Craig Aaron Hooper v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: September 23, 1997
• Docket: 2100961
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Overton Argued at Norfolk, Virginia

CRAIG AARON HOOPER MEMORANDUM OPINION * BY v. Record No. 2100-96-1 JUDGE NELSON T. OVERTON SEPTEMBER 23, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH John K. Moore, Judge

Theresa B. Berry (Samford & Berry, on brief), for appellant.

Daniel J. Munroe, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Craig Aaron Hooper (defendant) was convicted by a jury for

violation of Code § 19.2-128. 1 He contends that he could not

have willfully failed to appear if he was involuntarily

incarcerated in another jurisdiction at the time of trial. For

the reasons that follow, we affirm the decision of the trial

court.

The parties are fully conversant with the record in the

cause, and because this memorandum opinion carries no

precedential value, we recite only those facts necessary to the

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. 1 Code § 19.2-128(B) provides in pertinent part 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." disposition of this appeal.

"When 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." Hunter v.

Commonwealth, 15 Va. App. 717, 721, 427 S.E.2d 197, 200 (1993)

(en banc). With this in mind "we review the evidence in the

light most favorable to the Commonwealth, granting to it all

reasonable inferences fairly deducible therefrom." Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

The evidence showed that defendant's trial was set for May

9, 1995 on ten felony charges. The order setting this date was

entered March 14, 1995 and was signed by defendant's counsel.

"Notice to [defendant's] attorney of record of the trial date is

evidence that the notice was given to [defendant]." Hunter, 15

Va. App. at 722, 427 S.E.2d at 201. See also Va. Code Ann.

§ 8.01-314 (Michie 1992) (stating that notice to counsel of

record by entry of an order "shall have the same effect as if

service had been made upon such party personally"). In spite of

this notice, defendant escaped from the Nelson County jail on

April 15, 1995. He was captured on April 19, 1995 in Penobscot

County, Maine but was not returned to Virginia Beach until

October 24, 1995, well after his trial date.

Defendant contends that because he was incarcerated in Maine

at the time of trial he did not have the intent to "willfully"

2 fail to appear. Intent is the "'purpose formed in a person's

mind which may, and often must, be inferred from the facts and

circumstances in a particular case.'" David v. Commonwealth, 2

Va. App. 1, 3, 340 S.E.2d 576, 577 (1986) (quoting Ridley v.

Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979)).

The facts and circumstances of this case show that the

defendant escaped from jail, fled to Maine, was captured and held

in jail, and did not inform his counsel or the Commonwealth of

his whereabouts. Neither the Commonwealth nor defendant's

counsel had any idea of his location until he was returned by

Maine. Upon this evidence the jury was entitled to infer that

his intent was not to appear for trial. Indeed, there was no

evidence that he did intend to be present for trial, and we

cannot say, as a matter of law, that the jury's finding of intent

was improper, so we affirm. Affirmed.