The Court of Appeals suddenly turns quite solicitous of the procedural rights of protective-order-violation defendants, in the case of a female defendant whose crime appeared to be knocking on the husband’s door and sitting in her car in his driveway. This wife was criminally prosecuted for her violation, and the husband and the Commonwealth’s attorney went to court arguing that the order had required her to stay at least a quarter mile away from the husband’s house. Wife’s position was that the Commonwealth had to prove that she had notice, not only of (A) the violation proceeding, but also of (B) the existence and contents of the supposedly violated order.
The Court of Appeals when it looked at this case backed off and examined it in perspective as well as in detail, and what do you think it found? While sure, the wife had notice of the hearing, which she attended, nothing in the Record tells the Court of Appeals that the trial court had in fact imposed any sort of order upon her, whether it was reduced to writing, and what it said. The trial court below had no business just going on the husband’s say-so about the quarter-mile ruling, and insofar as there may have been any underlying record of the original protective order proceedings in circuit court, that record was never made part of the record below, nor made a part of the prosecution’s case in any way. To determine what kind of order, if any, the circuit judge had imposed on this wife, the Court of Appeals would have to totally speculate about it. Even the husband neglected to testify about what the circuit court judge had said in the way of an oral injunction to the wife on the subject of further contact with the husband. The Court of Appeals doesn’t know what kind of ruling was being enforced. Nor does the Court of Appeals see any evidence of an order that was served upon the wife. There does appear to be a written order, with a lawyer’s endorsement, but there is no indication that that lawyer was the wife’s counsel, so there can’t be any assumption that whoever this lawyer might have been, he relayed notice of its contents to the wife. Service upon him, in some unknown capacity, wouldn’t amount to personal service, nor of the actual notice that is required for contempt purposes. Nor is there anything in the record to show that the jury was instructed as to some basis upon which it could presume notice or service of this order by the court clerks. The jury had indeed been instructed that wife’s knowledge of the terms of the protective order was one of the elements of the offense. But nothing the Court of Appeals can find in the Record provides any support for the finding that the jury made that the wife did have knowledge of the requirements imposed upon her. Thus the criminal conviction is reversed and the case is dismissed. Tsai v. Commonwealth, 51 Va. App. 649, 659 S.E.2d 594, 22 VLW 1386 (4/22/08).