COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Huff, AtLee and Ortiz Argued at Fairfax, Virginia
JONATHAN DANIEL MIHOKOVICH MEMORANDUM OPINION* BY v. Record No. 1768-23-4 JUDGE DANIEL E. ORTIZ DECEMBER 30, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FREDERICK COUNTY Alexander R. Iden, Judge
Jason E. Ransom (Law Office of Ransom & Silvester, on brief), for appellant.
Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Jonathan Daniel Mihokovich appeals his convictions, following a jury trial, for
second-degree murder and use of a firearm in commission of a murder, in violation of Code
§§ 18.2-32 and -53.1. On appeal, Mihokovich argues that the evidence was insufficient to prove
that he killed Keith Tolson. He also argues that the trial court abused its discretion when it refused
to admit a third-party statement and when it denied his motion to set aside the verdict. For the
following reasons, we disagree and affirm the convictions.
BACKGROUND
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 that we “discard the
evidence of the accused in conflict with that of the Commonwealth, and regard as true all the
* This opinion is not designated for publication. See Code § 17.1-413(A). 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)).
I. The Commonwealth’s Evidence
On October 27, 2020, Deputy Robert Marcelle responded to a report of shots fired at a
McDonald’s in Frederick County. Upon arriving, Deputy Marcelle observed a white male, later
learned to be Keith Tolson, on the ground with multiple gunshot wounds to his face. When
paramedics arrived, they found no heartbeat and pronounced Tolson dead at the scene.
Investigators Todd Swartz and Brandon Hazelwood responded to the area to process the
scene. Near Tolson’s body officers recovered two spent .44 caliber cartridge casings and his cell
phone. Officers learned that Tolson had been staying at the Econo Lodge behind the
McDonald’s and that he had visited the Liberty gas station across the street that morning.
Consequently, officers recovered surveillance camera footage from the Econo Lodge, the Liberty
gas station, and from truck “dash cameras” that recorded the Liberty parking lot.
Tolson’s phone records revealed that he had been texting Mihokovich about a drug
transaction in the evening on October 26, 2020, and into the early morning on October 27, 2020.
Based on Tolson’s text exchanges with others, it appeared that he planned to cheat Mihokovich
in the transaction.
Initially, Mihokovich and Tolson met at the Liberty gas station at 10:41 p.m. At
11:01 p.m., Tolson left Liberty and returned to the Econo Lodge. Shortly thereafter, Mihokovich
also left the gas station and traveled to the Econo Lodge. Once at the Econo Lodge, Mihokovich
texted Tolson his location and commented that the police were patrolling the area. As time wore
on, Mihokovich appeared to become increasingly exasperated with Tolson texting, “This ain’t
cool, me just chilling out here” and “Man, I hope you not playing games with me, bro. I am too
old for this shit.” Eventually, Tolson responded that he was at a 7-Eleven and the men agreed to
-2- meet at Liberty later. Despite telling Mihokovich that he was at a 7-Eleven, Tolson’s phone data
placed him at the Econo Lodge.
At 11:41 p.m., Mihokovich texted Tolson again. When Mihokovich returned to the
Econo Lodge he went to Roy Fincham’s room, where Tolson was also located. Mihokovich
remained in Fincham’s room for several minutes before returning to the parking lot with
Fincham. Footage from the Econo Lodge then showed Tolson also depart Fincham’s room and
flee into the woods behind the hotel shortly after Mihokovich and Fincham left.
In text messages to Tolson, Mihokovich warned that “[i]t’s all going to go down tonight
bro damn wow. Hate prison dawg. Begins bro. Pegon.”1 Mihokovich informed Tolson that
“Your boy he lost every thing 4 u. U ever ride a bike with a brother. Nothing matters. We all
going down bro.” In response, Tolson taunted Mihokovich, told Mihokovich he was in Front
Royal, and asserted that Mihokovich would never find him.
At 12:22 a.m. on October 27, 2020, Mihokovich texted Tolson, “I feel bad too cause
these brothers of mine got kids. And family’s. They going to get token away from.” Tolson
replied, “blah blah blah.” Mihokovich responded, “Watch how real men go. Either u call the
cops and they coming in both rooms.” Tolson goaded, “lol yea ok.” Mihokovich then warned,
“[O]r my brothers bikes are slow. But we are going. To light it up. Tick tock. Thanks for the
truck.” Tolson replied that he did not have a truck and called Mihokovich a “[d]umb fuck.”
Mihokovich stated, “I am just courageous. Who comes first? Your police or my brothers.”
