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
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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.
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