COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Felton, Ju dges Frank and Huff Argued at Alexandria, Virginia

SHAWNDA I. RUSH MEMORANDUM OPINION * BY v. Record No. 1748-13-4 JUDGE ROBERT P. FRANK JUNE 10, 2014 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY Dennis L. Hupp, Judge Thomas W. Ashton (Marilyn Ann Solomon; Solomon Law Group, on brief), for appellant. Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Shawnda Rush, appellant, wa s found in contempt of court, in violation of Code § 18.2-456(1), by the Sh enandoah County Juvenile and Domestic Relations District (J&DR) Court. She appealed that judgment to the circuit court. On appeal, she argues th e circuit court erred in “appointing a special prosecutor withobvious conflicts of interest to pursue a criminal contempt charge” against her, in violation of her due pro cess rights under the Unit ed States and Virginia Constitutions. She further conten ds the circuit court erred in finding her guilty of contempt, “because the unrebutted ev idence before the Court was that [she] suffered from multiple sclerosis that caused her serious short- and long-term memory loss, causing he r not to remember that she had recently attended a party at he r child’s school.” For the reasons stated, we affirm.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - BACKGROUND In 2013, appellant and her fo rmer husband, Kris Ashwood, were involved in contested litigation in the J&DR co urt over custody of thei r minor child. Larry Mayer, anattorney, was appointed as guardian ad litem (GAL) for the minor child. A hear ing was set for February 13, 2013. Prior to that hearing, appellant moved for a continuance, due to illness, and the hearing was rescheduled for March 26, 2013. Appellant was present in court for the March 26, 2013 hearing. At that time, the court asked appellant if she had attended a Valentine’s Day part y at her child’s school onFebruary 14, 2013, the day after her alleged illness. The GAL also ques tioned appellant in detail about this party. Appellant denied she ha d attended the party. The day after the hearing, appellant executed an affidavit in which she admitted that, in contrast to her testimony at th e hearing, she had in fact attend ed the Valentine’s Day party. Appellant stated she did not re member being at the party because of medical issues, and she attached to the affidavit documents related to her medical treatment. On May 8, 2013, the GAL file d a motion for rule to show cause, asking the J&DR court “to determine whether she willfully and falsely testified, under oath.” The motion also stated that “to the extent that [the] Court fi nds [appellant] in contempt, the Guardian ad litem seeks the imposition of all sanctions as might be deemed suitable and appropriate to the Court.” The J&DR court conducted a hearing on May 29, 2013 and found appellant in criminal contempt of court. She appealed her convi ction to the circuit court. On August 7, 2013, the circuit court, without a jury, heard the case de novo . No prosecutor appeared for the Commonwealth. Mr . Mayer was present as GAL for the child. Mayer told the judge that he had been present fo r the show cause hearing and had been directed to pursue the case. Appellant objected, stating that the GAL could not “be an advocate and a- 3 - witness in the same case.” After clarifying that Mayer could not both prosecute the case and be a witness, the court allowed the cas e to proceed with Mayer as a special prosecutor. At oral argument, appellant conceded she did not argue due process at trial. She also conceded the GAL did not testify at trial. Crystal Keller, who taught appellant’s daught er, testified that she had met appellant a number of times. She told the court appellan t attended a Valentine’s Day party at school on February 14, 2013. Ms. Keller also testified that appellant brought several gifts, including a red picture frame, post-it notes, and an apple desk wei ght. Keller said appellant stayed at school for close to an hour and signed her daughter out of school at the end of the day. Ms. Keller testified she did not notice that the defendant was c oughing, ill, or exhibiting any unusual behavior. Mr. Ashwood, the child’s father, testified as to the hearing that had originally been scheduled for February 13, 2013. He stated that at the rescheduled hearing, appellant told the J&DR court that she had visite d the doctor during the week of February 13. Ashwood also testified that in response to