                     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.


     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


     *
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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.

                                  - 2 -
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




                                - 3 -
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).

                               - 4 -
          (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).

                                - 5 -
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.

                                - 6 -
