxes” and that, as a result, the trial court “[ did not] see [the faxed letter].” The trial court

also later indicated the motion was not set for hearing because “[no one] call[ed] [to] set[] it.” On July 19, 2006, by counsel, appellants file d in the Court of Appeals an emergency motion for stay of execution of sentence indica ting two of them were already serving their sentences and that the circuit court “ha[d] been unwilling to say yes or no” to their motions for stay filed in that court, which they alleged “[was] tantamount to a denial.” The Court of Appeals also received appellants’ notices of appeal of their contempt convi ctions that day. The Court of Appeals, in the course of the attempt to reso lve the appellants’ emergency motion, learned that the trial court had not yet prepared or entered a written order finding the men in contempt. In response to the Court of Appeal s’ inquiry, the trial court prep ared and entered the written contempt order that day. The July 19, 2006 contempt order found Sciald one and Taylor in contempt for violating Code § 18.2-456(4) “(misbehavior of an officer of the court in his official character)” and Jones in contempt for violating Code § 18.2-456(3) “(Vile, contemptuous or insulting language addressed to or published of a judge for or in re spect of any act or proc eeding had, or to be had, in such court or like language used in his presen ce and intended for his hearing for or in respect of such act or proceeding).” After noting “[t]hese documents are filed and made a part of the record of this contempt proceeding,” the court also found “pursuant to § 18.2-456(1) that such misbehavior in the presence of the court obstructe d and interrupted the admi nistration of justice,” presumably applying this language to the actions of all three men.- 13 - Also on July 19, 2006, after receiving the c ontempt order from the trial court that afternoon via fax, the Court of Appeals “grant[ed] a temporary stay of the execution of [the appellants’] jail sentences until such time that the circuit court rules on the pending motions.” The Court of Appeals also “direct[ed] the clerk of the circuit court to forward a copy of the written orders addressing these motions to the cl erk of this Court within 14 days of today.”

Scialdone and Jones were released from incarceration pursua nt to that stay. In proceedings held on July 24, 2006, the trial court indicated it was aw are of the filing of the motions for stay of executi on of sentence on Monday, July 17, that it read the motions , and that it “kept waiting for [the matte r] to show up on [the court’s] docket” but that “[i]t never did

because it was never set.” The trial court c onfirmed that it entered the contempt order on Wednesday, July 19. The trial court also indicate d on July 24, 2006, that the fact that the men’s attorney “circumvented this Court and went to the Court of Appeals, telling them that we wouldn’t hear your case, was not particularly ap preciated” “[s]ince you-all didn’t bother to set [the motion].” The trial court then indicated, “[O]nce I got th e stay from the Court of Appeals, pending a hearing on the stay, I went ahead and asked our Clerk to put it on the docket for today,” and inquired why the men’s attorney, Marvin Miller , was not present for the hearing. The men averred that none of them had received personal serv ice of notice that a hear ing would be held on July 24. Scialdone also said, “Last night Marvin told me that the he aring was going to be on Thursday, because he had trials this week and co uld not be here.” The trial court responded, “It is not going to be on Thursday because we don’t have court reporters on Thursday. It’s Monday, Tuesday or Wednesday.” Scialdon e said, “I don’t make the arra ngements. I just rely on my lawyer,” and the trial court responded, “You don’t ha ve a right to counsel anyway. . . . It is a summary proceeding. Do you not understand that?” Scialdone averred, “I believe we have a- 14 - right to counsel,” and the trial court said, “Well, you can believe anything you like. . . . But I am going to accommodate you, since you have hired counsel. But he will need to be here Wednesday.” The trial court then pressed Scialdone rega rding not whether or when he had received personal service but when he had received actu al notice of the heari ng. Scialdone indicated Miller had told him Sunday evening that the hear ing would be Thursday a nd that he did not have actual notice of a hearing for Monday morning un til Monday morning. He indicated he was in court in Norfolk when “they called me [from my offi ce] . . . and they said we had to be here.” The trial court noted that on Sunday, Scialdone ha d arranged to have a co urt reporter present on Monday and questioned the accuracy of Scialdone ’s statements about actual notice, and Scialdone responded he had made those arrangements because

Mr. Miller told me that he should have someone over here this morning . . . [b]ecause, dealing with this court, I am not taking any chances. . . . I don’t know what you-all are doing. You don’t notice us. No one calls us. No one tells us anything. And if you think I am just going to not send somebody over here, wrong. I will spend a hundred and fifty dollars to make sure. After additional argument between the court and counsel about notice, the trial court said, Mr. Scialdone, I find it very inte resting that you didn’t have actual knowledge of this hearing until this morning, yet you called the court reporter to have her here at nine o’clock this morning. . . . Frankly, I think it is a lie on your part, if you want to get right down to it. . . . I think you are lying to me. I think you knew that it was set today and that is why you had the court reporter here. And you didn’t get notice. You are right. I have discovered that problem. I was out of town Thursday and Friday. I have discovered that problem. And that is why I wanted you-all here, because we will set it right now with the three of you here in court. And that is the notice that you will get. The court then indicated,

So it needs to be heard on Wednesd ay. That is a felony day. That is a day when we have a court reporter here. I know you are not- 15 - charged with a felony, but this aris es out of a felony case. There needs to be a court reporter here. Your attorney’s letter says he cannot be here tomorrow. So we will hear it on Thursday I think – Wednesday. When Scialdone responded, “I think he said – he couldn’t be here until Thursday is what he said,” the trial court responded, “I don’t think his letter says th at.” Scialdone indicated they would “be glad to provide a court reporter.” The trial court responded, “Obviously,” and commented further, “His letter says he is in the western district on Tuesday and that is all it says. So he can be here Wednesday.” Taylor said, “Oka y.” At the conclusion of the hearing, the trial court said, “We will see him on Wednesday morn ing. Please let him know.” Apparently, the

Clerk’s Office also notified Mr. Miller that the hearing would be held on Wednesday “because the Virginia Beach courts hear these ma tters on Mondays, Tuesdays and Wednesdays.” At the hearing held on Wednesday, July 26, 20 05, for which the appella nts’ attorney was unavailable, the trial court denied the motions for stay of execu tion of sentence, reasoning as

follows: Although you’ve been found in summary contempt and thus have no right to counsel, I ha ve, in fact, read all of the papers and information submitted by [your attorney,] Mr. Miller[,] and I’ve also reviewed a memorandum of law submitted by the National Association of Criminal Defense Attorneys. It appears that their position is that this is not summary contempt but some other form of contempt. But I do not find their arguments persuasive. I cannot imagine any worse misbehavior by attorneys in the presence of the court or so near thereto as to obstruct or interrupt the administrati on of justice than in this case.

Furthermore – that’s Subsection 1 of 18.2-456. But 3 and 4 addressing vile, insulting language and misbehavior of an officer of the court in his official charact er, which I also cited in finding you in contempt, . . . do not have th e requirement that the actual act occurred in the courtroom. Even though it’s not required except under Subsection 1 to actually have occurred in court, these acts did occur in court and had to be de alt with immediately to preserve the integrity of the trial. While you all may not have intended for- 16 - me to see the document containing the screen name West is a Nazi, you nonetheless offered it into evidence. Your intent is irrelevant. Furthermore, while you may not have actually manufactured in the courtroom the fraudulent document that you offered as authentic, it was certain ly continuing in nature because of the fact that you offered it into evidence in the courtroom.

