                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Decker and O’Brien
UNPUBLISHED


              Argued at Richmond, Virginia


              JAMES JARMELL JACKSON
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1457-16-2                                  JUDGE MARLA GRAFF DECKER
                                                                                 AUGUST 8, 2017
              COMMONWEALTH OF VIRGINIA


                                    FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                                 Gary A. Hicks, Judge

                               John W. Parsons (Law Office of John W. Parsons, on brief), for
                               appellant.

                               Rosemary V. Bourne, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     James Jarmell Jackson appeals his convictions of robbery and use of a firearm in the

              commission of a felony, in violation of Code §§ 18.2-58 and -53.1. He challenges the

              sufficiency of the evidence to prove his identity as the person who committed the crimes. For

              the reasons that follow, we affirm the convictions.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                        I. BACKGROUND1

       On November 19, 2015, between 8:30 and 8:45 p.m., John Hildbold arrived at an

apartment complex to deliver pizzas. After he got out of his car, a man shoved him from behind.

Hildbold “felt” something “like . . . a gun pushed against [his] back.” A second male, wearing a

ski mask and dark clothing, stepped in front of the victim with a gun and announced that he

“wanted [Hildbold’s] money.” The assailant behind him removed items from Hildbold’s

pockets, including his cellular phone, keys, and twenty dollars. They grabbed the pizzas

Hildbold was carrying and instructed him to “get on the ground.” The two assailants “shoved”

him “down” and fled. The victim immediately found someone to call 911.

       Officer Saunders2 of the Henrico County Police responded to the robbery call. As he

arrived, shortly before 9:00 p.m., he saw four individuals dressed in black approximately three

blocks from where the robbery had occurred. Saunders stopped his police car, and as he got out,

the four people fled. Officer Saunders coordinated with other law enforcement officers, and they

quickly established a half-mile perimeter. After the perimeter was formed, Saunders heard

voices coming from a drainage culvert “under” the street. He followed the voices, found the

appellant and three other men, and detained them. No other individuals were found within the

perimeter.




       1
         In this Court’s review of the sufficiency of the evidence to support a conviction, we
view the evidence and “all reasonable inferences fairly deducible therefrom” in “the light most
favorable to the Commonwealth,” the party who prevailed below. Cuffee v. Commonwealth, 61
Va. App. 353, 357, 735 S.E.2d 693, 695 (2013) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)). To do so, the Court “discard[s] the evidence of the
accused in conflict with that of the Commonwealth.” Id. (quoting Parks v. Commonwealth, 221
Va. 492, 498, 270 S.E.2d 755, 759 (1980)).
       2
           The officer’s first name does not appear in the record.
                                                 -2-
       Immediately across the street from where Saunders detained the four suspects, other

officers on the scene found two cell phones and some cash. One phone belonged to the victim,

and the other phone was linked to one of the individuals detained with the appellant. They also

found the victim’s keys and pizza delivery bag. The keys were located where Saunders first saw

the four suspects, and the delivery bag was between there and where the robbery occurred.

       Detective Christopher Kovach with the Henrico County Police interviewed the appellant,

who denied committing the robbery. When Kovach asked him why he fled, the appellant said

that he was simply following the others. He also told Kovach that he had “met up with everyone

else around 8:00 p.m.” and that he had not known the men before that day. The appellant also

could not provide Kovach with “his exact address.” The detective found a ski mask on the

appellant’s person when he searched him. However, the appellant denied that he had a ski mask,

instead calling it a hat. According to Detective Kovach, when he asked the appellant if the mask

had eye and mouth holes, the appellant said that he “did not know” and reacted with “like a

snicker, kind of like a laugh.”

       The appellant testified in his own defense. He denied robbing the victim and

participating in the robbery. When asked during cross-examination if a mask was found in his

pocket, the appellant responded, “Yes.” However, he explained that he wore it “rolled down”

and “like a skull hat.” The appellant claimed that he had not worn it at all on the day of the

offense. He also admitted that he had told Kovach that he did not know the men he was with

even though one of them was actually his brother.

       The trial court found the appellant guilty. In doing so, the court found that his testimony

was not credible. The appellant was sentenced to twenty-three years’ incarceration for the

robbery and firearm offenses, with twenty years suspended.




