Maleik Jaquan Jackson v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 13, 2025
• Docket: 0807243
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Beales, O’Brien and Lorish

MALEIK JAQUAN JACKSON MEMORANDUM OPINION* v. Record No. 0807-24-3 PER CURIAM MAY 13, 2025 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY Shannon T. Sherrill, Judge

(Dana R. Cormier; Dana R. Cormier, P.L.C., on brief), for appellant.

(Jason S. Miyares, Attorney General; C. David Sands, III, Senior Assistant Attorney General, on brief), for appellee.

A jury convicted Maleik Jaquan Jackson of possessing a firearm as a felon, and the court

sentenced him to five years’ incarceration. On appeal, Jackson contends that the evidence was

insufficient to prove that he possessed the firearm. After examining the briefs and record, the

panel unanimously holds that oral argument is unnecessary because “the appeal is wholly without

merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a).

BACKGROUND

“Consistent with the standard of review when a criminal appellant challenges the

sufficiency of the evidence, we recite the evidence below ‘in the “light most favorable” to the

Commonwealth, the prevailing party in the trial court.’” Hammer v. Commonwealth, 74

Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). This

standard “requires us to ‘discard the evidence of the accused in conflict with that of the

Commonwealth[] and regard as true all the credible evidence favorable to the Commonwealth

* This opinion is not designated for publication. See Code § 17.1-413(A). and all fair inferences to be drawn therefrom.’” Cady, 300 Va. at 329 (quoting Commonwealth v.

Perkins, 295 Va. 323, 324 (2018)).

On December 14, 2022, officers executed a search warrant at an apartment in Augusta

County after receiving information that Jackson was living there, had a firearm, and was selling

drugs. During the search, Investigator Logan Turner seized a firearm from the floor of the spare

bedroom and placed it on a nearby couch. The investigator was wearing gloves when he seized

the gun. A sports jersey, hat, and what looked like a drawing of Jackson were hung on the walls

of the room, and a pair of men’s shoes were on a TV stand. Officers also found mail addressed

to Jackson in the bedroom and a marriage certificate for Jackson and his wife, Allison, in the

living room. Virginia State Police Special Agent Greg Clifton, who was also present for the

search and wearing gloves, brought the firearm back to the sheriff’s office.

Because Jackson had been convicted of robbery and use of a firearm in October 2018, the

police obtained a warrant charging him with possession of a firearm by a convicted felon.

On January 4, 2023, Allison posted a picture on social media in which she and Jackson

were posing in front of a mirror in one of the apartment’s bathrooms. Jackson was fanning out a

stack of cash and standing behind Allison. He appeared to have a gun in his right pocket, and

another gun was on the countertop in front of Allison. Special Agent Clifton saw the picture and

obtained a second search warrant for the apartment on January 5. Jackson and Allison were

present during the second search, during which officers did not find anything incriminating.

At trial, Julia Pugh, a forensic scientist from the Virginia Department of Forensic Science

(DFS), testified as an expert in DNA extraction and analysis. Pugh analyzed a DNA mixture

profile developed from the gun recovered during the first search and a buccal swab obtained

from Jackson. The DNA mixture profile was a “combined sample” taken from the gun’s “grip,

trigger, and trigger guard” and the magazine’s “base plate and follower.” The mixture contained

-2- the DNA of at least three individuals, and Pugh could not eliminate Jackson as a contributor.

Pugh concluded that it was between 950 quadrillion and 1.4 quintillion times “more likely that

[the] DNA profile originated from . . . Jackson and two unknown unrelated individuals” than

from “three completely unknown individuals.” Although she could not classify him as a “major

contributor” under DFS protocols,1 Pugh determined that Jackson was the “primary contributor”

to the DNA mixture because his DNA types “were consistent with what was more the

predominant profile in the mixture.”

Pugh explained that DFS reports do not include a determination of the “primary

contributor.” She also testified that DNA can be transferred by touch and, the more touch or

contact a person has with another individual or item, the more DNA can be transferred. Pugh

opined that holding an object is a “better way to transfer DNA” than a secondary transfer

method, and a person’s DNA was more likely to be on an item if the person touched it versus

touching something that later touched the item. She also stated that she would expect the

primary contributor to have handled the item.

At the close of the Commonwealth’s case, Jackson moved to strike the evidence. He

argued that the DNA was the only evidence tying him to the firearm seized during the search,

and because the forensic reports and testimony could not conclusively rule out a secondary

transfer, the evidence did not prove he possessed the firearm. He also asserted that there was no

evidence that the social media picture depicted actual firearms instead of “costume” guns. The

court denied Jackson’s motion.

Testifying for the defense, Allison stated that she and Jackson married on December 1,

2022, but he was not living in the apartment when officers searched it on December 14. She

1 According to DFS protocols, a person can only be categorized as a major contributor if his or her DNA makes up approximately two-thirds or more of the DNA mixture. -3- stated that she lived there with her six-year-old daughter, and Jackson lived with his mother in a

neighboring apartment building. Allison maintained that she used the spare room to tattoo

clients and the mail that officers found came from Jackson’s brother, who obtained it from one of

Jackson’s previous addresses. Allison admitted that Jackson spent “a lot” of time at the

apartment and in the spare bedroom, where he would play video games or “mind his business

while [she] did [her] tattoos.” She testified that the social media picture was from Halloween

2022, when she and Jackson dressed in costume as an officer and robber with plastic toy guns.