As to the assertions that not everything is on the record, I disagree. I saw what I believed to be unethical conduct on the part of the three of you, and I had an obligation to determine if you were trying to perpetrate a fraud on the court. That appears on the record. As to obtaining documents from your office, first, there was no objection posed by any of you. Second, I went out of my way to make clear on the record th at attorney/client confidentiality would be maintained. And, third, your employee, not my deputy, produced the requested materials. On my direction he was to only escort her to and from court and observe what she did. Again, all of this is on the record and it’s very clear, so assertions that something is missing from the record are untrue.

* * * * * * * As such, I do not believe that you have a substantial likelihood of prevailing on appeal an d thus your request for a stay is denied.

* * * * * * * Mr. Scialdone, as recently as Monday you lied to this court. There were several references by your attorney to the potential Monday [July 24, 2006,] hearing date in letters to me dated before Monday. Your court reporter wa s also called Sunday. Yet you insisted [in the proceedings on Monday, July 24, 2006,] that you only had actual notice of the hearing Monday morning. There is a pattern of behavior during this entire case that anyone reviewing the matter should be aware of. I dare say that once the entire picture is s een by your supporters, you may find yourself standing alone. I don’t see how anyone can read the entire transcript and still de fend your unethical, shameless behavior.

Your motion is denied . . . . Taylor asked the court to “note our exceptions, please.”- 17 - All three men served portions of their se ntences before the Virginia Supreme Court granted a stay of execution of their sentences pending appeal.

II. ANALYSIS

A. PROCEDURAL BAR The Commonwealth contends each appellant waived his right to challenge his summary contempt conviction on due proce ss grounds because he did not pr operly present these objections

to the trial court. Citing Nusbaum v. Berlin , 273 Va. 385, 641 S.E.2d 494 ( 2007), it contends the due process objections each appe llant asserted in his motion fo r stay of execution of sentence were insufficient to satisfy Rule 5A:18. We hold Nusbaum is distinguishable and that, on the facts of this case, appellants’ post-conviction objections couple d with the contents of their motions for stay of execution were sufficien t to preserve their objections for appeal. Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection wa s stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.” 4 As the Commonwealth expre ssly acknowledges on brief, the purpose of the rule is to avoid unnecessary appeals, reversals, and mistrials by requiring litigants to inform the trial judge of the action complained of so that the j udge has the opportunity to consider the issue intelligently and take timely corrective action. See, e.g. , Robinson v. Commonwealth , 13

4 Appellants averred in their motions to stay execution of sentence that the trial court did not give them a chance to make specific objections contemporaneous ly with her ruling from the bench on July 14, 2006, because “she immediately le ft the bench” and they were only “able to take exception to [the] ruling as [the judge] wa s leaving the courtroom.” On appeal, appellants make no contention that these allegations provi de “good cause” for their failure to object under Rule 5A:18’s “good cause” exception. See Edwards v. Commonwealth , 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc) (holding Court of Appeals may not raise “good cause” or “ends of justice” exceptions sua sponte ).- 18 - Va. App. 574, 576, 413 S.E.2d 885, 886 (1992). A party “may meet the mandates of Rule 5A:18 in many ways.” Lee v. Lee , 12 Va. App. 512, 515, 404 S.E.2d 736, 738 (1991) (en banc). For instance, counsel may make clear the ground for his objection in a motion to strike the evidence or in closing argument. Counsel may also state the grounds therefor during a motion to set aside the verdict or a motion to reconsider. Likewise, counsel may . . . include an objection and reasons th erefor in the final order or at least tender such an order to the trial judge.

Id. at 515-16, 404 S.E.2d at 738 (citations omitted ). Formal exceptions to rulings are not necessary as long as the party “m akes known to the court the action which he desires the court to take or his objections to the action of the c ourt and his grounds theref or.” Code § 8.01-384(A). Where a party wishes to preserve objections for appeal through a mo tion filed after entry of the final decree or order, he must obtain a ru ling from the trial court in compliance with Rule 1:1 in order to preserve the issue for appeal. See Weidman v. Babcock , 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991); Smith v. Smith , 18 Va. App. 427, 433, 444 S.E.2d 269, 274 (1994). However, where a party makes his objections known to the court prio r to or at the time of entry

of a final order or decree and doe s not specifically disclaim the desire to have the court rule on those objections, entry of a final order or de cree adverse to those obj ections constitutes a rejection of them and preserves them under Rule 5A:18 for purposes of appeal. See Kaufman v.

Kaufman , 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3 (1991) (holding objections were preserved for appeal where the party “made known to th e trial court his position through his memoranda and other written correspondence with the court pr ior to the court’s issuan ce of its amended final decree” and “the trial judge specifically acknow ledged the existence of [his] objections”); see

also Nusbaum , 273 Va. at 402-06, 641 S.E.2d at 503-05 (hol ding the appellant waived the right to raise due process challenge on app eal of contempt conviction where, inter alia , he objected to the trial court’s ruling on due process grounds prio r to entry of the final order but specifically- 19 - stated he was not asking the trial court to change the oral ruling already pronounced and the trial court never ruled on the objections he raised). The court issued verbal rulings holding Scialdone, Taylor, and Jones in contempt on both July 12 and July 14. On July 12, Scialdone and Taylor both challenged the sufficiency of the evidence to support a finding of contempt, arguing the evidence amounted to negligence at most. Scialdone also inquired about the nature of the proceedings and said, “I may want a lawyer,” which prompted a ruling from the trial court that the proceedings were for summary contempt. At the conclusion of the proceedings on those days, the men objected to those rulings only generally. These general objections , standing alone, were insuffici ent to preserve any specific objections for appeal. However, a cour t speaks through its written orders, e.g. Walthall v.

Commonwealth , 3 Va. App. 674, 679, 353 S.E.2d 169, 171 (1987), and the court did not enter the written order finding appellants in contempt until July 19, 2006. Prior to that entry, each appellant filed a motion for stay of execution of sentence in which he averred that, although the proceedings were conducted in a summary fash ion, “[t]he conduct upon which the Court relied was not wholly contained within the record of the [underlying criminal] proceedings [against] Dulyea.” Instead, each alleged, “[t]he Court conducted an in vestigation that included the [summoning and] interrogation of witnesses who were not participants in the trial proceedings” and the use of the court’s deputy sheriff to ga ther evidence from computers at counsel’s law office. Appellants alleged that because the proc eedings were not in fact summary proceedings, they should have been allowed time to obtain co unsel and prepare a defense. Manifestly, the basis of the motions for stay of execution of sentence pending appeal constituted a claim of the

likelihood of success on the merits. Most importantly, the trial court stated on the record that, prior to entering the contempt order on July 19, it had received the motions to stay execution of sentence and had, in fact, read- 20 - the motions . Thus, when the trial court entered the or der finding appellants in contempt, it was well aware of their argument that the proceeding was not a summary one and that they believed the trial court erred in failing to afford them certain due process rights . Although the appellants had filed their notices of appeal prior to that tim e, these filings did not deprive the trial court of jurisdiction to act on the objections contained in their motions becau se the early filed notices of appeal did not take effect until the final order was entered on July 19. See Saunders v.

Commonwealth , 12 Va. App. 154, 155, 402 S.E.2d 708, 709 (1991). In light of the trial court’s admission that it read the motions for stay prior to entering the final order, it was irrelevant that the trial court did not formally rule on appellants’ motions until after entry of the final order and after the Court of Appeals had acte d to enter a stay of execution of their sentences. Thus, on the facts of this case, appellants’ motions to stay execution of sentence and the supporting grounds alleged therein, filed before the trial court entered the final order, were more effective at alerting the trial court to the appellants’ objections than would have been the commonly accepted practice of endorsing the final order “seen and objected to” for the same reasons. See Kaufman , 12 Va. App. at 1204, 409 S.E.2d at 3-4. Accordingly, we hold that the goals of Rule 5A:18 were

met. 5 The Supreme Court’s recen t holding in Nusbaum does not compel a different result.

