                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Frank and McClanahan
Argued at Richmond, Virginia


CHARLES BENNETT
                                                              MEMORANDUM OPINION* BY
v.      Record No. 3047-05-2                              CHIEF JUDGE WALTER S. FELTON, JR.
                                                                    APRIL 17, 2007
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
                            Pamela S. Baskervill, Judge Designate

                  Scott G. Crowley (Crowley & Crowley, on briefs), for appellant.

                  Susan M. Harris, Assistant Attorney General (Robert F. McDonnell,
                  Attorney General, on brief), for appellee.


        Appellant Charles Bennett was convicted by a jury of disorderly conduct in violation of

Code § 18.2-415. On appeal, he contends that: (1) the trial court erred in determining that a judge

was competent to testify against him; (2) the trial court erred in permitting the judge to testify

because the Commonwealth failed to identify him as a witness in response to appellant’s bill of

particulars; (3) Judge Baskervill was improperly designated to preside over appellant’s trial in

violation of Code § 17.1-105(B) after the judges of the Sixth Judicial Circuit (City of Hopewell)

recused themselves; and (4) the evidence was insufficient to prove that he had “engage[d] in

conduct having a direct tendency to cause acts of violence” as required by Code § 18.2-415. For the

reasons that follow, we affirm appellant’s conviction.




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

        Following receipt of a summons from the City of Hopewell for a zoning violation, appellant

went to the Clerk’s Office of the General District Court for the City of Hopewell (district court) to

obtain a form to counter-sue the city. Amanda Wright, a deputy clerk working the front counter,

informed appellant that the clerk’s office had forms for only civil claims and that he “need[ed] to

contact an attorney and seek some legal advice” because she could not tell him what to file and she

was “not an attorney and [] [could] not give legal advice.” Appellant asked Wright to describe the

types of civil claims for which forms were available. After she informed him, appellant stated,

“that’s not what I need.”

        When appellant asked to use the phone Wright directed him to a public pay phone. After

several minutes, he returned to the clerk’s office, appearing “more aggressive” and “intimidating.”

He approached Wright’s station, leaning across the counter “to the point where [she] actually . . .

pushed [her] chair back,” and demanded that she “put in writing that there was nothing [s]he could

do.” Wright again told appellant that he needed to contact an attorney for legal advice. When

appellant continued to demand she put in writing that she could not help him, Wright excused

herself and asked Edith Winters, Clerk of the district court, to assist appellant.

        Winters, who had been discussing a procedural issue in her office with district court judge

Kenneth Nye, heard parts of Wright’s exchange with appellant, and was able to discern that he was

“very upset.” She left Judge Nye sitting in her office with the door open, and walked up to the

counter to assist appellant. She explained that the zoning violation was a criminal action and that

the clerk’s office did not possess the kind of form that he was demanding. She then advised him

that she could not help him with his request and that he should seek legal advice from an attorney.

Appellant “kept insisting that [she] would help him,” getting “more and more irate, as it went on,”

and became “[v]ery much kind of out of control.”

                                                  -2-
         During Winters’ exchange with appellant, another clerk’s office employee phoned Deputy

Sheriff William R. Challis for assistance. After observing appellant “having a conversation with the

head clerk [] [in a] very loud and demanding tone,” Deputy Challis asked appellant to leave the

building. Appellant refused and walked toward the deputy until he was 10 to 12 inches away from

his face, with his hands clenched into fists, and loudly stated, “do you know who I am?” Deputy

Challis replied that he did not know who he was, but that he needed to leave the building. Appellant

refused to leave, demanding, “what are you going to do, arrest me?” The deputy replied, “yes sir,

you are now under arrest.” Deputy Challis testified that he felt “threatened” by appellant’s

demeanor and motions, and believed that he “might have to take physical action in response to

something [appellant] might do.”

         Appellant was charged with disorderly conduct in a public place in violation of Code

§ 18.2-415, and based on the testimony of Deputy Clerk Amanda Wright, Clerk Edith Winters, and

Deputy Sheriff Challis, was convicted of that offense. Appellant appealed his conviction to the

circuit court for a trial de novo, and chose to be tried by a jury.

