COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Causey and Bernhard UNPUBLISHED
CALVIN C. JENKINS MEMORANDUM OPINION* v. Record No. 1185-24-2 PER CURIAM SEPTEMBER 23, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY Joseph M. Teefey, Jr., Judge
(M.G. Henkle; Henkle Law Firm, on brief), for appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Sabina B. Thaler, Assistant Attorney General, on brief), for appellee.
Following a jury trial, the trial court convicted Calvin C. Jenkins of malicious wounding and
sentenced him to 13 years of imprisonment. Jenkins’s five assignments of error include (i) the trial
court’s denial of his attorney’s motion to withdraw and refusal to allow Jenkins to represent himself,
(ii) the trial court’s refusal to submit his jury instructions on self-defense, (iii) challenges to the
sufficiency of the evidence to sustain his conviction, (iv) the trial court’s decision to proceed to trial
even though only some of his witnesses were present,1 and (v) the trial court’s abuse of its discretion
in imposing a 13-year sentence. We find no error and affirm the judgment.2
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Considering appellant’s failure to preserve this objection, he seeks an “ends of justice” exception under Rule 5A:18. See infra Analysis (Assignments of Error I and IV). 2 After examining the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary because “the dispositive issue or issues have been authoritatively decided, and the appellant has not argued that the case law should be overturned, extended, modified, or reversed.” Code § 17.1 403(ii)(b); Rule 5A:27(b). BACKGROUND3
Pretrial Proceedings
By warrant, Jenkins was charged with malicious wounding of Albert Sweeney in violation
of Code § 18.2-51. At an October 19, 2022 preliminary hearing, the General District Court of
Nottoway County found probable cause that Jenkins committed the offense and certified the charge
to the grand jury. Attorney Gordon Peters represented Jenkins at the preliminary hearing.4
The trial court appointed Peters to represent Jenkins. A Nottoway County grand jury
indicted Jenkins for malicious wounding on November 1, 2022. At a November 28, 2022 hearing,
Jenkins elected a jury trial, but asked the trial court to appoint him a new attorney. Jenkins
specifically requested the trial court to appoint Marlene Harris as his attorney. The trial court
denied Jenkins’s request, noting that Peters could “file an appropriate motion.” Jenkins’s case was
continued to January 3, 2023, to be scheduled for a jury trial.
At a hearing on January 9, 2023, Jenkins again requested appointment of replacement
counsel. The trial court ordered Peters to file a motion and order permitting him to withdraw and
appointed M.G. Henkle as Jenkins’s lawyer to replace Peters. The trial court set a jury trial date of
May 10, 2023.
3 “Consistent with the standard of review when a criminal appellant challenges the sufficiency of the evidence, we recite the evidence below ‘in the “light most favorable” to the Commonwealth, the prevailing party in the trial court.’” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). This standard “requires us to ‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.’” Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)). 4 The court’s order also notes the name “Spence” in the blank for incurred costs for a court-appointed attorney. At a subsequent hearing in the trial court, Peters indicated that Jenkins originally was represented by Ben Spence, but a conflict of interest was discovered, and Peters took over the case. -2- The parties appeared for trial on May 10, 2023. The Commonwealth’s witnesses were
present, and the prosecutor was ready to move forward with trial. Citing the need for further
investigation, and potentially issuing witness subpoenas for individuals who were patients at or
associated with the Virginia Center for Behavioral Rehabilitation (VCBR), the defense moved for a
continuance. Henkle identified Travis Cross as a potential defense witness. Cross had been a
patient at VCBR, but he was no longer at the facility and his whereabouts were unknown.
Jenkins had also identified a former VCBR employee as a witness, but Henkle did not know that
person’s whereabouts. The trial court continued the case to July 7, 2023, to set a jury trial.
Citing disagreements with Jenkins and Jenkins’s desire to represent himself, Henkle moved
to withdraw as counsel. Emphasizing Henkle’s experience as a criminal defense attorney, the trial
court denied Henkle’s motion to withdraw and advised Jenkins to cooperate with Henkle. The case
was later set for a jury trial on January 9, 2024.
