Following a bench trial, the appellant, Raymond Ashford, was convicted in the Circuit Court for Cecil County of constructive criminal contempt of court for failure to pay court-ordered child support and sentenced, inter alia, to 179 days imprisonment. He noted an appeal to the Court of Special *556 Appeals, but prior to decision by that court, this Court, on its own motion, granted certiorari to address three issues: whether the appellant was entitled to a trial by jury in Circuit Court for the charge of constructive criminal contempt -and, if so, whether the failure of the record in this case to show a knowing and voluntary waiver of that right requires reversal; whether the evidence presented was sufficient to prove criminal contempt; and whether the trial court properly tried the charge of constructive criminal contempt on an “Order Converting Charge of Civil Constructive Contempt of Court to a Charge of Criminal Constructive Contempt of Court” in lieu of a charging document filed pursuant to Maryland Rule 15-205.
We shall hold that the appellant was entitled to a jury trial and that the evidence was not sufficient to sustain the appellant’s conviction. Accordingly, we shall reverse the judgment of the Circuit Court. 1
I.
The facts in this case are undisputed. Because of his alleged failure to make child support payments, the appellant was charged with constructive criminal contempt of court by *557 “Order Converting Charge of Civil Constructive Contempt of Court to a Charge of Criminal Constructive Contempt of Court.” He appeared in the Circuit Court for Cecil County on October 6, 1997 for arraignment. At that hearing, purportedly in order to avoid the necessity of a jury trial, the State recommended, and the court agreed, to limit the maximum sentence the appellant would receive to 179 days. The appellant, appearing without counsel, did not object. 2 On the trial date, however, the appellant, now appearing with counsel, requested a jury trial. The trial court denied the request, explaining that it had already agreed to limit the sentence to 179 days. 3
At trial, a representative from the Child Support Enforcement Agency testified that the appellant was under a court order to pay child support of $50 per week plus $12.50 per week on the accrued arrearage, payable biweekly, but had not complied with that order. She testified that his payments had *558 been “sporadic at best.” Further, the representative advised the court that the last payment the agency' received from the appellant was on July 21, 1997, in the amount of $250 and that the arrearage as of the date of the trial totaled $19,240.25. She added that, since making his last payment, the appellant had failed to contact her or her agency concerning any mental or physical disabilities that would have prevented him from being able to make payments. At the conclusion of the trial, the trial judge found appellant guilty of constructive criminal contempt of court and sentenced him to 179 days in prison. This appeal followed.
II.
The appellant concedes that, under federal law, a defendant charged with criminal contempt has a right to a trial by jury only when the sentence could be incarceration for 180 days or more.
See Bloom v. Illinois,
Alternatively, while noting that criminal contempt is the only offense tried in Circuit Court for which it is contended that a defendant’s right to a jury trial depends on the length of the sentence he or she faces, the appellant cites
Kawamura v. State,
The State of Maryland, relying on Supreme Court precedent,
see Bloom,
Finding merit in the appellant’s principal argument, we need not and, therefore, do not decide whether an alleged criminal contemnor is entitled to a trial by jury as a matter of state constitutional law where the maximum potential sentence is less than 180 days.
See State v. Lancaster,
B.
In
Ex parte Bowles,
“Criminal contempts of court embrace all acts committed against the majesty of the law or the dignity of the court, and the primary and controlling object sought to be obtained by punishment of such offenders is the vindication of public authority, of which the court is the embodiment, represented at any given time by the presiding judge.”
Id.
at 330,
Being manned by mortals ... our judicial system is not perfect; but the efforts to improve should not be impeded by abusive, contemptuous behavior designed to bully, insult, ignore, frustrate and paralyze the judicial process. Such deeds are at war with our concept of justice under the law and must be eliminated.
