                                  COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, Petty and Senior Judge Clements
Argued at Richmond, Virginia

MARIE CAMARA TOKORA-MANSARY, S/K/A
 MARIE C. TOKORA-MANSARAY
                                                                MEMORANDUM OPINION * BY
v.      Record No. 2494-08-4                                     JUDGE D. ARTHUR KELSEY
                                                                    DECEMBER 29, 2009
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                                  Charles S. Sharp, Judge

                    John A. Keats for appellant.

                    Gregory W. Franklin, Assistant Attorney General (William C.
                    Mims, Attorney General, on brief), for appellee.


       At a bench trial, the trial court convicted Marie Camara Tokora-Mansary of various

misdemeanor offenses. On appeal, Tokora-Mansary argues the trial court erroneously denied her

request for a jury trial. She also challenges the sufficiency of the evidence supporting her

disorderly conduct conviction and the trial court’s refusal to apply the other-crimes proviso of

Code § 18.2-415. Agreeing with her jury waiver argument, but disagreeing with her challenges

to the disorderly conduct conviction, we reverse her convictions and remand.

                                                   I.
                                A. WAIVER OF JURY TRIAL RIGHT

       Tokora-Mansary was convicted in general district court of obstruction of justice in

violation of Code § 18.2-460(B) and disorderly conduct in violation of Code § 18.2-415. Each

conviction carries a possible incarceration term exceeding six months. She appealed to the

circuit court seeking a trial de novo. Over the course of a year, the trial date was scheduled,


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
continued, and rescheduled five times. Each of the judge’s orders scheduled the matter for “trial

without a jury.” None of the orders, however, stated Tokora-Mansary had expressly waived her

right to a trial by jury.

           Two days before trial, Tokora-Mansary filed another continuance motion requesting the

case be rescheduled for a jury trial. On the morning of trial, the trial court denied her request,

stating:

                  [I]n view of the history of this case, in view of the Defendant’s
                  appearance on frequent occasions with other attorneys having this
                  case continued with — for trial without a jury over some period of
                  time, that request was not appropriate at this time which
                  constituted a waiver of a jury.

The trial court then conducted a bench trial and found Tokora-Mansary guilty as charged. 1 The

court entered conviction orders using standard forms. Each order included various blank check

boxes, including one titled “jury waived.”

           On appeal, Tokora-Mansary contends she never expressly waived her right to a jury and

nothing in the trial court record reflects she did so. See Va. Const. art. I, § 8; Rule 3A:13(b). 2

We agree. Standing alone, a “scheduling order” merely setting a case down on the court’s

docket for a bench trial does not suffice because it does not show a “deliberate action by the

accused indicating an election to forego her right to a jury trial.” Jones v. Commonwealth, 24

Va. App. 636, 639, 484 S.E.2d 618, 620 (1997) (quoting Wright v. Commonwealth, 4 Va. App.

303, 306, 357 S.E.2d 547, 549 (1987)). Such an order could suggest as little as the prediction of


           1
         The trial court also convicted Tokora-Mansary of failing to identify herself to a law
enforcement officer in violation of Stafford County Code § 17-7. We dismissed that aspect of
the appeal because she neglected to name Stafford County as a party in her notice of appeal. See
Woody v. Commonwealth, 53 Va. App. 188, 200, 670 S.E.2d 39, 45 (2008). We later granted
her a delayed appeal on this issue which will be decided by another panel of this Court.
           2
         A trial court’s concurrence with the defendant’s waiver is implied by the very act of
presiding over a bench trial. See Catlett v. Commonwealth, 198 Va. 505, 507, 95 S.E.2d 177,
178-79 (1956). No specific recordation requirement applies to the court’s concurrence. Id.
                                                 -2-
defense counsel that his client will accept his jury-waiver recommendation and, at the

appropriate time, say as much when the trial court engages the defendant in the colloquy required

by Rule 3A:13(b).

