Herbert Jounious Butler, Jr. v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 21, 2026
• Docket: 1799241
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Record No. 1799-24-1

HERBERT JOUNIOUS BUTLER, JR. v. COMMONWEALTH OF VIRGINIA

Present: Judges Causey, White and Frucci Argued by videoconference Opinion Issued April 21, 2026*

FROM THE CIRCUIT COURT OF YORK COUNTY Richard H. Rizk, Judge

Charles E. Haden for appellant.

Jennifer L. Guiliano, Assistant Attorney General (Jason S. Miyares,1 Attorney General, on brief), for appellee.

MEMORANDUM OPINION BY JUDGE STEVEN C. FRUCCI

Following a bench trial, the circuit court convicted Herbert Jounious Butler, Jr., of robbery

by use or display of a firearm, possession of a firearm by a non-violent felon, aggravated malicious

wounding, and two counts of use of a firearm in the commission of a felony. Butler contends that

the evidence is insufficient to establish that he committed the crimes. For the following reasons, we

affirm the circuit court’s judgment.2

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026. 2 The sentencing order reflects that Butler was sentenced to 20 years of incarceration with 15 years suspended on the robbery by use or display of a firearm conviction, 5 years of incarceration for the possession of a firearm by a non-violent felon conviction, life with all but 10 years of incarceration suspended for the aggravated malicious wounding conviction, 3 years of incarceration for one of the use of a firearm convictions, and 5 years of incarceration for the BACKGROUND

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

the prevailing party below.” Diaz v. Commonwealth, 80 Va. App. 286, 295 (2024) (quoting

Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc)). “That principle 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 that may be drawn

therefrom.’” Id. (quoting Kelly v. Commonwealth, 41 Va. App. 250, 254 (2003) (en banc)).

On April 11, 2021, G.W., along with his friend, Linda Foster, returned to his York County

home in Ivy Arch following an out-of-state trip.3 After dropping his luggage off at his house, G.W.

drove Foster home. “While [G.W.] was in the house,” Foster received a phone call. During that

call, G.W. heard Foster tell the other party that “she would be home in ten minutes” and “park in the

back.”

G.W. returned to his house. As G.W. put his key in the door, a man “came around the side

of the house” and approached G.W. from behind. Then, the man grabbed G.W. around his neck and

displayed a handgun. Because the porch light was on, G.W. saw that the man was wearing a blue

cloth bandana mask and a blue hoodie.

The man said something that G.W. could not understand, and G.W. answered, “you just got

to kill me.” The man responded by hitting G.W. in the head with the butt of the gun. G.W. fell to

the ground where the men wrestled until the man ended up on top of G.W. The man waved the gun

second use of a firearm conviction. Consistent with the circuit court’s oral pronouncement, this would give him a total sentence of life plus 33 years of incarceration, with all but 28 years suspended. However, the sentencing order also states that “ALL BUT 25 YEARS” of the sentence is suspended. We remand to the circuit court to correct the clerical error in the sentencing order. See Code § 8.01-428(B); Bagley v. Commonwealth, 73 Va. App. 1, 30 n.10 (2021). 3 We use initials rather than names to protect the privacy of the victim. -2- and said, “you think I’m playing with you.” The man then fired two or three “warning shots” across

G.W. and into the air. Then, the man stood up and shot G.W. four times in his legs and once in his

groin.

When G.W. raised his hand, the man shot G.W. through his hand. G.W. gave the man his

wallet, which contained $500 in cash. After taking the wallet, the man shot G.W. again and then

left. But about a minute later, the man returned. He rolled G.W. over, took his backpack, and shot

him twice in his buttocks. Finally, the man left and did not return.

At trial, G.W. testified that he only saw the one person during the robbery. G.W. did not

recognize the robber’s voice, and he identified the robber as “African American.”

York and Poquoson Sheriff’s Officer Layne Forrest investigated the shooting, including

searching for any home surveillance videos that might shed light on what happened. In doing so, he

obtained video evidence that showed a subject going between two homes. He “walked that area”

and located several items, including a blue bandana. He estimated that he found the bandana about

1,500 feet from where the shooting took place within 10 to 12 hours of the shooting. When shown a

photograph of the bandana at trial, G.W. identified it as the bandana that the robber wore, saying,

“That’s definitely the mask I seen on who shot me.”4

Law enforcement submitted the bandana to the Department of Forensic Science for

analysis.5 The certificate of analysis indicated that “[t]he major profile developed from the exposed

portions of the bandana and knot was found to be consistent with the following individual: . . .

Herbert J. Butler (AKA Herbert Julius Butler, Herbert Julius Butler, Jr.).”