One weapon in the court’s arsenal useful in defending its dignity is the power to punish for contempt. But the magnitude of its force demands care and discretion in its use so as to avoid arbitrary, capricious or oppressive application of this power. The contempt power has stood as a sentry at the citadel of justice for a very long time and it is *563 probably because of this antiquity that its modern day application is sometimes misunderstood and often confused.
Id.
at 717-18,
Criminal contempts may be direct or constructive. A “direct” criminal contempt has been defined as conduct which occurs in the presence of the court or so near the court that it interferes with the proper function and authority of the court.
See, e.g., Mitchell, supra,
The primary purpose of punishment for criminal contempt, whether direct or constructive, is vindication of public authority, embodied in the court and represented by the judge,
Ex parte Bowles,
“ ‘[I]t is a settled doctrine in the jurisprudence both of England and of this country, never supposed to be in conflict with the liberty of the citizen, that for direct con-tempts committed in the face of the court, at least one of superior jurisdiction, the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred; and that, according to an unbroken chain of authorities, reaching back to the earliest times, such power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions.’ ”
Mitchell,
Constructive criminal contempt, on the other hand, though itself reprehensible and equally punishable, requires a different and less summary process. See Md. Rule 15-205 (“Constructive criminal contempt; commencement; prosecution.”). 9 *566 This is because the justification for instant apprehension or immediate imprisonment is not present where the acts constituting the offense have occurred out of the presence of the court. As this Court explained in Roll & Scholl:
“When ... the judge does not have personal knowledge of the facts and must learn of them totally from others, direct contempt proceedings are not authorized. The reason such proceedings are not permitted is that there is no need for summarily disposing of an alleged contempt when the behavior of the accused is not personally known to the judge or does not occur so near to the court as to interrupt proceedings then being conducted by the judge.”
With regard to a defendant’s right to a jury trial for the charge of constructive criminal contempt, our holding in
Dorsey
is instructive. In
Dorsey,
this Court granted certiorari to consider whether, under Maryland law, a defendant in a circuit court constructive criminal contempt case has a right to a jury trial regardless of the sentence ultimately imposed by the court.
Id.
at 329,
“Although Maryland Rule 15-203 has the effect of creating an exception to Ch. 298 for direct criminal contempts summarily punished by the trial judge, there is no rule or statute creating an exception for other types of criminal contempt proceedings.... [T]he need for immediate vindication of the dignity of the court justifies the immediate summary punishment by a trial judge of direct criminal contempt, such need furnishes no ground for a court-created exception, in a constructive criminal contempt case.... ”
Similarly, in the case sub judice, the appellant’s failure to obey the order to pay child support occurred outside the presence of the court and, but for the presentation of evidence during preliminary hearings and trial, the trial court had no knowledge of the facts constituting the offense. Thus, as the record in this case fails to show a knowing and voluntary waiver of a jury trial, we hold that the appellant was denied his statutory right to a jury trial. 12
*568
The State’s reliance on
Mitchell, Whitaker,
and
Wilkins
is misplaced.
Mitchell
was a direct criminal contempt case and, farther, the issue of whether the defendant was entitled to a trial by jury was not properly before the court. In
Mitchell,
the defendant was convicted of felony theft and sentenced to fifteen years in prison.
Similarly, in
Wilkins,
another direct criminal contempt case, the defendant did not raise the issue of his entitlement to a trial by jury for a sentence less than six months. In that case, during his jury trial for rape and related crimes, the defendant engaged in disruptive conduct, cursing and using loud and abusive language in the courtroom, resulting in his removal from the courtroom.
While the issue in Whitaker was whether the defendant was entitled to a trial by jury, that case involved civil contempt as opposed to criminal contempt proceedings. This Court has made clear on several occasions the distinction between civil and criminal contempt:
“A civil contempt proceeding is intended to preserve and enforce the rights of private parties to a suit and to compel obedience or orders and decrees primarily made to benefit such parties. These proceedings are generally remedial in nature and are intended to coerce future compliance. Thus, a penalty in a civil contempt must provide for purging. On the other hand, the penalty imposed in a criminal contempt is punishment for past misconduct which may not necessarily be capable of remedy. Therefore, such a penalty does not require a purging provision but may be purely punitive. In this State, to these factors must be added the degree of proof required to establish a contempt-a civil contempt need be proved only by a preponderance of the evidence, while a criminal contempt must be shown beyond a reasonable doubt.”