         Appellant waived his right to be represented by a lawyer at trial in the circuit court.

Although choosing to proceed pro se, appellant retained an attorney to sit with him at counsel’s

table to assist him “procedurally” during his trial. At trial, the Commonwealth’s case consisted of

the testimony of Deputy Clerk Wright, Clerk Winters, Deputy Challis, and Judge Nye. Appellant

testified during his case-in-chief. After deliberating for twenty minutes, the jury found appellant

guilty of disorderly conduct in a public place and fixed his sentence at a fine of $1,000 and court

costs.




                                                   -3-
                                             II. ANALYSIS

                                   A. Judge Nye’s Competency to Testify

        Appellant first argues that the trial court erred in permitting Judge Nye to testify against

him. He contends that the judge was not competent to do so, pursuant to Code § 19.2-271, because

the matter about which he testified “came before him in the course of his official duties” while

sitting in the clerk’s office discussing a procedural statute with the Clerk of Court.

        Code § 19.2-271 states in part, “No judge shall be competent to testify in any criminal or

civil proceeding as to any matter which came before him in the course of his official duties.” The

general purpose of the statute is to disqualify a sitting judge from testifying to any matter coming

before the judge in an adjudicative capacity. See Bartlett v. Bank of Carroll, 218 Va. 240, 248, 237

S.E.2d 115, 120 (1977) (holding that Code § 19.2-271 prohibits a judge from testifying regarding

the “meaning” of a “decree which he entered”). It follows that a judge who passively witnesses

conduct not coming before him for adjudication is not incompetent to testify under the statute where

he is “a disinterested witness who merely happened to observe” the conduct at issue. Epps v.

Commonwealth, 47 Va. App. 687, 705, 626 S.E.2d 912, 920 (2006) (en banc), aff’d ___ Va. ___,

641 S.E.2d 77 (2007).

        Here, the record reflects appellant’s conduct did not come before Judge Nye in the course of

his adjudicative duties. Although appellant asserts in his opening brief that Judge Nye presided over

his “preliminary hearing” in the district court, nothing in the record supports appellant’s assertion.1

“An appellate court must dispose of the case upon the record and cannot base its decision upon

appellant’s petition or brief, or statements of counsel in open court.” Smith v. Commonwealth, 16

Va. App. 630, 635-36, 432 S.E.2d 2, 6 (1993) (citing Riddick v. Commonwealth, 135 Va. 724, 726,

115 S.E. 523, 524 (1923)). Thus, “[t]he burden is upon the appellant to provide us with a record


        1
            A substitute judge presided over appellant’s trial in the district court.
                                                 -4-
which substantiates the claim of error.” Jenkins v. Winchester Dep’t of Soc. Servs., 12 Va. App.

1178, 1185, 409 S.E.2d 16, 20 (1991). As appellant failed to meet his burden of providing a record

to support his assertion that Judge Nye presided over his “preliminary hearing” in the district court,

we dismiss appellant’s argument.

          Moreover, the record reflects Judge Nye passively witnessed appellant’s conduct from Clerk

Winters’ office where he had been discussing an unrelated procedural issue. Neither Clerk Winters,

nor Deputy Clerk Wright consulted Judge Nye or requested his assistance in dealing with

appellant’s increasingly loud and agitated demands. Judge Nye was simply a “disinterested witness

who merely happened to observe” appellant’s disorderly conduct. Accordingly, we conclude the

trial court did not err in determining that Judge Nye was competent to testify as to the matter he

observed.

          Appellant further contends, “Judge Nye’s testimony did not add any new information or

additional perspective to that which the jury received from the other three witnesses.” He argues

that, “there was no need to call Judge Nye except to attempt to have someone the jury would

perceive as inherently credible, with an unassailable reputation for veracity.” At trial, appellant’s

only objection was that Judge Nye “is a judicial figure and he will have undue sway over the – over

this proceeding.” He did not argue that Judge Nye’s testimony was inadmissible because it was

unduly cumulative. Consequently, we will not consider for the first time on appeal appellant’s

argument that Judge Nye’s testimony should not have been permitted because it was unduly

cumulative. See Rule 5A:18; Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488

(1998).

