COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Causey and Bernhard UNPUBLISHED
Argued at Fredericksburg, Virginia
ROBERTA EDLINA BRANDON MEMORANDUM OPINION* BY v. Record No. 0673-24-4 JUDGE MARY GRACE O’BRIEN AUGUST 5, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT PRINCE WILLIAM COUNTY Kimberly A. Irving, Judge
Taso R. Saunders for appellant.
Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Following a jury trial, Roberta Edlina Brandon (appellant) was convicted of first-degree
murder under Code § 18.2-32 and use of a firearm in the commission of murder under Code
§ 18.2-53.1. Appellant alleges that the circuit court erred in excluding her expert witness’s
testimony, in speaking to jurors about their inability to reach a verdict, and in giving Jury Instruction
13. She further contends that the evidence was insufficient to support her conviction for first-degree
murder and that the judge erred by presiding over her trial after accepting her guilty pleas and
allowing her to withdraw the pleas.
BACKGROUND
On appeal, 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)); see also Al-Saray v. Furr, __ Va. __,
* This opinion is not designated for publication. See Code § 17.1-413(A). __ (Jan. 16, 2025). 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 and all fair inferences to be drawn therefrom.’” Womack v. Commonwealth, 82
Va. App. 289, 292 n.1 (2024) (quoting Konadu v. Commonwealth, 79 Va. App. 606, 610 n.1
(2024)).
On November 29, 2016, appellant’s cousin, Denzel Brandon, failed to pick up his daughter
from school as agreed with Nika Williams, the child’s mother. Williams texted Brandon, and the
two started arguing. Williams got her daughter and drove with her boyfriend, Cordrey Jackson, and
her mother to a Food Lion grocery store. Williams texted Brandon that, if he wanted to see his
daughter, he should meet them at the Food Lion.
At the store, Williams parked at the front of the parking lot. While getting out of the car,
Williams saw Brandon approaching “very angrily,” “punching his hand with his fist, saying,
‘Tonight’s the night. My goons are on the way.’” Williams did not know what he meant and
responded, “I’m not dealing with this[,] and I’m calling the police.” Jackson was helping
Williams’s daughter get out of her car seat, and Brandon yelled at him to “get his fucking hands off
of [my] daughter.” Jackson obeyed, and Williams took her daughter and started walking toward the
store entrance; she eventually called the police because Brandon “kept trying to take [the child].”
Jackson remained outside.
While waiting in the parking lot, Jackson leaned against the parked car. Two customers saw
a black Mustang stop in front of Jackson; appellant got out of the Mustang and started to “beat[] up”
Jackson. The customers testified that the attack was immediate and unprovoked and that they never
saw Jackson “respond physically.” In fact, one customer observed that Jackson backed away and
fell to the ground, where appellant “punched him again while his body was still on the ground.”
Jackson was able to get away and ran towards the store entrance.
-2- Meanwhile, inside the store, Williams’s mother and Brandon argued, attracting the attention
of the store manager and other customers. Brandon left the store after Williams’s mother told him
to “take it up with the boyfriend [Jackson].” The store manager saw Jackson running towards the
store; Brandon and Jackson stopped in front of the store and “put [their] fists up” when they were
“about eight feet apart,” like they were “getting ready to fight.” The two never made contact. The
black Mustang pulled up again, and appellant jumped out of the passenger’s side, holding a gun.
Appellant then shot Jackson, who collapsed in the Food Lion doorway and died. An autopsy
confirmed that a gunshot wound to Jackson’s chest caused his death.
I. Guilty Pleas and Withdrawal of Pleas
Appellant was charged with murder under Code § 18.2-32 and use of a firearm in the
commission of murder under Code § 18.2-53.1. Judge Kimberly A. Irving accepted appellant’s
guilty pleas to both charges on September 30, 2019.