                                                -3-
                                            II. ANALYSIS

        The appellant argues that the evidence was insufficient to support his convictions because

the Commonwealth did not prove beyond a reasonable doubt that he was the person who

brandished a gun at the victim and demanded his money. Applying the appropriate legal

standard, we hold that the evidence was sufficient to prove that he was a criminal agent of the

offenses.

        In this Court’s review of the sufficiency of the evidence to support a conviction, we will

affirm the decision unless the trial court was “plainly wrong or the conviction lacked evidence to

support it.” See, e.g., Cuffee v. Commonwealth, 61 Va. App. 353, 363, 735 S.E.2d 693, 698

(2013) (quoting Vincent v. Commonwealth, 276 Va. 648, 652, 668 S.E.2d 137, 139-40 (2008)).

If the evidence is sufficient to support the conviction, the reviewing appellate court will not

“substitute its own judgment for that of the trier of fact, even if its opinion might differ from the

conclusions reached by the [fact finder].” Jordan v. Commonwealth, 286 Va. 153, 156-57, 747

S.E.2d 799, 800 (2013). The appellant was tried by the circuit court, sitting without a jury.

Consequently, that court was the fact finder, and its judgment is afforded the “same weight as a

jury verdict.” Goode v. Commonwealth, 52 Va. App. 380, 384, 663 S.E.2d 532, 534 (2008)

(quoting Saunders v. Commonwealth, 242 Va. 107, 113, 406 S.E.2d 39, 42 (1991)).

        Furthermore, it is the function of the trier of fact to determine the credibility of witnesses

and the weight afforded the testimony of those witnesses. Thorne v. Commonwealth, 66

Va. App. 248, 253, 784 S.E.2d 304, 307 (2016). This Court does not revisit these determinations

on appeal unless reasonable people, “after weighing the evidence and drawing all just inferences

therefrom, could reach [only the contrary] conclusion.” Towler v. Commonwealth, 59 Va. App.

284, 292, 718 S.E.2d 463, 467 (2011) (quoting Molina v. Commonwealth, 47 Va. App. 338, 369,

624 S.E.2d 83, 98, aff’d, 272 Va. 666, 636 S.E.2d 470 (2006)).

                                                  -4-
       It is axiomatic that “[a]t trial, the Commonwealth bears the burden of proving the identity

of the accused as [a] perpetrator beyond a reasonable doubt.” Cuffee, 61 Va. App. at 364, 735

S.E.2d at 698 (quoting Blevins v. Commonwealth, 40 Va. App. 412, 423, 579 S.E.2d 658, 663

(2003)). On appeal, we review the trier of fact’s determination regarding the identity of the

criminal actor in the context of “the totality of the circumstances.” Brown v. Commonwealth, 37

Va. App. 507, 523, 559 S.E.2d 415, 423 (2002) (quoting Satcher v. Commonwealth, 244 Va.

220, 249, 421 S.E.2d 821, 839 (1992)).

       Identity may be proved by circumstantial evidence. See Crawley v. Commonwealth, 29

Va. App. 372, 375, 512 S.E.2d 169, 170-71 (1999). Further, the law is clear that we do “not

distinguish between direct and circumstantial evidence.” Commonwealth v. Moseley, __ Va. __,

__, 799 S.E.2d 683, 686 (2017); see also Breeden v. Commonwealth, 43 Va. App. 169, 177, 596

S.E.2d 563, 567 (2004) (“Circumstantial evidence is as competent and is entitled to as much

weight as direct evidence . . . .” (quoting Coleman v. Commonwealth, 226 Va. 31, 53, 307

S.E.2d 864, 876 (1983))).

       As an initial matter, the appellant argues that the “hat” found in his possession was not

proved to have holes for his eyes or mouth and that the poor quality photograph introduced into

evidence does not support the conclusion that it was a ski mask. However, in the trial court, the

appellant did not contest that the item Kovach found on his person was a ski mask. In fact, the

appellant conceded that “the most damning piece of evidence that the Commonwealth has is this

mask.” We accept this factual concession made below, which is fully supported by the record in

this case, notably through the testimony of Detective Kovach and the appellant’s acknowledgment

on cross-examination. See Logan v. Commonwealth, 47 Va. App. 168, 171-72, 622 S.E.2d 771,




                                                -5-
772-73 (2005) (en banc) (concluding that the concession of fact made at trial resolved the question

on appeal).3

        The appellant further contends that the Commonwealth failed to refute the “reasonable

hypothesis” that he and his three counterparts innocently happened to be in the area of the

robbery and that he did not participate as a principal or an accessory to the crimes. “The

reasonable-hypothesis principle ‘merely echoes “the standard applicable to every criminal

case,”’” namely that “the Commonwealth has the burden of proof beyond a reasonable doubt.”

