COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Humphreys 

Argued at Chesapeake, Virginia 

STERLING H. WEAVER, SR. 

 MEMORANDUM OPINION* BY 

v. Record No. 1056-01-1 JUDGE ROBERT J. HUMPHREYS 

 MARCH 19, 2002 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Dean W. Sword, Jr., Judge 

 Sterling H. Weaver, Sr., pro se. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (Randolph A. Beales, Attorney 

General, on brief), for appellee. 

 *

 Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 

Sterling H. Weaver, Sr., an attorney licensed to practice law 

in Virginia, appeals his conviction for criminal contempt for 

obstructing the administration of justice by failing to prepare 

for trial. Weaver asserts that the trial judge erred: 1) by 

failing to recuse himself; 2) by admitting into evidence the 

transcript of a pretrial hearing; 3) by permitting a witness to 

testify who had not been excluded from the courtroom; and 4) by 

finding the evidence sufficient to support his conviction. For 

the reasons that follow, we reverse the conviction. 

 As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 
value, this opinion recites only those facts and incidents of 

the proceedings necessary to the parties' understanding of the 

disposition of this appeal. 

 Weaver was substituted as counsel for Derrick Majette on 

November 9, 2000.1 Majette's trial was scheduled to take place 

on January 29, 2001. 

 On Friday, January 5, 2001, Weaver filed a "Notice and 

Motion to Suppress Evidence," "Notice and Motion for a Bill of 

Particulars," "Notice and Motion for Discovery and Inspection," 

and "Notice and Motion for Exculpatory Evidence." The clerk's 

office received these motions at 4:26 p.m. Each motion and 

accompanying notice indicated that the motions would be heard 

the following Monday, January 8, 2001 at 9:00 a.m. Accordingly, 

the clerk placed the motions on the circuit court docket for 

January 8, 2001. However, the Commonwealth did not appear at 

the hearing, and the motions were removed from the docket for 

that day. 

 The record does not reflect whether the Commonwealth 

received the notice and motions before January 8, 2001, nor does 

the record reflect the date the motions were heard. However, 

the transcript refers to the trial court entering an order on 

 1

 A copy of the order substituting Weaver as counsel was not 

made part of the record on appeal. However, in the transcript 

of the trial Weaver refers to "getting in the case on the 9th." 

In addition, the trial court variously states that Weaver became 

counsel for Majette on November 9th and November 6th. 

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the Thursday before trial, requiring discovery to be produced. 

Thus, we presume that the motions were heard and disposed of on 

January 25, 2001. 

On January 29, 2001, the case was called for trial as 

scheduled. After the Commonwealth indicated its readiness to 

proceed, Weaver informed the trial court that he was not prepared 

to begin trial and requested a continuance. Weaver contended that 

based upon the discovery he had received, he needed additional 

time to investigate several matters on behalf of his client. In 

particular, Weaver pointed to a photograph he had found which was 

used in a photographic lineup and had the notation "Joyce 

Alexander. None of the above," on the back. Weaver claimed he 

needed time to locate and question Alexander concerning her 

knowledge of the incident at issue. The Commonwealth objected to 

Weaver's motion and responded that all exculpatory evidence had 

been provided to Weaver in compliance with the discovery order. 

In response, the trial court scolded both parties for the 

dilatory manner in which the pretrial motions were filed and 

disposed of in the case. Nevertheless, Weaver maintained that he 

was not ready to proceed. Accordingly, the trial judge granted 

the continuance, but issued a rule to show cause against Weaver to 

appear and show cause why he should not be found in contempt for 

failing to prepare for trial. Weaver was found in criminal 

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contempt of court and sentenced to a fine of $250 after his March 

6, 2001 trial on the rule to show cause.2

On appeal, Weaver contends the evidence is insufficient to 

establish he failed to prepare for trial. In the alternative, 

Weaver argues the evidence is insufficient to demonstrate that any 

such failure was with the intent to "obstruct or interrupt the 

administration of justice." 

It is well established that "where the court's authority to 

punish for contempt is exercised by a judgment rendered, its 

finding is presumed correct and will not be reversed unless 

plainly wrong or without evidence to support it."3 Code 

§ 18.2-456 provides courts and judges with the power to 

issue attachments for contempt, and punish 

them summarily, only in the cases following: 

(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 violence, 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; 

 2

 Although a rule to show cause rather than a criminal 

warrant was issued, a misdemeanor sentencing order was entered 

finding Weaver guilty of criminal contempt in violation of Code 

§ 18.2-456, and sentencing him to a fine in the amount of $250. 

Weaver has raised no objection to the manner in which these 

proceedings were instituted. Thus, we refer to the proceedings 

below as a trial rather than a hearing. 

3 Brown v. Commonwealth, 26 Va. App. 758, 762, 497 S.E.2d 

147, 149 (1998). 

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(3) Vile, contemptuous or insulting language 

addressed to or published of a judge for or 

in respect 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 the court 

in his official character; 

(5) Disobedience or resistance of an officer 

of the court, juror, witness or other person 

to any lawful process, judgment, decree or 

order of the court. 

This Court has defined "'[c]ontempt [as] . . . an act in 

disrespect of the court and its processes, or which obstructs 

the administration of justice, or tends to bring the court into 

disrepute.'"4 "It includes any act 'which is calculated to 

embarrass, hinder, or obstruct the court' in the discharge of 

its responsibilities."5 Although Code § 18.2-456(1) requires no 

element of specific intent to "obstruct or interrupt" the 

administration of justice, we have held in cases of criminal 

contempt that in order "to support a finding of the willful 

intent necessary for [a] conviction of [direct] contempt, the 

record must contain evidence that the [conduct was engaged in 

 4 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)). 

5 Baugh v. Commonwealth, 14 Va. App. 368, 372, 417 S.E.2d 

891, 894 (1992) (quoting Carter, 2 Va. App. at 396, 345 S.E.2d 

at 7-8). 

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for] the purpose of obstructing or interrupting the 

administration of justice . . . ."6

 The record fails to reflect any evidence of intent on the 

part of Weaver to obstruct justice and/or interrupt the 

administration of justice. Indeed, Weaver simply requested a 

continuance in order to pursue the matters raised in discovery. 

The record does not indicate that Weaver had requested a 

previous continuance of the matter, nor does it establish that 

Weaver's request was unreasonable in light of the discovery he 

had received. Accordingly, on this record, we cannot find as a 

matter of law that Weaver's conduct amounted to criminal 

contempt in violation of Code § 18.2-456. Thus, we reverse the 

judgment of the trial court and dismiss.7

Reversed and dismissed.

 6 Carter, 2 Va. App. at 399, 345 S.E.2d at 9. 

7

 By so ruling, we do not suggest that an attorney's lack of 

preparation can never constitute contemptuous conduct in 

violation of Code § 18.2-456. 

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