On May 3, 2021, appellant moved to withdraw her guilty pleas over the Commonwealth’s
opposition. On May 21, Judge Irving heard appellant’s motion and continued the case, scheduling
another hearing on the issue for June 25. The record contains neither a transcript nor a written
statement of facts of the June 25, 2021 hearing. On July 1, Judge Irving subsequently entered an
order granting appellant’s motion to withdraw her guilty pleas and scheduled a jury trial.
II. Notice of Mental Condition Evidence
Appellant filed a “notice of intent to introduce evidence of [her] mental condition at the time
of the offense” under Code § 19.2-271.6. The Commonwealth moved in limine to exclude “expert
testimony concerning the [appellant’s] mental condition.” The court denied the motion.
-3- III. The Commonwealth’s Case
Judge Irving presided over appellant’s trial. In addition to testimony from Williams, the
Food Lion manager, and other customers, the Commonwealth introduced surveillance footage and
still photographs from the store’s security cameras.
Trey Wallace, appellant’s friend and owner of the Mustang, also testified. Wallace stated
that on November 29, 2016, he picked up appellant in his new Mustang. Appellant and Wallace
saw a Facebook post by Brandon that indicated that he was “going through something,” and
Wallace testified that appellant “was passionate about her cousin[,] so it hurt her to see that.”
Brandon called appellant, asking her to come to the Food Lion, because Brandon “was having a
custody exchange and he wanted her to just be there.”
Wallace recalled that when they got to the store, appellant “hopped out and just started
fighting” Jackson. He tried to turn around and leave, but appellant “came back and got the gun,”
which she had in her bag in the passenger seat. Wallace heard “[j]ust one gunshot” and again
decided to leave. While driving away, Wallace saw appellant running, and he stopped to “let her
get in the car.” Once in the car, appellant told Wallace that “she shot [Jackson], but . . . [s]he didn’t
think it was fatal.” Appellant then said, “just go,” “[g]o, go, go, go, go.” Wallace described
appellant as “kind of panicked.”
Wallace and appellant stopped in a nearby neighborhood, where appellant disposed of the
gun in “some woods.” They also parked the car, “dropped [the car keys] on the ground and kicked
the dirt over them, got rid of them,” before calling and leaving in an Uber. While in the Uber, they
saw headlines that confirmed Jackson had died. Appellant went to stay with a friend in Maryland.
At the end of the Commonwealth’s case, appellant unsuccessfully moved to strike the
first-degree murder charge, arguing that the evidence was insufficient to prove that her “actions
were the product of willfulness, premeditation or deliberation.”
-4- IV. Mental Condition Testimony
Appellant called Dr. Michael Hendricks as an expert in clinical psychology. Dr. Hendricks
testified that he had evaluated appellant by reviewing medical records, police reports, the
surveillance footage, and interviewing appellant and her aunt. The Commonwealth objected that
Dr. Hendricks could not testify to his “hypothesis” about appellant’s mental state, citing “a lack of
foundation, hearsay, [and] facts not in evidence.” The court agreed that appellant’s statements made
to Dr. Hendricks would be inadmissible hearsay and would not fall under the medical diagnosis
exception, finding that the statements lacked the required reliability because Dr. Hendricks “is a
defense expert, [and appellant] has every reason to say whatever she needs to say to get the expert to
come on her side.”
Further, in response to questioning from the court, Dr. Hendricks acknowledged that he
would be unable “to render a professional opinion” “[b]ased solely on [his] personal observation of
[appellant].” Similarly, he also did not think he could give an opinion based solely on her demeanor
and the security footage. The court excluded Dr. Hendricks’s testimony.
V. Appellant’s Testimony
Appellant testified in her defense. She told the jury that she and Brandon grew up together
and were “very close.” Appellant explained that on November 29, 2016, Brandon called her,
“sound[ing] a little scared in his voice,” and asked her “to watch [his] back” when picking up his
daughter. She stated that she was “scared for him[,] . . . [w]orried.” Appellant acknowledged that
she had only met Jackson “in passing” and that they never “ha[d] any words with one another.”
