Chavez v. Commonwealth

• Decision Date: 14 August 2018
• Docket Number: Record No. 1189-17-4
• Citation: 817 S.E.2d 330,69 Va.App. 149
• Parties: Andy CHAVEZ v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

69 Va.App. 149

817 S.E.2d 330

Andy CHAVEZ

v.COMMONWEALTH of Virginia

Record No. 1189-17-4

Court of Appeals of Virginia, Alexandria.

AUGUST 14, 2018

Kimberly C. Stover, Assistant Public Defender, for appellant.

Liam A. Curry, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, Malveaux and Senior Judge Annunziata

OPINION BY JUDGE MARY BENNETT MALVEAUX

Andy Chavez ("appellant") appeals his conviction for felony failure to appear, in violation of Code § 19.2-128(B). He argues the trial court erred in refusing his proposed jury instruction, which included timely notice as an element of the offense. He further contends the trial court erred in finding the evidence sufficient to establish that he received timely notice of the place and time to appear and that his failure to appear was willful. For the reasons that follow, we affirm the trial court’s judgment.

I. BACKGROUND

"Under familiar principles of appellate review, we will state ‘the evidence in the light most favorable to the Commonwealth, the prevailing party in the trial court, and will accord the Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence.’ " Sidney v. Commonwealth, 280 Va. 517, 520, 702 S.E.2d 124, 126 (2010) (quoting Murphy v. Commonwealth, 264 Va. 568, 570, 570 S.E.2d 836, 837 (2002) ).

On August 16, 2016, Detective Aloysius Asonglefac of the Alexandria Police Department arrested appellant for burglary and grand larceny. On August 25, appellant signed a document entitled "Pretrial Release Conditions," by which he acknowledged and agreed to abide by certain terms of release on bond. One condition required appellant "[t]o appear in court at 520 King Street, Alexandria, Virginia, on ... 9/30/16 [at] 11:00 a.m.; and further appear at all times before any court or judge to which this case may be rescheduled, continued, transferred, certified or appealed."

Asonglefac testified that on September 30, 2016, in response to a subpoena, he went to the Alexandria General District Court "for that matter"—i.e. , appellant’s burglary and grand larceny case. He stated that appellant was present in the company of his attorney and that the case was continued. Asonglefac testified that when he returned to court for the case on October 12, 2016, appellant’s counsel was present but appellant was not.

Appellant was arrested and indicted for felony failure to appear, in violation of Code § 19.2-128(B). At trial, the Commonwealth introduced into evidence a copy of appellant’s pretrial release form and copies of appellant’s two felony arrest warrants. The burglary warrant included a space labelled "Hearing Date/Time," which contained the handwritten notation "9/30." The spaces immediately below contained the handwritten note "10/12/16-11 am set date or waiver." Below the October 12 date, the warrant was stamped with the words "Defendant failed to appear," followed by the handwritten notation "10/12." Handwritten initials appeared next to stamped text that read, "Judge." The grand larceny warrant also contained handwritten notes under "Hearing Date/Time," indicating hearing dates on "9/30" and "10/12."

At the conclusion of the Commonwealth’s evidence, appellant moved to strike, and the trial court denied the motion. Appellant then proffered a jury instruction which stated, in pertinent part, that appellant

is charged with the crime of failure to appear in court. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:

1) That [appellant] was charged with a felony offense; and

2) That [appellant] received timely notice of the date and time at which to appear; and

3) That [appellant] was required to appear on October 12, 2016 at 11:00 a.m. before the Alexandria General District Court; and4) That [appellant] willfully failed to appear before the Alexandria General District Court.

The Commonwealth objected to the proffered instruction, arguing that its second element—timely notice—was not an element of felony failure to appear, as defined by Code § 19.2-128(B). Instead, the Commonwealth argued, timely notice was simply a factor that "goes to willfulness." Thus, timely notice was a matter for the fact finder to consider in determining whether the evidence proved that appellant willfully failed to appear. The trial court refused to give appellant’s proffered instruction.

Appellant renewed his motion to strike, and the trial court denied the motion. The court then gave the Commonwealth’s proffered instruction on the elements of felony failure to appear, which adopted the language of the relevant model jury instruction and was substantially similar to appellant’s proffered instruction, except that it omitted timely notice as an element of the offense. See Model Jury Instrs.—Crim. No. G35.600. The court also gave the Commonwealth’s proffered instruction on willfulness, which provided that " ‘Willful’ means that the act must have been done ‘purposely, intentionally, or designedly.’ "

The jury convicted appellant of felony failure to appear, in violation of Code § 19.2-128(B), and recommended a fine which the trial court duly imposed. Appellant filed a motion to set aside the verdict, which the trial court denied after a hearing on the matter. This appeal followed.

