Donnie Wayne Sensabaugh v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Annunziata
Argued at Salem, Virginia
DONNIE WAYNE SENSABAUGH
MEMORANDUM OPINION * BY
v. Record No. 1829-97-3 JUDGE JERE M. H. WILLIS, JR.
JUNE 23, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Richard C. Pattisall, Judge
Paul F. Fantl, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Ruth Ann Morken, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Donnie Wayne Sensabaugh contends that the evidence is
insufficient to prove that he released a substance proscribed by
Code § 18.2-312. Because the question he presents lacks
justiciability, we dismiss the appeal.
On September 2, 1996, Sensabaugh sprayed Beverly Ervin,
Gregory Ervin and Donna Vencill with pepper spray. On November
4, 1996, he was indicted for three felony counts of violating
Code § 18.2-312, which proscribes the release of certain gases
under specific circumstances, and for three misdemeanor counts of
assault and battery in violation of Code § 18.2-57. After trying
the charges without the intervention of a jury, the trial court
announced that it found Sensabaugh guilty of unlawful wounding on
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
each of the felony counts. It dismissed the assault and battery
charges.
The conviction and sentencing orders recite that Sensabaugh
was convicted of unlawful wounding in violation of Code
§ 18.2-51. Nothing in the record indicates that the trial court
modified, vacated or suspended those orders within twenty-one
days after entry, or that Sensabaugh objected to the accuracy of
those orders. See Rule 1:1. Accordingly, we presume that the
orders accurately state what transpired. See Kern v.
Commonwealth, 2 Va. App. 84, 88, 341 S.E.2d 397, 400 (1986).
"Only questions presented in the petition for appeal will be
noticed by the Court of Appeals." Rule 5A:12(c). In his
petition for appeal, Sensabaugh requested that we review:
"Whether the evidence was sufficient to prove Sensabaugh guilty
beyond a reasonable [doubt] of unlawful release of a substance
proscribed by Section 18.2-312?"
Having reviewed the record, we conclude that the question
presented is moot. "As a general rule, '[m]oot questions are not
justiciable and courts do not rule on such questions to avoid
issuing advisory opinions.'" In Re Times-World Corporation, 7
Va. App. 317, 323, 373 S.E.2d 474, 477 (1988) (quoting United
States v. Peters, 754 F.2d 753, 757 (7th Cir. 1985)). See Potts
v. Mathieson Alkali Works, 165 Va. 196, 225, 181 S.E. 521, 533
(1935). The question and argument posed by Sensabaugh concern
whether pepper spray is a gas prohibited by Code § 18.2-312.
- 2 -
However, this issue has no bearing on his convictions for
unlawful wounding under Code § 18.2-51. Thus, Sensabaugh has
presented no issue bearing on his convictions. Cf. Myers v.
Commonwealth, 26 Va. App. 554, 496 S.E.2d 80 (1998).
Dismissed.
- 3 -