Nasim Jackson v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 20, 2023
• Docket: 0907222
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Raphael, White and Senior Judge Petty UNPUBLISHED

NASIM JACKSON MEMORANDUM OPINION* v. Record No. 0907-22-2 PER CURIAM JUNE 20, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL W. Edward Tomko, III, Judge

(Mary K. Martin; Mary K. Martin, Attorney at Law, PLLC, on brief), for appellant.

(Jason S. Miyares, Attorney General; Lucille M. Wall, Assistant Attorney General, on brief), for appellee.

Following a bench trial, the trial court convicted Nasim Jackson of attempted carjacking,

aggravated malicious wounding, and two counts of using a firearm in the commission of a felony,

second or subsequent offense.1 Jackson challenges the sufficiency of the evidence to sustain his

convictions. After examining the briefs and record in this case, 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). For the following reasons, we affirm the trial court’s judgment.

BACKGROUND

On appeal, we review the evidence “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

* This opinion is not designated for publication. See Code § 17.1-413. 1 Jackson does not challenge his related conviction for maliciously shooting into an occupied vehicle. 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)).

On July 25, 2019, Virginia State Trooper Lauralyn Rutledge received a radio message

from police dispatch advising her to “be on the lookout” for a stolen black sedan that was driving

“recklessly.” The dispatcher warned that “armed and dangerous suspects” occupied the vehicle.

Shortly thereafter, Jackson drove past Trooper Rutledge in a vehicle matching the sedan’s

description. The trooper followed Jackson and activated the lights and sirens in her patrol car.

Jackson then accelerated to 120 miles per hour and began “weaving in and out of traffic.”

Jackson evaded the trooper by “cut[ting] in front of a tractor trailer” and turning onto an exit

ramp, where he abruptly stopped between a white sport utility vehicle (“SUV”) and a

dark-colored Audi.

The SUV’s driver, Army Sergeant Richard Melton, saw Jackson “jump out” of the sedan,

run up to the Audi, and pull on the driver’s side door handle. The door was locked, so Jackson

was unable to enter the Audi. Noticing that Jackson had a firearm, Melton honked his horn to

warn the Audi’s driver, Janet Lewandowski. When Lewandowski looked around to “process

what was going on,” she saw Jackson pointing a revolver at her and attempted to drive away.

Lewandowski heard a gunshot as she drove away from Jackson; she later discovered a bullet

hole in her driver’s side door upon reaching her destination. At trial, Lewandowski testified that

she did not hear Jackson say anything during the incident, but she “believed” that he had been

“trying to get into . . . and take [her] car” because he “had exited one vehicle,” approached her

car, and immediately began “grabbing on [her] doorhandle.”

After Lewandowski escaped, Jackson approached Melton’s SUV and shot the driver’s

side window. The bullet shattered the window and went through Melton’s right arm and into the

-2- passenger side door. As Jackson moved “toward[] the doorhandle,” Melton “ducked [his] head

down” and drove away. Melton parked his SUV at the top of the exit ramp and applied a

tourniquet to his wounded arm. He then called for medical assistance and awaited transportation

to a hospital.

Seconds later, Prince George Police Department Sergeant Michael Laine arrived at the

exit ramp in response to a reported armed carjacking. Sergeant Laine saw Jackson “running

toward” another vehicle with “a large revolver in his hand.” Jackson stood in front of the vehicle

and ordered the driver to stop by holding out his left arm “with the palm extended.” As he did

so, Sergeant Laine got out of his patrol car with his service weapon drawn and ordered Jackson

to the ground; Jackson immediately dropped his revolver and got on the ground.

Following his arrest, Jackson told police that he abandoned the sedan on the exit ramp

because it had run out of gas. Jackson admitted that he shot “one man” with his pistol but

maintained that he did so because he thought the man was reaching for a weapon.