According to appellant, when she started hitting Jackson, she was “not even in a right state of mind
[and she] was scared for [Brandon].” Appellant also testified that she had planned to get back into
the car, but when she saw Brandon and Jackson “going at each other,” she “went back to the car and
grabbed the gun[] and ran after [Jackson] and shot him.” Appellant stated that, during this, she “was
-5- blacked out a little bit.” She claimed she had never shot the gun before. Appellant further testified
that, when she got back to the car, they “realized that the situation that was happened [sic] was too
deep,” so they “got rid” of the car and gun.
On cross-examination, appellant admitted that Jackson was her “target” when shooting. She
further acknowledged that the first thing she thought afterwards was “where do I go to get away,”
and that she decided to turn off her phone when leaving the parking lot. Appellant explained that, at
Food Lion, she was “afraid for” Brandon and that “when I feel defensive, I get offensive.”
Appellant renewed her motion to strike, arguing that the evidence was insufficient to prove
premeditation or deliberation necessary for first-degree murder. The court denied the motion.
VI. Jury Instruction 13
While discussing jury instructions, the Commonwealth explained that Jury Instruction 13
was not a model jury instruction and that the language was taken from Commonwealth v. Perkins,
295 Va. 323 (2018), and Fleming v. Commonwealth, 13 Va. App. 349 (1991). Jury Instruction 13
read as follows: “Intent is the purpose formed in a person’s mind which may, and most often must,
be inferred from the facts and circumstances in a particular case. Intent may be shown by a person’s
conduct and by his statements.” The court granted the instruction over appellant’s objection.
VII. Statement to the Jury
During deliberations, the jury submitted the following question to the court: “What happens
if a decision can’t be agreed upon. There is just one person not agreeing and 11 of us agree. What
are our options if we believe she will not change her mind?” The court then asked counsel if they
agreed that it was “time for the Allen charge,” which they answered in the affirmative.1 Because it
1 The term “Allen charge” refers to Allen v. United States, 164 U.S. 492, 501-02 (1896), “the seminal case approving the use of a jury instruction encouraging each juror to reconsider and listen to the conclusions of the other jurors in order to reach a unanimous verdict.” Drexel v. Commonwealth, 80 Va. App. 720, 746 n.8 (2024). -6- was around 3:45 p.m., the court asked the jurors “if they think it would be better to recess for the
night and come back tomorrow.” The court said:
I know it’s exhausting, but I let you know that this could go into the next day. Jury deliberation is, it’s tiring and it’s hard.
I could give you a charge, we could sit here for another hour, you know, and then decide to come back tomorrow, but if everybody’s spent[,] I can also let you go now and have everybody come back tomorrow.
Neither party objected to the court’s comment. The jurors decided to stay and deliberate
further—they did not receive the Allen charge. The jury returned around 4:40 p.m. with a guilty
verdict on both charges. The jury was polled, and all jurors indicated their agreement with the
verdict.
ANALYSIS
I. Evidence of Diminished Capacity under Code § 19.2-271.6
Appellant argues that the court erred in excluding Dr. Hendricks’s testimony regarding her
diminished capacity, which she contends was admissible “by operation of law” under Code
§ 19.2-271.6. Although acknowledging that Dr. Hendricks’s report included hearsay, appellant
contends that the hearsay was admissible as “statements made for the purpose of medical diagnosis
or treatment.”
We review a trial court’s decision to admit or exclude evidence “for an abuse of discretion.”
Moore v. Joe, 76 Va. App. 509, 516 (2023). “Only when reasonable jurists could not differ can we
say an abuse of discretion has occurred.” Kenner v. Commonwealth, 71 Va. App. 279, 289 (2019)
(quoting Tynes v. Commonwealth, 49 Va. App. 17, 21 (2006)), aff’d, 299 Va. 414 (2021). But an
appellate court “reviews questions of statutory interpretation de novo.” Stafford Cnty. v. D.R.
Horton, Inc., 299 Va. 567, 574 (2021).
