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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Felton and Kelsey
Argued at Salem, Virginia
Record No. 3005-02-3
TAMEKA JAMES, S/K/A
TAMEKA M. JAMES
COMMONWEALTH OF VIRGINIA
BY JUDGE ROBERT J. HUMPHREYS
DECEMBER 2, 2003
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
Dwight G. Rudd, Assistant Public Defender (Office of the Public
Defender, on brief), for appellant.
Stephen R. McCullough, Assistant Attorney General (Jerry W.
Kilgore, Attorney General; Amy Hay Schwab, Assistant Attorney
General, on brief), for appellee.
Tameka James appeals her conviction, following a bench trial,
for failure to appear, in
violation of Code ? 19.2-128(B). James contends the trial court
erred in finding the evidence
sufficient, as a matter of law, to establish that her failure to
appear was "willful," as required by
the statute. Because we find the evidence presented below was
sufficient to support James’s
conviction, we affirm the judgment of the trial court.
During James’s trial, at the close of the evidence, James
argued that the Commonwealth’s
evidence did not establish that she "willfully" failed
to appear, as required by Code ? 19.2-128.
She argued that, at most, she was guilty of "disobedience
to process," in violation of Code
? 18.2-456. The Commonwealth responded that the evidence proved
James "intentionally put
her[self] in a position that compromised her ability to get to
court" and that because the elements
of offense under Code ?? 19.2-128 and 18.2-456 were
substantially similar, the Commonwealth
was at liberty to choose which statute to proceed under. The
circuit court found James guilty
under Code ? 19.2-128, finding the evidence "sufficient,
in this case, to refer [sic] wilfulness
[sic] based on the totality of the circumstances."
On appeal, James contends the circuit court erred in finding the
evidence sufficient to
prove she willfully failed to appear in court, as required by
Code ? 19.2-128. James further
contends that the circuit court erred in failing to determine
that, "at worst," James was guilty of
disobedience to lawful process under Code ? 18.2-456(5). We
"When considering the sufficiency of the evidence on appeal
of a criminal conviction, we
must view all the evidence in the light most favorable to the
Commonwealth and accord to the
evidence all reasonable inferences fairly deducible
therefrom." Traverso v. Commonwealth, 6
Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). "A judgment
of conviction will not be set aside
unless it appears from the evidence that the judgment is plainly
wrong or without evidence to
support it." Riley v. Commonwealth, 13 Va. App. 494, 499,
412 S.E.2d 724, 727 (1992) (citing
Code ? 8.01-680).
It is fundamental that "the Due Process Clause protects the
accused against conviction
except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with
which [the accused] is charged." In re Winship, 397 U.S.
358, 364 (1970). "In every criminal
prosecution the Commonwealth must establish beyond a reasonable
doubt all elements of the
offense and that the accused did commit it." Harwood v.
Commonwealth, 5 Va. App. 468, 470,
364 S.E.2d 511, 512 (1988). Thus, "[w]hen a criminal
offense consists of an act and a particular
mens rea, both the act and mens rea are independent
and necessary elements of the crime that the
Commonwealth must prove beyond a reasonable doubt." Hunter
v. Commonwealth, 15
Va. App. 717, 721, 427 S.E.2d 197, 200 (1993).
Code ? 19.2-128(B) provides as follows:
Any person (i) charged with a felony offense or (ii) convicted
felony offense and execution of sentence is suspended pursuant
? 19.2-319 who willfully fails to appear before any court as
required shall be guilty of a Class 6 felony.
Code ? 19.2-128.
Accordingly, "Code ? 19.2-128(B) requires that the Commonwealth prove
[beyond a reasonable doubt] that the accused ‘willfully’
failed to appear at trial." Hunter, 15
Va. App. at 721, 427 S.E.2d at 200. "‘[The] correct
application [of willfully] in a particular case
will generally depend upon the character of the act involved and
the attending circumstances.’"
Lambert v. Commonwealth, 6 Va. App. 360, 363, 367 S.E.2d 745,
746 (1988) (quoting Lynch v.
Commonwealth, 131 Va. 762, 766, 107 S.E. 427, 428 (1921)); see
also Hunter, 15 Va. App. at
721, 427 S.E.2d at 200. "Willfully," as used in Code
? 19.2-128(B), means that the act must
have been done "purposely, intentionally, or
designedly." Id. at 721, 427 S.E.2d at 200.
