Deborah Hinton Courtney v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
DEBORAH HINTON COURTNEY OPINION BY
v. 	Record No. 2481-95-2 	JUDGE JAMES W. BENTON, JR.
DECEMBER 3, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
L. A. Harris, Jr., Judge
Craig S. Cooley for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
The trial judge found Deborah Hinton Courtney guilty of
criminal contempt of court. 	Courtney contends that (1) the
prosecution was barred by the Double Jeopardy Clause, (2) the
trial judge erred by refusing to allow Courtney's counsel to
withdraw, (3) the trial judge erred by refusing Courtney's
request for a jury trial, and (4) the evidence was insufficient
to support the conviction. 	We hold that the prosecution violated
the Double Jeopardy Clause of the United States Constitution, and
we reverse the conviction.
I.
The evidence proved that on December 5, 1994, the trial
judge entered an order establishing a schedule for Courtney's
former husband to visit their two children. 	The order stated
that Courtney, the father, and their counsel had met with a youth
service assessment team and that a family service plan had been

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prepared as a result of that meeting. 	Consistent with the plan,
the order granted the father visitation with the children, who
were in Courtney's physical custody. 	Emily Blankinship, a
licensed clinical social worker, was designated to supervise the
initial visits.
The order further provided as follows:
2. 	[Courtney] shall select the name of an in
home provider who will facilitate the
father's visitation with the children. 	The
in home provider shall be selected from a
list of names available from the Richmond
Youth Service Assessment Team case manager.
[Courtney] shall make her selection and shall
inform the case manager; Emily Blankinship,
LCSW; and the father's counsel of the name,
address and telephone number of the in home
provider by December 15, 1994. 	In the event
[Courtney] does not make her selection by
December 15, 1994, then the case manager
shall select the in home provider.
3. 	Beginning January 1, 1995, the in home
provider shall facilitate and supervise the
father's visitation with the children for a
period of three hours each week, at such
times and places as the in home provider
directs. 	Both parties are ordered to
cooperate fully with the in home provider.
4. 	The children shall continue to have
counselling sessions with Emily Blankinship,
LCSW, and [Courtney] shall cooperate fully in
making the children available for counselling
at such times and places as Ms. Blankinship
directs.
Upon the father's motion, the trial judge entered an order
on June 19, 1995, requiring Courtney to appear at a hearing on
July 17, 1995, "to show cause . . . why she should not be held in
contempt of court and punished by fine or imprisonment or both

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for failure to comply with the terms of a plan for providing
services to the Courtney family and for denying visitation to
. . . [the father] since December 15, 1994, as ordered by this
Court on December 5, 1994." 	At the hearing on July 17, 1995,
Courtney was present with her counsel. 	Also present and
participating as opposing counsel was the Assistant
Commonwealth's attorney.
At the beginning of the hearing, the trial judge stated the
following:[T]his is a matter that originally started
out as Joseph Courtney versus Deborah Hinton
Courtney and by previous orders it was
transferred to the criminal side of the court
and styled Commonwealth of Virginia versus
Deborah Courtney, was a criminal show cause
where evidence has previously been heard
pursuant to certain orders of the court and
we're back for review of that.
Called as a witness by the Commonwealth, the father
testified concerning the plan developed by the youth service
assessment team and the hearing on December 5, 1994 that
culminated in the visitation order. 	He further testified that he
had supervised visitation with his children until December 18,
1994 and that he had no visitation after that date.
Blankinship testified for the Commonwealth that the last
visitation she supervised was on December 18, 1994. 	She also
testified that Courtney was "absolutely terrorized" about having
contact with the father. 	She added that Courtney perceived that
the children were in "a very, very dangerous environment" when