-7- Code § 19.2-271.6(B) provides as follows:
In any criminal case, evidence offered by the defendant concerning the defendant’s mental condition at the time of the alleged offense, including expert testimony, is relevant, is not evidence concerning an ultimate issue of fact, and shall be admitted if such evidence (i) tends to show the defendant did not have the intent required for the offense charged and (ii) is otherwise admissible pursuant to the general rules of evidence. For purposes of this section, to establish the underlying mental condition the defendant must show that his condition existed at the time of the offense and that the condition satisfies the diagnostic criteria for (i) mental illness . . . .
“Mental illness” is defined as “a disorder of thought, mood, perception, or orientation that
significantly impairs judgment or capacity to recognize reality.” Code § 19.2-271.6(A). In Shaw v.
Commonwealth, __ Va. __ (April 17, 2025), the Supreme Court explained as follows:
Code § 19.2-271.6 does not render all evidence related to a defendant’s mental condition admissible. Rather, such evidence must (1) demonstrate that the defendant, at the time of the offense, suffered from an “underlying mental condition” as defined in the statute, (2) “tend[] to show the defendant did not have the intent required for the offense charged[,]” and (3) be “otherwise admissible pursuant to the general rules of evidence.”
Id. at __ (alterations in original) (quoting Code § 19.2-271.6(B)).
“In criminal cases, the opinion of an expert is generally admissible it if is based upon facts
personally known or observed by the expert, or based upon facts in evidence.” Va. R. Evid.
2:703(b). “[A]n expert witness in Virginia [is] not . . . permitted to base [an] opinion on facts not in
evidence” in criminal cases. Simpson v. Commonwealth, 227 Va. 557, 565 (1984); see also Sanders
v. Commonwealth, 282 Va. 154, 159 n.1 (2011).
“‘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.” Va. R. Evid. 2:801(c). “If
evidence is hearsay, ‘[it] is inadmissible unless it falls within one of the recognized exceptions’ to
the rule against hearsay.” Atkins v. Commonwealth, 68 Va. App. 1, 7-8 (2017) (alteration in
original) (quoting Robinson v. Commonwealth, 258 Va. 3, 6 (1999)). “Statements made for
-8- purposes of medical diagnosis or treatment and describing medical history, . . . or sensations,”
qualify for an exception to the hearsay rule. Va. R. Evid. 2:803(4). “[T]he reason statements made
for the purpose of medical diagnosis or treatment are admissible despite their nature as hearsay is
that patients making such statements recognize that they must provide accurate information to the
physician in order to receive effective treatment.” Campos v. Commonwealth, 67 Va. App. 690,
711-12 (2017). But “reliability is the touchstone for determining admissibility of a patient’s
out-of-court statements that are made for diagnosis and treatment purposes.” Id. at 711.
In Lawlor v. Commonwealth, 285 Va. 187, 243 (2013), accepting the trial court’s
explanation that “[a] defendant sitting in jail wants to minimize his time, wants to get probation
instead of penitentiary time, depending on what the offense is,” the Supreme Court held that an
incarcerated defendant’s statements to a drug counselor did not fall under the medical diagnosis
exception to the hearsay exclusion because they lacked reliability.
Here, appellant wanted Dr. Hendricks to testify under Code § 19.2-271.6 concerning her
mental state at the time of the shooting. Dr. Hendricks explained that his opinion would be based
on medical records, police reports, surveillance footage, and interviews with appellant and her aunt.
Except for the surveillance footage, none of the other relied-upon items were in evidence, which is
required for an expert witness to testify in a criminal case. See Simpson, 227 Va. at 565. Further,
appellant’s interview with Dr. Hendricks was hearsay, making it inadmissible. See Va. R. Evid.
2:801(c); Atkins, 68 Va. App. at 7-8.