Tolson replied, “LOL.” Mihokovich continued, “[Y]ou asked to Barrow three hundred for your
lost game and thought you were going to get away with it lol. Y’all should just come out here
1 Investigator Hazelwood explained that Mihokovich was referencing the Pagan motorcycle club of which his first cousin Todd Lewis was a member. -3- and beat my ass before they get here. Then your only in prison.” Tolson replied, “I did get away
with it. Thanks for the donation.”
At 1:00 a.m., Mihokovich left the Econo Lodge and traveled to the Front Royal area.
Around 3:00 a.m., Mihokovich returned to the Econo Lodge and parked next to a tan F-150
truck. Police officers later determined that the truck was driven by Mihokovich’s first cousin,
Todd Lewis. After a few minutes, Mihokovich drove across the street and parked in the Liberty
gas station parking lot. Lewis then traveled to the Liberty gas station, backed into a space facing
the Liberty gas station, and extinguished the truck’s headlights.
Katelyn Jenkins and her husband were at the Liberty gas station at 3:00 a.m. on October
27, 2020. Initially, Jenkins remained in the vehicle while her husband went into the gas station
to play a slot machine. When a Nissan pulled in beside Jenkins, she decided to enter the gas
station. Jenkins saw that Mihokovich drove the Nissan, he was alone, and he appeared agitated
while on the phone.
When Jenkins entered Liberty, her husband was seated at a slot machine next to Tolson.
Jenkins sat in a booth behind the men. Moments later, Mihokovich entered the gas station. As
Mihokovich approached the slot machines, Jenkins’s husband got up and sat in the booth with
Jenkins. Mihokovich sat at the recently vacated slot machine beside Tolson. The men began to
banter but Jenkins could not hear their conversation.
Abruptly, Mihokovich left the store but returned minutes later. When Mihokovich and
Tolson engaged in conversation again, it was heated. Tolson got out of his chair, and the pair
began “hopping” around the store. When Tolson came to the store’s front door, he exited and
then ran across the parking lot; Mihokovich followed. From the front window of the store,
Jenkins saw Mihokovich drive to the McDonald’s across the street and “then it seemed like two
cars pulled out from the McDonald’s and went left.”
-4- “Dash camera” footage of the Liberty parking lot recorded Tolson running between the
gas pumps. As Tolson crossed the parking lot, Lewis abruptly pulled his truck out of its parking
spot and attempted to hit Tolson. Tolson dodged Lewis’s truck and made his way towards the
McDonald’s; Lewis executed a wide turn and followed Tolson. Mihokovich, meanwhile, exited
the Liberty station, entered his Nissan sedan, and raced after Lewis.
Surveillance footage from the Econo Lodge showed a figure run across the street as two
vehicles—a truck and a sedan—followed. The truck moved past the McDonald’s and executed a
U-turn in a parking lot beside the Econo Lodge. The sedan, however, executed a U-turn near the
McDonald’s entrance. After the sedan completed its turn, flashes erupted from the driver’s side
window as it passed the McDonald’s. Then, as the truck passed the McDonald’s, more flashes
appeared in the truck’s driver’s side window. Viewing the surveillance camera footage,
Investigator Swartz opined that, in his training and experience, the flashes were muzzle flashes
from a firearm. Investigator Hazelwood noted that the two spent cartridge casings were found in
the area where the flashes occurred.
II. Defense Presentation of Evidence
Victoria Keen, Mihokovich’s aunt, and Angelic Ellis, Mihokovich’s sister, testified on
Mihokovich’s behalf. The women testified that they saw Mihokovich at a funeral on October 27,
2020. Each noted that Mihokovich did not appear nervous, agitated, or afraid. Additionally,
both Keen and Ellis noted that Mihokovich had poor eyesight requiring him to wear glasses and
that he is right-handed. Ellis acknowledged that on October 27, 2020, she and her family
members had discussed seeing photographs on Facebook of Mihokovich at the Liberty gas
station around the time of Tolson’s murder.
After Mihokovich rested, the Commonwealth declined to present rebuttal evidence.
Mihokovich renewed his motion to strike the charges, which the trial court denied. The trial
-5- court gave its instructions to the jury, and the parties delivered closing arguments. Because of
the lateness of the hour, the trial court did not submit the case to the jury and ordered them to
return the next morning.
When the parties returned the next morning, Mihokovich’s trial counsel informed the trial
court that Mihokovich wished to testify. Trial counsel noted that he was not making a motion to
reopen the case but was simply informing the court of Mihokovich’s desire.
Mihokovich asserted that he was under the impression that he would be testifying at trial.
He claimed that his trial counsel told him that the prosecutor would be calling additional
witnesses after him, and he perceived this as a threat. He asserted that the prosecutor was putting
words in his mouth and that he wanted “to tell the jury why [he] did what [he] did and why [he]
said what [he] said.” He asserted that he had thought his sister would provide his explanation to
the jury, but he wished to testify himself because she had not testified as he would have liked.