Nusbaum , like this case, involved an attorney who was held in contempt under Code § 18.2-456.

5 The dissent states, “The majority’s . . . view imposes upon a trial court the sua sponte obligation to vacate a conviction on grounds raised for the first a nd only time during a motion for stay pending appeal when the party standing to benefit from the vacatur[], the defendant, conspicuously chooses not to seek that relief.” Our decision clearly states that it rests in large part on the fact that, when a ppellants filed their motions for stay, the trial judge had not yet entered final judgment and express ly stated she read the motions for stay before she did so

. Further, as explained in gr eater detail in the text, supra , only after final judgment was entered did the notices of appeal take effect. See Saunders , 12 Va. App. at 155, 402 S.E.2d at 709. Thus, we impose no greater duty on a trial j udge than the Court imposed in Kaufman , 12 Va. App. at 1204, 409 S.E.2d at 3.- 21 - 273 Va. at 396, 641 S.E.2d at 499. Nusbaum’s contempt stemmed from an incident in which he was alleged to have shoved anothe r attorney in the presence of the jury, an incident that was seen by the bailiff but not by the trial judge. Id. at 390-95, 641 S.E.2d at 496-99. The court declared a mistrial and disqualified Nusbau m’s law firm from further repres entation of the plaintiffs in that litigation. Id. at 395-96, 641 S.E.2d at 499. At the conclusion of the hearing in which Nusbaum was held in contempt, hi s attorney noted only a general “objection to the determination of the [c]ourt . . . and to all of the rulings.” Id. at 396, 641 S.E.2d at 499. Shortly after that hearing, Nusbaum moved the court to reconsider its ruling disqualifying his law firm, but in a memorandum accompanyi ng the motion, Nusbaum “advised that he was not asking the court to reconsider an y other part of its rulings.” Id. At the hearing on the motion, the trial court amended its prior ruling to permit Nusbaum’s firm to continue its representation of the plaintiffs. Id. at 397, 641 S.E.2d at 500. Also during that hearing, which

was held more than two months after the c ourt first found Nusbaum in contempt, Nusbaum’s

counsel indicated for the first ti me that he wanted to note a sp ecific objection to the contempt finding since he had previously voiced only a general objection. Id. He

asked the circuit court to recite in its order Nusbaum’s objection to the summary determination of contempt of court on the grounds that, “where the misconduct is not seen by the judge[,] the defendant has a right to be accorded a trial on that particular issue, and the lack of a trial is a deni al of due process.” Nusbaum’s counsel, however, stated, “ I am not asking [the court] at this time to change [its] ruling . I am simply going to make sure . . . that I have preserved any right of appeal with respect to the contempt finding.”

Id. (emphasis added). During the “final hearing” six days later, “[a] discussion again arose concerning the objections to the contempt of court finding that Nusb aum wanted to recite in the final order.” Id. In the course of that discussion, Nusbaum’s counsel “ again stated that he was not requesting the- 22 - circuit court to reconsider its ruling ” and was merely making sure that the court’s final order would “include the ‘particula rs’ of his objection” to th e contempt conviction. Id. (emphasis added). When the final order was entered, Nusb aum noted a more detailed due process objection on the final order, contending the convi ction violated his rights because, inter alia , “it was a summary proceeding with no notice, rule to show cause, or attachment; the alleged contempt was indirect and not personally witn essed by the trial judge, and the contempt charge was not brought by the Commonwealth.” Id. at 398 n.4, 641 S.E.2d at 500 n.4. The Supreme Court concluded that Nusbaum’s due process objections were barred under

that Court’s Rule 5:25. Id. at 403-06, 641 S.E.2d at 503-05. The Court relied on dual grounds for that ruling. Id. at 404, 641 S.E.2d at 504. It emphasized that Nusbaum did not raise his due process objections for the first time until more than two months after the court found him in contempt and that he never requested a ruling on those objections, stating instead each time he asserted his objections that he was not as king the court to change its ruling. Id. at 404, 641 S.E.2d at 504. The Court also empha sized that the trial court in f act never ruled on any aspect of the due process objections Nusbaum a ttempted to raise on appeal. Id. at 403-04, 641 S.E.2d at

504. Because “Nusbaum did not afford the circu it court an opportunity to rule intelligently on the due process issues that he now raises,” the Court he ld those issues were “therefore waived on appeal.” Id. at 406, 641 S.E.2d at 505. The holding in Nusbaum is readily distinguish able from appellants’ cases. Here, during the very first stage of the contempt proceedi ngs, conducted on July 12, Scialdone specifically inquired about the nature of the proceedings, wh ether the contempt was civil or criminal, and said, “I may want a lawyer.” In response, the trial court ruled that th e proceedings were for summary contempt. Although Scialdone did not pur sue the issue further at that point, the men objected generally to the cont empt findings and punishment pronounced orally on July 14.- 23 - Further, within four days after the court’s or al pronouncement of appellants’ contempt sentences and two days before the trial court had entered th e order finding the men in contempt, appellants filed motions challenging the contempt findings on the merits based on the specific due process claims they assert on appeal—that the court’s decision to proceed summarily violated their rights. Although these challenges were made via motions to stay execution of their sentences, the contents of the motions made clear that appell ants challenged the valid ity of their convictions and specifically articulated their reasons for that belief. Further, unlike Nusbaum, who twice specifically disclaimed a desire to have the tria l court rule on his objectio ns, the appellants never indicated that they did not wish to have the tr ial court consider their due process arguments and in fact attempted to obtain a prompt ruling on the motions by the trial court, albeit in the context of seeking a stay of execution of their sentences. Finally, an d key in distinguishing the two cases, in a proceeding held on the record, the tr ial court made clear it read those motions--and, thus, was aware of the appellan ts’ due process claims--before it entered the July 19, 2006 order finding appellants in contempt. 6 Thus, unlike in Nusbaum , appellants “afford[ed] the circuit court an opportunity to rule intelligently on the due process issues that [they] now raise[],” id. , thereby satisfying the requirements of Rule 5A:18.

B. MERITS “‘Contempt is defined as an act in disrespe ct of the court or its processes, or which obstructs the administration of justice, or tends to bring the court into disrepute.’” Carter v.

Commonwealth , 2 Va. App. 392, 396, 345 S.E.2d 5, 7 (1986) (quoting 4A Michie’s Jurisprudence Contempt § 2 (Repl. Vol. 1983)). It includes any act “which is calculated to

6 Seven days after entering the writte n contempt order on July 19, 2006, after the appellants’ notices of appeal became effective, th e trial court rejected th e due process claims for reasons it clearly articulated on the record, deny ing the motions for stay of execution of the sentences.- 24 - embarrass, hinder, or obstruct the court” in the discharge of its responsibilities. Id. at 396, 345 S.E.2d at 7-8; Potts v. Commonwealth , 184 Va. 855, 859, 36 S.E.2d 529, 530 (1946). “It has long been recognized and establishe d that a court is invested with power to punish for contempt, both by the inherent nature and constitution of the court and by [statute].” Higginbotham v.

