                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Elder and Beales
Argued at Richmond, Virginia


CARY ANDRAE DESLANDES
                                                             MEMORANDUM OPINION * BY
v.     Record No. 2033-07-2                                    JUDGE LARRY G. ELDER
                                                                    JULY 8, 2008
COMMOWNEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                Timothy J. Hauler, Judge

                 Matthew T. Paulk for appellant.

                 Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell,
                 Attorney General, on brief), for appellee.


       Cary Andrae Deslandes (appellant) appeals from his bench trial conviction for failure to

appear in violation of Code § 19.2-128(B). On appeal, he contends the evidence was insufficient

to prove his failure to appear was willful as required to support his conviction because it showed

he was incarcerated in another jurisdiction at the time of his failure to appear. We hold the

evidence as a whole, viewed in the light most favorable to the Commonwealth, supported a

finding that appellant’s failure to appear was willful, and we affirm.

                                                   I.

                                          BACKGROUND

       On December 24, 2005, appellant was arrested for breaking and entering with intent to

commit a felony other than murder, rape, robbery or arson. He was released later that same day




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
on a $2,000 recognizance bond and ordered to appear in general district court on January 6,

2006. The bond he signed contained the following standard clauses:

               I, THE DEFENDANT, as a condition of my release from custody,
               by signing this form, promise to appear in court on the date and
               time noted above. If this date, time or place is changed for any
               reason by any court or judge, I also promise to appear as so
               directed. I understand that I . . . may not leave the Commonwealth
               of Virginia until my case, and any appeals in my case, are finished.
               I further agree to keep the peace and be of good behavior . . . .

               I, THE DEFENDANT, UNDERSTAND THAT: (1) If I fail to
               obey any of the above terms and conditions, I may be ARRESTED
               and, if a bond was posted, the court may forfeit (collect on) the
               bond; (2) if I fail to appear, the court may try and convict me in my
               absence; . . . (4) failure to appear is a separate crime; (5) I must
               promptly notify the court of any change in my mailing address or
               where I live while this case is pending.

A bondsman with Henderson Bonding signed the bond as surety.

       On January 6, 2006, appellant appeared in general district court as scheduled. The court

appointed attorney Matthew Paulk to represent him at that time and set the preliminary hearing

for February 9, 2006. Following appellant’s appearance on January 6, 2006, he voluntarily

traveled to New York. Appellant testified that he went to New York to see family and “get away

for a little while” but claimed he intended to return for his February 9, 2006 court date. He

admitted signing the bond stating that he was not allowed to “leave the Commonwealth . . . until

[his] case and any appeals . . . are finished.” He also admitted he did not ask his bail bondsman

for permission to leave the state and did not inform his attorney he was doing so. He admitted he

had been arrested and bonded out on at least four prior occasions and was aware that “if you

don’t come to court, you get in trouble.”

       Appellant stipulated that he failed to appear on February 9, 2006, and testified he was

unable to return for his preliminary hearing on that date because he was arrested in New York on

January 11, 2006, and incarcerated at Rikers Island. Appellant said he was convicted in New

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York for trespassing and held continuously in custody until September 11, 2006, when he was

released after serving his full sentence. Appellant admitted he did not contact his bondsman or

his court-appointed attorney prior to February 9, 2006, to advise them that he was unable to

come to court in Chesterfield County on that date but claimed he was unable to do so based on

his incarceration in New York and that it was his understanding that his mother and fiancée both

contacted the bondsman. Appellant said he did not know at that time who his attorney on the

Chesterfield charge was and that if he received a card with the attorney’s name on it in court on

January 6, 2006, he did not “recall what [he] did with the card.”

       Following appellant’s release from incarceration in New York on September 11, 2006, he

returned to Virginia. He admitted he did not contact the Chesterfield General District Court

Clerk’s Office upon his return from New York to determine the status of the breaking and

entering charge. He claimed he believed he was to appear in district court on that charge on

December 6, 2006. 1

       Appellant testified that, sometime before December 6, 2006, he traveled from Virginia to

New York once again, this time to attend a wedding. He was arrested and again incarcerated in

New York in December 2006. The new charges in New York, which were for robbery, were

eventually dropped, but based on a detainer issued by Chesterfield County, New York officials

held appellant in custody until Chesterfield authorities came to New York to get him. Appellant

was then held continuously in custody until his trial in Chesterfield County Circuit Court on May

23, 2007.

       On that date, the trial court convicted appellant for failure to appear on February 9, 2006,

reasoning as follows:


       1
         Appellant attempted to testify about why he claimed to think that he had a court date on
December 6, 2006, but the Commonwealth objected on hearsay grounds, and the trial court
sustained that objection. Appellant does not challenge that ruling on appeal.
                                               -3-
               The Court finds for the record that the defendant had absented
               himself from the Commonwealth in violation of the terms and
               conditions of the Court’s bond and that it was a willful and
               intentional act on his part, and the fact that he was then
               subsequently arrested does not serve as an adequate excuse for not
               being able to appear in court.

When appellant’s counsel inquired whether the trial court “believe[d] that [appellant] was in

Rikers Island on the date he was supposed to be [in Chesterfield General District Court],” the

trial court responded,

               Yes. . . . I find that the evidence is credible that he was
               incarcerated at the time, but I think you’ve got to start before that
               and that is he was not permitted to leave the Commonwealth, and
               the Court finds that as a basis that that was an intentional act that
               he left the Commonwealth, and then found himself in violation of
               the laws of the State of New York, which led to his subsequent
               incarceration . . . and that that is not a sufficient excuse to avoid
               the failure to appear.

       Following sentencing, appellant noted this appeal.

                                                 II.

