                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Beales and AtLee
UNPUBLISHED


              Argued at Richmond, Virginia


              RONALD EDWARD JOHNSON, JR.
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1138-14-2                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                                   JULY 7, 2015
              COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                                              Gordon F. Willis, Judge

                               Mark S. Gardner (Gardner & Haney, P.C., on briefs), for appellant.

                               David M. Uberman, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     A judge convicted Ronald Edward Johnson, Jr. of three counts of felony failure to appear.

              Johnson alleges that conviction of more than one count violated the Double Jeopardy clauses of

              the United States Constitution and the Virginia Constitution. We disagree and affirm.

                                                      I. BACKGROUND

                     On appeal of a criminal conviction, we view the facts in the light most favorable to the

              Commonwealth, and draw all reasonable inferences flowing from those facts. Derr v.

              Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991). So viewed, the facts are as

              follows.

                     Johnson was served with three felony warrants charging forgery, uttering, and attempting

              to obtain money by false pretenses, and was required to appear for preliminary hearing on those

              charges in the Fredericksburg General District Court on June 20, 2013. He did not do so. In


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
2014 a Fredericksburg grand jury returned three felony indictments charging Johnson with

failure to appear in the general district court on June 20, 2013, in violation of Code

§ 19.2-128(B). The three indictments alleged, respectively, that he failed to appear “as required

on the felony charge of attempt to obtain money by false pretenses,” “as required on the felony

charge of forgery,” and “as required on the felony charge of uttering.”

       Johnson moved to dismiss two of the three counts, arguing that conviction of more than

one count violated the Double Jeopardy clauses of the United States Constitution and the

Virginia Constitution. The circuit court denied his motion. Ultimately, Johnson entered

conditional guilty pleas to the three charges and noted his appeal to this Court.

                                          II. ANALYSIS

                                      A. Standard of Review

       “We review a trial court’s application of a statute de novo.” Bowling v. Commonwealth,

51 Va. App. 102, 108, 654 S.E.2d 354, 357 (2007). Similarly, “[w]e review de novo claims that

multiple punishments have been imposed for the same offense in violation of the double

jeopardy clause.” Lawlor v. Commonwealth, 285 Va. 187, 227, 738 S.E.2d 847, 870 (2013).

                                    B. Rules 5A:18 and 2:201

       Before addressing Code § 19.2-128 and double jeopardy, we resolve several procedural

issues. In his brief, for the first time on appeal, Johnson attempts to buttress his double jeopardy

argument in part by stressing that he endorsed only one written promise to appear1 when he



       1
          Johnson attaches to his brief and labels “Addendum, Exhibit 1” a copy of the front and
back of a district court recognizance form (Form DC-330). The form appears to be connected to
Johnson’s three underlying felonies, and appears to show the signatures of Johnson, his bail
bondsman, and the magistrate, confirming that Johnson was released from incarceration and
admitted to bail with a secured bond of $3,000. In the interest of simplicity, we use the term
“bond paperwork” to describe the recognizance form throughout this opinion, though the more
accurate phrase is “purported bond paperwork,” since such document was never authenticated or
judicially noticed in the circuit court.
                                                -2-
posted bail for the three underlying felony charges in the general district court. We agree with

the Commonwealth that Rule 5A:18 forecloses consideration of this argument.

        Rule 5A:18 reads, in relevant part:

                No ruling of the trial court or the Virginia Workers’ Compensation
                Commission will be considered as a basis for reversal unless an
                objection was stated with reasonable certainty at the time of the
                ruling, except for good cause shown or to enable the Court of
                Appeals to attain the ends of justice.

We do not consider arguments raised for the first time on appeal. McLean v. Commonwealth, 30

Va. App. 322, 329, 516 S.E.2d 717, 720 (1999). This remains true even if an appellant raised

related arguments in the trial court. See Edwards v. Commonwealth, 41 Va. App. 752, 760, 589

S.E.2d 444, 448 (2003) (en banc) (“Making one specific argument on an issue does not preserve

a separate legal point on the same issue for review.”). By failing to make an argument in the

circuit court based on the bond paperwork, Johnson waived any such argument in this Court.

