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. 
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 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.