Jayvyn Rashaad Lowther v. Commonwealth of Virginia

Opinion

COURT OF APPEALS OF VIRGINIA

Record No. 0471-25-1

JAYVYN RASHAAD LOWTHER v. COMMONWEALTH OF VIRGINIA

Present: Judges Ortiz, Chaney and Frucci Argued at Virginia Beach, Virginia Opinion Issued July 7, 2026*

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Bryant L. Sugg, Judge

Taite A. Westendorf (Westendorf & Khalaf, PLLC, on brief), for appellant.

Jason D. Reed, Senior Assistant Attorney General (Jason S. Miyares,1 Attorney General, on brief), for appellee.

MEMORANDUM OPINION BY JUDGE DANIEL E. ORTIZ

Jayvyn Lowther and an accomplice planned a robbery that left the victim, K.P., paralyzed

by a gunshot wound from the neck down. For his part in the plan, a jury convicted Lowther as a

principal in the second degree of aggravated malicious wounding, use of a firearm in the

commission of a felony, robbery resulting in serious bodily injury, and conspiracy to commit

robbery. The trial court sentenced Lowther to a cumulative 113 years in prison for the offenses,

with 10 years suspended. On appeal, Lowther argues: (1) the evidence was insufficient to

convict him of the offenses as a principal in the second degree, and (2) his sentence was grossly

* 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. disproportionate in violation of the Eighth Amendment. Finding no error below, we affirm the

trial court’s judgment.

BACKGROUND2

The night of the shooting, K.P.3 and Lowther messaged each other through Instagram to

arrange a meeting to “do some things [they] had no business doing.” Both Lowther and K.P.

were minors at the time; Lowther was sixteen. As K.P. recounted, Lowther first insisted that

they meet closer to Lowther’s residence, but K.P. did not have a way to get there. Lowther

instead suggested a spot near K.P.’s home. When Lowther arrived close to midnight, he brought

a third man with him (“the accomplice”), whom K.P. did not recognize.4 All three wore ski

masks, but K.P. noticed Lowther and the accomplice both wore blue latex gloves when he

greeted them.5

The three walked to the wooded spot that Lowther suggested. K.P. walked next to

Lowther, and the accomplice walked “right behind” K.P. Once the three were secluded in the

wooded area, K.P. recalled, “I got shot, and . . . fell down to the ground.” Then, Lowther and the

2 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) (per curiam)). 3 We use K.P.’s initials to protect his privacy. Parts of the record in this case were sealed, but this appeal necessitates unsealing relevant portions of the record to resolve the issues raised. Therefore, “[t]o the extent that this opinion mentions facts found in the sealed record, we unseal only those specific facts, finding them relevant to the decision in this case. The remainder of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1 (2017). 4 Neither K.P. nor Lowther identified the accomplice at trial. 5 K.P. identified Lowther at trial. While Lowther wore a ski mask, the two planned to meet, and K.P. knew Lowther’s voice and build. -2- accomplice went through K.P.’s pockets, taking some marijuana, a handgun, and his phone.

Once Lowther and the accomplice finished, K.P. heard Lowther ask the accomplice, “Do you

want me to finish him?” The accomplice responded, “Nah, let’s go. He’s not going to get up,”

and the two fled together.

The gunshot triggered a police response through the department’s gunshot detection

system. Police arrived around midnight, shortly after Lowther and the accomplice fled, and

found K.P. lying on the ground, limbs sprawled. Police turned K.P. over and found a single

bullet wound in the back of his neck along the spine. K.P. was able to blink, shake his head, and

speak softly. One officer noticed K.P. had an empty holster, and asked K.P. if someone shot him

with his gun, to which K.P. nodded. When the officer asked K.P. if he knew the shooter, K.P.

shook his head “no.”

First responders took K.P. to the local hospital, but soon transferred him to VCU Medical

Center in Richmond due to the severity of his injury. Forensic analysis showed that K.P.’s

wound was caused by a .380 bullet. Lowther later told a friend “he had shot somebody with a

.380.”

