COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felt on, Judges Frank and Kelsey Argued at Richmond, Virginia

BEN W. HUNTER MEMORANDUM OPINION * BY v. Record No. 2542-09-2 CHIEF JUDGE WALTER S. FELTON, JR. NOVEMBER 16, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF LANCASTER COUNTY Buford M. Parsons, Jr., Judge Designate

James O. Broccoletti (Zoby & Broccoletti, P.C., on brief), for appellant. Robert H. Anderson, III, Seni or Assistant Attorney General (Kenneth T. Cuccinelli, II , Attorney General, on brief), for appellee.

Following a bench trial, Ben W. Hunter (“appellant”) was conv icted of felony failure to appear in violation of C ode § 19.2-128(B) and misd emeanor failure to appear in violation of Code § 19.2-128(C). He co ntends the trial court erred in finding th e evidence sufficient to convict him of felony failure to appear. 1 For the following reasons, we affi rm the judgment of the trial court. On appeal, appellant asserts that the trial cour t erred in convicting him of felony failure to appear because, at the time of his scheduled trial on February 7, 2006, there was no pending felony charge for which he failed to appear. He argues that the officer testified on cross-examination that appellant’s criminal history report reflected th at the trial court had previously dismissed the underlying felony charges.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Appellant does not challenge his misdemeanor failure to appear conviction on appeal.- 2 - The record presented on appeal is woefully incomple te. It contains two indictments, one charging appellant with failure to appear on February 7, 20 06 for trial on dr ug-related felony charges and the other charging him with failure to appear on a drug-related misdemeanor charge. It also contains a partial transcript of appellant’s Ju ly 7, 2009 trial on those in dictments and thirty-two drug-related charges. 2 The partial trial transcript conc ludes with a recess taken during the

Commonwealth’s case-in-chief at the conclusion of the testimony of its first w itness, a police officer. Prior to the recess, the officer testifie d that appellant was arre sted on four drug-related felonies and that he had a preliminary hearing on those charges, each of which was certified to a grand jury. He also testified that a grand jury thereafter indicted appellant on multiple drug-related felony charges and that appellant fa iled to appear on the scheduled trial date. 3 Appellant concedes in his brief on appeal that at the preliminar y hearing he “confirmed that his presence was required on February 7, 2006 for a trial in reference to the certified felony charges.” The record on appeal does contain the trial court’s conviction order that states, “At the conclusion of all the evidence, and argument of counsel, . . . [t]he Court finds the defendant GUILTY” of felony failure to appear. See McBride v. Commonwealth , 24 Va. App. 30, 35, 480 S.E.2d 126, 128 (1997) (“A court speaks through its orders and those orders are presumed to accurately reflect what transpired.”). That order shows that appellant made a motion to strike the

2 The conviction order in the record refl ects that appellant was acquitted of the drug-related charges.

3 The partial transcript contai ns the cross-examination of the police officer during which appellant apparently showed a copy of a criminal history record to the wi tness, and asked him if the report showed that four felony indictments had been prev iously dismissed. The officer answered, “Yes,” when asked if the document c ontained that information. That document was not made part of the record on appeal.- 3 - Commonwealth’s evidence at the conclusion of its case-in-chief, “on grounds stated to the record,” and that the tria l court denied that motion. However, the record on appeal does not contai n appellant’s argument at the conclusion of the Commonwealth’s case-in-chief as to why the evidence was insufficient to establish a prima facie case which, if believed, would support a conviction for felony failure to appear. 4 See Rule 5A:18. Moreover, the record on appeal doe s not contain the arrest warrants or indictments for the underlying felonies for which appellant fa iled to appear. It does not contain any order dismissing those indictments, nor does it contain th e criminal history repor t reflecting that those indictments had been previously dismissed. “The Court ‘ha[s] many times pointed out that on appeal . . . the burden is on the appellant to present to us a suffic ient record from which we can determ ine whether the lower court has erred in the respect complained of.’” Brailey v. Commonwealth , 55 Va. App. 435, 44 5, 686 S.E.2d 546, 551 (2009) (alteration in original) (quoting Justis v. Young , 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961)). The record appellant has presented to us on appeal fails to provide this Court with an adequate record to determine whether the trial co urt erred in convicting a ppellant of failure to appear on a felony charge in violation of C ode § 19.2-128(B). Accordingly, we affirm his

conviction.

Affirmed.

4 The conviction order states th at “the Court heard the eviden ce presented on behalf of the Commonwealth and the defendant .” (Emphasis added). However, the record does not contain any evidence presented by the defense nor any motion by appell ant to strike the Commonwealth’s evidence at the conclusion of the presentation of all the evidence. See Murillo-Rodriguez v. Commonwealth , 279 Va. 64, 72, 688 S.E.2d 199, 203 (20 10) (barring “review by an appellate court of a challenge to the suffi ciency of the evidence where a defendant who has elected to introduce evidence in his defense does not make either a motion to strike at the conclusion of all the evidence or a motion to set aside the verdict”).