dissenting.
David P. Baugh, an attorney licensed to practice in Virginia, was summarily convicted of contempt by a trial judge in the general district court for violating Code § 18.2-456 and sentenced to ten days in jail. Neither the trial judge’s certificate nor the circuit judge’s order affirming the conviction recites the specific provision of Code § 18.2-456 that Baugh was convicted of violating. Based upon the circuit judge’s finding “that [Baugh’s] behavior in the presence of the Court was such that it did obstruct the administration of justice,” we must conclude that the conviction was based upon a finding of violation of Code § 18.2-456(1) (“Misbehavior in the presence of the court . . . as to obstruct or interrupt the administration of justice”). For the reasons that follow, I would hold that Baugh’s conduct was overzealous and impertinent but that the record did not provide sufficient evidence to prove beyond a reasonable doubt that he obstructed or interrupted the administration of justice.
Summary contempt is a criminal proceeding and occurs without the procedural due process rights associated with criminal prosecutions; thus, it may be invoked only under limited circumstances. In re Michael, 326 U.S. 224, 227 (1945). Misbehavior can only be punishable as contempt when it “constitute^] a clear and present danger or obstruction to the administration of justice.” Weston v. Commonwealth, 195 Va. 175, 184, 77 S.E.2d 405, 410 (1953). Moreover, because a summary contempt proceeding “is criminal and punitive in character, . . . the guilt of the alleged contemner must be established beyond a reasonable doubt.” Id.
*376Code § 18.2-456 requires proof beyond a reasonable doubt of (1) misbehavior, (2) in the presence of the court, (3) done with intent to obstruct or interrupt the administration of justice, which (4) obstructs or interrupts the administration of justice.
“[F]or conduct to be an obstruction of the administration of justice, it must interfere with and disrupt the orderly process of a court.” “Mere aifront to the trial judge is not enough.” “An obstruction of the administration of justice is a significant disruption of judicial proceedings.” “[T]hat remarks are injudicious ... an affront to the dignity or sensibility of the court ... or even disrespectful or insulting . . . will not, without more, justify conviction for summary criminal contempt.” Inappropriate and ill-mannered conduct that “did not obstruct or delay the hearing . . . falls short of that misbehavior which may be punished.”
Commonwealth v. Rubright, 489 Pa. 356, 364, 414 A.2d 106, 110 (1980)(citations omitted). I believe it is not “ ‘clearly . . . shown’ on this record that [Baugh’s] statements . . . actually obstructed the district judge in ‘the performance of judicial duty.’ ” In re McConnell, 370 U.S. 230, 234 (1962). See also Salyer v. Commonwealth, 209 Va. 662, 664-65, 166 S.E.2d 110, 111-12 (1969).
The record shows a hotly contested proceeding which apparently began with some friction when Baugh, who was appointed to represent an indigent, objected to the trial judge’s role in presenting the prosecution’s case against his client. When the case was called, the Commonwealth attorney was in the courtroom but did not participate in presenting the evidence. Without the participation of a Commonwealth’s attorney, the trial judge began questioning the prosecution witness to elicit evidence against Baugh’s client. The trial judge’s certificate states that the trial judge “normally proceeds without a Commonwealth Attorney in misdemeanor cases.” When Baugh objected, the trial judge “acquiesced” in the objection and asked the Commonwealth attorney to present the prosecution’s case.
During direct testimony, the prosecuting witness testified that Baugh’s client secreted two bottles of wine in his pants while in his store. During this testimony, Baugh made several objections to the testimony, which were sustained. Baugh thoroughly cross-examined the witness about his observations. The trial judge’s certif*377icate states that during Baugh’s cross-examination, “someone, as yet unidentified, said in a staged whisper from the audience ‘Object, he’s badgering the witness.’ ” The trial judge’s certificate does not reflect that the trial judge admonished the person who made the comment. The certificate states, “With this prompting the Commonwealth Attorney noted his objection and the Court sustained the objection.” Baugh, who apparently did not hear an objection by the Commonwealth’s attorney, took exception to the comment from the audience and the trial judge’s ruling.
When Baugh resumed his cross-examination of the witness, he attempted to demonstrate, using his client, that two bottles could not be secreted in his client’s pants. The certificate states that “[a]t this point the bailiffs in accordance with standard security instructions in the Court intervened and would not allow the defendant to take the bottles.” After this occurred, the trial judge advised Baugh that the demonstration could not proceed. An exchange ensued between Baugh and the trial judge, in which Baugh argued “that he was ‘being deprived of his ability to represent his client’ ” and “that his client was being denied due process.”
After the trial judge again refused Baugh the opportunity to demonstrate that his client could not have secreted the two bottles in his pants in the way suggested by the prosecution’s witness, Baugh made a motion to withdraw from representing his client. The trial judge granted Baugh’s motion. Presumably, Baugh believed that he could not continue to represent his client effectively under the circumstances then prevailing. The record does not reflect why the trial judge granted the motion; however, it is reasonable to assume that the trial judge shared Baugh’s belief.
The certificate then describes the following action which led to the conviction:
Upon being relieved as counsel Mr. Baugh turned his back on the Court and in what can only be described as a grandstand gesture of spreading his arms wide to the ceiling saying in a very loud audible sarcastic tone of voice, “I’m glad I’m out of this case, now you can appoint someone who will come in and plead the defendant guilty quicker.”