The next day, K.P.’s brother awoke to several missed calls from his mother, who tried to

alert him that K.P. was missing. K.P.’s brother went door-to-door, asking if anyone had seen

K.P. K.P.’s brother eventually logged into K.P.’s Instagram account and found the messages

with Lowther.6 K.P.’s brother attempted to call Lowther, but Lowther responded by blocking

K.P.’s account. Soon thereafter, a friend alerted K.P.’s brother to the crime scene where

Lowther suggested the two meet the night before. K.P.’s brother went to the scene, where an

6 K.P.’s brother was able to identify the account as Lowther’s through the profile picture, Lowther’s phone number, and Lowther’s connected CashApp account. -3- officer directed him to the station. Police had K.P.’s brother identify K.P. as the victim, then

directed him to the hospital in Richmond.

Police identified Lowther through his online accounts. K.P., too, identified Lowther from

a photo and in person. Cell phone data placed Lowther at the scene of the gunshot detection the

night of the shooting.

The grand jury indicted Lowther with aggravated malicious wounding (Code

§ 18.2-51.2(A)), use of a firearm in the commission of a felony (Code § 18.2-53.1), robbery

causing serious bodily injury (Code § 18.2-58), and conspiracy to commit robbery (Code

§§ 18.2-22, 18.2-58). Lowther pleaded not guilty and demanded a jury trial on all the charges.

The Commonwealth presented the aforementioned evidence at trial. Lowther did not

present evidence but moved to strike at the close of the Commonwealth’s case. Lowther argued

the Commonwealth’s evidence was insufficient to show concert of action between Lowther and

the accomplice. The Commonwealth responded that the evidence showed Lowther and the

accomplice planned the meeting and that Lowther helped the accomplice rob K.P. before

offering to “finish him.” The trial court denied Lowther’s motion.

The trial court instructed the jury on liability both as a principal in the second degree and

through concert of action. The jury found Lowther guilty of each charge.

At sentencing, the Commonwealth presented a pre-sentence report and put on the

testimony of K.P.’s father and two brothers. Each asked the court to impose the maximum

penalty available. One of K.P.’s brothers testified to the effect of the shooting on K.P.’s quality

of life. K.P. is permanently paralyzed, unable to walk or move, and cannot work to provide for

himself. K.P.’s brother testified that K.P. requires significant care to live, and added, “I

shouldn’t have to change my brother’s diaper.”

-4- Lowther offered five letters from family members and testimony from his mother.

Lowther’s mother described her son as “an honorable, caring, and loving young man,” and asked

the court to impose the lowest possible sentence. Lowther allocuted, apologizing to K.P. and his

family.

Having heard the evidence, the trial court sentenced Lowther to 50 years in prison for

aggravated malicious wounding, 3 years in prison for using a firearm in the commission of a

felony, 50 years in prison for robbery causing serious bodily injury, and 10 years in prison for

conspiracy to commit robbery, suspending 10 years from his sentence for the conspiracy

conviction. Together, the trial court sentenced Lowther to 113 years in prison, with 10 years

suspended. Lowther appealed.

ANALYSIS

I. The evidence was sufficient to convict Lowther of his offenses as a principal in the second degree.

Lowther first argues that the Commonwealth’s evidence was insufficient to convict him

as a principal in the second degree, failing to prove that he knew the accomplice would shoot

K.P., assisted in the shooting, or otherwise shared in the requisite intent. We disagree.

“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 to be 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). The only relevant question for this Court to consider on review 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.”

Commonwealth v. Barney, 302 Va. 84, 97 (2023) (quoting Sullivan v. Commonwealth, 280 Va.

672, 676 (2010)). We “may not disregard or discount the inferences that could have been drawn -5- by the factfinder unless the inferences are ‘so attenuated that they push into the realm of non

sequitur.’” Cuffee v. Commonwealth, __ Va. __, __ (Apr. 16, 2026) (quoting Commonwealth v.

Wilkerson, 304 Va. 92, 100 (2025)).

“A principal in the second degree, or an aider or abettor as he is sometimes termed, is one

who is present, actually or constructively, assisting the perpetrator in the commission of the

crime.” Thomas v. Commonwealth, 279 Va. 131, 156 (2010). “A principal in the first degree is

the actual perpetrator.” Id. “In the case of every felony, every principal in the second degree . . .

may be indicted, tried, convicted and punished in all respects as if a principal in the first degree.”

Code § 18.2-18.

To convict a defendant as a principal in the second degree, “the Commonwealth must

prove the defendant was present at the scene and ‘share[d] the criminal intent of the party who

actually committed the [crime] or [was] guilty of some overt act in furtherance thereof.’” Allard

v. Commonwealth, 24 Va. App. 57, 62 (1997) (alterations in original) (quoting Rollston v.