The trial court found that there was no motion to reopen the case before the court. To the
extent that Mihokovich’s request was a motion to reopen the case, the trial court denied it. After
deliberation, the jury convicted Mihokovich of the second-degree murder and use of a firearm in
commission of a murder.
III. The Commonwealth’s Motion in Limine
In a motion in limine before trial, the Commonwealth argued that a statement made
several days before the murder by a man named “Josh” to Jeremy Avery, a clerk at the Liberty
gas station, was inadmissible hearsay. In an interview with police, Avery stated that a week
before Tolson’s death he saw Tolson and Josh together at the Liberty gas station. 2 The
encounter lasted for about an hour. Several hours later, Josh returned to Liberty and identified
2 Josh’s surname was never disclosed at trial. -6- himself to Avery as Josh. Josh told Avery that he was looking for Tolson and that he “was going
to kill” Tolson because Tolson had stolen money from Josh’s wife.
The Commonwealth argued that Josh’s statement was inadmissible hearsay and
Mihokovich should be prohibited from mentioning this evidence in his opening statement and
limit any testimony by Avery to anything he may have observed. At the hearing on the motion,
Mihokovich acknowledged that any testimony about Josh’s statement was hearsay and agreed
that the trial court could limit the introduction of that statement. In fact, Mihokovich asserted
that he was not seeking to introduce that statement and instead wished to question the
investigators about the leads they followed. Later, however, Mihokovich asserted that Josh’s
statement was relevant because it was a threat made several days before Tolson’s murder; he also
claimed that he was not offering the statement for the truth of the matter asserted. The trial court
disagreed, found that the statement was inadmissible hearsay, and granted the Commonwealth’s
motion in limine.
IV. Jury Voir Dire
During the COVID-19 pandemic the Circuit Court of Frederick County conducted juror
voir dire away from the courthouse in the Public Safety Building. Jurors were questioned as a
group in a large room, and a smaller room—the kitchen—was used to discuss topics outside the
presence of the prospective jurors.
On June 12, 2022, the day before trial, Mihokovich was exposed to COVID-19. Before
voir dire began, while in the kitchen, the trial court and counsel discussed the implications of
Mihokovich’s exposure.3 During these discussions, Mihokovich was not present in the kitchen
but was in another part of the building. The trial court and counsel agreed that the jury would be
3 The record is clear that the kitchen was small. Neither Mihokovich nor his trial counsel wished to wear a mask, and Mihokovich’s trial counsel was concerned about contracting COVID-19. -7- selected but not sworn and that trial would commence on Wednesday, June 15, 2022, to ensure
Mihokovich’s exposure to COVID-19 had not resulted in his contraction of the virus.
Mihokovich was present while prospective jurors were questioned in a larger room.
After questioning jurors, the trial court, Mihokovich’s trial counsel, and the prosecutor moved to
the kitchen. Mihokovich remained in the large room with the prospective jurors. In the kitchen,
Mihokovich’s trial counsel indicated that Mihokovich had waived his right to be present in the
kitchen and the attorneys raised their motions to strike particular jurors for cause.
In the meantime, a deputy advised the trial court that Mihokovich had loudly referenced
winning a motion in front of the venire. The trial court instructed the deputy to remove
Mihokovich from the venire’s presence. Mihokovich’s trial counsel indicated that he did “not
think we need [Mihokovich] anymore.” The trial court asked Mihokovich’s trial counsel if he
was “suggesting that we do not even need him here anymore.” Counsel stated, “I do not think
we need to sit him around, you know, when we are doing our strikes. I am not going to ask him
for his opinion on it.” Consequently, Mihokovich was returned to a holding cell and then the
regional jail.
After completing the strikes for cause, the trial court and counsel returned to the large
room for peremptory strikes. After peremptory strikes, the trial court discharged the jurors who
had been struck and informed the selected prospective jurors that trial would commence on June
15, 2022.
Before trial on June 15, 2022, the trial court conducted a colloquy with Mihokovich. The
court explained the juror selection process during the COVID-19 pandemic and noted that during
juror strikes Mihokovich was not physically present. The court also noted that Mihokovich’s
trial counsel had indicated on Monday, June 13, 2022, that Mihokovich had waived his right to
be present during for cause and peremptory strikes at voir dire. The court expressed its desire to
-8- ensure “that [the waiver] is something that [Mihokovich] discussed with [his] lawyer” and that
the waiver was “something that [he] personally waived rather than something simply waived by
[his] lawyer.”
