COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
ROBERT LEE BROWN
MEMORANDUM OPINION * BY
v. Record No. 1509-01-3 JUDGE RUDOLPH BUMGARDNER, III
SEPTEMBER 24, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge Designate
(James J. Angel, on brief), for appellant.
Appellant submitting on brief.
(Jerry W. Kilgore, Attorney General; Susan M.
Harris, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
The defendant appeals his conviction after a bench trial of
two counts of forcible sodomy, Code § 18.2-67.1. He contends
the trial court refused to try him by jury. Finding he waived
his right to a jury, we affirm.
A grand jury indicted the defendant on February 7, 2000.
At his arraignment July 18, 2000, he refused to speak when asked
whether he wanted a jury trial. The trial court explained
repeatedly that the defendant did not waive his right to a jury
trial by remaining silent. When the defendant continued to
refuse to speak, it set the case for trial by jury.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The trial did not take place as scheduled partly because
the defendant would not cooperate with any of the three separate
attorneys appointed to represent him. The trial court held a
hearing the Friday before the trial, January 5, 2001, to
ascertain that the defendant still desired a jury. The record
does not contain a transcript of that hearing, but the
transcript of the trial on January 8 reflects that the trial
court had found the defendant waived his right to a jury at the
Friday hearing.
As the trial court began to swear the witnesses for a bench
trial, the judge noted for the record, "The defendant has
knowingly and voluntarily and intelligently waived his right to
a jury trial." Defense counsel interrupted to advise the court,
"[N]ow he tells me he wants a jury trial." The trial judge
responded, "Well, the Court has found that he has knowingly,
intelligently and voluntarily waived it." Defense counsel
agreed, and the defendant nodded his head affirmatively when
asked, "Mr. Brown, is that right?" The defendant stated that he
decided he wanted a jury that day. The trial court found the
request for a jury at that time was made to delay and impede the
proceedings, and it denied the defendant's request.
The defendant maintains the trial court erroneously found
that he had waived his right to a jury trial. From the record
before us, it is apparent that the trial court made that ruling
at a hearing held precisely to decide that point. Without a
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transcript of the January 5 hearing, we are not able to review
the finding of which the defendant complains. "[T]he circuit
court's judgment is presumptively correct and the burden is on
the appellant to present a sufficient record to permit a
determination whether the circuit court committed an alleged
error." Commonwealth v. Williams, 262 Va. 661, 669, 553 S.E.2d
760, 764 (2001) (citations omitted). Accordingly, we affirm.
Affirmed.
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