Commonwealth , 206 Va. 291, 294, 142 S.E.2d 746, 749 (1965); see Nusbaum , 273 Va. at 399, 641 S.E.2d at 501 (recognizing i nherent contempt powers). Both the common law and Virginia’s statutes recognize two kinds of contempt, direct and

indirect. Carter v. Commonwealth , 96 Va. 791, 807, 32 S.E. 780, 782 (1899); see Code § 18.2-456 (setting out categories of contempts that are considered direct and subject to being punished summarily). Traditionally, direct contem pts are those committed within the view of the

court and for which immediate vindication of the court’s authority and integrity is considered necessary, whereas indirect contempts are those not committed within the view of the court and for which additional procedural safeguards must be provided. E.g. In re Savin , 131 U.S. 267, 274-77, 9 S. Ct. 699, 700-02, 33 L. Ed. 150, 152- 53 (1889) (citing 4 William Blackstone, Commentaries on the Laws of England 286 (1769)); Burdett v. Commonwealth , 103 Va. 838, 845-46, 48 S.E. 878, 880-81 (1904). Direct cont empts may be punished summarily. E.g.

Burdett , 103 Va. at 845-46, 48 S.E. at 880-81. The word “summarily” when used with respect to contempt “refers not to the time the adjudication mu st be made, but to the form of the procedure which dispenses with any further proof or exam ination and a formal h earing.” Higginbotham , 206 Va. at 294, 142 S.E.2d at 749. Where the contempt is committed in the presence of the court, it is competent for it to proceed upon it s own knowledge of the facts, “and to punish the offender withou t further proof, and without issue or trial in any form.” Ex parte Terry , 128 U.S. 289, 9 S. Ct. 77, 32 L. Ed. 405 [(1888)]. In deal ing with indirect contempts – that is, such as are not committed in the presence of the court – the- 25 - offender must be brought before th e court by a rule or some other sufficient process . . . .

Burdett , 103 Va. at 845-46, 48 S.E. at 880-81 (citations omitted). “[O]nly ‘[t]he least possibl e power adequate to the end proposed’ should be used in contempt cases.” United States v. Wilson , 421 U.S. 309, 319, 95 S. Ct. 1802, 1808, 44 L. Ed. 2d 186, 194-95 (1975) (quoting Anderson v. Dunn , 19 U.S. (6 Wheat.) 204, 231, 5 L. Ed. 242, 248 (1821)). “Trial courts . . . must be on guard agai nst confusing offenses to their sensibilities with

obstruction to the administration of justice,” only the latter of wh ich they may properly punish as contempt. Brown v. United States , 356 U.S. 148, 153, 78 S. Ct. 622, 626, 2 L. Ed. 2d 589, 596 (1958). “Summary punishment always, and rightfully, is regarded with disfavor . . . .” Sacher v.

United States , 343 U.S. 1, 8, 72 S. Ct. 451, 454, 96 L. Ed. 717, 723 (1952). Code § 18.2-456 provides in relevant part as follows: The courts and judges may issue attachments for contempt, and punish them summarily, only in the following cases: (1) Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice; (2) Violence, or threats of violen ce, to a judge or officer of the court, or to a juror, witness or party going to, attending or returning from the court, for or in respect of any act or proceeding had or to be had in such court. (3) Vile, contemptuous or insu lting language addressed to or published of a judge for or in resp ect of any act or proceeding had, or to be had, in such court, or like language used in his presence and intended for his hearing for or in respect of such act or proceeding; (4) Misbehavior of an officer of th e court in his official character; (5) Disobedience or resistance of an officer of the court, juror, witness or other person to any lawf ul process, judgment, decree or order of the court.- 26 - The legislature also has limited the punishment that may be imposed in cases of summary contempt falling under subdivision (1) of C ode § 18.2-456. Pursuant to Code § 18.2-457, “No court shall, without a jury, fo r any such contempt [under Code § 18.2-456(1)], impose a fine exceeding $250 or imprison more than ten days . . . .” 7 The range of punishment a circuit court is authorized to impose for summary contempt under the other subsections of Code § 18.2-456 is not governed by statute. See Code § 18.2-458 (granting district court judges “the same power . . . as a . . . circuit court [judge] to punish summa rily for contempt” except that “in no [district court contempt] case shall the fine exceed $250, or the imprisonment exceed ten days”). Although the statute authorizes tr ial judges to punish summarily in the enumerated situations, summary punishment is not mandatory. Further, the trial court retains common law authority to punish, in nonsummary fashion, types of contem pt not enumerated in the statute. E.g. Robinson

v. Commonwealth , 41 Va. App. 137, 145-46, 583 S.E.2d 60, 64 (2003) (involving nonsummary contempt proceeding for attorney’s failure to appear). On appeal, each appellant contends the imposition of summary punishment on the facts of this case violated his rights to notice, to prepare a defense a nd be present for trial, to the assistance of counsel, and to assert a privilege ag ainst self-incrimination. Each points to the trial court’s summoning witnesses to testify and ha ving those witnesses obtain evidence for the court’s review as indicia that the proceeding in which each was convicted was not, in fact, a summary proceeding and, thus, that each appellant wa s entitled to those du e process rights listed above. Evaluating the court’s power to summarily convict for contempt in light of the due process requirements imposed on the states by th e Fourteenth Amendment to the United States

7 Although Code § 18.2-457 requires a jury before heightened punishment may be imposed for subdivision (1) offenses, it also pr ovides that “in any such case the court may, without an indictment, information or any formal pleading, impanel a jury to ascertain the fine or imprisonment proper to be inflicted and ma y give judgment according to the verdict.”- 27 - Constitution, 8 we hold that the contempt convictions of Scialdone, Taylor, and Jones violated due process and must be set aside. As the United States Supreme Court has recognized, “Longstanding precedent confirms the power of courts to find summary contem pt and impose punishment.” Pounders v. Watson , 521 U.S. 982, 987, 117 S. Ct. 2359, 2361, 138 L. Ed. 2d 976, 981 (1997). To preserve order in the c ourt room for the proper conduct of business, the court must act in stantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindica tion of the court’s dignity and authority is necessary. It has alwa ys been so in the courts of the common law and the punishment imposed is due process of law

. Cooke v. United States , 267 U.S. 517, 534-35, 45 S. Ct. 390, 394, 69 L. Ed. 767, 773 (1925) (emphasis added). As the United States Supreme Court has made clear, the power to punish summarily for contempt is limited because it provides “an excep tion to the normal due process requirements, such as a hearing, counsel, and the opportunity to call witnesses.” Pounders , 521 U.S. at 988, 117 S. Ct. at 2362, 138 L. Ed. 2d at 982.

8 The United States Supreme Court has neve r expressly equated the rights protected against state invasion by the Fourteenth Amendm ent’s Due Process Clause with those protected against federal invasion by the Fifth Amendmen t’s almost identically worded Due Process Clause. See U.S. Const. amend. V (“No person shall . . . be deprived of life, liberty, or property without due process of law.”); U.S. Const. amend. XIV (“[N]or shall any State deprive any person of life, liberty, or property without due pr ocess of law.”). Nevertheless, in the area of defining what constitutes in-court conduct punishable as summary contempt and the basic procedural due process safeguards to be followe d in its exercise, the Court has treated the coverage of the Fifth and Fourteenth Amendmen t Due Process Clauses as coextensive without comment. See In re Oliver , 333 U.S. 257, 68 S. Ct. 499, 92 L. Ed. 682 (1948) (applying existing federal case law on summary contem pt to state habeas appeal); see also Pounders v. Watson , 521 U.S. 982, 987-89, 117 S. Ct. 2359, 2361-62, 138 L. Ed. 2d 976, 981-82 (1997) (implicitly equating Due Process Clauses for purpose of asse ssing limits on a state’s authority to issue a summary contempt order but reservi ng to “the states . . . latitude in determining what [in-court] conduct so infects orderly judicial pro ceedings that contempt is permitted”).- 28 - [F]or a court to exercise the ex traordinary but narrowly limited power to punish for contempt without adequate notice and opportunity to be heard, the cour t-disturbing misconduct must not only occur in the court’s immediat e presence, but . . . the judge must have personal knowledge of it acquired by his own observations of the contemptuous conduct.