        Johnson urges us to use the ends of justice exception in Rule 5A:18 to consider the bond

paperwork and his arguments surrounding it. To use the ends of justice exception in this manner

would be to misapply the exception, and we decline to do so. We employ the ends of justice

exception to consider an inadequately preserved objection, not to consider physical evidence

which an appellant never introduced in the trial court.

        Citing Rule 2:201, Johnson asks us to take judicial notice of the bond paperwork. Rule

2:201 states, in relevant part:

                (a) Notice. A court may take judicial notice of a factual matter not
                subject to reasonable dispute in that it is either (1) common
                knowledge or (2) capable of accurate and ready determination by
                resort to sources whose accuracy cannot reasonably be questioned.
                (b) Time of taking notice. Judicial notice may be taken at any stage
                of the proceeding.

The broad wording of subsection (b) permits us to take judicial notice of “a factual matter.” But

when that matter is a document (other than this Court’s own records), our authority is
                                               -3-
circumscribed by what the trial court relied upon when it took judicial notice of such document.

See Commonwealth v. Woodward, 249 Va. 21, 23, 452 S.E.2d 656, 657 (1995) (striking a

44-page addendum attached by the Commonwealth to its brief in a Workers’ Compensation Act

appeal, and explaining that “an appellate court may not take judicial notice of such documents

when they were not relied upon before the court or commission below”). That the document

purports to be a record of a lower court does not provide any additional weight to Johnson’s

judicial notice argument. Plummer v. Commonwealth, 211 Va. 706, 707, 180 S.E.2d 519, 520

(1971) (per curiam) (agreeing that an appellate court may take judicial notice of its own records,

but stating “we are without authority to take such notice of the records of the lower court”). The

bond paperwork was not “relied upon before the court” below, so we will not take judicial notice

of it now.2

                                       C. Double Jeopardy

       Johnson claims that his conviction of more than one count of failure to appear violated

the Double Jeopardy clauses of the United States Constitution and the Virginia Constitution.

“The double jeopardy clauses of the United States and Virginia Constitutions provide that no

person shall be put twice in jeopardy for the same offense.” Martin v. Commonwealth, 221 Va.

720, 722, 273 S.E.2d 778, 780 (1981). The prohibition against double jeopardy “embodies three

guarantees: ‘(1) “It protects against a second prosecution for the same offense after acquittal.

[(2)] It protects against a second prosecution for the same offense after conviction. [(3)] And it

protects against multiple punishments for the same offense.”’” Blythe v. Commonwealth, 222


       2
          Rule 2:201(a) also limits judicial notice in several other ways that preclude the Rule’s
applicability here. The bond paperwork Johnson supplies is not “common knowledge,” and is
incapable of “accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” Johnson proposes no procedure by which this Court could determine
the accuracy of his addendum. Per Rule 5A:25(h), we may consider documents included in the
record but left out of the appendix. See Cabral v. Cabral, 62 Va. App. 600, 604 n.1, 751 S.E.2d
4, 7 n.1 (2013). Here, the bond paperwork appears in neither the appendix nor the record.
                                                 -4-
Va. 722, 725, 284 S.E.2d 796, 797 (1981) (quoting Illinois v. Vitale, 447 U.S. 410, 415 (1980)

(footnotes omitted) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969))). Here we

address the third of these guarantees, which bars multiple punishments for the same offense.

       Though multiple punishments for the same offense are constitutionally prohibited,

“‘conduct may constitute more than one violation of a single criminal proscription.’” Sandoval

v. Commonwealth, 64 Va. App. 398, 417, 768 S.E.2d 709, 718-19 (2015) (quoting Jordan v.

