Jamarr Andre Graves v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: August 5, 2025
• Docket: 1986231
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Fulton and Friedman UNPUBLISHED

Argued at Norfolk, Virginia

JAMARR ANDRE GRAVES MEMORANDUM OPINION* BY v. Record No. 1986-23-1 JUDGE FRANK K. FRIEDMAN AUGUST 5, 2025 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY Holly B. Smith, Judge

Ivan D. Fehrenbach (Dansby & Fehrenbach, on briefs), for appellant.

Justin M. Brewster, Assistant Attorney General (Jason S. Miyares, Attorney General; Jessica M. Bradley, Assistant Attorney General, on brief), for appellee.

On July 21, 2023, a jury convicted Jamarr Andre Graves for assault and battery of a law

enforcement officer in violation of Code § 18.2-57(C). On October 30, 2023, the Circuit Court

of the City of Williamsburg and County of James City sentenced Graves to five years of

incarceration with two years and nine months suspended. The court also found that Graves had

violated his probation and revoked his previously suspended sentences and resuspended all but

two years. On appeal, Graves argues that he was acting in self-defense when he attacked the

prison guard. We disagree with Graves’s assertions and affirm his conviction.

* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1

On March 24, 2010, Graves was sentenced to life imprisonment with all but ten years

suspended for robbery; he was also sentenced to ten years of incarceration, all suspended, for

malicious wounding. On May 5, 2021, Graves’s sentences were revoked and resuspended in part,

conditioned upon his uniform good behavior and other terms. Following that probation violation,

Graves served an active sentence at the Virginia Peninsula Regional Jail (VPRJ), and he was

scheduled to be released from incarceration on August 6, 2021.

On August 6, 2021, Correctional Officer Graham Winstanley was the only VPRJ employee

working in Graves’s pod at VPRJ. While on duty, Winstanley sat at a desk near the pod’s exit door.

Before 6:00 a.m., Graves approached Winstanley, “stating that he was supposed to leave at

6 o’clock.” Winstanley called, emailed, and radioed other officers, asking when Graves was

supposed to be released from VPRJ. They told Winstanley 8:00 a.m., and Winstanley conveyed

that information to Graves. Graves became angry, “loud[],” “aggravated,” and “aggressi[ve] . . .

when he [found out that he] did not get to leave the unit at the time he thought he was supposed to

leave.”

Winstanley ordered Graves to go back into his cell so that he could open the pod door to

bring the inmates’ breakfasts into the pod. Graves refused to go into his cell and instead stood by

the pod door.2 Graves yelled at Winstanley to “[o]pen the fucking door,” “threaten[ed] [him] to

open the door,” and said, “[f]uck you. I’m not going anywhere. Suck my dick,” and, “I’m going to

1 We recite the facts “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)). Doing so 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)). 2 All of this is seen in the surveillance video of the pod, referred to as CW Exh. 1 in the briefs. -2- kick your ass. I’m going to kill you.” The verbal interaction lasted for almost an hour. Winstanley

called for help and for a supervisor, but no one answered his call.

Graves then crossed the inmate line in front of Winstanley’s desk without permission and

“reach[ed] his arm over” the desk, “attempting to start pushing for” the control panel “to open [the]

doors.” Winstanley continued ordering Graves to return to his cell. Graves refused. Instead,

Graves sat on a chair next to the desk. Winstanley continued ordering Graves to return to his cell

and “warned him several times” that if Graves did not follow orders, he would use pepper spray.

Eventually, Winstanley sprayed pepper spray at Graves twice, then put “[his] arm down to

[his] side.” Graves took “a deep breath, st[ood] up, and then lunge[d]” at Winstanley, “push[ed]”

him, “wrapped [his arm] around” him, and “grabb[ed] onto [his] shirt.” The two “struggle[d]” for

about thirty seconds; they then separated. After they separated, and there was a pause in the

altercation, Graves reinitiated the physical contact by striking “[Winstanley] with his right hand on

the chin.” Winstanley “charged him back” in an attempt “to control him,” and the two continued to

have a “physical altercation” that broke Winstanley’s radio and ripped the earpiece out of his ear.

Graves and Winstanley separated a second time and walked away from each other.

Graves was charged with assault and battery of a correctional officer. Graves pleaded not

guilty and was tried by a jury. The jury found Graves guilty. On July 24, 2023, Graves’s probation

officer filed a major violation report, asserting Graves’s new conviction violated the terms of his

2010 probation for robbery and malicious wounding. The circuit court held a joint sentencing and

probation violation hearing on October 23, 2023. Graves entered “no plea” to the probation

violations.

The circuit court sentenced Graves to five years of incarceration with two years and nine

months suspended for his new conviction. The court also found that Graves violated the terms of

-3- his probation, revoked and resuspended his life sentence for his robbery conviction, and revoked ten

years and resuspended eight years for his malicious wounding conviction.

This appeal follows.