4 On cross-examination, G.W. testified that he did not know Butler. He admitted that he had “a lot of marijuana” in his home. The Commonwealth conceded that G.W. was convicted of misdemeanor marijuana possession with intent. 5 At oral argument, the Commonwealth pointed out that the certificate of analysis also showed that a blue nitrile glove was tested. However, there was no testimony nor evidence of where this glove came from prior to being sent for testing. -3- Investigator Jason Stump also investigated the shooting. He found 20 cartridge casings in

front of G.W.’s house, which he submitted for forensic analysis. A Glock 19 nine-millimeter

handgun, serial number BDLV214, was submitted for comparison as Item 74. According to an oral

stipulation to the circuit court, the “firearm was recovered in Newport News on May 13th of 2021 in

a vehicle by Newport News police officer Brandon Moore. It was recovered in the vehicle that

Mr. Herbert Butler, the defendant, was driving. The firearm itself was under the passenger’s seat[.]”

The parties also agreed that Foster was in the passenger’s seat. The certificate of analysis revealed

that the shell casings were “identified as having been fired in the Item 74 firearm.”

After the Commonwealth rested, Butler moved to strike the evidence arguing that the two

items which linked Butler to the crime, the bandana and the firearm, were insufficient to establish

the identity of Butler as the perpetrator. Butler argued that he was “operating a vehicle. Ms. Foster

[wa]s magically, once again, lo and behold, in the picture, sitting right above the firearm which state

lab testing connects to this incident.” He concluded that “with nothing else connecting Mr. Butler to

the scene at all other than two items connected to this crime and that Mr. Butler was in the vicinity,”

the evidence was insufficient to establish that Butler was the perpetrator of the offenses. The circuit

court denied Butler’s motion to strike.

Butler then testified on his own behalf. He denied knowing G.W. and claimed that he had

never seen him before trial. He explained that he knew Foster and “met her a little bit before all of

this was going on.” He testified that he learned that people were attempting to connect him to the

April 11 robbery “days later” and that for “[d]ays after [he] just kept hearing stuff tied with

Ms. Foster’s name, including [him] in there.” Butler added that he lived in Newport News and had

never lived in Ivy Arch and was unfamiliar with that area.

As to the firearm, Butler admitted that it was discovered in a car that he was driving in

Newport News. He testified that during the night, Foster called him asking him to pick her up from

-4- her home. After picking her up, they stopped at a store. Foster went into the store while Butler

remained in the car. After that, the police stopped Butler’s car and found the firearm. Butler denied

bringing a firearm into the car or knowing that it was there. Butler denied knowing that Foster

brought a firearm into the car, explaining that “[s]he had nothing on her except for a pocketbook

bag.” Furthermore, he testified that he never saw her remove a firearm from her bag.

Butler’s counsel renewed his motion to strike as part of his closing argument. He argued

that Butler could not provide an alibi because he had no reason to remember that day. He also

argued that “the common nexus in this case is that Linda Foster seems to be everywhere . . . Linda

Foster knows [G.W.] and Linda Foster knows Herbert Butler[.]” He noted that G.W. “was robbed

immediately upon walking back in his house from dropping Ms. Foster off.” He continued, arguing

that a reasonable theory of innocence in this case that is not excluded by evidence, is that there was

“[s]ome kind of beef or tie between [G.W.] and Mr. Butler other than the fact they both know Linda

Foster.” He further argued that there was “[n]o other evidence connecting him to [York County]

other than one object” and that Butler had been “set up” by Foster. Butler contended that, assuming

without conceding that the DNA evidence was reliable, “it is really easy to grab a bandanna, tell

someone wear a blue bandanna while you do this, throw that one down, and then I’m going to put

the gun under my seat in the car.” Butler added, “right after Ms. Foster went in the store Mr. Butler

was pulled over. Which seems like quite a coincidence.” Butler concluded, “There is a reasonable

theory of innocence that is not excluded by the evidence. That someone else did this and wanted

Herbert Butler to take the fall for it.”

The circuit court disagreed and, after summarizing the evidence in the record, found Butler

guilty of all charges, saying, “There’s clearly a setup, but the Court finds the setup is [G.W.] was set

up. He was set up for a robbery. That’s the undisputed only reasonable conclusion that this trier of

fact can find.” The circuit court found that G.W. had testified to a “common thread” or “link” that

-5- he had with Butler: Foster. The circuit court then discussed the DNA and ballistic evidence tying

Butler to the shooting. The circuit court concluded, “There is no reasonable hypothesis of

innocence that has been offered by way of testimony . . . I’ve got the bandanna that is consistent

with Mr. Butler’s DNA profile, and I’ve got the firearm in the car that is the same firearm that shot

these 20 shots[.]” Butler appeals.

