COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Clements and Senior Judge Annunziata 

JESSIE WAYNE ABELL 

 MEMORANDUM OPINION*

v. Record No. 1795-06-3 PER CURIAM 

 MARCH 13, 2007 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF FRANKLIN COUNTY 

William N. Alexander, II, Judge 

 (Bruce A. Flora, on brief), for appellant. Appellant submitting on 

brief. 

 (Robert. F. McDonnell, Attorney General; Alice T. Armstrong, 

Assistant Attorney General II, on brief), for appellee. Appellee 

submitting on brief. 

 Appellant contends the evidence was insufficient to convict him of felony failure to 

appear. We agree, reverse the conviction, and dismiss the indictment. 

“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 

438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence proved that appellant was 

absent for his court date after having been charged with a felony. At his trial for failing to 

appear, appellant testified that it had been snowing that day, that he did not have a driver’s 

license, and was unable to find someone to drive him to court. Appellant testified that he made 

several attempts to arrange transportation to court. He had asked his ex-girlfriend, but she would 

not drive him because they had recently broken up. He also asked his mother to drive him to the 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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courthouse, but her license was suspended. Finally, he asked a neighbor, but she was unable to 

leave her children at home. He then telephoned the Clerk of the Circuit Court, who informed 

him that there was no way to postpone his case. 

Code § 19.2-128(B) provides: “Any person (i) charged with a felony offense . . . who 

willfully fails to appear before any court as required shall be guilty of a Class 6 felony.” 

Moreover, “[w]hen 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.” Hunter v. Commonwealth, 15 Va. App. 

717, 721, 427 S.E.2d 197, 200 (1993) (citations omitted). However, 

[w]hen a criminal offense consists of an act and a particular 

mens rea, both the act and mens rea are independent and necessary 

elements of the crime that the Commonwealth must prove beyond 

a reasonable doubt. Harrell v. Commonwealth, 11 Va. App. 1, 6-7, 

396 S.E.2d 680, 682 (1990) (citing Dixon v. Commonwealth, 197 

Va. 380, 382, 89 S.E.2d 344, 345 (1955)). Code § 19.2-128(B) 

requires that the Commonwealth prove that the accused “willfully” 

failed to appear at trial. “‘[The] correct application [of willfully] in 

a particular case will generally depend upon the character of the 

act involved and the attending circumstances.’” Lambert v. 

Commonwealth, 6 Va. App. 360, 363, 367 S.E.2d 745, 746 (1988) 

(quoting Lynch v. Commonwealth, 131 Va. 762, 766, 109 S.E. 

427, 428 (1921)). “Willfully,” as used in Code § 19.2-128(B), has 

the customary meaning that the act must have been done 

“purposely, intentionally, or designedly.” 

Id.

 Appellant concedes that he received timely notice and did not appear in court, but argues 

that his failure to appear was not willful. The evidence proved that, lacking a driver’s license, he 

attempted to procure a ride from three people. When he failed to procure a ride, he then 

telephoned the court in a further attempt to rectify the problem. These were meaningful attempts 

to appear in court and evinced an earnest desire to conform to Code § 19.2-128(B). As such, 

appellant’s testimony rebutted the presumption that his failure to appear was willful. The trial 
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judge did not state that he disbelieved appellant’s testimony, only that he found it was not a 

“valid excuse.” Be that as it may, an invalid excuse does not equate to a willful act. For this 

reason, the trial court erred in finding the evidence proved beyond a reasonable doubt that he 

willfully failed to appear. 

Reversed and dismissed.