Commonwealth, 2 Va. App. 590, 593, 347 S.E.2d 152, 154 (1986)). As this Court stated in

Jordan, it is the legislature that decides how crime is punished:

               The legislature in its discretion may determine the appropriate
               “unit of prosecution” and set the penalty for separate
               violations . . . . Where the legislature has authorized cumulative
               punishments, regardless of whether the offenses are the “same,”
               the prosecutor may seek and the trial court may impose cumulative
               punishments in a single trial.

Jordan, 2 Va. App. at 594, 347 S.E.2d at 154 (citations omitted) (footnote omitted). For the

reasons that follow, we hold that the legislature intended the unit of prosecution in Code

§ 19.2-128(B) to correspond to the number of underlying offenses for which a defendant is

obligated to appear.

                                      1. Code § 19.2-128(B)

       “‘The multiple punishments prohibition . . . remains from start to finish wholly dependent

on statutory interpretation.’” Sandoval, 64 Va. App. at 417, 768 S.E.2d at 718-19 (quoting

De’Armond v. Commonwealth, 51 Va. App. 26, 33, 654 S.E.2d 317, 320 (2007)). Code

§ 19.2-128(B) states: “Any person (i) charged with a felony offense or (ii) convicted of a felony

offense and execution of sentence is suspended pursuant to § 19.2-319 who willfully fails to

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

for his preliminary hearing on three pending felonies, so subsection (i) addresses his conduct.



                                                -5-
        “The Virginia Supreme Court has long held that ‘[w]hen analyzing a statute, we must

assume that “the legislature chose, with care, the words it used . . . and we are bound by those

words as we interpret the statute.”’” Hodges v. Dep’t of Soc. Servs., Div. of Child Support

Enforcement, 45 Va. App. 118, 126, 609 S.E.2d 61, 64-65 (2005) (quoting City of Va. Beach v.

ESG Enters., 243 Va. 149, 153, 413 S.E.2d 642, 644 (1992) (quoting Barr v. Town and Country

Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990))).

       We must presume that the legislature’s decision to include or leave out even a single

letter or word in a statute is intentional and meaningful. See, e.g., Tiller v. Commonwealth, 193

Va. 418, 422-23, 69 S.E.2d 441, 443-44 (1952) (analyzing the legislative decision to use the

phrase “dual wheels” instead of “dual wheel” in § 46-334 of the Code); Posey v.

Commonwealth, 123 Va. 551, 554-55, 96 S.E. 771, 772 (1918) (interpreting a taxation statute

and the legislature’s use of the word “rates,” as opposed to “rate,” and noting that inclusion of a

plural word instead of a singular word “could not have been an ‘inadvertence of the draftsman,’

as contended by counsel”).

       Here, the legislature chose to criminalize the failure to appear of anyone charged “with a

felony offense,” rather than, for example, “with any felony offense” or “with felony offenses.”

In Mason v. Commonwealth, 49 Va. App. 39, 636 S.E.2d 480 (2006), the defendant was

convicted of multiple counts of possession of child pornography with the intent to distribute.

She argued that the trial court erred in finding the unit of prosecution corresponded to the

number of individual images possessed. In affirming her convictions, this Court discussed the

importance of the legislature’s use of the word “a” in determining the intended unit of

prosecution:

               [b]y using the word “a” followed by a succession of singular nouns
               in the definition of “sexually explicit visual material” in Code
               § 18.2-374.1(A), the Virginia legislature has demonstrated its clear
               intent that possession of a single photograph could constitute an
                                                -6-
               offense under Code § 18.2-374.1 and that multiple punishments
               would result from multiple violations of the statute. Accordingly,
               we conclude that the permissible unit of prosecution for possession
               of child pornography under Code § 18.2-374.1(B)(4) corresponds
               to the number of individual items of sexually explicit visual
               material.