ANALYSIS

“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is

presumed correct and will not be disturbed unless it is plainly wrong or without evidence to

support it.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting

Commonwealth v. Perkins, 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he Court does not ask

itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.’” Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original) (quoting

Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). “Rather, the relevant question is, upon

review of 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 Pijor, 294 Va. at 512); see Burrous v. Commonwealth, 68 Va. App. 275, 279 (2017).

“At trial, the Commonwealth bears the burden of proving the identity of the accused as

the perpetrator beyond a reasonable doubt.” Shahan v. Commonwealth, 76 Va. App. 246, 258

(2022) (quoting Cuffee v. Commonwealth, 61 Va. App. 353, 364 (2013)). On appeal, “[w]e

review the fact finder’s determination regarding the identity of the perpetrator considering ‘the

totality of the circumstances.’” Id. (quoting Brown v. Commonwealth, 37 Va. App. 507, 523

(2002)).

As with any element of an offense, identity may be proved by direct or circumstantial

evidence. See Crawley v. Commonwealth, 29 Va. App. 372, 375 (1999). “Circumstantial evidence

-6- is as competent and is entitled to as much weight as direct evidence, provided it is sufficiently

convincing to exclude every reasonable hypothesis except that of guilt.” Simon v. Commonwealth,

58 Va. App. 194, 206 (2011) (quoting Coleman v. Commonwealth, 226 Va. 31, 53 (1983)). “While

no single piece of [circumstantial] evidence may be sufficient, the ‘combined force of many

concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind

irresistibly to a conclusion.’” Ervin v. Commonwealth, 57 Va. App. 495, 505 (2011) (alteration in

original) (quoting Stamper v. Commonwealth, 220 Va. 260, 273 (1979)).

On appeal, Butler argues that the Commonwealth’s evidence failed to prove that he was the

masked gunman, contending that it “merely constituted suspicious circumstances.” We disagree.

Here, considering the totality of the circumstances, a reasonable finder of fact could

conclude that Butler was the perpetrator based upon both the DNA evidence tying him to the crime

and the fact that the firearm used to commit the crime was found under the passenger’s seat of the

car that he was driving. With respect to the DNA evidence, the record indicates that: (i) the

perpetrator wore a bandana in the commission of the crime, (ii) law enforcement located a bandana

near the crime scene shortly after it occurred, (iii) G.W. identified that bandana as the same bandana

as the one worn by the perpetrator, and (iv) DNA analysis indicated that the major profile developed

from the bandana was consistent with a single individual: Butler. In his testimony at trial, Butler did

not provide any evidence suggesting an innocent explanation for how his DNA ended up on the

bandana found near the scene of the crime, in an area far from where he lived and that he claimed

was unfamiliar to him. Butler’s attorney suggested that Butler could have been framed because “it

is really easy to grab a bandana” and tell someone to wear it. But Butler never testified that anyone

induced or coerced him into wearing the bandana. See Hamilton v. Commonwealth, 16 Va. App.

751, 755 (1993) (“The Commonwealth need only exclude reasonable hypotheses of innocence that

flow from the evidence, not those that spring from the imagination of the defendant.”). As a result,

-7- based on this DNA evidence, a reasonable finder of fact could conclude that Butler was the

perpetrator. See Burrous, 68 Va. App. at 281 (stating that “[b]ecause the bandana located by the

police was the bandana used to commit the robbery and appellant’s DNA was the only DNA found

on the bandana, the evidence was sufficient for a rational factfinder to conclude that appellant was

the robber”).

In addition to the DNA evidence, police found the firearm that was used to commit the

crime under the passenger seat of Butler’s car. At trial, Butler’s attorney suggested that Foster

planted the firearm to frame him. But there is no evidence in the record indicating that the firearm

was planted in the car or that Foster, or anyone else, manipulated law enforcement into stopping

Butler so that the firearm could be discovered. See Hamilton, 16 Va. App. at 755; see also Cook v.

Commonwealth, 226 Va. 427, 433 (1983) (explaining that to sustain a conviction there is no need to

exclude hypotheses that flow from the imagination of defense counsel). Overall, looking at the

totality of the evidence, the evidence was sufficient for a reasonable trier of fact to conclude that

Bulter committed the offense.

CONCLUSION

Accordingly, we affirm the circuit court’s judgment. We remand for the limited purpose of

correcting the clerical error referenced in footnote two.

Affirmed and remanded.

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