II. ANALYSIS

Appellant argues the trial court erred in refusing to give his proffered jury instruction, which included timely notice as an element of the offense of felony failure to appear. He also argues the trial court erred in denying his motions to strike the evidence and set aside the verdict, where the evidence was insufficient to prove that he received timely notice of the place and time to appear or that his failure to appear was willful. We address these arguments in turn.

A. Appellant’s Jury Instruction

"A trial court’s decision whether to grant or refuse a proposed jury instruction is generally subject to appellate review for abuse of discretion." Howsare v. Commonwealth, 293 Va. 439, 443, 799 S.E.2d 512, 514 (2017). In conducting such a review, "[o]nly when reasonable jurists could not differ can we say an abuse of discretion has occurred." Du v. Commonwealth, 292 Va. 555, 564, 790 S.E.2d 493, 499 (2016) (quoting Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) ). The reviewing court’s "responsibility in reviewing jury instructions is ‘to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.’ " Hilton v. Commonwealth, 293 Va. 293, 302, 797 S.E.2d 781, 786 (2017) (quoting Payne v. Commonwealth, 292 Va. 855, 869, 794 S.E.2d 577, 584 (2016) ). "[N]o instruction should be given that incorrectly states the applicable law or which would be confusing or misleading to the jury." Bryant v. Commonwealth, 67 Va.App. 569, 582, 798 S.E.2d 459, 465 (2017) (quoting Mouberry v. Commonwealth, 39 Va.App. 576, 582, 575 S.E.2d 567, 569 (2003) ). "[W]hether an instruction ‘accurately states the relevant law is a question of law’ that the appellate court reviews de novo ." Banks v. Commonwealth, 67 Va.App. 273, 281, 795 S.E.2d 908, 912 (2017) (quoting Sarafin v. Commonwealth, 288 Va. 320, 325, 764 S.E.2d 71, 74 (2014) ).

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." Thus, the plain language of the statute makes clear that in order to convict a defendant for felony failure to appear, the Commonwealth must prove that the defendant was charged with a felony, required to appear before a court, and willfully failed to appear as required. See Code § 19.2-128(B).

Appellant argues the trial court erred when it refused to give his proffered jury instruction, which stated that in order to convict him the Commonwealth was required to prove not only the above-referenced elements, but also "[t]hat [appellant ] received timely notice of the date and time at which to appear." Appellant acknowledges that Code § 19.2-128(B) does not contain language requiring this additional element and that the relevant model jury instruction is also silent on timely notice. However, he contends that Thomas v. Commonwealth, 48 Va.App. 605, 633 S.E.2d 229 (2006), makes clear that timely notice is an element of the offense.

We first note that appellant is correct when he acknowledges that Code § 19.2-128(B) is silent on the matter of timely notice. We also note that our canons of statutory interpretation instruct us that while "penal statutes are to be strictly construed against the Commonwealth, courts are nevertheless 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.’ " Williams v. Commonwealth, 61 Va.App. 1, 6-7, 733 S.E.2d 124, 126 (2012) (quoting Gunn v. Commonwealth, 272 Va. 580, 587, 637 S.E.2d 324, 327 (2006) ). Further, "[w]here bound by the plain meaning of the language used, we are not permitted ‘to add or to subtract the words used in the statute.’ " Id. at 7, 733 S.E.2d at 126 (quoting Coles v. Commonwealth, 44 Va.App. 549, 557, 605 S.E.2d 784, 788 (2004) ). This guidance "flows from the principle that ‘[w]e must ... assume ... the legislature chose, with care, the words it used when it enacted the relevant statute.’ " Id. (alterations in original) (quoting Coles, 44 Va.App. at 558, 605 S.E.2d at 788 ). Thus, our interpretive principles "do[ ] not allow an appellate court to reword the plain meaning of [a] statute," because courts " ‘are not permitted to rewrite statutes. This is a legislative function.’ " Id. at 8, 733 S.E.2d at 127 (quoting Supinger v. Stakes, 255 Va. 198, 206, 495 S.E.2d 813, 817 (1998) ). The language of Code § 19.2-128(B) is plain and unambiguous, and does not include timely notice as an element of felony failure to appear—only willful...