Aftеr notice and a hearing, the trial court held attorney Billy L. Spruell in indirect criminal contempt of court. On appeal, Spruell challenges the sufficiency of the evidence of contempt and argues that the trial court erred in considering testimony from an earlier hearing in the underlying proceedings. We conclude that the properly considered evidence was sufficient to support an inference of wilful contempt. The trial court erred in сonsidering the testimony from the earlier hearing, however. We. therefore vacate the trial court’s judgment of contempt and remand the case tо allow the court to recon *325 sider the question without relying on the improperly admitted evidence.
1. On appeal of a conviction for criminal сontempt, we view the evidence in a light to support the verdict and consider it sufficient if any rational trier of fact could have found defendant guilty of сontempt beyond a reasonable doubt.
In re Irvin,
Viewed to support the trial court’s determination, the properly admitted evidence shows that a client came into Spruell’s office on a Thursday night and hired Spruell to represent him at his DUI trial, which was scheduled to begin the following Monday morning. Spruell knew he would bе unable to represent the client at his scheduled trial, as Spruell was leaving the country early Friday morning for an extended vacation in a remote area where he would be totally unreachable. He nonetheless accepted payment from the client and agreed to represent him. Sрruell’s office did file a request for a leave of absence (and, subsequently, a motion for continuance). But Spruell left without knowing if the request was granted, and without making arrangements for someone else to cover if it was not, thereby forcing the court to either postpone the trial or try the client without his attorney. This evidence is sufficient to support a finding of contempt, as a rational factfinder could infer that Spruell was wilfully disrespectful when he disregarded the scheduling order and forced the court to revise its schedule to fit his convenience.
Spruell contends that his failure to appear on Monday could not be contemptuous because it was impossible for him to appear on Monday, and one cannot be held in contempt for failing to do an act which is impossible for him to do. See
In re Henritze,
Spruell suggests his conduct did not really delay or incоnvenience the court, because the court would not have reached his client’s case on Monday anyway. At the contempt hearing, howevеr, the assistant district attorney testified that he was ready to try the case and had his witnesses present, and the judge testified that all cases on the list to be tried were reached that week, with time to spare. In any case, it is clear that Spruell’s conduct wasted judicial resources and put the court in an untenable position, and that severe disruption of judicial processes would result if attorneys routinely engaged in this practice. The fact that a court will usually grant a leave of absence or continuance does not mean that an attorney can simply assume it will do so, thereby depriving the court of its аbility to exercise its discretion.
2. Spruell also argues that the trial court erred in considering his client’s testimony from the hearing on the motion for a continuanсe, in which the client said that Spruell had failed to tell him that he would not be at the scheduled trial. We agree this testimony should not have been considered, as it was hearsay and violated Spruell’s right to confront witnesses against him. Testimony from a prior proceeding may be admissible if, among other conditions, the witnеss is unavailable for the later proceeding.
Jones v. State,
The trial court’s error in admitting the transcript was arguably harmless, since Spruell’s lack of candor toward his client, while it may be of interest to the State Bar, is only marginally relevant to *327 whether he was wilfully contemptuous toward the court. Yet this argument is belied by the trial court’s written order, which indicates that the court relied on the client’s inadmissible testimony in making its decision regarding Spruell’s contempt. In its findings of fact, the court twice refers to the client’s testimony that he did not realize Spruell would not be there on Monday; and in its conclusions of law, in setting forth the behavior that constituted the cоntempt, the court says that Spruell “cast his client upon the mercy of the court.”
As discussed in Division 1, the prоperly admitted evidence was sufficient to support an inference of wilful contempt, regardless of what Spruell told his client. But the evidence would аlso have supported an inference that Spruell, while exhibiting arrogance and poor judgment, did not actually act with wilful contempt for the court. In making the former inference (wilful contempt) rather than the latter (poor judgment), the trial court apparently was influenced by testimony it should not have cоnsidered. Accordingly, we vacate the trial court’s order and remand the case to allow the court to reconsider the contempt question without relying on this evidence. Cf.
Life for God’s Stray Animals v. New North Rockdale County Homeowners Assn.,
Judgment reversed and remanded.