ANALYSIS

Graves makes several arguments on appeal, first asserting the circuit court erred in denying

Graves’s motion to strike because Graves’s actions were “clearly in self-defense.” Second, Graves

argues that the circuit court erred by “giving too much weight to minor issues and not enough

weight to the positive factors[]” when the court sentenced Graves to five years for the assault

charge. Third, Graves argues the circuit court erred in finding Graves violated his probation

because, he argues, the court should not have found him guilty of the assault charge. Fourth, and

finally, Graves argues the circuit court abused its discretion in sentencing him to two active years of

incarceration on the probation violations. We find no merit in Graves’s arguments.

I. Graves waived his first assignment of error.

In his first assignment, Graves argues that the circuit court erred in denying his motion to

strike because “[n]o reasonable jury could have found the absence of self-defense beyond a

reasonable doubt, and the judge was plainly wrong in refusing to grant Graves’[s] motion to strike.”

Graves, however, failed to preserve this argument for appeal.

“No ruling of the trial court . . . will be considered as a basis for reversal unless an

objection was stated with reasonable certainty at the time of the ruling, except for good cause

shown or to enable [us] to attain the ends of justice.” Rule 5A:18. The objection “must be both

specific and timely.” Bethea v. Commonwealth, 297 Va. 730, 743 (2019) (quoting Dickerson v.

Commonwealth, 58 Va. App. 351, 356 (2011)). “Making one specific argument on an issue does

not preserve a separate legal point on the same issue for review.” Edwards v. Commonwealth,

41 Va. App. 752, 760 (2003) (en banc). A contemporaneous objection allows opposing counsel

-4- and the trial court a fair opportunity to address the challenge and prevent unnecessary appeals

and retrials. Bethea, 297 Va. at 743-44; Scialdone v. Commonwealth, 279 Va. 422, 437 (2010);

Jones v. Commonwealth, 71 Va. App. 597, 607 (2020).

Graves argues that the “trial court erred when it denied [his] Motion to Strike the evidence

because the alleged assault was clearly in self-defense.” Graves never addressed his self-defense

theory in the motions to strike below. Thus, Graves did not give the circuit court an opportunity to

evaluate the self-defense argument that he makes now.

Yet Graves contends we should apply the ends of justice exception. Graves fails to argue

why we should allow him to take advantage of the exception, and without a compelling argument

about why the exception applies here, we are bound by the rules. Stokes v. Commonwealth, 61

Va. App. 388, 397 (2013) (“Rule 5A:20(e) requires that when an issue has not been preserved for

appellate review, the opening brief shall state why the good cause and/or ends of justice exceptions

to Rule 5A:18 are applicable.”); see also Redman v. Commonwealth, 25 Va. App. 215, 222 (1997)

(noting that an appellant “must demonstrate that he . . . was convicted for conduct that was not a

criminal offense or the record must affirmatively prove that an element of the offense did not occur”

for the exception to apply). Our review of the record presents no clear miscarriage of justice. In

fact, the record reflects that the jury heard both Graves’s and Winstanley’s testimony and received

self-defense jury instructions. Without any argument to the contrary, we do not apply the ends of

justice exception sua sponte. Williams v. Commonwealth, 57 Va. App. 341, 347 (2010). Thus,

Graves’s self-defense argument is waived, and the ends of justice exception does not apply.3

3 Even assuming arguendo Graves had preserved his self-defense theory, he would still lose on the merits of his argument. Reviewing the evidence in the light most favorable to the Commonwealth, Graves was clearly at fault in provoking the conflict with Winstanley. Graves was “aggravated” and “aggressi[ve],” tried to walk out of the pod, crossed the inmate line thus invading Winstanley’s space, and disobeyed direct orders repeatedly for almost an hour. Graves admitted that “he was not going to comply with the orders” that Winstanley gave him. Furthermore, Graves swore at Winstanley and threatened to assault and kill him. Graves then -5- II. The circuit court did not abuse its discretion when it sentenced Graves to two years and three months for assault and battery of a law enforcement officer.

Graves argues that the circuit court erred when it sentenced him by “giving too much weight

to minor issues and not enough weight to the positive factors.” We review a circuit court’s

sentencing decision for an abuse of discretion. See Minh Duy Du v. Commonwealth, 292 Va. 555,

564 (2016). “[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 v. Commonwealth, 274 Va. 759, 771-72 (2007)). Furthermore, “[b]arring clear

evidence to the contrary, [we] will not presume that a trial court purposefully ignored mitigating

factors in blind pursuit of a harsh sentence.” Bassett v. Commonwealth, 13 Va. App. 580, 584

(1992).