At trial, Melton testified that the tourniquet he applied to his arm “saved [his] life”

because the bullet Jackson fired at him “hit an artery” and caused profuse bleeding.2 Melton

received surgery to repair the ruptured artery and was hospitalized for four days. He testified

that he still had shrapnel lodged in his arm, which caused severe nerve damage and visible

scarring. Melton could not move his hand for three months and required intensive physical

therapy to regain mobility. In addition, Melton’s injuries disqualified him from continuing to

serve as an Army Ranger because the military determined that he was permanently disabled.

At the conclusion of the Commonwealth’s evidence, Jackson moved to strike the charges,

arguing that the evidence failed to prove that he specifically intended to “carjack anyone.” The

2 At trial, the Commonwealth introduced several photographs depicting Melton’s gunshot wound. -3- trial court denied Jackson’s motion. During closing argument, Jackson again asserted that no

evidence established his specific intent to commit carjacking. In addition, Jackson argued that

the trial court should reduce the aggravated malicious wounding charge to malicious wounding

because no evidence proved that Melton sustained a severe and permanent injury. The trial court

refused to do so and convicted Jackson of attempted carjacking, aggravated malicious wounding,

and two counts of using a firearm in the commission of a felony, second or subsequent offense.

Jackson appeals.

ANALYSIS

Jackson challenges the sufficiency of the evidence to sustain his convictions. “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

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)).

Such deference stems, in part, from the trial court’s “opportunity to observe the testimony

and demeanor of all witnesses.” Lopez v. Commonwealth, 73 Va. App. 70, 81 (2021).

Accordingly, settled principles dictate that “[d]etermining the credibility of witnesses . . . is

-4- within the exclusive province of the [fact finder], which has the unique opportunity to observe

the demeanor of the witnesses as they testify.” Dalton v. Commonwealth, 64 Va. App. 512, 525

(2015) (second alteration in original) (quoting Lea v. Commonwealth, 16 Va. App. 300, 304

(1993)). “[T]he conclusions of the fact finder on issues of witness credibility may be disturbed

on appeal only when we find that the witness’ testimony was ‘inherently incredible, or so

contrary to human experience as to render it unworthy of belief.’” Ragsdale v. Commonwealth,

38 Va. App. 421, 429 (2002) (quoting Ashby v. Commonwealth, 33 Va. App. 540, 548 (2000)).

“Evidence is not ‘incredible’ unless it is ‘so manifestly false that reasonable men ought not to

believe it’ or ‘shown to be false by objects or things as to the existence and meaning of which

reasonable men should not differ.’” Gerald v. Commonwealth, 295 Va. 469, 487 (2018) (quoting

Juniper v. Commonwealth, 271 Va. 362, 415 (2006)).

I. Attempted Carjacking

Jackson contends that the evidence was insufficient to prove attempted carjacking

because no evidence established that he specifically intended to commit that offense. Jackson

argues that “[i]n the absence of him communicating an intention to carjack Ms. Lewandowski or

some further action such as getting into the vehicle himself or trying to pull Ms. Lewandowski

out of the vehicle, the evidence is insufficient to establish his intention.” In addition, Jackson

asserts that the evidence did not exclude the reasonable hypothesis of innocence that he intended

only “to commit the crime of shooting into an occupied vehicle,” not carjacking. We disagree.

To prove the completed offense of carjacking,3 the Commonwealth must prove beyond a

reasonable doubt that “the perpetrator intentionally seized, or seized control of, the [victim’s]

3 In relevant part, Code § 18.2-58.1(B) defines the crime of carjacking as follows:

“[C]arjacking” means the intentional seizure or seizure of control of a motor vehicle of another with intent to permanently or temporarily deprive another in possession or control of the vehicle -5- vehicle, either temporarily or permanently” and “the perpetrator so deprived the victim of

possession or control of the vehicle by means of one or more of the specifically prohibited acts—

which includes the use of a firearm.” Hilton v. Commonwealth, 293 Va. 293, 298-99 (2017).

Attempted carjacking is composed of two elements: (1) the intent to commit carjacking and

(2) “the direct, ineffectual act done toward its commission which must reach far enough toward

the accomplishment of the desired result to amount to the commencement of the consummation.”