Before trial began on January 9, 2024, the trial court arraigned Jenkins and he pleaded not
guilty. The trial court asked if Jenkins’s witnesses were present. Jenkins said yes, but that Henkle
had said all the witnesses were not there. Henkle stated that only two of his six subpoenaed
witnesses were present.5 One of them had the same name as a person Jenkins wanted as a witness,
but was not the person in question.
When asked if he would like to continue the matter, Henkle said that Jenkins stated he
would like to represent himself with Henkle serving as standby counsel. After the trial court
allowed Henkle and Jenkins to confer, Jenkins stated, “I’m going to go forward. I don’t know what
about to happen, but you say all my witnesses ain’t there. But I’m going to go for it.” Jenkins
reiterated that he wanted a jury trial and to testify in his own behalf.
5 Later, during voir dire of the jury, the defense identified Sonita Rhoades as a witness, and she was present in court. -3- When the trial court asked if he wanted to represent himself or have Henkle conduct the
trial, Jenkins responded, “I thought we were working together.” Jenkins acknowledged that with
Henkle trying the case, he would call Jenkins to the witness stand to answer Henkle’s questions
about the incident, rather than Jenkins simply offering his narrative of the events. Henkle
commented that his relationship with Jenkins had deteriorated and Jenkins had expressed
dissatisfaction with Henkle’s defense of him.
Returning to the question of whether Jenkins wished to represent himself or have Henkle as
standby counsel, Jenkins said, “I want . . . him to represent me, but I want him to help me. Not
represent me and hurt me.” He expressed his wish to testify and “tell why [he] did what [he] did”
and the reasons that “led up to this,” even though his witnesses were not present. Jenkins continued,
“Okay. He representing me . . . I also want to take the trial in [sic] my own behalf and tell what
happened.” The trial court responded that Jenkins could testify and it was his decision to make.
Jenkins asked Henkle, “You want to represent me, or you don’t want to represent me?”
Henkle noted that he would serve as Jenkins’s attorney until removed by the court. Jenkins then
stated, “I want you to be my attorney,” and that he wanted to take the witness stand. Jenkins said he
understood the process and that he would be subject to cross-examination by the Commonwealth if
he elected to testify.
Trial
On July 30, 2022, Jenkins and Sweeney were both housed at the VCBR, a secured treatment
facility for Virginia’s sexually violent predator population. Both Jenkins and Sweeney had been at
the facility for more than five but less than ten years, and there was no official history of major
incidents between them.
At about 5:00 p.m. that day, Sweeney was seated at a table eating dinner with his back to
Jenkins. Jenkins approached Sweeney from behind, reached around to the front of Sweeney’s body,
-4- and stabbed Sweeney in the chest and right shoulder. Jenkins used a sharpened butter knife to stab
Sweeney. Afterward, Sweeney grabbed a chair and advanced toward Jenkins. An emergency
response team arrived and surrounded Jenkins, separating him from Sweeney.6 Sweeney sustained
two stab wounds in the attack.
Sweeney testified that during the morning of the incident, Jenkins stopped by Sweeney’s
cell and asked Sweeney’s cellmate for coffee. Sweeney gave Jenkins some coffee.
Sweeney testified that he had known Jenkins for years.7 Sweeney said that he had
encountered Jenkins while they were both in the Piedmont Regional Jail in 2017, but denied that he
ever tried to have sex with Jenkins while they were there.8 Sweeney said that during an argument in
the jail about his interpretation of the Bible, Jenkins called Sweeney derogatory names, pulled out
his penis, and shook it at Sweeney. Sweeney fought Jenkins in response and “beat him up real
bad.” But since then, Sweeney claimed, he and Jenkins had not had issues with one another.
Testifying for the defense, Eric Van said he had been in prison with Sweeney and knew that
he expressed interest in having sex with men.
Jenkins testified that his problems with Sweeney began when they were assigned the same
cell at Piedmont Regional Jail in 2017. Jenkins said that Sweeney hit him in the head 6 or 7 times
using about 15 bars of soap inside a sock. Jenkins claimed that Sweeney then choked and bit him.
Jenkins said he pulled himself under a bed to avoid Sweeney, who threatened to have sex with him.
Jenkins said he complained to jail officials about Sweeney’s conduct, but nothing happened.
