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.
3