        In addition, no transcript or statement of facts indicates Tokora-Mansary waived her right

to a jury. Nor do we see anything in this record like the “jury waiver form” found acceptable by

Commonwealth v. Williams, 262 Va. 661, 668, 553 S.E.2d 760, 763 (2001). The transcript of

the trial court’s remarks from the bench do not imply that on some prior occasion Tokora-

Mansary expressly waived her right to a jury or, if she had, that the court satisfied itself that she

did so knowingly, voluntarily, and intelligently. 3

        Instead, the trial court expressly denied her jury trial demand “in view of the Defendant’s

appearance on frequent occasions with other attorneys [and] having this case continued” for a

bench trial. If a mere scheduling order does not satisfy the recordation requirement, however,

neither will a multitude of such orders. That is particularly true where, as here, the conviction

orders conspicuously suggest (by their blank check boxes) the defendant did not waive her right

to a jury.

                            B. DISORDERLY CONDUCT CONVICTION

        The trial court found Tokora-Mansary guilty of disorderly conduct under Code § 18.2-415.

Tokora-Mansary argues the evidence was insufficient to support her conviction. She also

contends that even if the court finds the evidence sufficient, her conviction should be overturned


        3
          We agree with the Commonwealth that Tokora-Mansary, as the appellant, has the duty
to provide a sufficient record for us to intelligently rule on the issues presented on appeal. See
Commonwealth Transp. Comm’r v. Target Corp., 274 Va. 341, 348, 650 S.E.2d 92, 96 (2007)
(citing Williams, 262 Va. at 669, 553 S.E.2d at 764). This principle applies to appeals claiming
a trial court violated a defendant’s jury trial right no less than appeals challenging any other
claimed deprivation of a constitutional right. Williams, 262 Va. at 669, 553 S.E.2d at 764. We
nonetheless disagree with the Commonwealth that Tokora-Mansary failed to shoulder her burden
of producing an adequate record for us to rule on the jury trial issue. The court’s orders, read in
the context of the trial judge’s remarks in the transcript, provide a sufficient basis for us to rule.
                                                 -3-
because her case fits within the other-crimes proviso of Code § 18.2-415. We disagree with both

assertions.

                                 (i) Sufficiency of the Evidence

       On appeal, we review the evidence in the “light most favorable” to the Commonwealth.

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). Viewing the record

through this evidentiary prism requires us to “discard the evidence of the accused in conflict with

that of the Commonwealth, and regard as true all the credible evidence favorable to the

Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth, 221

Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted). Our examination of

the record, moreover, “is not limited to the evidence mentioned by a party in trial argument or by

the trial court in its ruling. In determining whether there is evidence to sustain a conviction, an

appellate court must consider all the evidence admitted at trial that is contained in the record.”

Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008), aff’g, 49 Va. App.

285, 640 S.E.2d 526 (2007) (emphasis added).

       This case stemmed from a two-vehicle accident involving Tokora-Mansary at a busy

intersection in Stafford County. A sergeant with the local fire and rescue department arrived at

the scene of the accident and encountered Tokora-Mansary who quickly became “very

belligerent.” The sergeant called the local sheriff’s department seeking assistance. Officer

Jamie Walker of the Stafford County Sheriff’s Office was sent to the scene. Agitated, Tokora-

Mansary curtly asked him if he would be “witnessing” the accident. He initially suggested the

Virginia State Police would probably conduct the investigation. Officer Walker later decided to

investigate the accident himself.

       After inspecting the damaged vehicles, Officer Walker attempted to interview Tokora-

Mansary. She refused to answer because he was not “witnessing” the accident and then


                                                -4-
instructed Officer Walker not to speak to her. Her husband, standing nearby, exclaimed to

Tokora-Mansary, “[a]re you out [of] your f-ing mind”? Tokora-Mansary then exploded into a

loud and profane tirade against her husband. While this outburst continued, Officer Walker

noticed the traffic at the intersection was backing up “as far as you could see.” Drivers were

stopping their vehicles in a nearby parking lot to watch the spectacle of Tokora-Mansary lashing

out profanities at her husband. At one point, Tokora-Mansary had put on such a “show” that it

“ground the area to a halt” at the intersection.