Commonwealth, 11 Va. App. 535, 540 (1991)). But the Commonwealth need not prove the

defendant acted with specific intent to convict as a principal in the second degree. Rollston, 11

Va. App. at 540. “[T]he accused must either know or have reason to know of the principal’s

criminal intention and must intend to encourage, incite, or aid the principal’s commission of the

crime.” McGhee v. Commonwealth, 221 Va. 422, 427 (1980). In other words, the

Commonwealth must prove the defendant intended his actions “to in some way encourage,

advise, or urge, or in some way help the person committing the crime to commit it.” Rollston, 11

Va. App. at 541 (quoting Ramsey v. Commonwealth, 2 Va. App. 265, 269 (1986)).

A defendant may be convicted as a principal in the second degree based on a theory of

concert of action. Davis v. Commonwealth, 36 Va. App. 291, 295-96 (2001). A concerted action

is one that is “planned, arranged, adjusted, agreed on and settled between parties acting together

-6- pursuant to some design or scheme.” Rollston, 11 Va. App. at 540. When the resulting crime is

an “incidental probable consequence[]” of the concerted action, then all who participated in

concert may be liable for the resulting crime. Spradlin v. Commonwealth, 195 Va. 523, 528

(1954). Whether a crime was the “natural and probable result of the intended wrongful act” is a

question of fact. Id.

Even though, as Lowther and the Commonwealth agree, Lowther did not shoot K.P., the

record abounds in evidence that Lowther helped the accomplice plan the robbery. Lowther

planned the meeting with K.P., first insisting that K.P. meet him near his residence. When K.P.

was unable to travel to Lowther, Lowther ultimately suggested the wooded area near K.P.’s

home. Lowther arrived, unexpectedly, with the accomplice, and each wore a ski mask and latex

gloves. Once the three arrived at Lowther’s suggested meeting point, the accomplice shot K.P.

in the back of the neck. At that point, rather than flee, Lowther helped the accomplice rifle

through K.P.’s pockets. Finally, Lowther asked the accomplice, “Do you want me to finish

him?”

Based on those facts, a rational trier of fact could have inferred that Lowther and the

accomplice acted in concert, that Lowther set up the meeting, knew the accomplice intended to

harm K.P., and helped the accomplice rob K.P. pursuant to a common plan. See Barney, 302 Va.

at 97. The resulting crimes—aggravated malicious wounding, use of a firearm in the

commission of a felony, robbery resulting in serious bodily injury, and conspiracy to commit

robbery—were “probable consequences” of that plan. See Spradlin, 195 Va. at 528 (reasoning

that when a resulting crime is an “incidental probable consequence[]” of concerted action, all

who participated are equally liable whether the crime was initially contemplated or not).

-7- II. Lowther’s term-of-years sentence does not warrant proportionality review under the Eighth Amendment.

Lowther next argues the trial court’s sentence is grossly disproportionate in violation of

the Eighth Amendment to the United States Constitution.7 But Lowther’s term-of-years sentence

does not reach the threshold necessary for us to conduct a proportionality review.

We review the trial court’s sentencing decision for abuse of discretion. Khine v.

Commonwealth, 82 Va. App. 530, 558 (2024). “Only when reasonable jurists could not differ

can we say an abuse of discretion has occurred.” Minh Duy Du v. Commonwealth, 292 Va. 555,

564 (2016) (quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)). The 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.” Id. (quoting Alston v. Commonwealth,

274 Va. 759, 771 (2007)). But, “[t]o the extent that appellant’s argument . . . raises a question of

constitutional interpretation[] that issue is reviewed de novo.” Johnson v. Commonwealth, 63

Va. App. 175, 182 (2014).

“The Eighth Amendment prohibits the infliction of ‘cruel and unusual punishments.’”

Commonwealth v. Smith, 303 Va. 34, 56 (2024). Its protection is “directed, not only against

punishments which inflict torture, ‘but against all punishments which by their excessive length or

severity are greatly disproportioned to the offenses charged.’” Harmelin v. Michigan, 501 U.S.