Moseley, __ Va. at __, 799 S.E.2d at 687 (first quoting Vasquez v. Commonwealth, 291 Va. 232,

250, 781 S.E.2d 920, 930 (2016); and then quoting Commonwealth v. Hudson, 265 Va. 505, 513,

578 S.E.2d 781, 785 (2003)). “[T]he Commonwealth need only exclude reasonable hypotheses

of innocence that flow from the evidence, not those that spring from the imagination of the

defendant.” Archer v. Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 832 (1997) (quoting

Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993)). “[N]o matter

how this burden is framed, the factfinder ultimately remains responsible for weighing the

evidence,” as well as determining “which reasonable inferences should be drawn from the

evidence, and whether to reject as unreasonable the hypotheses of innocence advanced by a

defendant.” Moseley, __ Va. at __, 799 S.E.2d at 687; see Wood v. Commonwealth, 57 Va. App.

286, 306, 701 S.E.2d 810, 819 (2010).

        Here, the trial court rejected the appellant’s contention that he was merely innocently in the

area. Viewing the evidence in the light most favorable to the Commonwealth, the record supports


        3
         Further, to the extent that the appellant challenges the proof of the specifics related to the
mask, this argument is procedurally barred because he did not make it in the trial court. See Rule
5A:18; Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en
banc), aff’d by unpub’d order, No. 040019 (Va. Oct. 15, 2004). See generally Jones v.
Commonwealth, 293 Va. 29, 39 n.5, 795 S.E.2d 705, 710 n.5 (2017) (declining to raise sua
sponte either the ends of justice or good cause exception to Rule 5:25, the Supreme Court of
Virginia counterpart to Rule 5A:18).
                                                  -6-
this conclusion. When Officer Saunders responded to the robbery call shortly after it occurred,

he saw four individuals standing outside three blocks from the location of the robbery. When

Saunders got out of his car to approach them, they ran and hid. He immediately established a

police perimeter. Within that perimeter, the only people that law enforcement found were the

appellant and his three companions. They were hiding in a culvert one block away from where

Officer Saunders had first observed them. The victim’s stolen phone was found in the immediate

vicinity of where the appellant and his group were discovered. A second phone found in the

same place had stored on it a photograph of one of the appellant’s compatriots. This evidence

was clearly sufficient to link the appellant and his companions to the crimes.

          The question pivotal to the resolution of this appeal is whether the evidence sufficiently

proved that the appellant participated in the robbery. We hold that the evidence established that

the appellant acted, at the very least, as a principal in the second degree to both the robbery and

the use of a firearm in the commission of a felony. See Code § 18.2-18 (providing that a

principal in the second degree is equally guilty as a principal in the first degree, with some

exceptions that are not applicable to this case); Tasker v. Commonwealth, 202 Va. 1019, 1020,

1023, 1025-26, 121 S.E.2d 459, 460, 462, 464 (1961) (upholding the defendant’s conviction for

grand larceny where he was indicted for stealing a ring and “found . . . ‘guilty as charged in the

indictment’” but the evidence proved that he acted only as a principal in the second degree to the

theft).

          A principal in the second degree is “one who is present, actually or constructively,

assisting the perpetrator in the commission of the crime.” Goode, 52 Va. App. at 385, 663

S.E.2d at 535 (quoting Muhammad v. Commonwealth, 269 Va. 451, 482, 619 S.E.2d 16, 33




                                                  -7-
(2005)).4 In order for a person to act as a principal in the second degree, “actual participation in

the commission of the crime is not necessary.” Id. (quoting Muhammad, 269 Va. at 482, 619

S.E.2d at 33); see also Carter v. Commonwealth, 232 Va. 122, 125, 348 S.E.2d 265, 267 (1986)