Allison claimed that she owned the firearm found by the officers and, during the January

2023 search, she told them it belonged to her. She normally kept the gun in a lock box in a

bedroom or on her person. She stated that she was “not sure” why the gun was found on the

floor and said, “It was just in [her] room and [she] left and didn’t think to put it up anywhere.”

Allison testified that she never saw Jackson handle the gun. According to Allison, Jackson did

not know she owned the gun, let alone where she kept it.

When cross-examined about her prior statements to police, Allison denied that she told

officers during the January 2023 search that Jackson previously possessed the gun. Rather, she

claimed she had asked hypothetically whether Jackson could possess the gun if someone was

banging on their door, covering the peephole, and they were scared.

In rebuttal, Special Agent Clifton testified that during the January 2023 search, he asked

Allison if Jackson ever possessed the gun. Allison answered yes. She told Special Agent Clifton

that one night someone knocked on their door, covered the peephole, and Jackson had the gun in

his possession for protection.

At the close of all evidence, Jackson renewed his motion to strike. He reiterated that the

Commonwealth did not prove that the social media photo depicted a real firearm, and he argued

-4- that Allison’s testimony supported the conclusion that the DNA on the gun came from a

secondary transfer. The court denied Jackson’s motion, and the jury convicted him.

STANDARD OF REVIEW

“When an appellate court reviews the sufficiency of the evidence underlying a criminal

conviction, its role is a limited one.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024). “The

judgment of the trial court is presumed correct and will not be disturbed unless it is ‘plainly

wrong or without evidence to support it.’” Pijor v. Commonwealth, 294 Va. 502, 512 (2017)

(quoting Code § 8.01-680).

The only relevant question for this Court “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)). “If there is

evidentiary support for the conviction, ‘the reviewing court is not permitted to substitute its own

judgment, even if its opinion might differ from the conclusions reached by the finder of fact at

the trial.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (quoting Chavez v.

Commonwealth, 69 Va. App. 149, 161 (2018)). “When circumstantial evidence is involved, the

evidence as a whole must be ‘sufficiently convincing to exclude every reasonable hypothesis

except that of guilt.’” Rams v. Commonwealth, 70 Va. App. 12, 27 (2019) (quoting Dowden v.

Commonwealth, 260 Va. 459, 468 (2000)). The reasonableness of a defendant’s hypothesis of

innocence “is itself a question of fact, and thus, the fact finder’s determination regarding

reasonableness ‘is binding on appeal unless plainly wrong.’” Id. at 28 (quoting Wood v.

Commonwealth, 57 Va. App. 286, 306 (2010)). “When ‘credibility issues have been resolved by

the [fact finder] in favor of the Commonwealth, those findings will not be disturbed on appeal

-5- unless plainly wrong.’” Maust v. Commonwealth, 77 Va. App. 687, 703 (2023) (en banc)

(alteration in original) (quoting Towler v. Commonwealth, 59 Va. App. 284, 291 (2011)).

ANALYSIS

It is unlawful for “any person who has been convicted of a felony . . . to knowingly and

intentionally possess or transport any firearm.”2 Code § 18.2-308.2(A)(i). “A conviction for the

unlawful possession of a firearm can be supported exclusively by evidence of constructive

possession; evidence of actual possession is not necessary.” Bolden v. Commonwealth, 275 Va.

144, 148 (2008). To establish constructive possession, “the Commonwealth must point to

evidence of acts, statements, or conduct of the accused or other facts or circumstances [that] tend

to show that the defendant was aware of both the presence and character of the [firearm] and that

it was subject to his dominion and control.” Terlecki v. Commonwealth, 65 Va. App. 13, 24

(2015) (quoting Drew v. Commonwealth, 230 Va. 471, 473 (1986)). Moreover, occupancy of

premises where contraband is found “is a circumstance that may be considered together with

other evidence tending to prove” that a defendant “exercised dominion and control over [the]

item[]” there and thus that he “constructively possessed the contraband.” Redmond v.

Commonwealth, 57 Va. App. 254, 264-65 (2010) (quoting Burchette v. Commonwealth, 15

Va. App. 432, 435 (1992)). Possession need not be exclusive; it may be “joint or several.”