6 The Commonwealth introduced a video that recorded the event. 7 Sweeney had several prior felony convictions. 8 Sweeney denied that he was either bisexual or homosexual. -5- Jenkins claimed that once they both returned to VCBR, Sweeney spread rumors that Jenkins
was “his boy” and they had sex while at Piedmont Regional Jail. 9 Jenkins added that because of
Sweeney’s lies, other people would ejaculate on Jenkins. Jenkins said that he exchanged angry
words with Sweeney about the rumors, and he admitted stabbing Sweeney. He said that he did not
stab Sweeney to kill him; Jenkins claimed he wanted only to “mark” Sweeney because “[Sweeney]
marked [him] with his teeth” when he bit him and because Sweeney tried to rape him. He admitted
that he gave Sweeney no warning and purposely stabbed Sweeney by surprise. Jenkins apologized
for his actions and explained, “I ain’t no punk faggot or bisexual or homo. I ain’t none of that.
Never will be . . . while I’m alive ain’t nobody taking my bootie.”
Finding no evidence to support them, the trial court refused Jenkins’s proposed jury
instructions on self-defense. The jury convicted Jenkins for malicious wounding.
Sentencing
At the sentencing hearing, Henkle asserted that Jenkins was born to a 13-year-old mother
and was raised in part by his grandmother. During Jenkins’s childhood, his step-father was
physically abusive to both Jenkins and his mother. When Jenkins tried to protect his mother from
the abuse, the step-father would put him “out on the street.” The defense noted that Jenkins had
significant health problems and required dialysis treatments. In addition, Jenkins was intellectually
disabled and was poorly educated. Jenkins’s last conviction for a violent sexual offense was in
1986. Jenkins asked the trial court to sentence him below the guidelines.
Following Jenkins’s allocution, the trial court observed that he “carried out a revenge
stabbing in a hospital for something that happened in a jail.” The trial court sentenced Jenkins to 13
years of imprisonment. Jenkins appeals.
9 During his testimony, Jenkins mentioned that he had subpoenaed a “key witness” named “Silla,” but claimed that he “ain’t there no more.” -6- ANALYSIS
Assignments of Error I and IV
Jenkins contends that the trial court erred in denying Henkle’s motion to withdraw as
counsel and refusing to permit Jenkins to represent himself. Jenkins also contends that the trial
court erred in allowing the trial to proceed even though not all of his witnesses were present.
Before trial began, however, the trial court held a lengthy colloquy with both Henkle and Jenkins
about whether, and how, Jenkins wished to proceed. Jenkins expressly stated that he wished to
proceed with the jury trial that day even though not all of his witnesses were present. Further
clarifying his position about whether he wanted to represent himself or have Henkle represent
him, Jenkins stated that he wished to testify in his own behalf and explain the background for his
actions on July 30, 2022. After being advised that taking the witness stand was a decision he
was entitled to make, further clarification of the procedure for that testimony, and discussion
with Henkle, Jenkins stated unequivocally that he wanted Henkle to represent him at trial.
“The Supreme Court has held that ‘[a] party may not approbate and reprobate by taking
successive positions in the course of litigation that are either inconsistent with each other or
mutually contradictory.’” Nelson v. Commonwealth, 71 Va. App. 397, 403 (2020) (alteration in
original) (quoting Rowe v. Commonwealth, 277 Va. 495, 502 (2009)). “The ‘doctrine against
approbation and reprobation’ applies both to assertions of fact and law and precludes litigants
from ‘playing fast and loose’ with the courts, or ‘blowing hot and cold’ depending on their
perceived self-interests[.]” Id. at 403 (citations omitted) (quoting Babcock & Wilcox v. Areva,
292 Va. 165, 204-05 (2016)). Unlike the contemporaneous objection rule under Rule 5A:18,
“there is no ‘ends of justice’ exception to the approbate and reprobate doctrine.” Id. at 405.
Here, although he took inconsistent positions in the proceedings, on the day of trial,
Jenkins ultimately agreed to proceed to trial without certain witnesses, to forgo his earlier request
-7- to represent himself, and to have Henkle continue to represent him as his attorney. Thus, under
the “approbate/reprobate” doctrine, we will not consider his claims of trial court error when he
affirmatively agreed with them.