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they were having visitation with their father. 	She testified
that Courtney "seemed much more distraught, more confused, much
more agitated than . . . in the past."
Courtney's counsel did not present any witnesses at the
conclusion of the Commonwealth's case. 	Courtney's counsel made a
motion to strike the evidence and argued that the Commonwealth's
evidence failed to prove that the "in-home provider" arranged
visitations as required by the December 5, 1994 order. 	In
response to the Commonwealth's argument that Blankinship's
testimony was sufficient to prove noncompliance, the trial judge
stated, "the problem is that the last order of the court, the one
that needs to be addressed is what happened with the home
provider."
The trial judge then ruled as follows:
Well, here's what should happen. 	And, you
know, I guess you learn the hard way, but
anyway, this case at this point is so
confusing I'm not sure there's anybody on the
face of this earth could ever figure it out,
so here's what should happen: 	Any pending
show causes that are now pending that start
back in 1992 and 1993, I'm going to dismiss
those show causes.
Now, there is an order entered by this
court on December 5th, 1994, that requires
certain things very specifically. 	Now, does
the Commonwealth wish to pursue a show cause
order based upon the Defendant's alleged
violation of that order?
[ASSISTANT COMMONWEALTH'S ATTORNEY]: 	Yes,
Your Honor.
When Courtney's counsel "object[ed] to the court failing to

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dismiss the case at this point based on the lack of evidence
presented," the trial judge responded, "I have dismissed all
pending show causes."
Three days later, the Commonwealth filed a motion to require
Courtney to show cause why she should not be held in contempt for
failure to abide by the December 5, 1994 order. 	The trial judge
issued a show cause order. 	Courtney's counsel then filed a
pleading alleging that the Double Jeopardy Clause barred the
prosecution for any alleged violation that occurred prior to the
July 18, 1995 dismissal order. 	The trial judge denied the plea.
At the September 1995 contempt hearing, the Commonwealth
presented testimony from Blankinship and the father that
parallelled their testimony at the July hearing. 	Blankinship
testified that her last contact with Courtney had been in
December 1994. 	Unlike the July hearing, the Commonwealth
presented testimony from Joan Advent, the in home provider. 	She
testified that she and Courtney missed each other's telephone
calls and that her last contact with Courtney was in February
1995. 	At that time, Courtney indicated that she would contact
Advent to reschedule a meeting. 	Advent had not talked with
Courtney since that date and had not attempted to call her.
Samuel Rubin, Ph.D., a clinical psychologist, testified as a
witness for Courtney. 	He testified that Courtney was extremely
frightened and "something short of panic[ked]" at the prospect of
sending the children to visitation with their father. 	She

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believed, based on his prior conduct, that the children's father
would cause them great harm. 	Dr. Rubin testified that Courtney
had an anxiety and thinking disorder that prevented her from
responding rationally to the visitation order.
At the conclusion of the evidence, the trial judge found
Courtney guilty of criminal contempt and sentenced her to five
months in jail. 	The trial judge suspended four months of that
sentence. 	This appeal followed.
II.
The Fifth Amendment to the Constitution of the United States
states that no person "shall be subject for the same offense to
be twice put in jeopardy of life or limb." 	The law is well
settled "that jeopardy means the danger of conviction." 	Rosser
v. Commonwealth, 159 Va. 1028, 1036, 167 S.E. 257, 259 (1933).
Equally well settled is the principle that jeopardy attaches
"[i]n a trial before a court without a jury . . . when the trial
has reached the stage where the Commonwealth begins to introduce
its testimony." 	Id.
In opposition to Courtney's claim that she was twice placed
in jeopardy when she was tried again in September 1995 for
contempt of court, the Commonwealth initially contends that the
first hearing that ended in a dismissal of the show cause order
was not a criminal prosecution. 	We disagree.
The Commonwealth argues that Courtney was not arraigned on
any charges at the July 17 hearing. 	However, we note that the

