Terry McKinley Washington v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Powell and Senior Judge Annunziata
Argued at Alexandria, Virginia
TERRY McKINLEY WASHINGTON
MEMORANDUM OPINION* BY
v. 	Record No. 2187-09-3 	JUDGE ROSEMARIE ANNUNZIATA
JULY 27, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
Malfourd W. Trumbo, Judge
Charles R. Allen, Jr., for appellant.
Donald E. Jeffrey, III, Senior Assistant Attorney General
(Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Terry McKinley Washington appeals from his bench trial conviction for felony failure to
appear in violation of Code § 19.2-128(B). On appeal, he contends the evidence was insufficient
to prove that his failure to appear was willful. For the reasons that follow, we disagree and affirm.
BACKGROUND
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)).
So viewed, the evidence proved that Washington failed to appear for a June 8, 2009
preliminary hearing on felony charges against him and appeared, instead, the day after the
scheduled hearing. He claimed he made a mistake about the date, but acknowledged that he had

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appear,” the trial court denied Washingt 	ke and convicted him of felony failure
to appe
spoken with his attorney before the hearing, that he understood it was his “obligation to be in
court on the day [scheduled for the hearing],” and that he had “made sure that [he] knew when to
come to court for this case.” Noting that “the prima facie evidence is that [Washington] did not
on’s motion to stri
ar.
ANAYLSIS
Code § 19.2-128(B) provides that “[a]ny person . . . charged with a felony offense who
willfully fails to appear before any court as required shall be guilty of a Class 6 felony.”
‘Willf 	ve	“ 	ully,’ as used in Code § 19.2-128(B), has the customary meaning that the act must ha
been done ‘purposely, intentionally, or designedly.’” Hunter v. Commonwealth, 15 Va. Ap
717, 721, 427 S.E.2d 197, 200 (1993) (en banc). “When a criminal offense consists of an act and
a particular mens rea, both the act and the mens rea are independent and necessary elements of
the crime that the Commonwealth must prove beyond a reasonable doubt.”
p.
Id. Intent may, and
usually must, be proved by circumstantial evidence, such as a person’s conduct and statements,
and the fact finder may presume an offender intends the natural and probable consequences of
his acts. Campbell v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en banc).
“When the government proves that 	ceived timely notice of when and where
to appe
an accused re
ar 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.” Hunter, 15 Va. App. at 721, 427 S.E.2d
Although appellant argues he made a mistake about his court date, he concedes he did no
appear for the scheduled hearing. Thus, the fact finder was entitled to infer that appellant’s
failure to appear was willful and was not required to credit the explanation appellant offered in
rebuttal to the Commonwealth’s prima facie case. “The credibility of the witnesses and the
weight accorded the evidence are matters solely for the fact finder who has the opportunity to see
at 200.
t

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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’ testimony, but
is free to “rely on it in whole, in part, or reject it completely.” Rollston v. Commonwealth, 11
Va. Ap
trial co
p. 535, 547, 399 S.E.2d 823, 830 (1991).
The Commonwealth presented competent, credible, and sufficient evidence to prove
beyond a reasonable doubt that appellant was guilty of felony failure to appear. Therefore, the
urt’s judgment was neither plainly wrong nor without evidence to support it. See Askew
v. Commonwealth, 40 Va. App. 104, 107, 578 S.E.2d 58, 60 (2003). Accordingly, the decisi
of the trial court is affirmed.
on
Affirmed.