Id. at 48, 636 S.E.2d at 484 (footnote omitted). The reasoning in Mason is applicable in this

case. The legislature’s use of the words “a felony offense” evinced an intent that the unit of

prosecution for failure to appear corresponds to the number of individual felony offenses for

which a defendant is obligated to appear.

       Johnson argues that Code § 19.2-128 must be strictly construed against the

Commonwealth because of the doctrine of lenity. Lenity is a rule of statutory construction

requiring that a court resolve ambiguities in penal statutes in the defendant’s favor. See Jones v.

Commonwealth, 64 Va. App. 361, 367 n.2, 768 S.E.2d 270, 273 n.2 (2015). Barring statutory

ambiguity, we are “bound by the plain meaning of unambiguous statutory language and ‘may not

assign a construction that amounts to holding that the General Assembly did not mean what it

actually has stated.’” Gunn v. Commonwealth, 272 Va. 580, 587, 637 S.E.2d 324, 327 (2006)

(quoting Williams v. Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470 (2003)); see also

De’Armond, 51 Va. App. at 36, 654 S.E.2d at 322 (noting that appellant’s “proffered statutory

construction . . . does not clarify ambiguous statutory language, but rather rewrites unambiguous

statutory language”). We cannot create ambiguity by straining to interpret a statute whose

understanding requires no such exertion. Since we find no ambiguity to resolve within Code

§ 19.2-128, lenity has no place in our analysis.

                                   2. Cases From Other States

       Neither this Court nor the Supreme Court has directly addressed the question presented.

Johnson refers us to cases from several other states, as does the Commonwealth. Johnson urges

us to adopt the reasoning of the First District Court of Appeal of Florida, as enunciated in McGee
                                                   -7-
v. State, 438 So.2d 127 (Fla. Dist. Ct. App. 1983), where that court held: “The gravamen of the

offense is the failure to appear at the time and place specified, not how many offenses or cases

are pending and scheduled for disposition on that particular occasion.” Id. at 131.

        Johnson also cites Lennon v. United States, 736 A.2d 208 (D.C. 1999), from the District

of Columbia Court of Appeals. The court in Lennon framed the issue as “whether the legislative

intent behind [the failure to appear statute] is to punish the single act of failing to appear for a

unitary court proceeding or the two separate acts of not appearing for trial on each underlying

charge.” Id. at 210. That court held that a defendant who is released on a single notice to appear

and fails to appear for a single hearing may be convicted of only one count of failure to appear,

even if he was to have appeared to face multiple underlying charges. Id. at 212.3

        The Commonwealth urges us to look to Connecticut and Wisconsin. In State v. Garvin,

682 A.2d 562 (Conn. App. Ct. 1996), a case decided by the Appellate Court of Connecticut,4 the

defendant failed to appear for sentencing on multiple charges, and was ultimately convicted of

multiple counts of failing to appear. Id. at 564-65. Garvin held that multiple convictions were

appropriate, as each charge of failure to appear related to a separate underlying felony:

                Failure to appear pursuant to the statute requires proof of an
                underlying crime . . . . Had the legislature intended to punish only
                the act of failing to appear, it would not have added the element of
                “while charged with the commission of a felony.” Each failure to
                appear relates to the underlying charge for which the individual
                failed to appear.

                                       *   *   *   *   *   *   *



        3
         This holding was based in part on the defendant’s signature of a single notice to appear.
For the reasons explained in Part II.B., we do not consider Johnson’s single notice argument.
        4
        The Appellate Court of Connecticut is an intermediate appellate court. The case cited
by the Commonwealth was subsequently appealed to the court of last resort in that state, the
Supreme Court of Connecticut, which affirmed the Appellate Court of Connecticut, “on
somewhat different grounds.” See State v. Garvin, 699 A.2d 921, 924 (Conn. 1997).
                                            -8-
                 In order for double jeopardy to exist there must be a dual
                 punishment of the same offense arising out of the same act. Here,
                 there was one act, a failure to appear on a given day, but two
                 offenses because each charge of failure to appear involved an
                 element that the other did not, namely, being charged with the
                 commission of separate felonies.