Assignment of Error II
Jenkins argues that the trial court erred in refusing to grant his proposed instructions on
self-defense. “As a general rule, the matter of granting and denying instructions . . . rest[s] in the
sound discretion of the trial court.” Dandridge v. Commonwealth, 72 Va. App. 669, 679 (2021)
(alterations in original) (quoting Lienau v. Commonwealth, 69 Va. App. 254, 264 (2018)). “The
trial court’s ‘broad discretion in giving or denying instructions requested’ is reviewed for an
abuse of discretion.” Id. (quoting King v. Commonwealth, 64 Va. App. 580, 586 (2015) (en
banc)). “Our sole responsibility in reviewing [jury instructions] is to see that the law has been
clearly stated and that the instructions cover all issues which the evidence fairly raises.” Pena
Pinedo v. Commonwealth, 300 Va. 116, 121 (2021) (alteration in original) (quoting Cooper v.
Commonwealth, 277 Va. 377, 381 (2009)). “[A]n instruction is proper only if supported by more
than a scintilla of evidence.” Avent v. Commonwealth, 279 Va. 175, 202 (2010) (quoting
Commonwealth v. Sands, 262 Va. 724, 729 (2001)).
“Self-defense excuses or justifies a homicide or assault committed while repelling
violence arrayed against the defendant. It is a response to the threat of death or serious bodily
harm. It is a defense to an act of violence that repels violence directed at the defendant.”
Graham v. Commonwealth, 31 Va. App. 662, 672 (2000). To prove either justifiable or
excusable self-defense, “a defendant must show that he . . . ‘reasonably believed that [he] was in
danger of serious bodily harm or death.’” Jones v. Commonwealth, 71 Va. App. 70, 86 (2019)
(quoting Sands, 262 Va. at 730). He must also establish “‘that he was in imminent danger of
harm’ by showing ‘an overt act or other circumstance that affords an immediate threat to
-8- safety.’” Id. (quoting Carter v. Commonwealth, 293 Va. 537, 544 (2017)). “An overt act is an
act suggesting present danger which ‘afford[s] a reasonable ground for believing there is a design
. . . to do some serious bodily harm, and imminent danger of carrying such design into immediate
execution.’” Id. (alterations in original) (quoting Sands, 262 Va. at 729).
In this case, there was no evidence that Jenkins’s stabbing of Sweeney was in response to
any threat of harm. To the contrary, the testimony and the video proved that the attack was
wholly unprovoked. Jenkins approached Sweeney from behind, reached around his body, and
stabbed him twice with a homemade knife. Jenkins himself testified that he attacked Sweeney
purposefully, by surprise, and in retribution for a fight that occurred years before. Jenkins also
stated that he was angry about Sweeney spreading false rumors about Jenkins’s sexual
orientation. Thus, the trial court did not abuse its discretion in finding that the self-defense
instructions were not supported by a scintilla of evidence and in refusing them.
Assignment of Error III
Jenkins contends that the trial court erred in denying his motions to strike the evidence
and asserts that the evidence was insufficient to support his conviction. He maintains that “the
evidence as a whole showed the absence of malice, not its presence.”
“When an appellate court reviews the sufficiency of the evidence underlying a criminal
conviction, its role is a limited one.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024). “The
judgment of the trial court is presumed correct and will not be disturbed unless it is ‘plainly
wrong or without evidence to support it.’” Pijor v. Commonwealth, 294 Va. 502, 512 (2017)
(quoting Code § 8.01-680). “Thus, ‘it is not for this [C]ourt to say that the evidence does or does
not establish [the defendant’s] guilt beyond a reasonable doubt because as an original proposition
it might have reached a different conclusion.’” Commonwealth v. Barney, 302 Va. 84, 97 (2023)
(alterations in original) (quoting Cobb v. Commonwealth, 152 Va. 941, 953 (1929)).
-9- “The only ‘relevant question is, after reviewing the evidence in the light most favorable
to the prosecution, whether any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’” Id. (quoting Sullivan v. Commonwealth, 280 Va. 672,
676 (2010)). “If there is evidentiary support for the conviction, ‘the reviewing court is not
permitted to substitute its own judgment, even if its opinion might differ from the conclusions
reached by the finder of fact at the trial.’” McGowan v. Commonwealth, 72 Va. App. 513, 521
(2020) (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).
