Virginia Lawyers Weekly VA Lawyers Weekly
The Court of Appeals affirms defendant’s conviction of felony failure to appear in violation of Va. Code § 19.2-128(B), rejecting his claim that the commonwealth failed to present evidence that defendant had notice to be in court on April 15, 2014; the trial court’s judicial notice of defendant’s telephone call to the court and failure to appear on the trial date supported the conviction.
The only evidence before the trial court concerning whether defendant had notice of the April 15 trial date was the note in the trial court file, of which the trial court expressly took judicial notice. The note stated defendant called the court on April 15 at 12:57 p.m., before the 1:00 trial time, and stated he was “running late.” The notation further indicated the trial court waited until 3:05 p.m. for defendant to appear, but he never arrived. The trial court then issued a capias for defendant’s arrest for failure to appear.
Once the trial court took judicial notice of the note, its contents could be taken as true without the offering of evidence by the party who should ordinarily have done so. Defendant remained able to dispute the contents of the note, but chose not to do so. If the contents of the note permit a reasonable trier of fact to conclude defendant had notice of the April 15 trial date, there was sufficient evidence to support his conviction.
The telephone message from defendant on the trial date is at least a tacit acknowledgement by him that he was aware that his trial was scheduled for 1:00 p.m. on April 15. Based on defendant’s communication, it was not unreasonable for the trial court to conclude defendant had notice of the trial date.
Conviction affirmed.
Nelson v. Commonwealth (Russell) No. 0227-15-2, Dec. 22, 2015; Richmond Cir.Ct. (Snukals) Dorian Dalton, Sr. APD, for appellant; Benjamin H. Katz, AAG, for appellee. VLW 015-7-360(UP), 6 pp.