Id. at 566-67.

        Finally, the Commonwealth cites State v. Eaglefeathers, 762 N.W.2d 690 (Wis. Ct. App.

2008).5 Eaglefeathers, from the Court of Appeals of Wisconsin, addressed charges of “bail

jumping” and found that “‘[e]ach count would require proof of facts for conviction which the

other two counts would not require’ giving rise ‘to an individual factual inquiry’ for each count

of bail jumping.” Id. at 695 (quoting State v. Richter, 525 N.W.2d 168, 170 (Wis. Ct. App.

1994)). Eaglefeathers also observed that the defendant “fails to acknowledge that his conduct

resulted in two separate wrongs, preventing the court from proceeding with preliminary hearings

in two separate cases. Under such circumstances, multiple punishments are not inappropriate.”

Id. at 696.

        While we acknowledge that our sister states are divided on this question, we agree with

the logic of the Appellate Court of Connecticut and the Court of Appeals of Wisconsin. The

Commonwealth in the case at bar was required to prove notice to Johnson as to each instance of

failure to appear. The Commonwealth was also required to prove that, as to each failure to

appear charge, Johnson had been charged with an underlying felony. The Court of Appeals of

Wisconsin is correct to point out the “wrongs” that accrue when one fails to appear to answer for

multiple charges. Johnson’s failure to appear hampered the Commonwealth’s ability to proceed




        5
        This case, too, comes from an intermediate court of appeal, although Eaglefeathers,
unlike Garvin, was not appealed further.
                                             -9-
on multiple charges, making multiple punishments for such failures to appear all the more

appropriate.6

                       3. Virginia Cases Addressing Multiple Punishments

        Various Virginia cases address multiple punishments for single acts. Johnson cites two

of these cases in support of his position, but we find his examples distinguishable from his own

case.

        In Acey v. Commonwealth, 29 Va. App. 240, 511 S.E.2d 429 (1999), this Court held that

a defendant who simultaneously possessed multiple firearms could only be convicted of one

count of possession of a firearm by a convicted felon. This Court found the statute ambiguous in

Acey. Id. at 249-50, 511 S.E.2d at 433. Here, we do not find § 19.2-128 of the Code

ambiguous. The legislature’s use of the phrase “a felony” in § 19.2-128 of the Code leads us to

conclude that multiple punishments are permitted. See Part II.C.1. By contrast, the statutory

language at issue in Acey, from Code § 18.2-308.2(A), addressed the phrase “any firearm” and

read in relevant part: “It shall be unlawful for (i) any person who has been convicted of a felony

. . . to knowingly and intentionally possess or transport any firearm . . . .” Acey, 29 Va. App. at

249 n.3, 511 S.E.2d at 433 n.3 (emphasis added).

        Johnson also cites Lane v. Commonwealth, 51 Va. App. 565, 659 S.E.2d 553 (2008), for

the proposition that one must possess multiple intents to be convicted of multiple counts of the

same crime. In Lane, the defendant was charged with “three counts of possession with the intent



        6
          Between the date of Johnson’s preliminary hearing on the three underlying felonies (for
which he failed to appear) and the date of his ultimate apprehension on the failure to appear
charges, the Commonwealth’s key witness (the victim) on the three initial underlying felony
charges passed away. Because of the victim’s death, the Commonwealth ultimately moved for
entry of orders of nolle prosequi as to those three underlying felony charges. We note that, if we
were to adopt Johnson’s position now, he would incidentally profit from his initial failure to
appear by escaping the possibility of conviction of the three underlying felonies in exchange for
just one felony failure to appear.
                                                - 10 -
to distribute a Schedule II controlled substance (one count for liquid oxycodone, one count for