Appellant contends that Dr. Hendricks’s testimony was admissible under the medical
diagnosis exception to hearsay. The court found that appellant’s interview with Dr. Hendricks
lacked the prerequisite reliability because appellant had “every reason to say whatever she needs to
say to get the expert to come on her side.” Dr. Hendricks had never treated appellant before the
crime, and he acknowledged that he would be unable “to render a professional opinion” based
-9- solely on the security footage and his personal observations of appellant. The statute specifically
requires any evidence of the defendant’s mental state to be “otherwise admissible pursuant to the
general rules of evidence.” Code § 19.2-271.6. Because the court’s determination that appellant’s
statements lacked reliability was not plainly wrong and because an expert witness may not testify
based on information not in evidence, the court did not err in excluding Dr. Hendricks’s testimony.
II. Improper Statement to the Jury
Appellant argues that the court committed reversable error when interacting with the jury,
specifically by saying, “I could give you a charge, we could sit here for another hour, you know.”
Appellant posits that “the use of the term ‘charge’ to lay members of the jury, in the context of a
murder trial[,] is wholly inappropriate. Under the circumstances, a reasonable person, unfamiliar
with the court process could believe that the [c]ourt’s terminology could lead to the commencement
of criminal prosecution.”
“[A] judicial response to a jury question is considered a legal instruction.” Calokoh v.
Commonwealth, 76 Va. App. 717, 729 (2023) (quoting Ludwig v. Commonwealth, 52 Va. App. 1,
11 (2008)). “The trial court has ‘broad discretion in giving or denying instructions requested,’ and
[appellate courts] review those decisions under an abuse of discretion standard.” Harris v.
Commonwealth, 83 Va. App. 571, 589 (2025) (alteration in original) (quoting Barney v.
Commonwealth, 69 Va. App. 604, 609 (2019)).
Appellant acknowledges that she “did not object to the [c]ourt’s dialogue” but contends that
“the necessity of attaining the ends of justice requires this Court to consider the issue for the first
time on appeal.”
Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis for
reversal unless an objection was stated with reasonable certainty at the time of the ruling, except . . .
to enable this Court to attain the ends of justice.” “Th[is] Court . . . will not consider an argument
- 10 - on appeal which was not presented to the trial court.” Aponte v. Commonwealth, 68 Va. App. 146,
163 n.8 (2017) (quoting Ohree v. Commonwealth, 26 Va. App. 299, 308 (1998)). But the
ends-of-justice exception to Rule 5A:18 allows this Court to consider an unpreserved argument “in
the extraordinary situation where a miscarriage of justice has occurred.” Wandemberg v.
Commonwealth, 70 Va. App. 124, 137 (2019) (quoting Holt v. Commonwealth, 66 Va. App. 199,
209 (2016) (en banc)). “Whether to apply the ends[-]of[-]justice exception involves two questions:
‘(1) whether there is error as contended by the appellant; and (2) whether the failure to apply the
ends[-]of[-]justice provision would result in grave injustice.’” Conley v. Commonwealth, 74
Va. App. 658, 682-83 (2022) (quoting Commonwealth v. Bass, 292 Va. 19, 27 (2016)). “The
burden of establishing a manifest injustice is a heavy one, and it rests with the appellant.” Id. at 683
(quoting Holt, 66 Va. App. at 210).
Here, no “grave injustice” warrants dispensing with the contemporaneous-objection
requirement of Rule 5A:18. Appellant asserts that the fact that at least one juror did not agree with
the other jurors, necessitating a discussion of a possible Allen charge, showed that the language of
the court influenced the juror to change her mind “in favor of a guilty verdict.” But there is no
evidence that it was the court’s remark that changed the juror’s mind, as opposed to the evidence
against appellant. The jury was polled after reaching its verdict, and each juror agreed with the
verdict. Nor did any juror express a concern that they were subject to criminal prosecution. We
consider the use of the term “charge” in the wider context of the court’s statements. In its remark,
the court gave the jury a choice between “a charge” or letting them “go now and have everybody
come back tomorrow.” The jury decided to continue deliberations, indicating that the jurors did not
believe their choice to stay and continue deliberations would lead to criminal prosecution. Because
no miscarriage of justice occurred, we do not apply the ends-of-justice exception to this waived
assignment of error. See Wandemberg, 70 Va. App. at 137; Aponte, 68 Va. App. at 163 n.8.