(explaining that an individual “who never held or possessed a firearm might nevertheless be

convicted as a principal in the second degree of the use of a firearm in the commission of a

felony where he acted in concert with the gunman”). The deciding factor is “whether or not he

was encouraging [or] inciting . . . the commission of the crime[,] . . . present lending

countenance, or otherwise aiding while another did the act.” Goode, 52 Va. App. at 385-86, 663

S.E.2d at 535 (quoting Muhammad, 269 Va. at 482, 619 S.E.2d at 33). To constitute a principal

in the second degree, an individual “must be guilty of some overt act, or he must share the

criminal intent of the principal.” Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d

823, 825 (1991) (quoting Triplett v. Commonwealth, 141 Va. 577, 586, 127 S.E. 486, 489

(1925)).

       By the appellant’s own account, he met with the group around 8:00 p.m. He was found

with a ski mask, and at least one of the robbers wore a ski mask. The appellant and his

companions wore dark clothing, as did the assailant seen by the victim. Officer Saunders first

saw the appellant and the others shortly after the robbery, three blocks from where it occurred.

Stolen items were found in the immediate area of where Saunders first saw the men and where

they hid in the culvert. The appellant fled from the officer and hid in a culvert with his

companions. Further, the appellant lied to law enforcement about not knowing the people that he

accompanied, one of whom was his brother, and was evasive about his address and the mask in

his pocket. See Ragland v. Commonwealth, 67 Va. App. 519, 533, 797 S.E.2d 437, 444 (2017)


       4
        In contrast, a principal in the first degree is one who actually commits the crime.
Goode, 52 Va. App. at 385, 663 S.E.2d at 535 (quoting Muhammad, 269 Va. at 482, 619 S.E.2d
at 33).
                                                 -8-
(“[A]ffirmative acts of falsehood or flight immediately following the commission of a crime . . .

tend to show a person’s guilty knowledge of, and participation in, a criminal act.” (citing Jones v.

Commonwealth, 279 Va. 52, 57, 688 S.E.2d 269, 272 (2010))).

       The trial court, as the trier of fact, was entitled to reject the appellant’s claim of

innocence and his self-serving statements to the police. See, e.g., Rawls v. Commonwealth, 272

Va. 334, 350, 634 S.E.2d 697, 705 (2006) (rejecting the defendant’s statement to police).

Additionally, where the fact finder concludes that a defendant’s testimony is not credible, it may

reject that testimony and treat his “prevarications as ‘affirmative evidence of guilt.’” Sierra v.

Commonwealth, 59 Va. App. 770, 784, 722 S.E.2d 656, 663 (2012) (quoting Armstead v.

Commonwealth, 56 Va. App. 567, 581, 695 S.E.2d 561, 567 (2010)).

       The facts here provide more than adequate support for a finding that the appellant acted

at the very least as a principal in the second degree. “[E]vidence of [the appellant’s] conduct in

concert” with the others and “proximity to the attack” supplied “ample proof of [his] . . . shared

criminal intent.” See Goode, 52 Va. App. at 387, 663 S.E.2d at 536. The trier of fact could

readily have concluded that the appellant “provid[ed] assistance, encouragement, and moral

support” to accomplish the offenses as one of the criminal agents. Dickerson v. Commonwealth,

36 Va. App. 8, 15, 548 S.E.2d 230, 233 (2001). Consequently, the record supports the trial

court’s finding that the appellant was guilty of robbery and using a firearm in the commission of

the felony. For these reasons, we affirm the convictions.

                                        III. CONCLUSION

       The evidence was sufficient to support the convictions. However, the sentencing order

contains a clerical error. It mistakenly lists the same case number for both convictions,

providing that the court sentenced the defendant “in Case No. CR16-265-00F for a term of three

(3) years . . . and in Case No. CR16-265-00F for a term of twenty (20) years.” The record

                                                 -9-
reflects that the three-year sentence is for the use of the firearm, CR16-265-00F, and the

twenty-year sentence is for the robbery, CR16-264-00F. Therefore, we affirm and remand solely

for correction of the clerical error. Code § 8.01-428(B); see, e.g., Howell v. Commonwealth,

274 Va. 737, 739 n.*, 742, 652 S.E.2d 107, 108 n.*, 109 (2007).

                                                                           Affirmed and remanded.




                                               - 10 -