7 Lowther challenges his sentence relying on both the Eighth Amendment to the United States Constitution and Article I, Section 9 of the Virginia Constitution, but does not argue that the Virginia Constitution provides broader, nor different, relief than its federal counterpart. With that in mind, we assume without deciding that the two standards provide the same protections. Cf. Hart v. Commonwealth, 131 Va. 726, 743 (1921) (noting that the two provisions are “practically in the same language”); Dunaway v. Commonwealth, 52 Va. App. 281, 311 (2008) (evaluating appellant’s claims under the federal constitution when appellant failed to show “that Virginia’s Constitution affords more relief than the United States Constitution”); Dep’t of Pro. & Occupational Regul., Bd. for Asbestos & Lead v. Abateco Servs., Inc., 33 Va. App. 473, 483 (2000) (adopting the federal “gross disproportionality” test for claims under the excessive fines clause of Article I, Section 9 of the Virginia Constitution). -8- 957, 991 (1991) (quoting Weems v. United States, 217 U.S. 349, 371 (1910)). Thus, the Eighth

Amendment “contains a ‘narrow proportionality principle’ that ‘applies to noncapital

sentences.’” Ewing v. California, 538 U.S. 11, 20 (2003) (quoting Harmelin, 501 U.S. at 996-97

(Kennedy, J., concurring in part and concurring in the judgment)).

“But ‘[o]utside the context of capital punishment, successful challenges to the

proportionality of particular sentences have been exceedingly rare.” Id. at 21 (alteration in

original) (quoting Rummel v. Estelle, 445 U.S. 263, 272 (1980)). Indeed, the United States

Supreme Court “has never found a non-life ‘sentence for a term of years within the limits

authorized by statute to be, by itself, a cruel and unusual punishment’ in violation of the Eighth

Amendment.” Cole v. Commonwealth, 58 Va. App. 642, 653 (2011) (quoting Hutto v. Davis,

454 U.S. 370, 372 (1982) (per curiam)). Thus, “proportionality review ‘is not available for any

sentence less than life imprisonment without the possibility of parole.’” Id. at 654 (quoting

United States v. Malloy, 568 F.3d 166, 180 (4th Cir. 2009)).

Lowther’s sentence does not meet that threshold. Lowther was not sentenced to life in

prison, but to a term of years for his convictions. Moreover, he will be eligible for two avenues

of parole: juvenile parole under Code § 53.1-165.1(F)8 and geriatric release under Code

§ 53.1-40.01, either of which will convert his sentence into a shorter term. See Angel v.

Commonwealth, 281 Va. 248, 274, cert. denied, 565 U.S. 920 (2011) (holding geriatric release

grants defendants a “meaningful opportunity for release based on maturity and rehabilitation” in

accord with the Eighth Amendment). Given that the trial court did not sentence Lowther to life

in prison without the possibility of parole, our precedent provides no avenue for proportionality

8 At the time Lowther was sentenced, this provision was codified as Code § 53.1-165.1(E), but this changed as of July 1, 2026. The avenue of juvenile parole remains the same, despite the provision’s redesignation as Code § 53.1-165.1(F). -9- analysis under the Eighth Amendment. See Cole, 58 Va. App. at 654. We accordingly decline to

conduct a proportionality review of his sentence.

It is well established that “when 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.” Minh Duy Du, 292 Va. at 564. Lowther’s only conviction that carried a

mandatory sentence was use of a firearm in the commission of a felony, with a three-year

mandatory sentence. Code § 18.2-53.1. He received discretionary sentences for his other three

convictions. The trial court sentenced him to 50 years in prison for aggravated malicious

wounding and 50 years in prison for robbery causing serious bodily injury, each punishable by

20 years to life in prison as Class 2 felonies. Code § 18.2-51.2(A); Code § 18.2-58; Code

§ 18.2-10. It sentenced him to 10 years in prison for conspiracy to commit robbery, punishable

by 1 to 10 years in prison as a Class 5 felony. Code § 18.2-22; Code § 18.2-58; Code § 18.2-10.

Thus, Lowther’s cumulative sentence of 113 years in prison falls within the statutory ranges for

his offenses established by the legislature. See Code § 18.2-51.2(A); Code § 18.2-53.1; Code

§ 18.2-58; Code § 18.2-22; Code § 18.2-10. Lowther’s sentence may be severe, but it reflects

both the number and gravity of his offenses, and the permanent harm that he inflicted on K.P.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment.

Affirmed.

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