- 11 - III. Jury Instruction 13
Citing Terry v. Commonwealth, 5 Va. App. 167 (1987), appellant argues that the court erred
when it gave Jury Instruction 13 because the instruction “was not a model instruction” and “tends to
have a single purpose of giving the jury more options to find [appellant] guilty of [f]irst-[d]egree
[m]urder by placing an emphasis on the determination of the specific intent to kill the deceased.”
We review a court’s decision to give a jury instruction for an abuse of discretion. Harris, 83
Va. App. at 589. “A reviewing court’s responsibility in reviewing jury instructions is ‘to see that
the law has been clearly stated and that the instructions cover all issues which the evidence fairly
raises.’” Conley, 74 Va. App. at 674-75 (quoting Fahringer v. Commonwealth, 70 Va. App. 208,
211 (2019)).
A jury instruction “may not ‘single out for emphasis a part of the evidence tending to
establish a particular fact.’” Terry, 5 Va. App. at 170 (quoting Woods v. Commonwealth, 171 Va.
543, 548 (1938)). But Jury Instruction 13 did not place such undue emphasis on any one piece of
evidence. In Terry, this Court ruled that an instruction giving examples of circumstances that could
be considered to determine intent to distribute drugs, such as quantity, packaging, and location, did
not unduly single out evidence because the instruction “did not suggest that specific evidence
impelled any particular finding.” Id. at 171. Likewise, here, the instruction told the jury what it
could look at to find intent, such as “a person’s conduct” and “his statements,” without directing the
jury to the conclusion it should draw from those circumstances. Nor does the instruction single out
any specific evidence presented at trial. And while the instruction is not a model jury instruction, if
it is an “accurate statement of the law,” the instruction “shall not be withheld from the jury solely
for its nonconformance.” Code § 19.2-263.2. Appellant never contended that the instruction
inaccurately reflected the law. The court therefore did not abuse its discretion in giving Jury
Instruction 13.
- 12 - IV. Sufficiency of the Evidence
Appellant argues that no reasonable jury could have concluded that she had “the requisite
intent to support a conviction for the offense of [f]irst-[d]egree [m]urder.”
“In reviewing the sufficiency of the evidence on appeal, this Court will affirm the decision
unless the judgment was plainly wrong or the conviction lacked evidence to support it.” Drexel v.
Commonwealth, 80 Va. App. 720, 747 (2024). “In conducting this review, the ‘appellate court does
not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.”’” Id. (quoting Commonwealth v. Barney, 302 Va. 84, 97 (2023)). Instead, “the relevant
question 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.” Sullivan v. Commonwealth, 280 Va. 672, 676 (2010). “[W]hile no single piece of evidence
may be sufficient, the combined force of many concurrent and related circumstances . . . may lead a
reasonable mind irresistibly to a conclusion.” Commonwealth v. Moseley, 293 Va. 455, 463 (2017)
(second alteration in original) (quoting Muhammad v. Commonwealth, 269 Va. 451, 479 (2005)).
“Premediated murder . . . contemplates: (1) a killing; (2) a reasoning process antecedent to
the act of killing, resulting in the formation of a specific intent to kill; and (3) the performance of
that act with malicious intent.” Fields v. Commonwealth, 73 Va. App. 652, 674 (2021) (alteration in
original) (quoting Rhodes v. Commonwealth, 238 Va. 480, 486 (1989)). “A design to kill may be
formed only a moment before the fatal act is committed[,] provided the accused had time to think
and did intend to kill.” Giarratano v. Commonwealth, 220 Va. 1064, 1074 (1980).
“[I]ntent is a state of mind that may be proved by an accused’s acts or by his statements and
that may be shown by circumstantial evidence.” Rodriquez v. Commonwealth, 50 Va. App. 667,
673 (2007) (quoting Wilson v. Commonwealth, 249 Va. 95, 101 (1995)). “[T]he fact finder may
- 13 - infer that a person intends the immediate, direct, and necessary consequences of his voluntary acts.”
