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Present: Judges Humphreys, Felton and Kelsey

Argued at Salem, Virginia

Record No. 3005-02-3







DECEMBER 2, 2003


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
of a

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.[2]
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
in a

case in which the defendant was charged with willfully failing

supply information to the IRS:

["]The word [willful] often denotes an act which is
intentional, or

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 (19[7]3).

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
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.




[1]Pursuant to
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



[2]The parties do
not dispute that James’s September 7, 2001 arraignment, for which she

failed to appear, pertained to felony charges against James.