The court specifically asked Mihokovich, “Did you waive your right to be physically
present during this selection process?” Mihokovich stated “[Y]es, your honor.” The court then
explained peremptory strikes to Mihokovich and asked if he had waived his right to be
physically present while the attorneys made those strikes. The court noted that before answering
Mihokovich was free to confer with his trial counsel if he wished. Mihokovich stated, “no, I
understand,” and that “yes” he had waived his right to be physically present during peremptory
strikes.
V. Post-Trial Hearing on the Motion to Set Aside the Verdict
After his conviction, Mihokovich moved to set aside the verdict. At a hearing on the
motion, Mihokovich’s trial counsel testified that he advised Mihokovich of his right to be present
during juror strikes and explained that it was an important part of trial. Trial counsel asserted
that after conducing voir dire, he told Mihokovich why he was going to the kitchen without
him—to conduct for cause strikes. In response, Mihokovich stated that he was “fine with that.”
Regarding Mihokovich’s right to testify at trial, counsel attested that before trial he and
Mihokovich had discussed whether it was advisable for Mihokovich to testify in his own
defense. Counsel recommended that Mihokovich not testify; Mihokovich indicated he agreed
with that recommendation. After counsel presented three defense witnesses but before he rested,
Mihokovich asserted that he wanted to testify. Again, counsel recommended that Mihokovich
not testify but clarified that it was Mihokovich’s right and choice to do so. After this discussion,
Mihokovich changed his mind again and stated, “I don’t want to testify.” It was not until the
next morning, after the close of evidence, that Mihokovich expressed his desire to testify.
-9- Mihokovich testified at the hearing that he was present in a large room while prospective
jurors were questioned and remained in the large room when the trial court, his trial counsel, and
the prosecutor went into the kitchen. He contended that his trial counsel never told him why the
attorneys were going into the kitchen. Additionally, he claimed that he was never told why he
was removed to a holding cell while the trial court and attorneys were in the kitchen.
Mihokovich asserted that he did not consent to his trial counsel picking the jury without him and
claimed that he had a list of prospective jurors that he planned to talk to his attorney about. In
jail calls to his family after the jury was selected, Mihokovich mentioned that his trial counsel
did not let him stay in the room when they picked the jury.
Mihokovich acknowledged that he had engaged in a colloquy with the trial court
regarding whether he had waived his right to be physically present during juror strikes.
Mihokovich claimed that he tried to talk to his trial counsel about the court’s questions and his
absence for jury selection, but his trial counsel became agitated and told Mihokovich to say
“yeah.” Consequently, Mihokovich did as his counsel instructed. When asked why he said yes,
Mihokovich stated that had paid his attorney, he trusted his attorney, and that the complaint was
“spilt milk.”
Concerning his right to testify at trial, Mihokovich acknowledged that before trial he and
his trial counsel had discussed whether he should testify. Mihokovich claimed that he
continuously asserted his desire to testify. Each time, however, his trial counsel would get
agitated with him, cuss at him, and assert that he was the person with the law degree.
After argument from counsel, the court found Mihokovich’s testimony to be incredible.
The court noted that it was physically present in the courtroom during the colloquy and that the
court did not recall “the violent body language that Mr. Mihokovich testified to” regarding trial
counsel’s behavior. The court noted that it explained peremptory strikes to Mihokovich and told
- 10 - him that he could confer with his counsel. In response, Mihokovich had indicated that he
understood what the court was discussing with him and that he had waived his right to be
physically present during the entirety of voir dire. Based on its observations of Mihokovich’s
demeanor while testifying at the motion and on June 15, 2022, the trial court denied
Mihokovich’s motion to set aside the verdict on the basis of not being present during voir dire.
The court noted that there was little argument regarding the second part of the motion—
inability to testify. The court, without explanation, denied the motion to set aside the verdict on
that basis as well.4 The trial court sentenced Mihokovich to 43 years of incarceration, with all
but 21 years and 6 months suspended. Mihokovich appeals.
ANALYSIS
I. Motion in Limine
On appeal, Mihokovich argues that the trial court erred when it refused to admit
testimony about the statement that Josh made to Avery. Mihokovich contends that Josh’s
statement was not offered for the truth of the matter asserted but rather “to explain why Jeremy
Avery contacted the police, and what investigation, if any, the police undertook.”
“It is well-settled that ‘[d]ecisions regarding the admissibility of evidence lie within the
trial court’s sound discretion and will not be disturbed on appeal absent an abuse of discretion.’”
Nottingham v. Commonwealth, 73 Va. App. 221, 231 (2021) (alteration in original) (quoting
Blankenship v. Commonwealth, 69 Va. App. 692, 697 (2019)). “A court has abused its
discretion if its decision was affected by an error of law or was one with which no reasonable
jurist could agree.” Tomlin v. Commonwealth, 74 Va. App. 392, 409 (2022).