Smallwood v. Commonwealth, 278 Va. 625, 631 (2009) (quoting Burnette v. Commonwealth,

194 Va. 785, 792 (1953)).

We do not distinguish between direct and circumstantial evidence. Rams, 70 Va. App. at

27. Nor do we view pieces of circumstantial evidence “in isolation,” as “the ‘combined force of

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

2 Jackson does not dispute that he previously had been convicted of a felony. He challenges only the proof of actual or constructive possession and does not challenge the “knowingly and intentionally” elements of the offense. -6- [fact finder]’ to conclude beyond a reasonable doubt that a defendant is guilty.” Id. (alteration in

original) (quoting Muhammad v. Commonwealth, 269 Va. 451, 479 (2005)). “[T]he evidence as

a whole must be ‘sufficiently convincing to exclude every reasonable hypothesis except that of

guilt.’” Id. (quoting Dowden v. Commonwealth, 260 Va. 459, 468 (2000)). The Commonwealth

does not have to exclude every hypothesis of innocence, only those that “flow from the

evidence.” Maust, 77 Va. App. at 700 (quoting Dowden, 260 Va. at 468). “By finding the

defendant guilty, therefore, the [fact finder] ‘has found by a process of elimination that the

evidence does not contain a reasonable theory of innocence.’” Rams, 70 Va. App. at 28

(alteration in original) (quoting Haskins v. Commonwealth, 44 Va. App. 1, 9 (2004)). Moreover,

“[t]he trier of fact is not required to accept a party’s evidence in its entirety, but is free to believe

or disbelieve, in whole or in part, the testimony of any witness.” English v. Commonwealth, 43

Va. App. 370, 371 (2004) (citation omitted).

Jackson argues that the only evidence connecting him to the firearm is the DNA evidence,

which is insufficient to prove he possessed the firearm. Contrary to Jackson’s assertion, the DNA

evidence was one piece of evidence among many that Jackson possessed the firearm. See Rams, 70

Va. App. at 27 (stating that an appellate court considers the evidence as a whole). Jackson spent

extensive time in the apartment and the bedroom where police officers found the firearm. His

marriage certificate was in the living room, and officers discovered mail addressed to Jackson and

men’s apparel and shoes in the same bedroom as the firearm. Allison’s testimony further connected

Jackson to the bedroom. She explained that Jackson spent “a lot” of time there, including playing

video games while she did her tattoo work. The jury could consider these circumstances as

establishing that Jackson exercised dominion and control over items in the apartment and he thus

constructively possessed the firearm. Garrick, 303 Va. at 185-86 (considering factors such as

frequency and extent of a defendant’s occupancy in analyzing whether he constructively

-7- possessed contraband); Redmond, 57 Va. App. at 264-65 (considering occupancy of premises

where contraband is discovered as a factor in determining constructive possession).

The DNA evidence was additional proof that Jackson possessed the firearm. Pugh

testified that Jackson was the primary contributor to the DNA mixture. She calculated that it was

significantly more likely that Jackson was one of the three contributors than it was that the DNA

came from three unknown persons. Pugh also stated that DNA was more likely to be left on an item

a person directly handled, rather than through a secondary transfer, and she would expect a primary

contributor to have directly handled an item.

Further, Jackson’s hypothesis of innocence—that a secondary transfer deposited his DNA

on the firearm—finds no basis in the record. Although Pugh testified in the abstract that secondary

transfer is a possible mechanism for DNA to be deposited on an item, no testimony or other

evidence connected the theoretical possibility to this case. Thus, his alternate hypothesis does

not “flow from the evidence,” and the Commonwealth did not need to exclude the possibility of

secondary transfer. Maust, 77 Va. App. at 700 (quoting Dowden, 260 Va. at 468). By finding

Jackson guilty, the jury therefore determined “by a process of elimination that the evidence [did]

not contain a reasonable theory of innocence.” Rams, 70 Va. App. at 28 (quoting Haskins, 44

Va. App. at 9). Because this factual determination was not plainly wrong, it is binding on

appeal. See id.

Finally, Allison’s testimony provided additional evidence that Jackson possessed the

firearm. Although Allison claimed that the firearm belonged to her and she was “[e]xtremely”

careful about keeping it away from Jackson, she admitted that she did not know how the firearm

wound up on the floor of the spare bedroom when she did not leave it there. In convicting Jackson,

the jury necessarily found that Allison’s testimony distancing Jackson from the firearm was not

credible, while crediting other parts of her testimony that linked Jackson to the apartment and

-8- bedroom. Likewise, the jury could have reasonably concluded that the guns depicted in the social

media photograph were “toy guns” but that other evidence, as delineated above, proved Jackson

possessed the firearm. English, 43 Va. App. at 371. Moreover, Allison’s testimony was

impeached by her prior statement to police that Jackson had possessed the firearm. Although not

affirmative evidence, the prior inconsistent statement provided the jury further reason to doubt

Allison’s credibility. See Va. R. Evid. 2:607(a)(vi); see also Hall v. Commonwealth, 233 Va. 369,

374 (1987) (allowing prior inconsistent statements for impeachment purposes “to affect the

credibility of the witness” but not as “proof of the truth of their content”). We will not disturb the

jury’s credibility determination, which was not plainly wrong. Maust, 77 Va. App. at 703; English,

43 Va. App. at 371. Additionally, Allison’s ownership or possession of the firearm would not

negate Jackson’s possession, as “[p]ossession may be joint or several.” Smallwood, 278 Va. at

631 (quoting Burnette, 194 Va. at 792).

The record contains sufficient evidence that Jackson possessed a firearm in violation of

Code § 18.2-308.2(A)(i). Accordingly, the court did not err by denying Jackson’s motion to strike

the evidence.

CONCLUSION

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

Affirmed.

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