State v. Roll,
*570 In the case at bar, the State converted the charging document from a civil contempt proceeding to a criminal contempt proceeding. Accordingly, the appellant was entitled to all common law, statutory, and constitutional safeguards for the criminally accused. The trial court erred by denying the appellant a jury trial.
III.
Next, the appellant argues that the evidence was insufficient to convict him of constructive criminal contempt. Specifically, the appellant contends that the State was required to prove the existence of a valid order for the payment of child support, the appellant’s knowledge of that order and his willful failure to comply with the order. The appellant argues that the State adduced testimony of the existence of an order, but failed to put the order into evidence. Therefore, he maintains, the court had no proof of the date of the order, the terms of the order, nor that he was a party to the case in which the court passed the order or that he had notice of the order and its terms. The appellant also contends that the State failed to prove beyond a reasonable doubt that the failure to make child support payments was willful.
On appeal from a judgment of criminal contempt, we do not weigh the evidence, we merely assess its sufficiency.
See Kandel v. State,
“[W]hen an appellate court is called upon to determine whether sufficient evidence exists to sustain a criminal conviction, it is not the function or duty of the appellate court to undertake a review of the record that would *571 amount to, in essence, a retrial of the case. Rather, we review the evidence in the light most favorable to the State, Jackson v. Virginia,443 U.S. 307 , 319,99 S.Ct. 2781 , 2789,61 L.Ed.2d 560 , 573 (1979); Branch v. State,305 Md. 177 , 182-83,502 A.2d 496 , 498 (1986), giving due regard to the trial court’s finding of facts, its resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses. See, e.g., State v. Raines,326 Md. 582 , 589,606 A.2d 265 , 268 (1992); Maryland Rule 8-131(c).[] Fundamentally, our concern is not with whether the trial court’s verdict is in accord with what appears to us to be the weight of the evidence, see Jackson,443 U.S. at 319 ,99 S.Ct. at 2789 ,61 L.Ed.2d at 573 ; Allison v. State,203 Md. 1 , 5,98 A.2d 273 , 275 (1953), but rather is only with whether the verdicts were supported with sufficient evidence—that is, evidence that either showed directly, or circumstantially, or supported a rational inference of facts which could fairly convince a trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt.”
When criminal contempt is charged, as distinguished from civil contempt, the State has the burden of proving both
actus reus
and
mens rea. See, Roll & Scholl, supra,
“Situations may arise where at a hearing held pursuant to an order to show cause in what properly began as a civil contempt, facts are presented which indicate that the alleged contemnor cannot comply with the order of the court that directed him to perform an act for the benefit and advantage of another party to the suit. If this inability to comply was caused by a deliberate effort or a wilful act of commission or omission by the alleged contemnor committed with the knowledge that it would frustrate the order of the court, the civil contempt proceeding should be terminat *572 ed and new proceedings may be instituted which can result in a finding of criminal contempt.”
‘Whether a defendant has failed to pay court ordered support when he or she had the ability to do so and whether that defendant has, in bad faith, caused his or her own ... inability to comply, with the intent of frustrating the court order, are material, and indeed, necessary, considerations bearing on whether the defendant should be punished [for contempt]”
Id.
at 528-529,
“While ability to comply with a court order at the time of the alleged criminal contempt is not directly an element of the offense, evidence of an ability to comply, or evidence of a defendant’s conduct purposefully rendering himself unable to comply, may, depending on the circumstances, give rise to a legitimate inference that the defendant acted with the requisite willfulness and knowledge. By contrast, evidence of an inability to comply during the relevant period may, again depending upon the circumstances, support an inference that the defendant lacked a contumacious intent. See Lynch v. Lynch, supra,342 Md. at 528-529 ,677 A.2d at 594 .”