To sustain a conviction for malicious wounding under Code § 18.2-51, the
Commonwealth must prove that the defendant “maliciously” shot, stabbed, cut, or wounded
another person, “or by any means cause[d] him bodily injury, with the intent to maim, disfigure,
disable, or kill[.]” “Whether or not an accused acted with malice is generally a question of fact
and may be proved by circumstantial evidence.” Palmer v. Commonwealth, 71 Va. App. 225,
237 (2019) (quoting Canipe v. Commonwealth, 25 Va. App. 629, 642 (1997)). “[M]alice may be
either express or implied by conduct.” Watson-Scott v. Commonwealth, 298 Va. 251, 256 (2019)
(quoting Essex v. Commonwealth, 228 Va. 273, 280 (1984)). Malice “includes any action
flowing from a wicked or corrupt motive, done with an evil mind or wrongful intention, where
the act has been attended with such circumstances as to carry in it the plain indication of a heart
deliberately bent on mischief.” Williams v. Commonwealth, 13 Va. App. 393, 398 (1991).
“Malice inheres in the ‘doing of a wrongful act intentionally, or without just cause or excuse, or
as a result of ill will.’” Tizon v. Commonwealth, 60 Va. App. 1, 11 (2012) (quoting Dawkins v.
Commonwealth, 186 Va. 55, 61 (1947)).
As noted above, Jenkins planned his attack on Sweeney in retribution for an earlier fight
where Sweeney beat him, as well as for Sweeney’s insinuations that he had sex with Jenkins.
Jenkins fashioned a sharp instrument and approached Sweeney from behind, stabbing him twice.
- 10 - Although Jenkins testified that he did not plan to kill Sweeney, Jenkins nonetheless
acknowledged that he wanted to “mark” him in retaliation. The facts and circumstances were
sufficient for a reasonable finder of fact to conclude that Jenkins acted with malice and that he
was guilty of the charged offense.
Assignment of Error V
Jenkins argues that the trial court abused its discretion in imposing a 13-year sentence.
He maintains that the sentence was arbitrary and unreasonable in light of his mitigating evidence.
“A Virginia trial court ‘clearly’ acts within the scope of its sentencing authority ‘when it
chooses a point within the permitted statutory range’ at which to fix punishment.” Minh Duy Du
v. Commonwealth, 292 Va. 555, 564 (2016) (quoting Alston v. Commonwealth, 274 Va. 759, 771
(2007)). “[W]hen a statute prescribes a maximum imprisonment penalty and the sentence does
not exceed that maximum, the sentence will not be overturned as being an abuse of discretion.”
Id. (quoting Alston, 274 Va. at 771-72).
“Criminal sentencing decisions are among the most difficult judgment calls trial judges
face.” Id. at 563. “Because this task is so difficult, it must rest heavily on judges closest to the
facts of the case—those hearing and seeing the witnesses, taking into account their verbal and
nonverbal communication, and placing all of it in the context of the entire case.” Id.
Jenkins’s sentence was within the range permitted by statute. See Code
§§ 18.2-10(c), -51. “It is within the trial court’s purview to weigh any mitigating factors
presented by the defendant . . . .” Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000).
“[O]nce it is determined that a sentence is within the limitations set forth in the statute under
which it is imposed, appellate review is at an end.” Thomason v. Commonwealth, 69 Va. App.
89, 99 (2018) (quoting Minh Duy Du, 292 Va. at 565). “Appellant’s sentence was within the
statutory range, and our task is complete.” Id.
- 11 - To the extent that Jenkins argues that his sentence was disproportionate to his offense, we
do not consider this contention. “No punishment authorized by statute, even though severe, is
cruel and unusual unless it is one ‘prescribing a punishment in quantum so severe for a
comparatively trivial offense that it would be so out of proportion to the crime as to shock the
conscience[.]’” DePriest v. Commonwealth, 33 Va. App. 754, 764 (2000) (quoting Hart v.
Commonwealth, 131 Va. 726, 745 (1921)). This Court declines to engage in Eighth Amendment
proportionality review in cases that do not involve life sentences without the possibility of
parole. See Cole v. Commonwealth, 58 Va. App. 642, 654 (2011).
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
Affirmed.
- 12 -