Kimberly Jane Burke v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia
KIMBERLY JANE BURKE
MEMORANDUM OPINION * BY
v. Record No. 0716-00-1 JUDGE WILLIAM H. HODGES
MARCH 20, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
Jeffrey W. Shaw (Dusewicz & Soberick, P.C.,
on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Kimberly Jane Burke, appellant, appeals her conviction for
failure to appear in violation of Code § 19.2-128. On appeal, she
argues the evidence was insufficient to prove: (1) she was the
Kimberly Jane Burke who failed to appear in court on May 17, 1999;
and (2) she had notice of the May 17, 1999 court date. Finding
the evidence was insufficient to prove appellant received notice
of the May 17, 1999 hearing date, we reverse her conviction.
BACKGROUND
The evidence proved that a preliminary hearing for Kimberly
Jane Burke was scheduled for May 17, 1999 at 1:30 p.m. When the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
case was called on that date, no one appeared. Appellant was
charged with failure to appear in violation of Code § 19.2-128.
The Commonwealth introduced a copy of a York County General
District Court document which stated that Kimberly Jane Burke
"must be in court" on Monday, May 17, 1999 at 1:30 p.m. The
Commonwealth rested its case, and appellant presented no
evidence.
ANALYSIS
"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).
"Code § 19.2-128(B) requires that the Commonwealth prove
[beyond a reasonable doubt] that the accused 'willfully' failed
to appear at trial." Hunter v. Commonwealth, 15 Va. App. 717,
721, 427 S.E.2d 197, 200 (1993). When the Commonwealth "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.
The Commonwealth's evidence failed to prove that appellant
received notice that she was scheduled to appear in court on May
17, 1999. Although the Commonwealth presented evidence of a
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York County General District Court document stating that
Kimberly Jane Burke "must be in court" on Monday, May 17, 1999,
the Commonwealth failed to prove that appellant received a copy
of this document. In addition, the Commonwealth's argument that
it is the "practice" of the court to give the defendant the
original copy of this document failed to prove that appellant
actually received a copy of the document in this case.
Therefore, we find the evidence was insufficient to prove beyond
a reasonable doubt that appellant received notice that she was
to appear in court on May 17, 1999 for the preliminary hearing
and that she willfully failed to appear at the hearing.
Accordingly, we reverse the conviction and dismiss the
indictment. 1
Reversed and dismissed.
1
Because we reverse the case on this issue, we need not
address the issue of whether the evidence proved beyond a
reasonable doubt that appellant was the Kimberly Jane Burke who
failed to appear in court on May 17, 1999.
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