In re Oliver , 333 U.S. 257, 274-75, 68 S. Ct. 499, 508, 92 L. Ed. 682, 695 (1948); see

Gilman v. Commonwealth , 275 Va. 222, 227-28 & n.1, 657 S.E.2d 474, 476 & n.1 (2008) (acknowledging distinctions betwee n direct and indirect contempt and noting that Gilman did not

“contest the characterization of her conviction as one of direct contem pt”). In short, the power to punish summarily covers “only charges of misconduc t, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court [and] ar e actually observed by the court .” 9 Oliver , 333 U.S. at 275, 68 S. Ct. at 509, 92 L. Ed. at 695 (emphasis added); see also Savin , 131 U.S. at 277, 9 S. Ct. at 702, 33 L. Ed. at 153; Terry , 128 U.S. at 309, 9 S. Ct. at 81, 32 L. Ed. at 410. “If some essential elements of the offense are not pers onally observed by the judge , so that he must depend on statements made by others for his knowledge about these essential elements, due process requires, a ccording to the Cooke case, that the accused be accorded” his procedural due process rights, including “adequate notice and opportunity to be heard.” Oliver , 333 U.S. at 275-76, 68 S. Ct. at 509, 92 L. Ed. at 695, quoted with approval in Johnson v. Mississippi , 403

9 In summary proceedings,

where the offender is a lawyer representing a client on trial, [punishment for summary contem pt] may be postponed until the conclusion of the [trial]. . . . Even where summary punishment for contempt is imposed during trial, “the contemnor has normally been given an opportunity to speak in his own behalf in the nature of a right of allocution.” Taylor v. Hayes , 418 U.S. 488, 498, 94 S. Ct. 2697, 2703, 41 L. Ed. 2d 897, 907 (1974) (quoting Groppi v. Leslie , 404 U.S. 496, 504, 92 S. Ct. 582, 587, 30 L. Ed. 2d 632, 639 (1972)).- 29 - U.S. 212, 215, 91 S. Ct. 1778, 1780, 29 L. Ed. 2d 423, 426 (1971); see Groppi v. Leslie , 404 U.S. 496, 504, 92 S. Ct. 582, 587, 30 L. Ed. 2d 632, 639 (1972) (noting that “[w]here a court acts immediately to punish for contemptuous conduc t committed under its eye, . . . there is no question of identity . . . because the judge has personally seen the offense and is acting on the

basis of his own observati ons” (emphasis added)). Applying these principles in Johnson , the United States Supreme Court reversed a summary contempt conviction both because too gr eat a delay occurred between the allegedly contemptuous act and the contempt proceeding a nd because the judge denied the contemnor’s “request for a hearing on the merits” even though the record did not establish that the judge “was personally aware of the [in-court] contemptuous action when it occurred.” 403 U.S. at 215, 91 S. Ct. at 1780, 29 L. Ed. 2d at 426. The Court not ed, “It would seem, therefore, that a fair hearing would entail the opportunity to show that the version of th e events related to the judge was inaccurate, misleading, or incomplete.” Id. ; see also Cologne v. Westfarms Assocs. , 496 A.2d 476, 482-83 (Conn. 1985) (applying Johnson ’s holding that judge must have personal knowledge of the “essential elem ents” to punish a contempt summarily); People v. Jashunsky , 282 N.E.2d 1, 4 (Ill. 1972) (same). Further, as one federal circuit court of a ppeals noted in a case involving an altercation that occurred in the courtroom, even where the misbehavior occurs fully in open court,

if the situation was so confused that the judge could not clearly observe and accurately record what each defendant had done, summary conviction [is] inappropriate. . . . [T]he theory [behind allowing summary contempt] 10 is that no hearing is necessary

10 The original quoted passage from Marshall refers to the summary contempt provision of Federal Rule of Criminal Procedure 42. That rule merely codified accepted constitutional principles applicable to su mmary contempt proceedings, e.g. Offutt v. United States , 348 U.S. 11, 13-14, 75 S. Ct. 11, 13, 99 L. Ed. 11, 16 (1954) ( quoting Advisory Comm ittee’s note that the enactment of Rule 42, which took effect in 1946, was “‘substantially a re statement of existing law, Ex parte Terry , 128 U.S. 289; Cooke[] , 267 U.S. 517, 534’”), which the Court has applied in both federal and state cases, see supra note 8.- 30 - because the judge already knows the facts. If he does not know the facts, a hearing is necessary to di scover what the facts are. If, despite the uncertainty, no eviden tiary hearing is had, the obvious risk is that innocent persons ma y be summarily adjudicated and punished.

United States v. Marshall , 451 F.2d 372, 377 (9th Cir. 1971) (footnote added). Under such circumstances, “the proper practice is, by rule or other process, to requir e the offender to appear and show cause why he should not be punished.” Id. As the United States Supreme Court has explained, th[is] distinction finds its reason not any more in the ability of the judge to see and hear what happens in the open court than in the danger that, unless such an open thre at to the orderly procedure of the court and such a flagrant defian ce of the person and presence of the judge before the public in the “very hallowed place of justice,” as Blackstone has it, is not instantly suppressed and punished, demoralization of the court’s aut hority will follow. Punishment without issue of trial was so cont rary to the usual and ordinarily indispensable hearing before judgment, constituting due process, that the assumption that the cour t saw everything that went on in open court was required to justify the exception; but the need for immediate penal vindication of the dignity of the court created it. When the contempt is not in open court, however, there is no such right or reason in disp ensing with [due process].

Cooke , 267 U.S. at 536, 45 S. Ct. at 394-95, 69 L. Ed. at 773-74. Therefore, due process of law in the prosecution of contempt, except that committed [entirely] in open court , requires that the accused should be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation. . . . [T]his includes the assistance of co unsel, if reques ted, and the right to call witnesses to give testimony, relevant either to the issue of complete exculpation or in exte nuation of the offense and in mitigation of the penalty.

Id. at 537, 45 S. Ct. at 395, 69 L. Ed. at 774 (emphasis added); Oliver , 333 U.S. at 274-76, 68 S. Ct. at 508-09, 92 L. Ed. at 695. These rights also include trial before an unbiased judge,

Johnson , 403 U.S. at 215-16, 91 S. Ct. at 1780, 29 L. Ed. 2d at 427; see Taylor , 418 U.S. at 501,- 31 - 94 S. Ct. at 2704-05, 41 L. Ed. 2d at 909, entitlement to a presumption of innocence, proof of guilt beyond a reasonable doubt, and the right against self-incrimination, Gompers v. Bucks Stove & Range Co. , 221 U.S. 418, 444, 31 S. Ct. 492, 499, 55 L. Ed. 797, 807 (1911), cited with approval in Intern’l Union v. Bagwell , 512 U.S. 821, 826, 114 S. Ct. 2552, 2556-57, 129 L. Ed. 2d 642, 651 (1994) (stating “‘[indirect] crimin al contempt is a crime in the ordinary sense,’ Bloom v. Illinois , 391 U.S. 194, 201 (1968), and ‘crimina l penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings,’ Hicks v. Feiock , 485 U.S. 624, 632 (1988),” and citing cases setting out the particular constitutional protections applicab le to nonsummary contempt proceedings). See