       Officer Walker interrupted the tumult saying, “we can’t be doing this. You two need to

separate. Everybody needs to calm down.” In reply, Tokora-Mansary cursed at the officer and

told him to leave. When she told him he “had no business asking her any questions,” Walker

ordered her to “calm down” because she was behaving in a disorderly manner. Tokora-Mansary

insisted she did not have to calm down, and then continued cursing at both her husband and

Officer Walker.

       Officer Walker repeatedly tried to de-escalate the situation, but Tokora-Mansary would

not regain any semblance of self-control. Walker seized Tokora-Mansary by the hand and told

her she was under arrest for disorderly conduct. She responded, “no, I’m not.” She then “swung

away” from Walker and jerked her hand free from his grasp.

       Walker again attempted to seize Tokora-Mansary while “continually telling her to stop

resisting.” While Walker had control of one of her hands, Tokora-Mansary reached into her

pocket with her free hand. She “came out with something in her hand” which Walker feared

might be a weapon. Reacting quickly, he attempted to employ pepper spray to “get control of

her and hopefully incapacitate her long enough to get control of both of those hands.” Tokora-

Mansary swung upward and struck Walker’s hand causing the pepper spray to deploy in his face




                                                   -5-
and eyes. Officer Walker lost his vision at that point, but nonetheless managed to handcuff

Tokora-Mansary.

       Officer Walker ordered Tokora-Mansary to sit on the curb while he awaited backup. She

refused. Walker then pushed her into a sitting position. After a state trooper arrived, Walker

received treatment from the rescue squad for his eyes. Afterward, he attempted to complete his

interview of Tokora-Mansary who was seated in the state trooper’s patrol car. He asked for her

identification, but she refused to give it. She also refused to remove her feet from the car door

opening to allow Walker to close the door. Walker had to strap her legs together and forcibly

move them so the car door could be shut.

       At trial, Tokora-Mansary called her husband to the stand. He testified that his wife was

not at all belligerent or angry on the day of the accident. Nor did she speak to anyone (including

him) in a rude, loud, or profane manner. Tokora-Mansary also testified on her own behalf,

likewise disagreeing with Officer Walker’s description of the incident. Both Tokora-Mansary

and her husband specifically denied that any altercation caused Walker to be affected by the

pepper spray.

       Sitting as factfinder, the trial court observed “[t]here is no way of reconciling the

testimony between the two sides here” as each is “completely inconsistent” with the other.

Assessing the “candor of the testimony of the witnesses,” the trial court found that the testimony

of Tokora-Mansary and her husband was “simply incredible.” “The court finds as a matter of

fact that the account given by the Commonwealth is a more credible version” of the events.

Based upon this finding, the trial court found Tokora-Mansary guilty of disorderly conduct in

violation of Code § 18.2-415.

       Under settled principles, we review the trial court’s factfinding “with the highest degree

of appellate deference.” Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231


                                                -6-
(2006). An appellate court does not “ask itself whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt.” Williams v. Commonwealth, 278 Va. 190, 193,

677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979))

(emphasis in original). “Rather, the relevant question is whether ‘any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.’” Id. (citation omitted

and emphasis in original). These principles recognize that we are “not permitted to reweigh the

evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate

courts have no authority “to preside de novo over a second trial,” Haskins v. Commonwealth, 44

Va. App. 1, 11, 602 S.E.2d 402, 407 (2004).

       Governed by this standard, we hold that ample evidence supports Tokora-Mansary’s

conviction for disorderly conduct. Under Code § 18.2-415(A), a person is guilty of disorderly

conduct “if, with the intent to cause public inconvenience, annoyance or alarm, or recklessly

creating a risk thereof” he publicly “engages in conduct having a direct tendency to cause acts of

violence by the person or persons at whom, individually, such conduct is directed . . . .”

       Applied to disorder directed at law enforcement officers, Code § 18.2-415(A)

criminalizes words or conduct that “would cause a reasonable officer to respond with physical

force or violence” to preempt the anticipated assault or subdue the would-be assaulter. Ford v.