th e juvenile court judge’s questions , appellant stated she did not attend a Valentine’s Day party at her daughter’s school. Ashwood te stified that despite detailed questioning from the GAL, addressing specific deta ils of the party, appellant persistently denied throughout the hearing that she was at the ch ild’s school for the party. The GAL then introduced, without objection, a copy of the affida vit in which appellant admitted being at the school on February 14. Appellant moved to strike the contempt char ge, arguing that the evidence failed to prove appellant had the intent to misbeh ave in court or that her behavior obstructed justice. The court denied her motion.- 4 - ANALYSIS Appointment of GAL as Special Prosecutor Appellant’s first assignment of error cha llenges the circuit court’ s decision to appoint a guardian ad litem (GAL) as a special prosecuto r. She asserts the court’s action violated her federal and Virginia due process rights, because the GAL ha d a conflict of interest and should not have been allowed to prosecute the case an d testify at the same hearing. The Commonwealth responds that this assignment of error is waived unde r Rule 5A:18, as it was not preserved in the circ uit court. We agree. We note that under Rules 5A :12(c)(1) and 5A:20(c), appella nt must include with each assignment of error an exact reference to the pages of the transc ript, written statement of facts, or record where the alleged error has been preserved in the trial court. This ru le serves “to efficiently put the appellate court on notice as to where the pa rty satisfied Rule 5A:18 to spare the Court from having to comb the entire record to determine whether an d where the alleged error was preserved.” Brooks v. Commonwealth, 61 Va. App. 576, 581, 739 S. E.2d 224, 226 (2013). In this case, appellant referred to numerous page s in the transcript – none of which preserved a due process argument. One of the fundamental principl es of Virginia’s jurisprudence is that counsel “must timely object with sufficient specificity to an alleged error at trial to preserve th at error for appellate review.” Perry v. Commonwealth , 58 Va. App. 655, 66 6, 712 S.E.2d 765, 771 (2011) (citing Redman v. Commonwealth, 25 Va. Ap p. 215, 220, 487 S.E. 2d 269, 272 (1997)). This obligation is codified in Rule 5A:18, which provi des that “[n]o ruling of the trial c ourt . . . will be considered as a basis for reversal unless an objection was stated w ith reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain th e ends of justice.”- 5 - The rationale of Rule 5A:18 “i s to allow correction of an erro r if possible duri ng the trial, thereby avoiding the necessity of mistrials and reversals.” Gar dner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232 (1986). To comply with Rule 5A:18, an objection “‘must be both specific and timely – so that the trial judge would know the particular point bein g made in time to do something about it.’” Dickerson v. Commonwealth, 58 Va. App. 351, 356, 709 S.E.2d 717, 719 (2011) (emphasis in original) (quoting Thomas v. Commonwealth, 44 Va. App. 741, 750, 607 S.E.2d 738, 742, adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (200 5)). While appellan t in this case did object to the appointment of the GAL as special pr osecutor, she at no poin t argued due process. “Making one specific argumen t on an issue does not preserve a separate legal point on the same issue for review.” Edwards v. Commonwealth, 41 Va. Ap p. 752, 760, 589 S.E. 2d 444, 448 (2003) (en banc). “‘Rule 5A:18 applies to bar even constitu tional claims.’” Farnsworth v. Commonwealth, 43 Va. App. 490, 500, 599 S.E.2d 482, 487 (2004) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998)), a ff’d, 270 Va. 1, 613 S.E.2d 459 (2005). While appellant did object to the appointment of the GAL, we do not address a ppellant’s conflict of interest argument, because that contention is pr edicated on a due process violation. Appellant’s conflict argument is not free-standing. Rather , it is subsumed by her due process argument, which she waived. Furthermore, the GAL did not testify at the hearing. As such, any argument alleging conflict of interest fails. She also failed to develop any argumen t regarding whether the GAL could be an impartial special prosecutor. After her initial objection that the GAL did not have standing to bring a criminal case, appellant argued only that a conflict would arise if the GAL acted as both- 6 - attorney and witness in