The United States Supreme Court, citing authority from state and
federal courts, had this to say about the element of willfulness
case in which the defendant was charged with willfully failing
supply information to the IRS:
["]The word [willful] often denotes an act which is
knowing, or voluntary, as distinguished from accidental. But
used in a criminal statute it generally means an act done with a
purpose; without justifiable excuse; stubbornly, obstinately,
perversely. The word is also employed to characterize a thing
done without ground for believing it is lawful . . . .["] United
States v. Murdock, 290 U.S. 389, 394 (1933) (citations omitted);
see also United States v. Bishop, 412 U.S. 346, 360 (193).
Lambert, 6 Va. App. at 363, 367 S.E.2d at 746.
In considering alleged violations of Code ? 19.2-128, we have
held that "‘" [a]ny failure
to appear after notice of the appearance date [is] prima
facie evidence that such failure to appear
[was] willful."’" Hunter, 15 Va. App. at 721-22, 427
S.E.2d at 200 (quoting Trice v. United
States, 525 A.2d 176, 179 (D.C. 1987) (quoting D.C. Code ?
23-1327(a))). Thus, "[w]hen the
government proves that an accused received timely notice of when
and where to appear for trial
and thereafter does not appear on the date or place specified,
the fact finder may infer that the
failure to appear was willful." Id.
In the case at bar, there is no dispute that the Commonwealth
satisfied its prima facie
burden for felony failure to appear, pursuant to Code ?
19.2-128(B). Indeed, James conceded
she personally received the summons and, therefore, had notice
of the appearance date and time.
She further conceded that she did not appear for the September
7, 2001 arraignment. Thus, the
fact finder was entitled to infer that James’s failure to
appeal was willful.
Our analysis, however, does not end there. James offered
evidence on her own behalf, in
an attempt to contradict the Commonwealth’s theory.
Specifically, James argued that she was
incapable of appearing before the circuit court because she
could not drive herself to court and
because her father was supposed to have taken her to court, but
failed to do so. James contends
that she thus rebutted the Commonwealth’s prima facie case
by demonstrating a "justifiable
excuse, which removed her actions from the definition of ‘willful’
under Virginia law." See
Commonwealth v. Dalton, 11 Va. App. 620, 623, 400 S.E.2d 801,
803 (1991) ("‘Prima facie
evidence is evidence which on its first appearance is sufficient
to raise a presumption of fact or
establish the fact in question unless rebutted. It imports that
the evidence produces for the time
being a certain result, but that the result may be repelled.’"
(quoting Babbitt v. Miller, 192 Va.
372, 379-80, 64 S.E.2d 718, 722 (1951))).
We find no merit in James’s assertion in this regard. We find
that sufficient evidence
was presented from which the fact finder could infer that James
willfully and purposely failed to
appear. In particular, the juvenile court records reflected that
James’s father denied that he had
agreed to take James to court, and stated that "someone
else was to bring her." Furthermore, the
evidence established that James’s parents, who were also aware
of the arraignment date,
appeared at the appropriate time and expected James to be
present. Moreover, no evidence
suggested that James suffered from any physical or mental
impairment, or other circumstance
which would have rendered her incapable of securing
transportation from her overnight
"babysitting job" to the courthouse.
Considering this evidence in the light we must, we cannot hold
that the circuit court was
"plainly wrong" in determining that the "totality
of the circumstances" here was sufficient to
establish that James willfully failed to appear for the
September 7 arraignment. Indeed, the fact
finder was not required to credit James’s explanation, to the
exclusion of other evidence. "The
credibility of the witnesses and the weight accorded the
evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as
it is presented." Sandoval v.
Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).
The trier of fact is not
required to accept a witness’s testimony, but is free to
"rely on it in whole, in part, or reject it
completely." Rollston v. Commonwealth, 11 Va. App. 535,
547, 399 S.E.2d 823, 830 (1991);
see also Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d
190, 193 (1986).
Because we find the evidence sufficient to support James’s
conviction for felony failure
to appear under Code ? 19.2-128, we need not address her
argument that the circuit court could
only have convicted her of "disobedience to lawful process
under Code ? 18.2-456(5)." We
thus, affirm the judgment of the circuit court.
Code ? 17.1-413, this opinion is not designated for publication. Further,
because this opinion has no precedential value, we recite only
those facts essential to our
The parties do
not dispute that James’s September 7, 2001 arraignment, for which she
failed to appear, pertained to felony charges against James.