In the case
sub judice,
viewing the evidence in the light most favorable to the State, we cannot agree that the trial court had sufficient' evidence to find wilfulness. The record is simply devoid of any evidence that the appellant’s failure to pay was deliberate or wilful. Without such evidence, the testimony that the appellant’s payments were “sporadic at best” and that the appellant had not contacted the child
*573
support agency, standing alone, is insufficient as a basis on which reasonably to infer the necessary
mens rea
for a criminal contempt conviction.
Compare, Furtado v. Furtado,
The application of the
mens rea
requirement in
Dorsey
is instructive. There, it was undisputed that the two defendants, Dorsey and Craft, failed to comply with child support orders, yet, in both cases we held that there was insufficient evidence in the record to sustain their convictions.
See Dorsey,
“Assuming arguendo that the unsworn statements by defense counsel and the agency representative should be treated as evidence, nevertheless such ‘evidence’ was wholly insufficient to support an inference that Craft’s failure to comply was accompanied by a contumacious intent.”
The same analysis applies in this case. Assuming arguendo that, without having the child support order in evidence, the *574 court may conclude that the appellant was a party to the child support order and had notice of the date and terms of the order, the State’s evidence showed neither that the appellant had sufficient money to pay the child support order nor that he had the ability to earn sufficient money and wilfully failed to work and pay. In fact, the State’s sole witness testified that she was not aware of the appellant’s financial or personal situation since July 21, 1997, the time that the appellant made his last child support payment. Thus, in limiting its proof to lack of compliance with the order, the State has failed to offer sufficient evidence to prove the crime of constructive criminal contempt beyond a reasonable doubt.
JUDGMENT REVERSED; CASE REMANDED TO THE CIRCUIT COURT FOR CECIL COUNTY WITH INSTRUCTIONS TO ENTER A VERDICT OF NOT GUILTY. COSTS TO BE PAID BY CECIL COUNTY.
Notes
. We need not, and therefore will not, address the propriety of the Circuit Court trying the appellant on an “Order Converting Charge of Civil Constructive Contempt of Court to a Charge of Criminal Constructive contempt of Court.” That issue was before the Court, albeit in a somewhat different posture,
i.e.,
"a mid-hearing ‘conversion’ from civil to criminal contempt,” in
Dorsey v. State,
"[A]lthough Rule 15-207(a) authorizes the consolidation for hearing of a constructive criminal contempt case and a constructive civil contempt case, nothing in the rules authorizes a combined single charging document. Rules 15-205 and 4-202(a) specify the nature and contents of a charging document initiating a constructive criminal contempt prosecution. Rule 15-206 sets forth the entirely different requirements concerning the nature and contents of a petition initiating a constructive civil contempt proceeding. The rules contemplate different types of petitions for constructive criminal contempt prosecutions and constructive civil contempt proceedings. A combined single petition is simply not permitted.”
Id.
at 350,
. The following colloquy occurred at the hearing:
[The State]: I have the case of Raymond Ashford. It's [sic] criminal Number 97864C. He was supposed to come in here the 21st for court or jury selection. The state is going to ask that the court bind itself to a sentence of 179 days maximum so we can get a court trial rather than a jury trial.
THE COURT: Okay. Do you have any objection to this being—in other words, the maximum sentence would be you couldn’t get more than 179 days in jail. Do you have any objection to that?
[The Appellant]: No, sir.
THE COURT: Then I will grant the motion.
. The colloquy on this point was as follows:
THE COURT: Is that the contempt for failure to pay support?
[The State]: Criminal I believe.
[Defense Counsel]: Mr. Ashford.
