Donnie Wayne Sensabaugh v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 23, 1998
• Docket: 1829973
• Status: Unpublished

Opinion

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.

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