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record also fails to establish that Courtney was arraigned on any
charges at the September 29 hearing, which the Commonwealth
argues was the criminal contempt proceeding.
Moreover, at the beginning of the July hearing, the trial
judge stated:
[T]his is a matter that originally started
out as Joseph Courtney versus Deborah Hinton
Courtney and by previous orders it was
transferred to the criminal side of the court
and styled Commonwealth of Virginia versus
Deborah Courtney, was a criminal show cause
where evidence has previously been heard
pursuant to certain orders of the court and
we're back for review of that.
Furthermore, the transcript of that hearing clearly establishes
that the Assistant Commonwealth's attorney was present and
presented evidence on behalf of the Commonwealth. 	Although the
father testified, he did so as the Commonwealth's witness. 	The
transcript contains no indication that the father participated as
a litigant in his own behalf, and the transcript showed no
appearance by the father's counsel. 	Indeed, all of the evidence
establishes that the parties, including the judge, considered the
proceeding to be one for criminal contempt. 	Clearly, the July 17
hearing was a criminal contempt proceeding in which the Assistant
Commonwealth's attorney sought to prove that Courtney had
violated the judge's orders.
In addition, the record reveals that the July and September
proceedings focused on the same alleged offense. 	The trial judge
clearly indicated that the July 17 hearing was to encompass

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allegations concerning violations of all of the orders, including
the December 1994 order:
[JUDGE]: 	We are here for the show cause
order for which this court has heard evidence
from back in 1993 where she had violated at
that time the visitation Orders of this
Court.
[COURTNEY'S COUNSEL]: 	Will then argument be
limited to the evidence that was put on in
July of '93?
[JUDGE]: 	No, it's going to be heard because
since that time there were other orders
entered which she has violated. . . .
The record clearly establishes that the Commonwealth
presented testimony at the July 17 hearing in an attempt to prove
criminal contempt. 	That testimony bore exclusively upon
violation of the December 5, 1994 order. 	Both the father and
Blankinship, who supervised the initial visitations, were asked
by the Commonwealth to testify concerning "what was supposed to
occur from [the entry of the December 5 order] until this date."
Indeed, both witnesses discussed in their direct testimony the
circumstances that gave rise to the December 5 order and events
that occurred from December 5, 1994 to the date of the hearing.
The record establishes beyond dispute that the testimony at the
September hearing replicated the evidence presented at the July
proceeding. 	Therefore, both proceedings focused on the same
offense.
Finally, the record reveals that at the conclusion of the
Commonwealth's evidence in the July proceeding, Courtney's

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counsel moved to strike the evidence because of a failure of
proof. 	Although the Assistant Commonwealth's attorney argued
that the trial judge had sufficient evidence upon which to find
Courtney in contempt, the trial judge stated his concern that the
person who was designated in the December 5 order to arrange the
visitations did not testify. 	When the trial judge dismissed "all
pending show causes," the only reason stated for the dismissal
was his view that "this case at this point is so confusing . . .
[that nobody] on the face of this earth could ever figure it
out."
Obviously, as to conduct that occurred prior to the July 17
hearing, "dismissal qualifies as an acquittal for double jeopardy
purposes . . . [because it was] granted pursuant to a factual, as
opposed to a legal, defense." 	Greenwalt v. Commonwealth, 224 Va.
498, 500, 297 S.E.2d 709, 710 (1982). 	After jeopardy attached at
the July hearing, Courtney "possessed a valued right to have the
judge decide [her] case [in] that . . . [proceeding], based upon
the proof the Commonwealth could adduce [in that proceeding]."
Harris v. Young, 607 F.2d 1081, 1086 (4th Cir. 1979), cert.
denied, 444 U.S. 1025 (1980). 	She could not be deprived of that
right without a "manifest necessity." 	Arizona v. Washington, 434
U.S. 497, 505 (1978). 	No "manifest necessity" for the dismissal
is present on this record.
Accordingly, we hold that the evidence proved that the July
17 hearing was a criminal contempt proceeding brought to consider

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whether Courtney's conduct prior to July 17 violated the December
5, 1994 order. 	We further hold that when the trial judge at the
conclusion of the evidence dismissed all pending show cause
orders, the Commonwealth was barred from relitigating whether
Courtney's conduct prior to July 17 was criminal contempt of
court. 	For these reasons, we need not address the remaining
issues, and we reverse the conviction.
Reversed.