THE COURT: Judge Thompson limited himself to 179 days in that case.
[Defense Counsel]: That’s my understanding.
[The State]: Yes, sir, Your Honor.
[Defense Counsel]: We would still yet ask for a jury trial.
THE COURT: You can’t.
[Defense Counsel]: Well, I would argue that, I believe that, under the law in Maryland, any way, we would be entitled to a jury trial for any sentence in excess of ninety days.
THE COURT: Well. I’ll—let's go on with the trial.
. In
Bloom v. Illinois,
. In
Thompson v. State,
“No Maryland statute denies a defendant, charged in the Criminal Court with a so-called petty’ crime, the right to a jury trial. While it may be constitutional to do so, Baldwin v. New York,399 U.S. 66 ,90 S.Ct. 1886 ,26 L.Ed.2d 437 (1970); Duncan v. Louisiana,391 U.S. 145 ,88 S.Ct. 1444 ,20 L.Ed.2d 491 (1968); Dist. of Columbia v. Clawans,300 U.S. 617 ,57 S.Ct. 660 ,81 L.Ed. 843 (1937); Callan v. Wilson, supra,127 U.S. 540 ,8 S.Ct. 1301 ,32 L.Ed. 223 ; Baum v. Warden of Jail,110 Md. 579 , 584,73 A. 294 (1909); State v. Glenn, supra,54 Md. 572 [ (1880)], the statutory provisions do not reflect such an intent on the Legislature's part.
"The circuit courts, including the Criminal Court of Baltimore, are the ‘highest common-law’ courts of record within the State, exercising 'full common-law’ powers and jurisdiction in criminal cases. Code (1974), s 1-501 of the Courts and Judicial Proceedings Article. (Emphasis supplied.) As discussed above, ‘(t)he regular common-law method of trial of issues of fact in criminal cases, except cases of summary proceeding, is by jury.’ Hochheimer,
Law of Crimes and Criminal Procedure,
p. 48 (1897). Absent legislative action taking the right away (in those instances where it would be constitutional to do so), the common law right to a jury trial remains applicable.”
. Pursuant to Md.Code (1974, 1984 Repl.Vol.) § 4-302(d) of the Courts & Judicial Proceedings Article, a defendant charged in the District Court, irrespective of the crime, had the right to pray a jury trial if he/she was facing a penalty of more than 90 days imprisonment. Presently codified at Md.Code (1998 Repl. Vol) § 4-302(e) of the Courts & Judicial Proceedings Article, the statute now provides, in pertinent part:
"(e) Jury trial.—(1) The District Court is deprived of jurisdiction if a defendant is entitled to and demands a jury trial at any time prior to trial in the District Court.
(2)(i) Except as provided in subparagraph (ii) of this paragraph, unless the penalty for the offense with which the defendant is charged permits imprisonment for a period in excess of 90 days, a defendant is not entitled to a jury trial in a criminal case.”
Where several offenses arising from the same circumstances are within the District Court’s jurisdiction and one of them entitles the defendant to a jury trial, the defendant’s jury trial demand transfers to the Circuit Court original, exclusive jurisdiction over each of the offenses.
See Thompson,
"Except as provided in Title 4, Subtitle 5 of the Family Law Article, the District Court does not have jurisdiction of an offense otherwise within the District Court's jurisdiction if the person is charged:
"(i) With another offense arising out of the same circumstances but not within the District Court’s jurisdiction.
"(ii) In the circuit court with an offense arising out of the same circumstances and within the concurrent jurisdictions of the District Court and the circuit court described under subsection (d) of this section.”
Therefore, a defendant convicted in the District Court of an offense that carries a penalty of imprisonment or for which there is a constitutional right to a jury trial is entitled to a trial
de novo
by jury in the Circuit Court, whether or not he or she could have elected a jury trial in District Court.
