COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Clements Argued at Salem, Virginia

MARLYN WAYNE FERGUSON MEMORANDUM OPINION * BY v. Record No. 0547-06-3 J UDGE JAMES W. BENTON, JR. FEBRUARY 27, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Charles J. Strauss, Judge Jesse W. Meadows III, for appellant. Benjamin H. Katz, Assistan t Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
The trial judge convicted Marl yn Wayne Ferguson of failure to appear in court. Code § 19.2-128. Ferguson contends the evidence was insufficient to prove he “willfully fail[ed] to appear,” a statutory element. For the follo wing reasons, we affirm the conviction.
I. Viewed in the light most favorable to the Commonwea lth, Hunter v. Commonwealth , 15 Va. App. 717, 721, 427 S. E.2d 197, 200 (1993), th e record establishes that Ferguson was convicted in 1996 for obtainin g drugs by fraud in violatio n of Code § 18.2-258.1. Ei ght years later, on March 8, 2004, Ferguson appeared before a circuit court judge for viola ting the terms of his supervised probation. At the hearing, the judge found that Fergus on violated his prob ation and revoked the previously suspended sentence. The judge re-imposed the sentence of confinement in prison for one year and six months, but delayed execution of the sentence for six months, retaining the same

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - terms and conditions of Ferguson’s supervised probation. The judge also “Ordered th at this matter is continued until the August 2004 Term of Court at which time a date for review shal l be set at the Docket Call to be held on the 17 th day of August 2004, at 9:00 a.m. ” Ferguson failed to appear at the August docket call and the Sept ember 1, 2004 review hearing that was set at the docket call. Ferguson appeared for trial on a capias chargi ng him with fail ure to appear in the circuit court on September 1, 2004 in violation of Code § 19.2-128. At the hear ing, the trial judge took judicial notice of the prior orders and records in th e matter. Ferguson’s attorney stipulated Ferguson was present at the March 8, 2004 revocation hearing and re ceived sufficient notice. Ferguson testified he initially maintained contact with his a ttorney following the March 8, 2004 revocation hearing, but later experienced pers onal difficulties. Ferg uson testified his parents died while he was incarcerated and he had no perman ent place to live af ter his release from incarceration. Ferguson explained that he stop ped taking his psychotropi c and heart medications and that he “just gave up on li fe.” During this time, he “a bsconded” and did not contact his probation officer. On cross-examination, Ferguson admitted he understood compliance with the trial judge’s orders meant he had to remain “ch arge-free” and keep in touch with his probation officer. Ferguson acknowledged he failed to contact both his probation of ficer and his attorney. He also said he knew he had to return to court but sa id he “wasn’t quite clear about th e date” for the review hearing. Ferguson agreed, however, that he did not contact his attorney to learn the date of the review hearing or what was expected of him. The trial judge convicted Ferg uson of failure to appear an d sentenced him to six months incarceration. Following the conviction, Ferguson moved to set aside the verdict, arguing the Commonwealth failed to prove his fa ilure to appear was willful and to prove he received notice of the hearing date. The tria l judge denied the motion.- 3 - II. On brief, Ferguson presents as the only qu estion for appeal whet her “the evidence was sufficient to prove . . . [he] willfully failed to appear.” 1 The Commonwealth argu es the trier of fact could infer from the evidence that Fergus on acted willfully. Code § 19.2-128 proscribes crimes for “[a]ny pe rson . . . who willfully fails to appear before any court as required.” Code § 19.2-128(B) and (C). The word “willfully,” as us ed in this statute, is to be given its customary mean ing in criminal law. Hunter , 15 Va. App. at 721, 427 S.E.2d at 200. “In a criminal statute, ‘w illfully’ ordinarily means designedly, in tentionally or perversely.” Lambert v. Commonwealth , 6 Va. App. 360, 363, 367 S.E.2d 745, 746 (19 88). “Most obviously it differentiates between deliberate and unwitting conduct, but in the criminal law it also typically refers to a culpable state of mind.” Bryan v. United States , 524 U.S. 184, 191 (1998). We have held the “willfully ” element of the crime may be proved as follows: “‘Any failure to appear after notice of the appearance date [is] prima facie evidence that such failure to appear [was] willful.’” Trice v. United States , 525 A.2d 176, 179 (D.C. 1987) (quoting D.C. Code § 23-1327(a)). 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. Smith v. United States , 583 A.2d 975, 979 (D.C. 1990); Raymond v. United States , 396 A.2d 975, 978 (D.C. 1979). Hunter , 15 Va. App. at 722, 427 S.E.2d at 200. Ferguson was present with an attorney at the March 8, 2004 revocation proceeding, where the trial judge told him bot h that a review hearing would be held in six months and that