Gilman , 275 Va. at 228-31, & n.2, 657 S.E.2d at 476-78 & n.2 (in appeal of a district court summary criminal contempt finding on the district judge’s Code § 18.2-459 certificate, (1) holding the applicable procedural safeguards derive from the Due Process Clauses because such proceedings are not “‘criminal prosecutions’” within the meaning of the Sixth Amendment and, thus, that the contemnor “did not have a Sixth Amendment right of confront ation” in her circuit court appeal, and (2) overru ling Baugh v. Commonwealth , 14 Va. App. 368, 417 S.E.2d 891 (1992), to the extent its holding “i s inconsistent with the holding we express here”). Further, the right to assistance of counsel and to a jury attach in nonsummary contempt proceedings under the same circumstances as for any other crime. See Bagwell , 512 U.S. at 826-27, 114 S. Ct. at 2557, 129 L. Ed. 2d at 651 (holding that “[f]or ‘serious’ criminal contempts involving imprisonment of more than six months, . . . the right to jury trial” applies); Bloom , 391 U.S. at 198, 211, 88 S. Ct. at 1480, 1487, 20 L. Ed. 2d at 526, 534 (holding “serious contempts are so nearly like other serious crimes that they are subject to the jury trial provisions of the Constitution”); Argersinger v. Hamlin , 407 U.S. 25, 37, 92 S. Ct. 2006, 2012, 32 L. Ed. 2d 530, 538 (1972) (holding that “absent a knowing and intelligent waiver, no person may be imprisoned- 32 - for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial”). 1. Finding of Contempt Against Scialdone Based on our constitutional due process an alysis above, we hold Code § 18.2-456 may be constitutionally applied to perm it Scialdone to be punished summ arily for contempt only to the

extent it delineates beha vior that Scialdone engaged in “under the eye of the court” and that was “actually observed by the court.” Oliver , 333 U.S. at 275, 68 S. Ct. at 509, 92 L. Ed. at 695. “If some essential elements of the offense [were] not personally observed by the judge, so that [she had to] depend on statements made by others for [her] knowledge about these essential elements, due process require[d] . . . that [Scialdone] be acc orded” his procedural due process rights. Id. at 275-76, 68 S. Ct. at 509, 92 L. Ed. at 695. Under settled principles, “[d] eceit by an attorney may be puni shed as a contempt if the

deceit is an abuse of the f unctions of his office . . . .” Clark v. United States , 289 U.S. 1, 12, 53 S. Ct. 465, 468, 77 L. Ed. 993, 999 (1933). Submission of a document that is wholly fraudulent

or contains falsehoods is punishable as contempt. United States v. Ford , 9 F.2d 990, 991-92 (D. Mont. 1925), cite d with approval in Clark , 289 U.S. at 12, 53 S. Ct. at 468, 77 L. Ed. at 999. “[L]ack of actual knowledge [of the fraud or fa lsehoods] does not constitute a defense, but only an extenuating circumstance in mitigation. It is counsel’s duty to know the contents of documents he presents . . . , and presentation is a representation that this duty has been performed. It is presumed he knows.” Ford , 9 F.2d at 991. Thus, here, Scialdone’s proffer to the court of the chat room rules that bore no copyright or print date, if a contempt because the docum ent was fraudulent, was a contempt for which Scialdone could be punished summarily. Assumi ng for the moment that the absence of the copyright and print dates was sufficient, without more, to support a finding that the document- 33 - had been fraudulently altered, the contempt was complete when Scialdone offered the document

into evidence. 11 Because “‘all of the essential elem ents of the misconduct [occurred] under the eye of the court [and] [were] actua lly observed by the court,’” Pounders , 521 U.S. at 988, 117 S. Ct. at 2362, 138 L. Ed. 2d at 982 (quoting Oliver , 333 U.S. at 275, 68 S. Ct. at 509, 92 L. Ed. at 695), the court had the authority to punish Sc ialdone summarily at that time if the

evidence was sufficient to establish someone ha d altered the document by removing the dates. However, the trial court did not in fact punish Scialdone summarily at that time and did

not indicate at that time that it was even en tertaining the idea of hol ding him in contempt. Instead of proceeding summarily against Sciald one, the court ordered Scialdone to telephone Taylor, his law partner, and Wendy Suttlage, one of the firm’s secretaries, and “[g]et [them] over here. . . . Right now.” The trial court then questioned Suttlage, Taylor, Jones, and Scialdone extensively to determine who had printed the do cument and when. Under questioning from the court, no one admitted having altered the document. Only then did the trial court make an express finding that someone had “white[d] out” a nd “cop[ied]” the chat room rules in order to remove the date; observe that Sc ialdone was lead counsel; and indi cate it was finding Scialdone, Taylor, and Jones all in contempt. The court did not stop there, however. It aske d Suttlage to try to generate a copy of the

chat room rules that were identi cal in format to the ones Scialdone had offered into evidence, and it had the court deputy a ccompany Suttlage back to the firm’s offices for this purpose. When that trip failed to yield a copy of the rules iden tical to the ones Scialdon e had offered, the trial court sent Suttlage back to the firm to try a second time, saying, “I need you to try to get . . . this exact page[,] [g]et it looking just like this and print it out[,] [b]ecause . . . when you do, I think

11 We analyze the sufficiency i ssue in detail in Part II.B.4., infra , for purposes of ascertaining whether double jeopardy principles permit remand for a retrial.- 34 - it’s going to have the copyright he re and it’s also going to have [t he date] at the bottom.” Thus, although the court had already found “[i]t is so obvious that this document has been altered,” it was attempting to obtain additional evidence to pr ove that the document had been altered. After Suttlage generated a document from Taylor’s computer that the court found was “the exact replica of the one that was introduced into ev idence except for the copy right is gone” where “a piece of paper [was] placed over it and copied off,” the court recessed for the evening. Following the conclusion of Dulyea’s trial, the court found Scialdone atte mpted to perpetrate a fraud on the court by offering a frau dulent document to the court. Thus, assuming without deciding that the abse nce of the copyright and print dates was sufficient, without more, to support a finding th at the document had been fraudulently altered, the contempt was complete when Scialdone offered the document into evidence. To the extent the trial court had the authority to punish Scialdone summarily without hearing any additional evidence, it did not do so. Because the court di d not proceed to punish Scialdone summarily and engaged in extensive efforts to obtain more ev idence on the issue, Scialdone was entitled to the due process rights available in a nonsummary contempt proceeding. Further, the degree of Scialdone’s culpability was not di scernable without the court’s ex amination of Taylor and Jones to determine their respective levels of culpability, as well. Thus, “[u]nder the particular facts and circumstances here, we are of the opinion th at even though the alleged misbehavior . . . by [Scialdone] was committed in the presence of the court [when he offered the allegedly fraudulent exhibit into evidence], the [court] should have had a rule specifying the alleged contemptuous acts served on [Scialdone], to be followed by a full hearing in th e matter, instead of exercising [its] discretionary summary power u nder Code § [18.2-456].” Higginbotham , 206 Va. at 296,