*378Code § 18.2-456(1) requires that the charged conduct must “obstruct or interrupt the administration of justice.” The evidence does not prove an actual obstruction or interruption of the administration of justice. While the trial judge alludes to Baugh’s “disruptive behavior” in the certificate as contributing to his finding of contempt of court, he focuses on Baugh’s “sarcastic tone of voice” and “lack of courtesy,” as leading to his conclusion that Baugh’s behavior was “contemptuous, condescending and servile.” The record, thus, provides ample evidence of Baugh’s impertinence. However, the certificate does not explain how Baugh’s behavior actually obstructed or interrupted the administration of justice, as required by Code § 18.2-456(1). Merely recounting the events leading to this charge does not suffice. Remarks and conduct that are an affront to the dignity or sensibility of the court do not, without more, justify a conviction for summary criminal contempt. In re Little, 404 U.S. 553, 555 (1972). See also Salyer, 209 Va. at 664-65, 166 S.E.2d at 111-12. Indeed the Supreme Court has often stated that “[tjrial courts . . . must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” Brown v. United States, 356 U.S. 148, 153 (1958).
The case of In re McConnell involved essentially the application of the same standard found in Code § 18.2-456(1). The Supreme Court clearly addressed the need to prove, rather than merely assume, the existence of an obstruction:
[BJefore the drastic procedures of the summary contempt power may be invoked to replace the protections of ordinary constitutional procedures there must be an actual obstruction of justice:
“An obstruction to the performance of judicial duty resulting from an act done in the presence of the court is, then, the characteristic upon which the power to punish for contempt must rest. This being true, it follows that the presence of that element must clearly be shown in every case where the power to punish for contempt is exerted. . . .”
370 U.S. at 234 (quoting Ex parte Hudgings, 249 U.S. 378, 383 (1919)). Furthermore, “the obstruction has to be imminent and not remote.” State v. Boyd, 166 W. Va. 690, 695, 276 S.E.2d 829, 833 (1981).
*379The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.
Craig v. Harney, 331 U.S. 367, 376 (1947).
Baugh’s comment clearly was a continuation of his strenuous efforts to prove his client’s innocence. His comments were directed to the circumstances that culminated in the judge allowing him to withdraw after the judge refused to give him latitude to prove that his client could not have concealed two bottles in his pants as alleged by the witness. Obviously, the comment was irritating and disrespectful; however, it was not shown to obstruct justice or to have been said with the intent to do so.
“It has been stated that intent is a necessary element in criminal contempt, and that no one can be punished for a criminal contempt unless the evidence makes it clear that he intended to commit it.” The record in such cases must contain more than the bare conclusion that the defendant’s conduct was insolent, insulting, boisterous or the like. The actual facts upon which the court based its final conclusion must be set out. Such conclusions alone will not support a criminal contempt adjudication. The record must show facts to support proof that the contempt was committed willfully.
Carter v. Commonwealth, 2 Va. App. 392, 397, 345 S.E.2d 5, 9 (1986) (quoting 17 Am. Jur. 2d Contempt § 8 (1964)) (other citation omitted).
Impertinent conduct of a momentary nature which does not impede a proceeding does not amount to criminal contempt. There may be occasions in the heat of advocacy when conduct occurs that is injudicious. Such conduct warrants firm disapproval; however, it does not constitute contempt. See McConnell, 370 U.S. at 235 (reversal of contempt conviction where attorney persisted in questioning a witness after the judge ordered him to cease and attorney insisted he had a right to continue “unless some bailiff stop[ped] [him]”); In re Carrow, 40 Cal. App. 3d 924, 927, 115 Cal. Rptr. 601, 604 (1974) (reversal of contempt conviction for attorney’s statement, “your honor, I submit this trial is becoming a *380joke”); In re Meizlish, 72 Mich. App. 732, 741, 250 N.W.2d 525, 528 (1976)(reversal of contempt conviction where attorney told trial judge, “I maintain that you have conducted yourself in a manner which is disgraceful to the administration of justice”); In re Johnson, 467 Pa. 552, 557, 359 A.2d 739, 742 (1976)(reversal of contempt conviction where attorney told the jury that the trial judge acted in collusion with the Commonwealth’s attorney by passing signals); Commonwealth v. Garrison, 478 Pa. 356, 390, 386 A.2d 971, 982 (1978)(reversal of contempt conviction where attorney resisted trial judge’s order to be seated and remarked, “May my client be seated as well, or is he to be flagellated in front of the jury?”).
When the evidence, as here, proves conduct that is “on the border line[,] we cannot say that beyond a reasonable doubt it oversteps the line and meets the essential requirements of the statute and constitutes contempt.” Weston, 195 Va. at 186, 77 S.E.2d at 410. Ill-chosen words and ill-considered conduct in the heat of courtroom debate are sometimes the unfortunate byproduct of zealous advocacy. Admittedly, the line between zealous advocacy and obstruction cannot be strictly defined. However, conduct that is “persistent, vociferous, contentious, and imposing, even to the point of appearing obnoxious” is regrettable but not sufficient alone to prove contempt. In re Dellinger, 461 F.2d 389, 400 (7th Cir. 1972). “[Sjince our adversary system encourages vigorous advocacy to the point where lawyers sometimes forget themselves in the heat of combat, trial judges are not allowed to use the contempt power to ensure an atmosphere of decorous understatement. Disrespectful conduct is not contemptuous.” United States v. Lowery, 733 F.2d 441, 446 (7th Cir.), cert. denied sub nom. Wolfson v. United States, 469 U.S. 932 (1984).
The recitation of the facts in the certificate fails to prove beyond a reasonable doubt that Baugh’s conduct led to a “material disruption or obstruction.” United States v. Seale, 461 F.2d 345, 369 (7th Cir. 1972) (citing McConnell, 370 U.S. at 236; Michael, 326 U.S. at 227; Ex parte Hudgings, 249 U.S. 378 (1919)). I would hold, therefore, that insufficient evidence was presented to convict Baugh of contempt of court under Code § 18.2-456. Accordingly, I dissent.