Criminal: Conviction for being intoxicated while testifying is vacated

Where the record did not support the circuit court’s conclusion that a woman was intoxicated while testifying, the circuit court’s summary contempt order was reversed and the contempt finding was vacated.

Background

Katie Orndoff testified at a criminal jury trial as a witness for the Commonwealth. The circuit court held Orndoff in summary criminal contempt pursuant to Code § 18.2-456 for “[m]isbehavior in the presence of the court” on the basis that she was intoxicated. The circuit court sentenced Orndoff to 10 days in jail. In a published opinion, a majority of a Court of Appeals panel reversed the circuit court’s finding of summary contempt against Orndoff.

The Commonwealth subsequently filed a petition for rehearing en banc, asserting that the panel erred in concluding that the circuit court erroneously held Orndoff in summary contempt. The judges sitting in the en banc proceedings were evenly divided concerning the resolution of the matter. Accordingly, the Court of Appeals issued a published order affirming the circuit court’s judgment without opinion pursuant to Code § 17.1-402(E).

Analysis

It is common ground that a witness who appears in a courtroom while voluntarily intoxicated can be held in summary contempt, particularly where the intoxication disrupts orderly adjudication. The question in this case is whether, applying the standard of review, the behavior observed by the trial judge establishes beyond a reasonable doubt that Orndoff was voluntarily intoxicated. If summary contempt is not appropriate, a trial court must proceed in a separate hearing, with the ordinary due process safeguards of notice, opportunity to present evidence and the opportunity to test the evidence presented against the person charged with contempt.

At the outset, it is important to note that the circuit court’s Jan. 14, 2022, letter opinion clarified that it did not rely on Orndoff’s admission to smoking marijuana prior to coming to court to find her in contempt. The circuit court found that Orndoff’s admission was “largely unreliable.” The circuit court, sitting as factfinder, has the sole responsibility for determining the credibility of a witness. As such, it cannot be considered as a basis to support the contempt conviction.

Once Orndoff’s admission to smoking marijuana prior to coming to court is removed from the equation, the record does not support the circuit court’s conclusion that she was intoxicated while testifying. Specifically, the circuit court relied on her: (1) “circuitous, rambling, and confused and sometimes incoherent” testimony; (2) “peculiar hand, arm and facial gestures”; (3) refusal to obey court orders, including “blurt[ing] out” prejudicial information 10 times after being admonished and (4) repeated slouching and rocking back and forth in her chair, including being “almost prone” and almost falling out of the chair.

However, a careful review of the record reveals numerous inconsistencies between the circuit court’s articulated factual findings in its written orders and what is reflected in the video and transcript of the proceeding. Consequently, holding Orndoff in summary contempt was not appropriate. Therefore, the judgment of the Court of Appeals is reversed, the circuit court’s judgment of contempt is reversed and the conviction is vacated.

Reversed and final judgment.

Concurring opinion

Mann, J., concurring in the judgment:

The law says what it says. But upholding the law with the restraint described in this concurrence adheres to the emphasis we place on decorum and courtesy in Virginia courtrooms. It also has the salutary benefit of cultivating efficiency and decency.

Dissenting opinion

Chafin, J., joined by Kelsey, J. and Russell, J., dissenting.

The majority’s opinion improperly curtails a judge’s authority to summarily punish disruptive behavior that occurs in his presence. It is undisputed that a judge may rely on his own first-hand observations of a witness’s demeanor, speech and physical condition when summarily addressing contemptuous conduct.

A reasonable jurist observing Orndoff’s behavior could readily conclude that her condition disrupted court proceedings and was punishable by a finding of contempt. Because the majority’s opinion misapplies the deferential standard of review that is applicable in this context, I respectfully dissent.

Orndoff v. Commonwealth, Record No. 240394, Sept. 25, 2025 (McCullough) (Mann, concurring in the judgment) (Chafin, Kelsey, Russell dissenting). From the Court of Appeals. VLW 025-6-023. 32 pp.