1 At trial, Ferguson’s attorney stipulated Fer guson received notice of the hearing. In his motion to set aside the verdict, however, Fergus on asserted he did not receive notice. Though Ferguson discusses notice in his ap pellate brief, his question pres ented did not address notice. Furthermore, at oral argument, Ferguson’s atto rney again “stipulated” that Ferguson received notice and relied solely on the argument that Fer guson’s failure to appear was not “willful.” In view of the stipulations and the question presented on brief, we limit our decision to only the willful issue.- 4 - the date for the hearing would be determined at the August 17 docket call. Ferguson failed to appear at the docket call and at the later hearing. “[ E]vidence that sequential orders had been duly entered of record providing for a date certain [a nd] notice of the trial da te to that counsel of record, without more, establish[ ] a prima facie case” that Ferguson had notice of his review hearing date and nonetheless failed to appear. Id. at 723, 427 S.E.2d at 201. Thus, the trial judge was entitled to infer from this evidence that Ferguson’s failure to appear was willful. Ferguson nonetheless contends the Commonw ealth failed to “prove [beyond a reasonable doubt] that his failure to a ppear was knowing, intentional and deliberate.” He argues there was no evidence “of any attempts by the court, clerks or [his] attorney to notify [him]” of the September 1 court date. Ferguson further argues his failure to a ppear was not “willful” because the trial judge knew Ferguson had absconded from s upervised probation when he set the date for the review hearing. The Commonwealth responds that by failing to contact his attorney, ceasing administration of his psychotropic medication, and absconding from probation supervision, Ferguson engaged in a course of conduct designe d to prevent him from receiving notice of the review hearing. The Commonwealth maintains th is conduct was sufficien t to prove Ferguson’s failure to appear was willful.
In Hunter , we held a fact finder could infer beyond a reasonable doubt that an individual acted willfully when he purposely engaged in conduct to avoid being located and violated conditions of his release, while failing to appear when required. 15 Va. App. at 723-24, 427 S.E.2d at 201. The evidence in th is case is not limited merely to proof that Ferguson received notice. Ferguson testified he wa s aware of his obligati ons to maintain contact with his probation officer and his attorney. Desc ribing his own conduct, Ferguson sa id he “absconded.” In other words, he acted in a deliberate manner to av oid contact. These circumstances provide a basis upon which the trial judge could have concluded Ferguson’s failure to appear was not due to- 5 - inadvertence, accident, or mistake but, rather was willful. See United States v. Clemons , 676 F.2d 124, 126 (5th Cir. 1982) (holding that the defe ndant’s “failure to keep his attorney advised of his whereabouts, his failure to contact his atto rney, and his violation of the conditions of his release are sufficient to sustain a finding that [h is] failure to appear at trial was willful”). Ferguson’s claim that he could not have acted willfully because the hearing was set with knowledge he had absconded is meritless. The st atutory element of “willfully” pertains to the state of mind of the accused. See United States v. Beidler , 110 F.3d 1064, 1069 (4th Cir. 1997) (noting that “willfulness concerns the defendant ’s state of mind”). The relevant issue is Ferguson’s conduct and what infe rence can be drawn from it. In summary, the evidence established Ferguson failed to appear at the docket call and the review hearing. He knew he ha d an upcoming review hearing, ye t he failed to maintain contact with his attorney and failed to keep his attorney or the court advised of his whereabouts. Ferguson also knew maintaining contact w ith his probation officer was a condition impos ed by the trial judge, yet he failed to do so an d specifically testified that he “absconded.” The trial judge was entitled to disbelieve Ferguson’s unsubstantia ted claim that his fa ilure to appear was not willful. Hunter , 15 Va. App. at 723, 427 S.E.2d at 201. We hold the trial judge did not err in finding the evidence sufficie nt to prove beyond a reasonable doubt that Ferguson’s failu re to appear was willfu l. We, therefore, af firm the conviction. Affirmed.