Marion Swann, s/k/a Marion Anthony Swann v. CW

• Court: Court of Appeals of Virginia
• Decided: January 13, 1998
• Docket: 2831963
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Coleman and Overton Argued by teleconference

MARION SWANN, S/K/A MARION ANTHONY SWANN MEMORANDUM OPINION * BY v. Record No. 2831-96-3 JUDGE NELSON T. OVERTON JANUARY 13, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James F. Ingram, Judge K. Howard Sharp (Office of the Public Defender, on brief), for appellant.

Eugene Murphy, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Marion Swann (defendant) appeals his convictions of assault

and battery against a family member, in violation of Code

§ 18.2-57.2, and of summary contempt due to his failure to appear

at trial, in violation of Code § 18.2-456(5). He argues on

appeal that 1) the lower court should have accepted his claim of

self-defense against the charge of assault and battery and 2) he

did not willfully fail to appear for trial because he was

visiting a sick brother in the hospital. Because we find that

his arguments are without merit, we affirm both convictions.

The parties are fully conversant with the record in the

cause, and because this memorandum opinion carries no

precedential value, no recitation of the facts is necessary. * Pursuant to Code § 17-116.010 this opinion is not designated for publication. The evidence on appeal is taken in the light most favorable

to the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom. See Traverso v. Commonwealth, 6 Va.

App. 172, 176, 366 S.E.2d 719, 721 (1988). The question of

whether self-defense has been established is an issue for the

fact finder, in this case the trial judge. See Callahan v.

Commonwealth, 192 Va. 26, 30-31, 63 S.E.2d 617, 619 (1951). The

trial judge found that defendant kicked his wife in the groin

after being pushed by her from behind. Because such a painful

kick was an unreasonable response to the victim's relatively

minor blow, the trial judge refused to accept defendant's claim

of self-defense. Because we cannot say that this finding was

plainly wrong or without support, we affirm. Code § 8.01-608. Code § 18.2-456(5) allows courts to punish summarily a

defendant's willful failure to appear for trial. Willfulness is

implied when there is proof that the defendant received timely

notice and he didn't appear. Hunter v. Commonwealth, 15 Va. App.

717, 721, 427 S.E.2d 197, 200 (1993). Here, defendant requests

that a "sick friend" exception to the summary contempt power be

created because he was at a hospital visiting his brother. We

decline defendant's invitation to do so. Had the General

Assembly intended such an exception they could have created it by

statute. See Philip Morris Incorporated v. Emerson, 235 Va. 380,

406, 368 S.E.2d 268, 282 (1968) (holding that courts will not

invent exceptions to settled law even for substantial or

2 sympathetic cause). Because it has not, and defendant admits

that he had notice of trial and yet did not appear, we affirm the

conviction.

The evidence is more than sufficient to support both

convictions. Thus, we affirm.

Affirmed.