Keyser v. Commonwealth, 22 Va. App. 747, 750 (1996) (quoting Howard v. Commonwealth, 207

Va. 222, 227 (1966)).

“Intent, like any element of a crime, may, and usually must, be proved by circumstantial

evidence such as a person’s conduct and statements.” Simon v. Commonwealth, 58 Va. App.

194, 206 (2011) (quoting Long v. Commonwealth, 8 Va. App. 194, 198 (1989)). We have held

that such conduct may include “[t]aking the steps necessary to locate and obtain a weapon.”

Morris v. Commonwealth, 17 Va. App. 575, 578 (1994). Moreover, “the statements and conduct

of an accused after the events that constitute the charged crime may also be relevant

circumstantial evidence of intent.” Simon, 58 Va. App. at 206 (quoting Canipe v.

Commonwealth, 25 Va. App. 629, 645 (1997)).

The record here supports the trial court’s finding that Jackson specifically intended to

carjack Lewandowski. According to Jackson, he left his car because it ran out of gas. The

evidence establishes that while fleeing police, Jackson abandoned his car, armed with a gun, and

attempted to open the driver’s side door of Lewandowski’s car. When he discovered that the

door was locked, Jackson aimed his pistol at Lewandowski. Lewandowski, realizing she had

of that possession or control by means of partial strangulation, or suffocation, or by striking or beating, or by other violence to the person, or by assault or otherwise putting a person in fear of serious bodily harm, or by the threat or presenting of firearms, or other deadly weapon or instrumentality whatsoever. -6- enough room to escape, began to drive away, when Jackson fired his pistol at her car. After

Lewandowski escaped, Jackson ran to Melton’s SUV, shot him, and began moving toward his

doorhandle before Melton drove away. Twice thwarted, Jackson approached yet another vehicle

and ordered it to stop just as police arrived and arrested him. From that evidence, a reasonable

finder of fact could conclude that Jackson intended to seize Lewandowski’s vehicle to replace his

disabled sedan and continue his flight from police. Cf. Hilton, 293 Va. at 300-01 (holding that

the evidence proved carjacking where defendant approached victim’s vehicle and demanded his

car keys at gunpoint); see also Keyser, 22 Va. App. at 750 (holding that the evidence was

sufficient to prove attempted carjacking where the defendant never seized control of victim’s

vehicle but pulled open the door and attempted to force her into the passenger seat).

Jackson’s flight from police and repeated attempts to open Lewandowski’s driver’s side

door belie his contention that he intended only to shoot into her vehicle. See Palmer v.

Commonwealth, 14 Va. App. 346, 348‑49 (1992) (“[I]t is today universally conceded that the

fact of an accused’s flight . . . and related conduct are admissible as evidence of consciousness of

guilt, and thus of guilt itself.”). Were Jackson’s theory correct, he would have simply shot into

Lewandowski’s vehicle without grabbing the door handle. In addition, that Jackson stopped a

third vehicle after failing to prevent Lewandowski’s and Melton’s escape by shooting at them

further supports the conclusion that Jackson sought to commandeer a vehicle to flee from police.

On this record, the trial court was entitled to discount Jackson’s alternative, self-serving

explanations to police for leaving his sedan, arming himself, and shooting at the victims as

“[lies] to conceal his guilt.” Shackleford v. Commonwealth, 262 Va. 196, 209 (2001).

The record supports the trial court’s finding that Jackson specifically intended to carjack

Lewandowski. Accordingly, the trial court did not err in denying Jackson’s motion to strike and

convicting him of attempted carjacking.

-7- II. Aggravated Malicious Wounding

Jackson argues that the trial court erred in refusing to reduce the aggravated malicious

wounding charge to malicious wounding because the evidence was insufficient to prove that

Melton sustained the permanent and significant physical impairment that Code § 18.2-51.2(A)

requires. Jackson asserts that although Melton “described the effect of his injuries,” that

testimony “did not establish a permanent injury.” Jackson also argues that because the

Commonwealth failed to introduce any “expert testimony or medical records” necessary “to

explain the wounds and their impact” on Melton the evidence was insufficient to prove

aggravated malicious wounding. We disagree.