          In support of his argument that Judge Nye’s testimony was unduly prejudicial because he

was a judge and thus unduly bolstered the other witnesses’ testimony, appellant cites cases from

other jurisdictions. None of the cases he cites supports his fundamental assertion that a judge is

                                                 -5-
prohibited from providing a factual account of an event not coming before him in his

adjudicative capacity. Furthermore, appellant failed to provide any argument or analysis as to

how those cases support any argument he presents in this case. We will not address an argument

inadequately developed in an appellant’s opening brief. Theismann v. Theismann, 22 Va. App.

557, 572, 471 S.E.2d 809, 816, aff’d en banc, 23 Va. App. 697, 479 S.E.2d 534 (1996).

                        B. PreTrial Identification of Judge Nye as a Witness

        The day before his jury trial, the Commonwealth informed appellant it had subpoenaed

Judge Nye to appear as a prosecution witness. Appellant objected to Judge Nye testifying,

contending the Commonwealth failed to respond to his motion for a bill of particulars requesting

that the Commonwealth “state in detail the precise facts and circumstances constituting the

disorderly conduct for which the defendant ha[d] been charged, including, but not limited to, times,

dates, places and witnesses to be called by the Commonwealth.” The Commonwealth’s reply

stated, “[a]s this case has been tried in General District Court, the defendant is fully aware of all the

facts and circumstances that constitute the charge of disorderly conduct.” The trial court overruled

appellant’s objection, noting that no discovery order requiring the production of witnesses had been

entered. Appellant did not request a continuance on the basis that he had not been informed until

the day before trial that Judge Nye would be called as a witness.2

        On appeal, appellant argues that by requesting a list of witnesses in his bill of particulars, the

Commonwealth was required to provide him with the names of the witnesses it intended to call and

that failure to do so should prevent the non-disclosed witness from testifying. He also asserts that

the Commonwealth deliberately misled him in its response to his bill of particulars and that such




        2
         Appellant did request a continuance on the grounds that the district court clerk had only
permitted him to take one photograph of the clerk’s office. That denial of continuance is not
before us.
                                              -6-
prosecutorial misconduct is also a basis for vacating his conviction. Appellant cites no authority in

his opening brief to support either argument.3

       Pursuant to Rule 5A:20(e), an appellant’s opening brief must contain “[t]he principles of

law, the argument, and the authorities relating to each question presented.” By failing to cite any

authority in support of his arguments in his opening brief, appellant failed to comply with the

provisions of Rule 5A:20(e), and we will not consider his arguments on appeal. See Buchanan v.

Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992) (holding that “statements unsupported

by argument, authority, or citations to the record do not merit appellate consideration”).

       In response to the Commonwealth’s brief in opposition noting appellant’s lack of citation,

appellant attempted to rectify his violation of Rule 5A:20(e) by including citations to authority in his

reply brief. However, as we have previously held, an attempt to comply with Rule 5A:20(e) in a

reply brief filed pursuant to Rule 5A:22 “cannot excuse [appellant]’s failure to comply with

[Rule 5A:20].” Jeter v. Commonwealth, 44 Va. App. 733, 740, 607 S.E.2d 734, 737 (2005).

       Accordingly, we will not consider these assertions on appeal.

                           C. Improper Designation of Judge Baskervill

       Prior to trial, the judges of the Sixth Judicial Circuit (City of Hopewell) recused themselves

from presiding over appellant’s trial. Appellant contends the judges of the Sixth Judicial Circuit

erred “by sua sponte assigning Judge Baskervill to hear [his] trial after recusing themselves, without

certifying the recusal to the Chief Justice of the Supreme Court for such designation, as required by



       3
          We note that “‘[t]he purpose of a bill of particulars is to state sufficient facts regarding
the crime to inform an accused in advance of the offense for which he is to be tried. He is
entitled to no more.’” Swisher v. Commonwealth, 256 Va. 471, 480, 506 S.E.2d 763, 786 (1998)
(citations omitted). “The bill is relief available to an accused, at the discretion of the court, to
supplement a charging instrument which fails to ‘fully and clearly set forth all the material
elements of the offense,’ but not ‘to expand the scope of discovery in a criminal case.’” Raja v.
Commonwealth, 40 Va. App. 710, 723, 581 S.E.2d 237, 243 (2003) (quoting Sims v.
Commonwealth, 28 Va. App. 611, 619-20, 507 S.E.2d 648, 652-53 (1998)).
                                                  -7-
[] Code § 17.1-105[B.]”4 The record contains an order entered by the Chief Justice of the Supreme

Court prior to appellant’s trial, pursuant to Code § 17.1-105(B), designating Judge Pamela S.