City of Newport News, 23 Va. App. 137, 144, 474 S.E.2d 848, 851 (1996) (interpreting

analogous ordinance); see also Mannix v. Commonwealth, 31 Va. App. 271, 280, 522 S.E.2d

885, 889 (2000); Keyes v. Virginia Beach, 16 Va. App. 198, 200, 428 S.E.2d 766, 768 (1993).

As always, guilt or innocence “depends largely on the facts in the particular case, and in the

determination of such question not only the nature of the particular act should be considered but

also the time and place of its occurrence as well as all the surrounding circumstances.’” Keyes,

16 Va. App. at 200, 428 S.E.2d at 767 (citation omitted).


                                                -7-
       This case involved a police officer attempting to investigate an accident in the midst of

snarled traffic at a busy intersection. Over a sustained period of time, Tokara-Mansary screamed

profanities at the officer, refused to obey any of his commands or answer any of his questions,

and loudly cursed at her husband. The tumult reached such a level that passing vehicles stopped

in a nearby parking lot to find out the cause of alarm. It became obvious to Officer Walker that

he would have to use physical force to subdue Tokara-Mansary both for his own safety and the

safety of those vulnerably stopped at the intersection while she carried on her tirade. Under the

circumstances, the trial court had a sufficient evidentiary basis to find Tokora-Mansary guilty of

disorderly conduct.

                          (ii) Code § 18.2-415’s Other-Crimes Proviso

       Even if the evidence supports her disorderly conduct conviction, Tokora-Mansary argues

her conduct fits within Code § 18.2-415’s proviso that precludes a disorderly conduct conviction

based upon “the utterance or display of any words or to include conduct otherwise made

punishable” under Title 18.2. The trial court found the provision inapplicable. We do as well.

       Code § 18.2-415’s proviso reserves “disorderly conduct convictions only for conduct not

punishable elsewhere in the criminal code.” Battle v. Commonwealth, 50 Va. App. 135, 140,

647 S.E.2d 499, 501 (2007). Sometimes mistaken as a broad limitation on the statute, the other-

crimes proviso has a narrow, “finely calibrated” scope. Id. “It is not enough that the defendant

could merely be prosecuted for a Title 18.2 crime because that requires only a showing of

probable cause” — rather, the conduct exempted by the other-crimes proviso “includes only Title

18.2 crimes for which the defendant could be found guilty beyond a reasonable doubt.” Id.

Equally important, the other-crimes proviso precludes a conviction only when the “convictable

disorderly conduct is comprised solely of conduct ‘otherwise made punishable under this title.’”

Id. at 141, 647 S.E.2d at 502 (emphasis in original). Each distinct act that, in the aggregate,


                                                -8-
constitutes disorderly conduct must be otherwise punishable under Title 18.2 for the proviso to

apply.

         Tokora-Mansary claims the proviso applies here because she “could have been charged

under [Code § 18.2-464] which punishes refusal or neglect to obey a conservator of the peace or

[Code § 18.2-416] which is the abusive language statute.” Appellant’s Br. at 20. The issue,

however, is not whether she could have been charged with other Title 18.2 offenses. It is

whether she could have been found guilty beyond a reasonable doubt for such offenses. She

could not be convicted under Code § 18.2-464 because law enforcement officers are not listed as

conservators of the peace in that statute. While she arguably could have been found guilty under

Code § 18.2-416 for using abusive language, a conviction under this section would punish only

one of the distinct acts that, in the aggregate, constituted the basis for her disorderly conduct

conviction. In short, Tokora-Mansary’s disorderly conduct was not “comprised solely of conduct

‘otherwise made punishable’” under Title 18.2. See Battle, 50 Va. App. at 141, 647 S.E.2d at

502 (emphasis in original). The trial court, therefore, did not err in finding the other-crimes

proviso inapplicable.

                                                 III.

         Because the trial court erroneously refused Tokora-Mansary’s jury demand, we reverse

her convictions for obstruction of justice in violation of Code § 18.2-460 and disorderly conduct

in violation of Code § 18.2-415. Finding no factual insufficiency or legal error in her disorderly

conduct conviction (and none alleged in her obstruction of justice conviction), we remand both

charges for retrial.


                                                                      Reversed and remanded.




                                                 -9-