4 The trial court noted that it “was not just making a procedural ruling based on no Motion being made.” The court asserted that it considered Mihokovich’s request but denied it for the reasons stated in the record. - 11 - “Hearsay is ‘a statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.’” Atkins v. Commonwealth, 68
Va. App. 1, 8 (2017) (quoting Va. R. Evid. 2:801(c)). Hearsay evidence “‘is inadmissible unless it
falls within one of the recognized exceptions’ to the rule against hearsay.” Id. at 7-8 (quoting
Robinson v. Commonwealth, 258 Va. 3, 6 (1999)).
Unless otherwise prohibited, “[a]ll relevant evidence is admissible[.]” Va. R. Evid.
2:401(a). ‘“Relevant evidence’ means evidence having any tendency to make the existence of any
fact in issue more probable or less probable than it would be without the evidence.” Va. R. Evid.
2:401. “The scope of relevant evidence in Virginia is quite broad, as ‘[e]very fact, however remote
or insignificant, that tends to establish the probability or improbability of a fact in issue is relevant.’”
Commonwealth v. Proffitt, 292 Va. 626, 634 (2016) (alteration in original) (quoting Virginia Elec.
& Power Co. v. Dungee, 258 Va. 235, 260 (1999)).
The challenged statement was relevant only if it was offered for the truth of the matter
asserted—that Josh killed Tolson. If the challenged statement was not offered for the truth of the
matter asserted, then the statement was irrelevant as it did not tend to establish that someone
other than Mihokovich killed Tolson. Consequently, the trial court did not abuse its discretion in
granting the Commonwealth’s motion in limine and excluding testimony about Josh’s statement
as inadmissible hearsay.
II. Sufficiency of the Evidence
Mihokovich argues that the evidence was insufficient to prove he murdered Tolson.
“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.’”
McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) (quoting Smith
v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does not ask itself
- 12 - whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’”
Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). “Rather,
the relevant question is whether ‘any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016)
(quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). “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,
72 Va. App. at 521 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).
Mihokovich argues that there was “no direct evidence tying him to the offenses” and the
evidence failed to exclude his hypothesis of innocence—someone else killed Tolson. He notes
that there was no forensic evidence or eyewitness who observed the shooting. Further, Tolson
“was a drug dealer who cheated people” and multiple threatening voice mails from someone
other than Mihokovich were found on Tolson’s phone. Additionally, when police first arrived an
individual was seen rapidly walking away. Mihokovich asserts that if he intended to shoot
Tolson, he would have concealed his identity by wearing a mask which was common during the
COVID-19 pandemic. He further contends that the flashes seen from his vehicle could have
been from brake lights. Hours after Tolson’s murder, two witnesses observed him at a funeral
and testified that he “did not appear nervous, agitated, or afraid.” These witnesses also noted
that Mihokovich had poor eyesight and was right-handed which, he argues, undermines the
Commonwealth’s theory that he shot Tolson with his left hand from a moving vehicle. Thus,
Mihokovich asserts, the jury could only have reached a guilty verdict if it engaged in
speculation.
Second-degree murder “is defined as a malicious killing.” Woods v. Commonwealth, 66
Va. App. 123, 131 (2016). “In order for an act to be done maliciously, the act must be done
- 13 - ‘wilfully or purposefully.’” Id. (quoting Essex v. Commonwealth, 228 Va. 273, 280 (1984)).
“Malice is evidenced either when the accused acted with a sedate, deliberate mind, and formed
design, or committed any purposeful and cruel act without any or without great provocation.” Id.
(quoting Branch v. Commonwealth, 14 Va. App. 836, 841 (1992)). “It shall be unlawful for any
person to use . . . a pistol, shotgun, rifle, or other firearm . . . while committing or attempting to
commit murder.” Code § 18.2-53.1.
“It is firmly established that ‘[c]ircumstantial evidence is competent and is entitled to as
much weight as direct evidence provided that the circumstantial evidence is sufficiently
convincing to exclude every reasonable hypothesis except that of guilt.’” Kelley v.
Commonwealth, 69 Va. App. 617, 629 (2019) (alteration in original) (quoting Pijor v.
Commonwealth, 294 Va. 502, 512 (2017)). “Circumstantial evidence is not ‘viewed in isolation’
because the ‘combined force of many concurrent and related circumstances, each insufficient in
itself, may lead a reasonable [fact finder]’ to conclude beyond a reasonable doubt that a
defendant is guilty.” Rams v. Commonwealth, 70 Va. App. 12, 27 (2019) (alteration in original)
(quoting Muhammad v. Commonwealth, 269 Va. 451, 479 (2005)).