Baskervill of the Eleventh Judicial Circuit to preside over the trial. As the record simply does not

support appellant’s assertion, we will not address the issue further. See Jenkins, 12 Va. App. at

1185, 409 S.E.2d at 20.

                                   D. Sufficiency of the Evidence

       Appellant lastly argues the evidence was not sufficient to support his disorderly conduct

conviction, contending “the witnesses uniformly testified that Mr. Bennett’s conduct did not incite

them to commit violence,” an element required for conviction under Code § 18.2-415.

       When the sufficiency of the evidence to sustain a criminal conviction is challenged on

appeal, we “view the evidence in the light most favorable to the Commonwealth, the party

prevailing below, and grant all reasonable inferences fairly deducible therefrom.” Clifton v.

Commonwealth, 22 Va. App. 178, 180, 468 S.E.2d 155, 156 (1996) (citing Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)). “We review the evidence that

tends to support and uphold the conviction, and we will affirm the conviction unless it is plainly

wrong or lacks evidentiary support.” Mannix v. Commonwealth, 31 Va. App. 271, 278, 522 S.E.2d

885, 888 (2000) (citing Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265 (1998)).




       4
           Code § 17.1-105(B) provides:

                If all the judges of any court of record are so situated in respect to
                any case, civil or criminal, pending in their court as to render it
                improper, in their opinion, for them to preside at the trial, unless
                the cause or proceeding is removed, as provided by law, they shall
                enter the fact of record and the clerk of the court shall at once
                certify the same to the Chief Justice of the Supreme Court, who
                shall designate a judge of some other court of record or a retired
                judge of any such court to preside at the trial of such case.

                                                 -8-
       Code § 18.2-415 provides in pertinent part that:

               [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:

                       A. In any . . . public building, . . . or public place engages
               in conduct having a direct tendency to cause acts of violence by the
               person or persons at whom, individually, such conduct is
               directed[.]

       The “‘question as to whether a particular act is disorderly conduct 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 v. City of Virginia Beach, 16 Va. App. 198, 200, 428

S.E.2d 766, 767 (1993) (quoting Collins v. City of Norfolk, 186 Va. 1, 5, 41 S.E.2d 448, 450

(1947)). It is well established, however, that if a law enforcement, or other public officer

“‘reasonably felt as though [he] was going to have to fight’ to subdue [an individual], [the

individual’s] behavior had a direct tendency to cause acts of violence by the person . . . at whom

[it] was directed.” Id. at 199, 428 S.E.2d at 767 (internal citation omitted). See also Mannix, 31

Va. App. at 280, 522 S.E.2d at 889. Compare Ford v. City of Newport News, 23 Va. App. 137,

474 S.E.2d 848 (1996) (concluding that while defendant’s remarks to police officers during a

consensual encounter lacked civility, there was simply no evidence to support a reasonable belief

that the defendant’s words and act of throwing his arms in the air would cause a reasonable

officer to respond with physical force).

       Based on appellant’s argumentative comments, confrontational demeanor, and repeated

refusal to comply with Deputy Challis’ request to leave the building, we find the jury could

reasonably conclude that Deputy Challis’ concern that he might have to take physical action to

subdue appellant was reasonable and supported by the evidence presented. As appellant’s

conduct had a “direct tendency to cause acts of violence by the . . . persons at whom . . . [it was]

                                                -9-
directed[,]” Code § 18.2-415, see also Keyes, 16 Va. App. at 199, 428 S.E.2d at 767; Mannix, 31

Va. App. at 280, 522 S.E.2d at 889, we conclude the Commonwealth’s evidence was sufficient

to support his conviction.

       For the reasons above, appellant’s disorderly conduct conviction is affirmed.

                                                                                       Affirmed.




                                              - 10 -