See
Md.Code (1974, 1995 Repl.Vol.) § 12-401(g) of the Courts & Judicial Proceedings Article (“in a criminal appeal that is tried
de novo,
there is no right to a jury trial unless the offense charged is subject to a penalty of imprisonment or unless there is a constitutional right to a jury trial for that offense.”).
See also, Thompson,
. Maryland Rule 15-202(b) provides:
“(b) Direct Contempt. ‘Direct contempt’ means a contempt committed in the presence of the judge presiding in court or so near to the judge as to interrupt the court’s proceedings.”
. Maryland Rule 15-203, as pertinent, provides:
"(a) Summary Imposition of Sanctions. The court against which a direct civil or criminal contempt has been committed may impose sanctions on the person who committed it summarily if (1) the presiding judge has personally seen, heard, or otherwise directly perceived the conduct constituting the contempt and has personal knowledge of the identity of the person committing it, and (2) the contempt has interrupted the- order of the court and interfered with the dignified conduct of the court’s business. The court shall afford the alleged contemnor an opportunity, consistent with the circumstances then existing, to present exculpatory or mitigating information. If the court summarily finds and announces on the record that direct contempt has been committed, the court may defer imposition of sanctions until the conclusion of the proceeding during which the contempt was committed.”
. Maryland Rule 15-205 provides:
"(a) Separate Action. A proceeding for constructive criminal contempt shall be docketed as a separate criminal action. It shall not be included in any action in which the alleged contempt occurred. "(b) Who May Institute.
"(1) The court may initiate a proceeding for constructive criminal contempt by filing an order directing the issuance of a summons or warrant pursuant to Rule 4-212.
"(2) The State’s Attorney may initiate a proceeding for constructive criminal contempt committed against a trial court sitting within the county in which the State’s Attorney holds office by filing a petition with that court.
"(3) The Attorney General may initiate a proceeding for constructive criminal contempt committed (A) against the Court of Appeals or the Court of Special Appeals, or (B) against a trial court when the Attorney General is exercising the authority vested in the Attorney General by Maryland Constitution, Art. V, § 3, by filing a petition with the court against which the contempt was allegedly committed.
"(4) The State Prosecutor may initiate a proceeding for constructive criminal contempt committed against a court when the State Prosecutor is exercising the authority vested in the State Prosecutor by Code, Article 10, § 33B, by filing a petition with the court against which the contempt was allegedly committed.
“(5) The court or any person with actual knowledge of the facts constituting a constructive criminal contempt may request the State's Attorney, the Attorney General, or the State Prosecutor, as appropriate, to file a petition.
"(c) Appointment of Prosecutor. If the proceeding is commenced by a court on its own initiative, the court may appoint the State's Attorney of the county in which the court sits, the Attorney General, or the State Prosecutor to prosecute the charge.
"(d) Contents; Service. An order filed by the court pursuant to section (b)(1) of this Rule and a petition filed by the State’s Attorney, the Attorney General, or the State Prosecutor shall contain the information required by Rule 4-202(a). The order or petition shall be served, along with a summons or warrant, in the manner specified in Rule 4-212 or, if the proceeding is in the Court of Appeals or Court of Special Appeals, in the manner directed by that court.
*566 "(e) Waiver of Counsel. The provisions of Rule 4-215 apply to constructive criminal contempt proceedings.
"(f) Jury Trial. The provisions of Rule 4-246 apply to constructive criminal contempt proceedings.”
. That section provides:
"In a criminal case tried in a court of general jurisdiction, there is no right to a jury trial unless the offense charged is subject to a penalty of imprisonment or unless there is a constitutional right to a jury trial for that offense.”
. That section provides:
"Right to jury trial.—In a criminal appeal that is tried de novo, there is no right to a jury trial unless the offense charged is subject to a penalty of imprisonment or unless there is a constitutional right to a jury trial for that offense." (Emphasis added)
. We decline the State's invitation to adopt the reasoning of the Court of Special Appeals in
Barksdale v. State,