“The sole responsibility to determine the credibility of witnesses, the weight to be given
to their testimony, and the inferences to be drawn from proven facts lies with the fact finder.”
Blankenship v. Commonwealth, 71 Va. App. 608, 619 (2020) (quoting Ragland v.
Commonwealth, 67 Va. App. 519, 529-30 (2017)). “This deferential principle applies not only to
‘matters of witness credibility’ but also to the factfinder’s ‘interpretation of all of the evidence,
including video evidence’ presented at trial.” Barney v. Commonwealth, 302 Va. 84, 97 (2023)
(quoting Meade v. Commonwealth, 74 Va. App. 796, 806 (2022)). “The factfinder ‘views video
and other evidence to determine what it believes happened; we, on appellate review, view video
evidence not to determine what we think happened, but for the limited purpose of determining
- 14 - whether any rational factfinder could have viewed it as the [factfinder] did.’” Id. (alteration in
original).
“[M]erely because [a] defendant’s theory of the case differs from that taken by the
Commonwealth does not mean that every reasonable hypothesis consistent with his innocence
has not been excluded. What weight should be given evidence is a matter for the [factfinder] to
decide.” Edwards v. Commonwealth, 68 Va. App. 284, 301 (2017) (second and third alterations
in original) (quoting Haskins v. Commonwealth, 44 Va. App. 1, 9 (2004)). “By finding [a]
defendant guilty, therefore, the factfinder ‘has found by a process of elimination that the
evidence does not contain a reasonable theory of innocence.’” Id. (alteration in original)
(quoting Haskins, 44 Va. App. at 9). “While a factfinder may not arbitrarily disregard a
reasonable doubt, whether ‘the hypothesis of innocence is reasonable is itself a “question of
fact,” subject to deferential appellate review.’” Burton v. Commonwealth, 58 Va. App. 274,
285-86 (2011) (quoting Clanton v. Commonwealth, 53 Va. App. 561, 572-73 (2009) (en banc)).
Here, the evidence was sufficient to prove that Mihokovich shot and killed Tolson.
Jenkins saw Tolson at a slot machine in the Liberty gas station when Mihokovich entered.
Mihokovich approached Tolson, the pair bantered, and Mihokovich left. Minutes later
Mihokovich returned to the slot machines, and he and Tolson got into a heated argument. The
pair got up from the slot machines and began walking around the store as they continued to
argue. Suddenly, Tolson bolted out of the front door.
Cameras operating in the gas station parking lot captured Tolson running from the store
through the lot. As Tolson ran, he was nearly hit by Lewis in a tan F-150 truck. Tolson dodged
Lewis and continued his flight in the direction of the McDonald’s and the Econo Lodge across
the street. Both Lewis and Mihokovich raced after Tolson in their vehicles.
- 15 - Video footage from the Econo Lodge shows a figure run across the street as two
vehicles—a truck and a sedan—follow in pursuit. The truck passed the McDonald’s and
executed a U-turn in a parking lot next to the Econo Lodge, but the sedan turned around near the
McDonald’s entrance. Immediately, muzzle flashes appeared in the sedan’s driver’s window.
After the truck pulled in behind the sedan, several more muzzle flashes appeared in the truck’s
driver’s window. Two .44 caliber cartridge casings were discovered near the McDonald’s
entrance, the location where both vehicles had stopped when muzzle flashes erupted. Tolson,
who suffered gunshot wounds to his head, lay dead near the spent casings in the McDonald’s
parking lot.
Text messages between Mihokovich and Tolson established that the pair had discussed a
drug deal in the hours before Tolson’s death. Based on Tolson’s conversations with others,
Tolson planned to cheat Mihokovich. Eventually, Mihokovich realized that Tolson did not plan
to uphold his end of the agreement, threatened to have his friends find Tolson, and inferred that
his friends would go to jail for what they would do to Tolson. Although this evidence is largely
circumstantial, it paints a clear picture of the events of that night, and is competent for a jury to
determine the facts. Given the totality and overwhelming nature of the evidence, and given the
unchallenged Jury Instruction #8 covering concert of action, a reasonable fact finder could
conclude beyond a reasonable doubt that Mihokovich was guilty of the shooting and killing of
Tolson.
III. Motion to Set Aside the Verdict
Mihokovich argues that the trial court erred when it denied his motion to set aside the
verdict. This Court reviews the denial of a motion to set aside the verdict and grant a new trial
for abuse of discretion, because “[t]he opportunity and temptation for fraud which accompany a
motion for a new trial require that such a motion be approached guardedly.” Whittington v.