                                            ANALYSIS

       “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)). The trier of fact is not required to accept a party’s

evidence in its entirety, Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193

(1986), but is free to believe and disbelieve in part or in whole the testimony of any witness,

Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).

       Code § 19.2-128(B) provides that “Any person . . . charged with a felony offense who

willfully fails to appear before any court as required shall be guilty of a Class 6 felony.”

“‘Willfully,’ as used in Code § 19.2-128(B), has the customary meaning that the act must have

                                                -4-
been done ‘purposely, intentionally, or designedly.’” Hunter v. Commonwealth, 15 Va. App.

717, 721, 427 S.E.2d 197, 200 (1993) (en banc). “When a criminal offense consists of an act and

a particular mens rea, both the act and the mens rea are independent and necessary elements of

the crime that the Commonwealth must prove beyond a reasonable doubt.” Id. Intent may, and

usually must, be proved by circumstantial evidence, such as a person’s conduct and statements,

and the fact finder may presume an offender intends the natural and probable consequences of

his acts. Campbell v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en banc);

see Canipe v. Commonwealth, 25 Va. App. 629, 645, 491 S.E.2d 747, 754 (1997) (noting that

statements and conduct of an accused after the events that constitute the charged crime also are

relevant circumstantial evidence of intent).

       “Circumstantial evidence is as competent and is entitled to as much weight as direct

evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except

that of guilt.” Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). “[T]he

Commonwealth need only exclude reasonable hypotheses of innocence that flow from the

evidence, not those that spring from the imagination of the defendant.” Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

       “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,” absent additional credible evidence negating such an inference, “that the failure to

appear was willful.” Hunter, 15 Va. App. at 721, 427 S.E.2d at 200. Evidence that a defendant

with notice of his trial date “left the state” “without notifying the court” “in violation of the

conditions of his bail bond” is relevant to determining whether his subsequent failure to appear

was willful. Id. at 724, 427 S.E.2d at 201-02.




                                                 -5-
        We have applied these principles in two prior cases in which the defendant was

incarcerated in another jurisdiction on the date he failed to appear for trial in Virginia. In Riley

v. Commonwealth, 13 Va. App. 494, 412 S.E.2d 724 (1992), the only evidence in the record was

a document from the Department of Corrections of the City of New York that defendant Riley

was incarcerated on the date he was scheduled to appear in general district court in Richmond.

Id. at 499, 412 S.E.2d at 727. “Neither party introduced any evidence regarding the

circumstances behind the defendant’s incarceration [in New York], nor did the parties present

evidence as to how the defendant came to be in New York, or [detail] any actions the defendant

may have taken to avoid coming to trial.” Nelson v. Commonwealth, 50 Va. App. 413, 419, 650

S.E.2d 562, 565 (2007). On those facts, we held no evidence proved defendant Riley “willfully

failed to appear in the general district court” on the date scheduled and that “all evidence

indicate[d] [defendant] Riley was incapable of appearing before the district court due to his

incarceration in New York.” Riley, 13 Va. App. at 499, 412 S.E.2d at 727.

        In the more recent case of Nelson, 50 Va. App. 413, 650 S.E.2d 562, the record revealed

much more than the fact of defendant Nelson’s incarceration in another state at the time of his

failure to appear in Virginia. That evidence supported a finding not only that defendant Nelson

“violated the conditions of his bond by traveling to Maryland” and failing “to notify Virginia

authorities or his attorney of his incarceration” there, but also that defendant Nelson’s real name

was Jake Adams, supporting “the inference that [the defendant] [had] presented a false

identification card at the time of his arrest [in Virginia] for the purpose of evading prosecution.”

Id. at 419-20, 650 S.E.2d at 566. We held that these facts, “[i]n combination,” were “sufficient

for a jury to infer that Nelson willfully failed to appear for his trial.” Id. at 420, 650 S.E.2d at

566 (emphasis added).




                                                 -6-
        Like in Nelson, we hold evidence in addition to the bare fact of appellant’s incarceration

in another jurisdiction 2 supports the trial court’s finding that his failure to appear at his

preliminary hearing on February 9, 2006, was willful within the meaning of Code § 19.2-128(B).

In appellant’s case, unlike in Riley, the Commonwealth introduced appellant’s bond agreement,

which contained the pre-printed statement, “I understand that I . . . may not leave the

Commonwealth of Virginia until my case, and any appeals in my case, are finished.” Appellant

admitted signing the bond agreement and admitted knowing, based on having been bonded out

following at least four prior arrests, that “if you don’t come to court, you get in trouble.” Despite

that knowledge, appellant voluntarily left the Commonwealth to go to New York. In addition, he

was arrested in New York for criminal behavior he engaged in after he arrived there, and he

made no effort to contact the Chesterfield County General District Court Clerk’s Office or his

appointed counsel either while he was incarcerated in New York or after he was released from

incarceration on September 11, 2006, although he returned voluntarily to Virginia a few days

later. Instead, the courts of the Commonwealth were able to address the Virginia charges on the

merits only after appellant returned to New York a second time, was again arrested there on new

charges, and was returned to Virginia pursuant to an interstate detainer after New York

determined it would not prosecute him on the new charges.

        This evidence was sufficient to support appellant’s conviction for willful failure to appear

in violation of Code § 19.2-128(B).




        2
           Unlike in Riley, appellant offered no documentation to prove the fact of his
incarceration in New York at the time of his failure to appear on February 9, 2006. Nevertheless,
the trial court expressly stated it believed appellant’s evidence, in the form of his own testimony
and the testimony of his fiancée and his mother, that he was incarcerated in New York at that
time.
                                                 -7-
                                       III.

For these reasons, we affirm appellant’s conviction.

                                                       Affirmed.




                                       -8-