the matter. As such, th e trial court never had an opportunity to consider or rule on appellant’s current objections. Because appellant failed to preserve her argum ents in the trial court, Rule 5A:18 bars her from raising them on appeal. Furthermore, appe llant does not assert any good cause or ends of justice exception to Rule 5A:18, and “we will not invoke one sua sponte .” Arrington v. Commonwealth, 53 Va. App. 635, 642 n.7, 674 S.E.2d 554, 557 n.7 (2009). Evidence of Contempt Appellant next argues the tr ial court erred in finding her guilty of criminal contempt, because the evidence was that appellant’s multiple sclerosis caused short- and long-term memory loss. Specifically, appellant claims the unrebut ted evidence showed that she did not remember attending a party at her child’s school. In reviewing a challenge to the sufficiency of the evidence, “appellate courts will review the evidence in the light most favorable to the party prevailing at trial and consider any reasonable inferences from the proven fact s.” Towler v. Commonwealth, 59 Va. App. 284, 290, 718 S.E.2d 463, 467 (2011). We “presume the judgmentof the trial court to be correct,” Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002), and we will reverse only if the trial court’s d ecision is “plainly wrong or without evidence to support it,” Seaton v. Commonwealth, 42 Va. App. 739, 746, 595 S.E.2d 9, 12 (2004). The trier of fact has the au thority to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the facts presente d. Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). The fact finder, who has the oppor tunity to see and hear the witnesses, has the sole responsibil ity to determine their credibility, the weight to be given their test imony, and the inferences to be drawn from proven facts. Co mmonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314 (1998) (emphasis added); accord Hamilton v. Commonwealth, 279 Va. 94, 105, 688 S.E.2d 168, 175- 7 - (2010). That responsibility lies wi th the fact finder because this Court, sitting as an appellate court, and knowing nothing of the evidence or of the witness, except as it appears on the paper, feels itself very incompetent to decide on the credibility of the testimony. Brown v. Commonwea lth, 29 Va. (2 Leigh) 769, 777 (1839). Commonwealth v. McNeal, 282 Va. 16, 22, 710 S. E.2d 733, 736 (2011) (internal quotations omitted). Contempt of court is defined as misbehavio r in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice. Code § 18.2-456(1). We note that the record must cont ain facts to demonstrate th at the accused committed cont empt willfully. Carter v. Commonwealth, 2 Va. App. 392, 397, 345 S.E.2d 5, 8 (1986). Further, the evidence must establish intent in order to sustain a conviction for criminal contempt. Singleton v. Commonwealth, 278 Va. 542, 549, 685 S.E.2d 668, 672 (2009). However, whether the re quisite intent is present is generally a question for the factfinder. Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977). In the present case, appellant does not deny that she testifie d erroneously when she told the J&DR court that she had not been present at her child’s school for a Valentine’s Day party. However, appellant claims she did no t lie to the court. She argues that her mu ltiple sclerosis causes memory loss and that sh e merely forgot that she had attend ed a party at her child’s school. However, the trial court did not believe her. The court found that appellant was lucid in court and was able to remember details of her illness and medical treatment. Th e court also noted that appellant refreshed her recollect ion with information stored in her cell phone, yet she claimed not to remember anything about the party, even when the GAL provided a detailed description of the event in an effort to refresh her memory. The trial judge determined that appellant’s testimony was not credible. The trial court also f ound that appellant had the requisite intent to be- 8 - convicted of criminal contempt. The evidence supports the trial court’s determinations, and we will not disturb its factual findings.
CONCLUSION Appellant’s contention that the trial court violated her due pro cess rights by appointing the GAL as a special prosecutor is waived unde r Rule 5A:18, as she did not preserve this argument for appeal. We conclude that the evidence before the circuit court was sufficient to convict appellant of criminal contempt of court. We ther efore affirm her conviction. Affirmed.