“If any person maliciously shoots, stabs, cuts or wounds any other person, or by any

means causes bodily injury, with the intent to maim, disfigure, disable or kill,” he is guilty of

aggravated malicious wounding “if the victim is thereby severely injured and is caused to suffer

permanent and significant physical impairment.” Code § 18.2-51.2(A). Under that statute, a

“physical impairment” is “any physical condition, anatomic loss, or cosmetic disfigurement.”

Lamm v. Commonwealth, 55 Va. App. 637, 644 (2010) (quoting Newton v. Commonwealth, 21

Va. App. 86, 90 (1995)). “The word ‘permanent’ has been defined as ‘continuing or enduring

(as in the same state, status, place) without fundamental or marked change.’” Ellis v.

Commonwealth, 70 Va. App. 385, 392 (2019) (quoting Webster’s Third New International

Dictionary 1683 (3d ed. 1993)).

“[T]o prove a physical impairment is permanent under Code § 18.2-51.2, ‘the

Commonwealth need not present definitive testimony that a victim’s injuries will never improve’

and that the determination of permanency is left to the ‘common sense of the [finder of fact].’”

Id. (second alteration in original) (quoting Lamm, 55 Va. App. at 644). Nor is expert testimony

required to prove the significance and permanence of the victim’s injuries. Martinez v.

-8- Commonwealth, 42 Va. App. 9, 25 (2003). Thus, this Court has held that “permanent and

significant” impairments include “visible scars and scars connected to nerve damage.” Ellis, 70

Va. App. at 392 (citing Newton, 21 Va. App. at 90; Martinez, 42 Va. App. at 24-25). This Court

has also found injuries that would be fatal without prompt treatment to be “permanent and

significant.” See Ellis, 70 Va. App. at 392 (holding evidence sufficient to prove permanent

injury where victim “had suffered numerous injuries that would have been fatal if inflicted in

isolation”).

The record here established that Jackson “severely injured” Melton and caused him to

suffer “permanent and significant impairment” by shooting him with a firearm. Code

§ 18.2-51.2(A). At trial, Melton testified that the bullet Jackson fired at him severed an artery in

his right arm and Melton would have died from the resulting blood loss if he had not promptly

applied a tourniquet to the wound. See id. Melton’s subsequent surgery and extended

hospitalization did not relieve lasting nerve damage and visible scarring. Indeed, Melton

testified that he could not move his hand during the first three months of his recovery from

surgery; at the time of trial, Melton still had shrapnel in his arm. Furthermore, Melton was

permanently disabled because of his injuries and could no longer serve as an Army Ranger.

Collectively, the evidence was sufficient to prove that Melton’s gunshot wound was severe and

caused him permanent and significant physical impairment. Cf. Newton, 21 Va. App. at 90

(holding victim suffered permanent and significant physical impairment where defendant cut his

cheek with a razor blade and caused visible scarring); see also Martinez, 42 Va. App. at 24-25

(finding sufficient evidence of permanent and significant physical impairment where victim

suffered scarring and nerve damage from gunshot wound).

-9- The record supports the trial court’s conclusion that Melton’s gunshot wound

permanently and significantly physically impaired him. Accordingly, the trial court did not err in

refusing to reduce the aggravated malicious wounding charge to malicious wounding.

III. The Firearm Convictions

Finally, Jackson contends that the evidence was insufficient to sustain his two

convictions for using a firearm in the commission of a felony, second or subsequent offense,

because the evidence failed to prove that he committed the predicate felonies. Specifically,

Jackson argues that no evidence established that he intended to commit carjacking or caused

Melton to suffer permanent and significant physical impairment.

For the above reasons, the evidence was sufficient to prove beyond a reasonable doubt

that Jackson both intended to commit carjacking and that he caused Melton to suffer permanent

and significant physical impairment. Consequently, Jackson’s argument concerning his firearm

convictions fails. Accordingly, we affirm his convictions for using a firearm in the commission

of a felony, second or subsequent offense.

CONCLUSION

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

Affirmed.

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