COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Agee and Senior Judge Hodges 

Argued at Chesapeake, Virginia 

KIMBERLY JANE BURKE 

 MEMORANDUM OPINION* BY 

v. Record No. 0716-00-1 JUDGE WILLIAM H. HODGES 

 MARCH 20, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF YORK COUNTY 

N. Prentis Smiley, Jr., Judge 

 Jeffrey W. Shaw (Dusewicz & Soberick, P.C., 

on brief), for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Kimberly Jane Burke, appellant, appeals her conviction for 

failure to appear in violation of Code § 19.2-128. On appeal, she 

argues the evidence was insufficient to prove: (1) she was the 

Kimberly Jane Burke who failed to appear in court on May 17, 1999; 

and (2) she had notice of the May 17, 1999 court date. Finding 

the evidence was insufficient to prove appellant received notice 

of the May 17, 1999 hearing date, we reverse her conviction. 

BACKGROUND

 The evidence proved that a preliminary hearing for Kimberly 

Jane Burke was scheduled for May 17, 1999 at 1:30 p.m. When the 
case was called on that date, no one appeared. Appellant was 

charged with failure to appear in violation of Code § 19.2-128. 

 The Commonwealth introduced a copy of a York County General 

District Court document which stated that Kimberly Jane Burke 

"must be in court" on Monday, May 17, 1999 at 1:30 p.m. The 

Commonwealth rested its case, and appellant presented no 

evidence. 

ANALYSIS

 "When considering the sufficiency of the evidence on appeal 

of a criminal conviction, we must view all the evidence in the 

light most favorable to the Commonwealth and accord to the 

evidence all reasonable inferences fairly deducible therefrom." 

Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 

721 (1988). 

 "Code § 19.2-128(B) requires that the Commonwealth prove 

[beyond a reasonable doubt] that the accused 'willfully' failed 

to appear at trial." Hunter v. Commonwealth, 15 Va. App. 717, 

721, 427 S.E.2d 197, 200 (1993). When the Commonwealth "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." Id. 

 The Commonwealth's evidence failed to prove that appellant 

received notice that she was scheduled to appear in court on May 

17, 1999. Although the Commonwealth presented evidence of a 

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York County General District Court document stating that 

Kimberly Jane Burke "must be in court" on Monday, May 17, 1999, 

the Commonwealth failed to prove that appellant received a copy 

of this document. In addition, the Commonwealth's argument that 

it is the "practice" of the court to give the defendant the 

original copy of this document failed to prove that appellant 

actually received a copy of the document in this case. 

Therefore, we find the evidence was insufficient to prove beyond 

a reasonable doubt that appellant received notice that she was 

to appear in court on May 17, 1999 for the preliminary hearing 

and that she willfully failed to appear at the hearing. 

Accordingly, we reverse the conviction and dismiss the 

indictment.1

 Reversed and dismissed.

 1

 Because we reverse the case on this issue, we need not 

address the issue of whether the evidence proved beyond a 

reasonable doubt that appellant was the Kimberly Jane Burke who 

failed to appear in court on May 17, 1999. 

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