142 S.E.2d at 750. Accordingly, we reverse Scia ldone’s contempt conviction.- 35 - 2. Finding of Contempt Against Taylor Applying the principles set out above, we hold the trial co urt had no authority to punish Taylor summarily. Scialdone and law student Jones were the only people who made formal appearances at Dulyea’s trial. Taylor did not formally appear for Dulyea’s trial and was not present in court when Scialdone offered the allegedly fraudulent exhibit into evidence. At that time, the court had no knowledge, other than the fact of Taylor’s stat us as Scialdone’s law partner, that Taylor was involved in any way with the preparation of the do cument at issue or the

submission of the document into evidence at trial. Thus, it was not true that “‘all of the essential elements of [Taylor’s] misconduct [occurred] under the eye of the court [and] [were] actually observed by the court.’” Pounders , 521 U.S. at 988, 117 S. Ct. at 2362, 138 L. Ed. 2d at 982 (quoting Oliver , 333 U.S. at 275, 68 S. Ct. at 509, 92 L. Ed. at 695). Before learning of Taylor’s involvement, the court questioned Scia ldone about who used the screen name “wndydpooh.” Scialdone said he c ould not answer that que stion and that he had

not even seen the exhibit “until lunchtime.” The trial court then asked Scialdone what his secretary’s name was, and when he answer ed, “Wendy,” the trial court responded, “Yeah. That’s what I thought. Get her over here.” Th e court had Scialdone call his law firm from the courtroom to tell Wendy Suttlage to come to cour t, and it authorized Scialdone to tell Suttlage only “to come over here.” As the trial court listened to Scialdone ma ke the telephone call, it said, “Tell [Taylor] to come too.” Scialdone responded Taylor had “a room full of people at the office” but said he would “tell [Taylor] to leave them there” and come to court. When Taylor and Suttlage arrived, the tria l court excluded Taylor from the courtroom and questioned Suttlage under oath. The court th en brought Taylor back into the courtroom, placed him under oath, and questioned him, as well. Only after questioning Taylor did the trial

court learn of his involvement in procuring the document at issue. Thus, Taylor’s role in the- 36 - alleged contempt could not properly be punished summarily. Taylor su rely knew his actions

would result in the submission of the document into evidence, and this fact is relevant to whether his behavior was contemptuous, but it is not the test for dete rmining whether his contemptuous acts, if any, could be punished summarily. Thus, we reverse Taylor’s contempt conviction. 3. Finding of Contempt Against Jones The trial court found Jones in summary contempt under Code § 18.2-456(1) and (3). Based on our constitutional due process analysis above, we hold these subdivisions of the statute may be constitutionally applied to permit summar y punishment for contempt only to the extent that they proscribe behavior Jones engaged in “u nder the eye of the court” and that was “actually observed by the court.” Oliver , 333 U.S. at 275, 68 S. Ct. at 509, 92 L. Ed. at 695. “If some essential elements of the offense [were] not pers onally observed by the judge, so that [she had to] depend on statements made by others for [her] knowledge about these essential elements, due process require[d] . . . that [Jones] be accord ed” his procedural due process rights. Id. at 275-76, 68 S. Ct. at 509, 92 L. Ed. at 695. Plainly, the act of offering into evid ence a document bearing the screen name

“westisanazi” could be found to constitute both the t ype of “[m]isbehavior in the presence of the court” punishable under Code § 18.2-456(1) and “[v]ile, contem ptuous or insulting language” meeting the additional requirements of subsection (3) of that same code section. Thus, the person offering the document bearing that screen na me into evidence could have been subject to summary punishment for contempt on that basis. As with the case of the document alleged to be fraudulent, the offeror was charged with “know[l edge of] the contents of [the] document[] he present[ed] . . . , and presentation [was] a representation that this duty ha[d] been performed.”

Ford , 9 F.2d at 991.- 37 - However, here, the trial cour t did not summarily convict the offeror of the exhibit, Scialdone, for contempt based on the presence of the “westisanazi” screen name on the exhibit. Instead, it placed Suttlage, Taylor, Scialdone, an d Jones under oath and sought to elicit an

admission from one of them about who had devise d the derogatory screen name and caused it to

be included on the exhibit. It was upon the direct question of the trial court—“You [said you] ran . . . off [that copy of the chat room rules] , Mr. Jones. Did you do it?”—that Jones indicated he had in fact typed the derogato ry screen name. The trial court did not observe Jones’s use of the screen name and had to rely on Jones’s c onfession to establish his involvement in the contempt. As set out above, a court has the power to punish summarily “ only charges of misconduct . . . [of which] all of the essential elements . . . are unde r the eye of the court [and] are actually observed by the court .” Oliver , 333 U.S. at 275, 68 S. Ct. at 509, 92 L. Ed. at 695 (emphases added). In cases of misbehavior for which th e judge lacks personal knowledge of any of the

“essential elements” and “ is informed thereof only by the confession of the party, or by the testimony under oath of others,” the court ma y not punish the contem pt summarily. Savin , 131 U.S. at 277, 9 S. Ct. at 702, 33 L. Ed. at 153 (emphasis added); see Groppi , 404 U.S. at 504, 92 S. Ct. at 587, 30 L. Ed. 2d at 639 (“Where a cour t acts immediately to punish for contemptuous conduct committed under its eye, . . . there is no ques tion of identity . . . .”). Because the trial court had personal knowledge of the derogatory language, which was contained in an exhibit offered into evidence, but did not have personal k nowledge of Jones’s status as a participant in the use of that language, it was not entitled to punish him summarily. Thus, we reverse Jones’s contempt conviction and remand for a dditional proceedings consistent with this opinion.- 38 - 4. Sufficiency of the Evidence to Suppor t Scialdone’s and Taylor’s Convictions Although we reverse on procedural grounds, we address Scialdone’s and Taylor’s sufficiency-of-the-evidence arguments 12 insofar as necessary to assure that their retrial on remand will not violate double jeopardy: If the evidence adduced [in the contempt proceeding] was insufficient to convict [either appe llant], he is entitled to an acquittal; if he is so entitled, a remand for retrial would violate the Constitution's prohibition against double jeopardy. As established in Burks v. United States , 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), a full sufficiency analys is is required to satisfy the mandate of the Double Jeopardy Clause of the federal Constitution.

Parsons v. Commonwealth , 32 Va. App. 576, 581, 529 S.E.2d 810, 812-13 (2000). “In making this assessment, we consider all admitted eviden ce,” without regard fo r whether it was properly admitted or is likely to be admitted in any subsequent retrial. Hargraves v. Commonwealth , 37 Va. App. 299, 312-13, 557 S.E.2d 737, 743 (2002). And, as in the case of any review of the sufficiency of the evidence in a defendant’s appeal , “‘we must view all the evidence in the light

most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly

deducible therefrom.’” Id. at 312, 557 S.E.2d at 743 ( quoting Clark v .Commonwealth , 30 Va. App. 406, 409-10, 517 S.E.2d 260, 261 ( 1999)) (other citation omitted). Viewed under this standard, the evidence adm itted in the trial court was sufficient to support a finding that Scialdone and Taylor engaged in misb ehavior constituting contempt. 13 See, e.g. , Carter , 2 Va. App. at 396, 345 S.E.2d at 7 (defining contempt as, inter alia , “‘an act in

12 Jones, too, attempted to challenge the su fficiency of the evidence to support his conviction, but his petition for appeal was denied as to that issue.

13 We need not consider whether Scialdone’s a nd Taylor’s behavior vi olated a particular subsection of Code § 18.2-456. That code section does not define the outer limits of behavior that constitutes contempt for purposes of a suffi ciency analysis; rather it merely sets out the categories of contempt for which the legislature has purported to authorize summary adjudication and punishment. See Robinson , 41 Va. App. at 144-46 & n.7, 583 S.E.2d at 62-64 & n.7.- 39 - disrespect of the court or its pr ocesses, or which obstructs the ad ministration of justice’” (quoting 4A Michie’s, supra , § 2)). The trial judge found Taylor intentionally “alter[ed] the document that was to be presented to this court” by removing the print and c opyright dates and that Scialdone actually “offer[ed] that fraudulent docum ent to the court.” For purposes of assessing application of the Double Jeopardy Clause, we hold the evidence supports those findings. The evidence supported a finding that when Frankie Dulyea retained Scialdone and Taylor to represent him, he pr ovided Taylor with a two-page c opy of the Yahoo chat room rules dated 2005 and bearing a screen name of “pdulyea. ” Taylor admitted he was very familiar with the rules generally because while “[they] were in preparation for the case, [they] had looked at [the rules] multiple times because . . . [the rules were] crucial to [the] case.” Additional evidence established that on the Sunday prior to trial, Taylor had his secretary, Wendy Suttlage, print a one-page copy of the rules for him from Yahoo a nd that she used the screen name “wndydpooh” in order to do so. When preparing for trial, Scialdone and Taylor had been unable to locate the copy of the rules their client had given them. As a result, at trial on the morning of July 12, 2006, Scialdone first offered into evidence a copy of the rules bearing a print date of July 11, 2006, and the screen name “westisanazi.” Scialdone testified that af ter the trial court rejected the rules he originally proffered and said he would “have to have the rules that were in place in 2005” if he wished to pursue a pa rticular line of questioning related to the rules, he “realized we needed to find the [copy of the rules the client ha d provided],” and he “asked [Taylor] to look in the file to see if they could find it.” Taylor admitted Scialdone called him at the office on July 12, 2006, and asked him to look for “the [copy of the rules] that the client . . . dropped off,” although Ta ylor later claimed he thought any copy of the rules would suffice. Tayl or then provided to Scialdone a one-page copy