Endocet tablets, which contained oxycodone, and one count for oxycodone tablets).” Id. at 568,

659 S.E.2d at 554. The defendant moved to dismiss two of the three indictments, as Johnson

does here, alleging a double jeopardy violation. This Court reversed, holding that the

Commonwealth had not proven that “appellant possessed different demonstrated intents

sufficient to support three separate charges of possession with the intent to distribute

oxycodone.” Id. at 582, 659 S.E.2d at 561. Johnson argues that he, like the defendant in Lane,

committed but one crime, with a single intent. We do not agree. Though Johnson failed to

appear on a single date and at a single location, he had three different obligations to appear, and

faced three distinct criminal allegations, with different elements of proof. In failing to appear as

to each underlying felony, he prevented a hearing as to each of the three charges.

       We are persuaded by other decisions of this Court and the Supreme Court upholding

multiple punishments for single acts. In Jordan, this Court upheld the robbery convictions of a

defendant who robbed multiple victims at gunpoint simultaneously. This Court highlighted the

General Assembly’s use of the singular word “person” and looked closely at the language of the

robbery statute:

               The gravamen of the offense to be punished consists of “violence
               to the person” or “putting a person in fear . . . by the . . . presenting
               of firearms” during the commission of a robbery. The [robbery]
               statute refers to the victim in the singular and suggests that the
               General Assembly’s primary purpose was the protection of an
               individual from violence and fear of harm during a robbery. Thus,
               the focus must be upon the actions directed toward the person
               robbed.

Jordan, 2 Va. App. at 595, 347 S.E.2d at 155; see also Kelsoe v. Commonwealth, 226 Va. 197,

199, 308 S.E.2d 104, 104 (1983) (per curiam) (upholding multiple brandishing convictions for

defendant who pointed a gun at three men simultaneously, and holding “when the defendant

frightened the three men by pointing his weapon, he committed three separate crimes”); Shears
                                                - 11 -
v. Commonwealth, 23 Va. App. 394, 401, 477 S.E.2d 309, 312 (1996) (affirming two

convictions of possession of cocaine with the intent to distribute, when one bag of cocaine was

found in defendant’s pocket, and another on the floor where he had been standing, and noting

“[t]he gravamen of the offense is clearly possession of the specified drug with the requisite

intent”). Like the defendants in Jordan, Kelsoe, and Shears, Johnson’s single act rightly resulted

in multiple charges, as the statute criminalizes not simply a failure to appear, but a failure to

appear as to each underlying charge for which Johnson faced preliminary hearing.

       Finally, in probation violation proceedings pursuant to Code § 19.2-306, probationers

with multiple suspended sentences face revocation of some or all of such sentences. A court

may order multiple sentences into execution even though the probationer committed only one

violation, for instance testing positive for drugs, committing a new crime, or absconding from

supervision. In this way, a single act with a single intent can simultaneously trigger the

re-imposition of previously suspended sentences in multiple cases. When a probationer violates

his probation, a court does not simply punish the violation, it punishes the violation as to each

underlying conviction. In each case for which he is on probation, a probationer has a unique

obligation to the court to be of good behavior and to follow the rules of his probation officer. A

probationer owes such an obligation to the court as to each individual charge for which he is

being supervised, just as in our case, Johnson owed an obligation to the general district court to

appear and answer for each pending felony charge.

                                        III. CONCLUSION

       The trial court did not err in finding Johnson guilty of three counts of felony failure to

appear. A single act of failure to appear may result in multiple convictions for failure to appear,

when, as here, each such count is based on a distinct underlying felony. Multiple convictions in

this case did not violate the Double Jeopardy clauses of the United States Constitution or the

                                                - 12 -
Virginia Constitution. Code § 19.2-128(B) is unambiguous, so Johnson does not receive the

benefit of the rule of lenity. We affirm the judgment of the trial court.

                                                                                    Affirmed.




                                               - 13 -