- 16 - Commonwealth, 5 Va. App. 212, 215 (1987). “The abuse of discretion standard includes review
to determine that the discretion was not guided by erroneous legal conclusions.” Porter v.
Commonwealth, 276 Va. 203, 260 (2008) (quoting Koon v. United States, 518 U.S. 81, 100
(1996)). “Only when reasonable jurists could not differ can [this Court] say an abuse of
discretion has occurred.” Lambert v. Commonwealth, 70 Va. App. 740, 749 (2019) (quoting
Thomas v. Commonwealth, 44 Va. App. 741, 753, adopted on reh’g en banc, 45 Va. App. 811
(2005)). “[C]onstitutional arguments are questions of law that [the Court] review[s] de novo.”
Shivaee v. Commonwealth, 270 Va. 112, 119 (2005).
Mihokovich advances two arguments concerning the trial court’s denial of his motion to
set aside the verdict. First, he argues that his due process rights and his right under Code
§ 19.2-259 to be physically present to aid his trial counsel during voir dire were violated.
Second, he argues that his due process rights and his right under Code § 19.2-268 to testify at
trial were violated. We will address each in turn.
A. Presence During Jury Voir Dire
Mihokovich argues that his trial attorney “never advised [him of] what was occurring in
the small kitchen” and that he “never consented to being left out.” He also contends that any
conceivable waiver was not knowingly and voluntarily made but rather “was the result of undue
influence by [his trial counsel] and being uninformed.”
Under Code § 19.2-259, “[a] person tried for felony shall be personally present during the
trial.” “This provision is ‘merely declaratory of a principle of the common law;’ it is ‘an
essential part of the process of law . . . .’” Bilokur v. Commonwealth, 221 Va. 467, 469 (1980)
(quoting Noell v. Commonwealth, 135 Va. 600, 608-09 (1923)). The statutory phrase “during the
trial” has been defined as “every stage of the trial from [the accused’s] arraignment to his
sentence, when anything is to be done which can affect his interest.” Palmer v. Commonwealth,
- 17 - 143 Va. 592, 605 (1925). “The Sixth Amendment of the United States Constitution also protects
the right of the accused to be present.” Nunez v. Commonwealth, 66 Va. App. 152, 156 (2016);
see Illinois v. Allen, 397 U.S. 337, 338 (1970). “A defendant can forfeit his right to be present if
he voluntarily absents himself from trial.” Id.; see Cruz v. Commonwealth, 24 Va. App. 454, 464
(1997). To constitute a waiver of the right to be present, a defendant’s absence must result from
“a voluntary, knowing, and intelligent act ‘done with sufficient awareness of the relevant
circumstances and likely consequences.’” Cruz, 24 Va. App. at 461 (quoting Hunter v.
Commonwealth, 13 Va. App. 187, 191 (1991)).
Here, the trial court engaged Mihokovich in a colloquy when the parties reconvened for
trial. The court explained to Mihokovich that he had a right to be present throughout voir dire
including during juror strikes. The court noted that Mihokovich had not been physically present
during for cause and peremptory strikes and that his trial counsel had stated Mihokovich had
waived his right to be present. The court, nevertheless, specifically asked Mihokovich if he had
waived his right to be present during juror strikes or if the waiver had only come from his
attorney. Mihokovich responded that he understood the trial court’s inquiry and that he had
waived his right to be present during juror strikes. Based on this colloquy, the trial court
reasonably concluded that Mihokovich knowingly and voluntarily waived his right to be present
during voir dire. Thus, the trial court did not err when it denied Mihokovich’s motion to set
aside the verdict on this ground.
Furthermore, Mihokovich cannot now claim that his attorney forced him to waive his
right to be present during the entirety of voir dire or that he did not understand the trial court’s
inquiry because, before trial, he affirmed that he understood the court’s inquiry and that he
personally waived his right to be present during the entirety of voir dire. “A party may not
approbate and reprobate by taking successive positions in the course of litigation that are either
- 18 - inconsistent with each other or mutually contradictory.” Rowe v. Commonwealth, 277 Va. 495,
502 (2009) (quoting Cangiano v. LSH Bldg. Co., 271 Va. 171, 181 (2006)). “Nor may a party
invite error and then attempt to take advantage of the situation created by his own wrong.” Id.
B. Right to Testify
Mihokovich asserts that the trial court abused its discretion in denying his motion to set
aside the verdict because his trial counsel prevented him from exercising his right to testify and
that his trial counsel’s testimony at the motion to set aside the verdict was incredible.
A criminal defendant has a constitutional right to testify in his own behalf. Rock v.
Arkansas, 483 U.S. 44, 49 (1987). The right is a personal one, and therefore, “the accused has
the ultimate authority to make certain fundamental decisions regarding the case, as to whether to
plead guilty, waive a jury, testify in his or her own behalf, or take an appeal . . . .” Jones v.