of the rules that had been re trieved and printed by someone us ing the screen name “wndydpooh,”- 40 - the screen name used by Suttlage. That copy of the rules, when offered into evidence, bore no print date or copyright date, and the trial cour t found, “you can see a line [on the second copy of the rules offered into evidence] that is clearl y where the copyright was and it’s been altered,” where “something was laid over on the copyright date and it was copied on a copier or it was whited out or something.” Scialdone, Taylor, Jone s, and Suttlage all deni ed altering the subject “wndydpooh” chat room rules in any way. The trial court had Ms. Suttlage retrieve and print copies of the Yahoo chat room rules from each of the computers in the firm’s office. All those printouts bore print and copyright dates. By comparing the various rules printouts Ms. Suttlage genera ted to the second set of rules offered into evidence, the tria l court determined the only printout that matched the spacing, margins, and other formatting of the second set of rules was the printout generated on Taylor’s computer. The judge found this printout was an “exact replica” of the second set of proffered rules except for the presen ce of the copyright and print dates. This evidence, taken as a whole and viewed in the light most favorable to the Commonwealth, supported a finding that Taylor, although he denied doing so, inte ntionally removed the copyright and print dates from the copy of the chat room rules he provided to Scialdone to offer into evidence as the 2005 rules, behavior “‘in disrespect of the court or its processes, or which obstructs the administration of justice.’” Id. (quoting 4A Michie’s, supra , § 2). This same evidence supported a finding that Scialdone’s behavior also constituted contempt. Whether Scialdone knew the document had been altered was not dispositive. See

Ford , 9 F.2d at 991-92 (holding that submission of a document containing falsehoods is punishable as contempt and that “lack of actual knowledge [of the falsehoods] does not constitute a defense, but only an extenuating circumstance in mitiga tion”). Further, if Scialdone had made reasonable inquiry of his client prior to offering the second set of rules into evidence,- 41 - he could have ascertained based on the different screen names and the fact that the second set of rules comprised one page rather than two that the sec ond set of rules was not the set his client had printed in 2005 and provi ded to his attorneys. Thus, remand for retrial of Scialdone and Taylor does not offend double jeopardy principles.

III. For these reasons, we hold each of the appellan ts was denied rights to due process, and we reverse and remand for further proceedings consis tent with this opinion if the trial court and

the Commonwealth be so advised.

Reversed and remanded.- 42 - Kelsey, J., dissenting. The majority’s discourse on due process cuts a broad path through the bedeviling principles of contempt law. Problem is , none of it is properly before us. On appeal, the defendants — two lawyers a nd a then-third-year law student — concede they did not raise any specific due process objections prior to fili ng their notices of appeal. Nor did they at any time file a motion to reconsider , to vacate, to set aside, or any other motion specifically asking the trial court to reverse its decision . What they filed was a motion to stay the jail sentence pending appeal. See Code § 19.2-319. No Virginia appellate court has ever held, until now, that a motion to stay a jail se ntence pending appeal preserves issues never once raised either prior to the conviction or in a motion to set aside after the conviction. To be sure, the Virginia Supreme Court reject ed just this sort of reasoning in Nusbaum v.

Berlin , 273 Va. 385, 641 S.E.2d 494 (2007). In that case , a lawyer was held in direct, summary contempt and complained on appeal that he was entitled to the due proces s protections available for indirect, plenary contempt. Pr ior to the entry of final judgmen t, the lawyer stated “specific objections” to the summary proceeding (very simila r to the ones asserted here) asserting that the trial court “violated his due process rights.” Id. at 404, 641 S.E.2d at 504. The lawyer advised

the trial court that he wanted to make it awar e of his specific objecti ons and, by doing so, “make sure” he “preserved any right of a ppeal” of the contempt finding. Id. He did not, however, ask

the trial court to “ reconsider and set aside the finding of contempt of court for those reasons.”

Id. (emphasis added). After hearing the lawyer’s specific objections to the contempt finding, the

trial court entered a final orde r confirming its previous bench ruling finding the lawyer in contempt. On appeal, the lawyer argued that, “having ma de the circuit court aw are of his objections, he had no obligation to ask the court to reconsider any matter since the cour t had the opportunity,- 43 - within 21 days of entering the final order, to vacate that order and ch ange its rulings.” Id. at 402, 641 S.E.2d at 503. The Virginia Supreme Court flatly disagreed. The lawyer could not complain on appeal that the trial court erred in not vacating its contempt finding on due process grounds, Nusbaum held, because the lawyer never once as ked the court to do so. “Those issues,

whether the circuit court violated his due process rights by summar ily convicting him of indirect criminal contempt, with no notice of the charge , no plenary criminal hearing, and no substitution of the Commonwealth as the prosecuting part y, are therefore waiv ed on appeal.” Id. at 406, 641 S.E.2d at 505 (citing Rule 5:25). In our case, the defendants made even less of an effort to preserve the due process issues than the lawyer did in Nusbaum . Here, the defendants raised their due process arguments only in support of their motion for a stay of the jail sent ence pending appeal. At no point did they ever ask the trial court, either orally or in writing, to set aside its contempt findings based upon these objections. As in Nusbaum , the trial court did not vacate its contempt findings based upon the after-the-fact due process obj ections because, quite simply, it was not asked to do so. The majority’s contrary view imposes upon a trial court the sua sponte obligation to vacate a conviction on grounds raised for the firs t and only time during a motion for stay pending appeal when the party standing to benefit fr om the vacature, the defendant, conspicuously

chooses not to seek that relief. That the defendant does not ask the trial court to vacate the conviction does not matter — the court should grant it anyway. I find this conclusion hard to

understand and harder still to defend. Equally unconvincing is the effo rt at distinguishing Nusbaum . “Most importantly,” the majority reasons, the trial court in our case “ had, in fact, read ” the defendant’s due process arguments and thus was “well aware” of the specific objections being asserted. Ante , at 20 (emphasis in original). That is “key” in distinguishing our case from Nusbaum , the majority- 44 - emphasizes. Ante , at 23. In Nusbaum , however, the lawyer specifically advised the trial court in open court of each of his due process objections. It could have just as easily been said in

Nusbaum that the trial court had, in fact, heard the due process arguments and thus was well

aware of the lawyer’s due process arguments. What the majority sees as the “most” important and “key” difference between our case and Nusbaum is, to me, no difference at all. See Ante , at 20, 23. In short, if procedural default applies to the lawyer in Nusbaum , it applies all the more to

the defendants in our case. The majority’s holding to the contrary is as unpersuasive as it is unprecedented. I respectfully dissent.