Here, a sentence of five years of incarceration with two years and nine months suspended

did not exceed the statutory maximum of five years. Code §§ 18.2-10, 18.2-57(C). Graves fails to

make a substantive legal argument as to how the circuit court abused its discretion when it

sentenced him. The record is clear that, in this case, the court balanced all of the mitigating

circumstances surrounding Graves’s sentence. The court explicitly remarked that it had carefully

considered “the good and the bad of [the] situation,” taking “both aggravating and mitigating

circumstances” into account. The court later expressed concern that Graves had assaulted

Winstanley solely because he was supposed to be released from incarceration two hours later than

he wanted. The court also reviewed Graves’s criminal history, which included burglary, robbery,

malicious wounding, and a “host of misdemeanors,” such as disorderly conduct and obstruction of

tried to access the control panel that operated all of the pod and cell doors. Then, after Winstanley used his pepper spray in an attempt to make Graves comply with his orders, Graves paused then chose to stand up and lunge directly at Winstanley. When that altercation ended, Graves reinitiated physical contact by punching Winstanley in the face. -6- justice. Indeed, the court’s meticulous consideration of Graves’s circumstances presents a

reasonable and thoughtful exercise of discretion, and we find no error.

III. The circuit court did not err when it found that Graves had violated the terms of his probation and sentenced him for the same.

In his third assignment of error, Graves argues “the trial court erred when it found [him] in

violation of his probation because he should have been found not guilty of the assault charge.”

Graves fails in his brief to supply us with any substantive legal analysis for the basis of his assertion.

Graves simply asks us to resentence him based solely on his waived first assignment of error. His

brief thereby fails to comply with Rule 5A:20(e), which requires that briefs include “principles of

law and authorities” supporting their argument. See also Fadness v. Fadness, 52 Va. App. 833, 850

(2008) (“Rule 5A:20(e) requires that an appellant’s opening brief contain ‘[t]he principles of law,

the argument, and the authorities relating to each question presented.’ Unsupported assertions of

error ‘do not merit appellate consideration.’” (alteration in original) (quoting Jones v.

Commonwealth, 51 Va. App. 730, 734 (2008))). Furthermore, Graves never challenged his

probation violation during the October 23, 2023 sentencing hearing. He entered “no plea” and did

not address the violation in his closing argument. Graves once again asks that we ignore these

deficiencies and asserts the ends of justice exception. Yet he fails to state why the ends of justice

exception applies. Thus, Graves’s argument is waived, and his argument fails to comply with the

ends of justice exception.4

4 Even if Graves had preserved his argument, the circuit court had sufficient reason to find that Graves violated the terms of his probation. “[A] trial court may use a conviction pending on appeal as grounds to revoke a suspended sentence.” Yemel’yanov v. Commonwealth, 76 Va. App. 347, 352 (2023) (citing Patterson v. Commonwealth, 12 Va. App. 1046, 1047-48 (1991)). The court found that Graves’s conduct towards Winstanley violated the good behavior conditions of his probation and provided a “reasonable cause for revocation.” Marshall v. Commonwealth, 202 Va. 217, 220 (1960). Thus, the circuit court did not err in finding that Graves violated the terms of his probation. -7- IV. The circuit court did not err when it imposed two years of active incarceration for the probation violations.

For his fourth assignment of error, Graves contends the circuit court erred in imposing two

years of incarceration for his probation violations because the “court’s sentence was arbitrary and

excessive.” “The ‘revocation of a suspended sentence lies in the discretion of the trial court and that

. . . discretion is quite broad.’” Clarke v. Commonwealth, 60 Va. App. 190, 195 (2012) (alteration

in original) (quoting Peyton v. Commonwealth, 268 Va. 503, 508 (2004)). On appeal from a

revocation proceeding, “[t]he evidence is considered in the light most favorable to the

Commonwealth, as the prevailing party below.” Jacobs v. Commonwealth, 61 Va. App. 529, 535

(2013). In addition, “the trial court’s ‘findings of fact and judgment will not be reversed unless

there is a clear showing of abuse of discretion.’” Id. (quoting Davis v. Commonwealth, 12 Va. App.

81, 86 (1991)). “In evaluating whether a trial court abused its discretion, . . . ‘we do not substitute

our judgment for that of the trial court. Rather, we consider only whether the record fairly supports

the trial court’s action.’” Grattan v. Commonwealth, 278 Va. 602, 620 (2009) (quoting Beck v.

Commonwealth, 253 Va. 373, 385 (1997)).

Code § 19.2-306.1(B) states:

If the court finds the basis of a violation of the terms and conditions of a suspended sentence or probation is that the defendant was convicted of a criminal offense that was committed after the date of the suspension, . . . then the court may revoke the suspension and impose or resuspend any or all of that period previously suspended.

When Graves violated the conditions of his suspended sentences by committing another crime, the

circuit court had the authority to reimpose as much of Graves’s previously suspended sentence as it

deemed fit. In fact, the court could have ordered Graves to serve all of his remaining sentences.

Booker v. Commonwealth, 61 Va. App. 323, 338 (2012) (holding no abuse of discretion in imposing

all eight years of a previously suspended sentence); Alsberry v. Commonwealth, 39 Va. App. 314,

320-22 (2002) (holding no abuse of discretion in imposing all twenty-four years and five-and-a-half -8- months of a previously suspended sentence). Thus, the circuit court here did not abuse its discretion

when it revoked Graves’s suspended sentence for his probation violation. And the record fully

supports the court’s sentence.

CONCLUSION

For these reasons, the circuit court’s judgment is affirmed.

Affirmed.

-9-