Barnes, 463 U.S. 745, 751 (1983) (emphasis added).
“With few exceptions, most legal rights—whether common law, statutory, or
constitutional—can be waived if the requisite formalities are observed.” Congdon v.
Commonwealth, 57 Va. App. 692, 695 (2011). “In the ‘context of a broad array of constitutional
and statutory provisions,’ courts have ‘articulated a general rule that presumes the availability of
waiver, . . . and we have recognized that “the most basic rights of criminal defendants”’ can be
waived.” Id. (quoting New York v. Hill, 528 U.S. 110, 114 (2000)). “These rights may be as
venerated as the right to a jury, the right to counsel, the right against self-incrimination, and the
right to exclusion of evidence seized in an unconstitutional manner.” Id. (quoting Muhammad,
269 Va. at 507).
Some waivers can be implied. For example, Miranda5 rights can be lost by an “implied
waiver” just as effectively as by an express one. Berghuis v. Thompkins, 560 U.S. 370, 384
5 Miranda v. Arizona, 384 U.S. 436 (1966). - 19 - (2010). A plethora of constitutional trial rights can be implicitly waived simply by failing to
timely assert them at trial. See, e.g., Vermont v. Brillon, 556 U.S. 81 (2009) (applying “standard
waiver doctrine” to the constitutional right to a speedy trial); Taylor v. United States, 414 U.S.
17, 19 (1973) (holding confrontation rights can be implicitly waived). Other rights must be
expressly waived. See, e.g., McCarthy v. United States, 394 U.S. 459, 466 (1969) (waiving a full
evidentiary trial pursuant to a guilty plea); Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938)
(waiving the right to counsel). “What suffices for waiver depends on the nature of the right at
issue.” Hill, 528 U.S. at 114. Though the required form of the waiver varies from right to right,
the legal efficacy of the waiver remains a constant.
In Vay v. Commonwealth, 67 Va. App. 236, 246 (2017), the trial court asked the
defendant’s counsel if he had discussed Vay’s right to testify. Vay’s counsel noted that he and
the defendant had discussed it. Id. The trial court then inquired whether Vay intended to
exercise his right to testify. Id. Vay’s counsel stated that he believed so but that he would
discuss it with Vay again. Id. Vay was present in the courtroom during this exchange. Id. After
a recess, Vay’s counsel moved to strike the charge, which the trial court denied. Id. at 246-47.
Vay called one witness and rested his case. Id. at 247. Vay did not testify and was ultimately
convicted. Id. At a post-trial hearing, Vay indicated that he wanted to testify but did not because
his counsel had advised him against it. Id. The trial court imposed the jury’s verdict. Id. at 248.
On appeal, Vay argued that the trial court had erred in denying his constitutional right to
testify on his own behalf by failing to conduct a voir dire to establish whether he knowingly and
intelligently waived his right. Id. at 258. We noted that “nothing in the text of the Constitution
even suggests that such a colloquy is necessary” and reasoned that “requiring the colloquy has
the potential to do at least as much harm as good.” Id. at 259. Consequently, we held that a trial
- 20 - court need not conduct a colloquy with a defendant to determine whether he has knowingly and
intelligently waived his right to testify. Id.
The record clearly establishes that Mihokovich was aware of his right to testify as he
admitted that he discussed this right with his trial counsel on several occasions before trial. At
trial, Mihokovich chose to present evidence at the conclusion of the Commonwealth’s
case-in-chief. Mihokovich’s trial counsel admitted that Mihokovich raised the possibility of
testifying before the defense rested but ultimately changed his mind after further consultation
with counsel. After resting, Mihokovich renewed his motion to strike the Commonwealth’s
evidence, which the trial court denied. The parties then discussed jury instructions with the trial
court, the court instructed the jury, and attorneys presented closing arguments.
At no point during these proceedings did Mihokovich indicate that he wished to exercise
his constitutional right to testify. It was fair for the trial court to conclude, based on
Mihokovich’s acquiescence, that he approved of proceeding without testifying. Further, it was in
the court’s purview, as the finder of fact at the motion to set aside the verdict, to believe trial
counsel’s version of events rather than Mihokovich’s. Thus, the trial court did not abuse its
discretion in denying Mihokovich’s motion to set aside the verdict.6
CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed.
Affirmed.
6 To the extent that Mihokovich’s assignment of error alleges that his trial counsel’s actions deprived him of effective assistance of counsel, such arguments are not cognizable on direct appeal and we do not consider them. See Vay, 67 Va. App. at 260; Lenz v. Commonwealth, 261 Va. 451, 460 (2001). - 21 -