Fleming, 13 Va. App. at 353 (quoting Bell v. Commonwealth, 11 Va. App. 530, 533 (1991)).
“Malice inheres in the doing of a wrongful act intentionally, or without just cause or excuse,
or as a result of ill will. It may be directly evidenced by words[] or inferred from acts and conduct
which necessarily result in injury.” Hernandez v. Commonwealth, 15 Va. App. 626, 631 (1993)
(quoting Christian v. Commonwealth, 221 Va. 1078, 1081 (1981)). “Malice may be inferred from
the ‘deliberate use of a deadly weapon unless, from all the evidence, [there is] reasonable doubt as
to whether malice existed.’” Fletcher v. Commonwealth, 72 Va. App. 493, 507 (2020) (alteration in
original) (quoting Strickler v. Commonwealth, 241 Va. 482, 495 (1991)). “Whether malice existed
is a question for the fact finder.” Robertson v. Commonwealth, 31 Va. App. 814, 823 (2000).
Here, a plethora of evidence supports the jury’s conclusion that appellant intended to kill
Jackson. After jumping out of the car at the Food Lion parking lot, appellant began an unprovoked
attack on Jackson. Jackson retreated. Appellant then returned to the car to obtain her gun.
Although appellant saw Brandon and Jackson squaring up as if they were getting ready to fight,
they did not make contact; regardless, appellant shot Jackson.
Appellant now contends that she was “overcome by emotion” when she fired “a single,
aimless round” and she “lacked the skill to identify the deceased as a target and further, lacked the
intent to cause further harm.” This contention is belied by her own trial testimony, where she
admitted that Jackson was her “target” when she shot. Appellant also repeatedly testified that she
was not “in a right state of mind.” But the jury was free to determine that she lacked credibility.
See Dalton v. Commonwealth, 64 Va. App. 512, 525 (2015) (explaining that “[d]etermining the
credibility of witnesses . . . is within the exclusive province of the jury” (second alteration in
original) (quoting Lea v. Commonwealth, 16 Va. App. 300, 304 (1993))).
- 14 - The jury was also free to consider appellant’s actions after the incident. See Simon v.
Commonwealth, 58 Va. App. 194, 206 (2011) (explaining that the “conduct of an accused after the
. . . crime may also be relevant circumstantial evidence of the intent”). Appellant neither called for
help nor checked on Jackson; she turned off her cell phone, disposed of the gun and car, told
Wallace to “go, go, go,” and admitted that she just wanted to “get away.” The jury’s finding of guilt
was not plainly wrong or contrary to the evidence.
V. Violation of Rule 3A:8(c)(6)
Appellant argues that the judge erred in presiding over appellant’s trial after also receiving
her guilty pleas and allowing her to withdraw the pleas. Appellant acknowledges that the “record is
devoid of any objection” but asks us to apply the end-of-justice exception to Rule 5A:18. The
ends-of-justice exception to Rule 5A:18 allows this Court to consider an unpreserved argument “in
the extraordinary situation where a miscarriage of justice has occurred.” Wandemberg, 70 Va. App.
at 137 (quoting Holt, 66 Va. App. at 209).
“In general, ‘[a] lower court’s interpretation of the Rules of th[e Supreme] Court, like its
interpretation of a statute, presents a question of law that we review de novo.’” Bailey v.
Commonwealth, 78 Va. App. 650, 662 (2023) (alterations in original) (quoting LaCava v.
Commonwealth, 283 Va. 465, 469-70 (2012)). Rule 3A:8(c)(6) provides that “[i]n the event that a
plea of guilty . . . is withdrawn in accordance with this Rule, the judge having received the plea may
take no further part in the trial of the case, unless the parties agree otherwise.” Importantly,
“judicial officers are presumed to know and follow the law.” Echavarry v. Commonwealth, 60
Va. App. 177, 188 n.5 (2012).
Rule 5A:8 requires an appellant to file any necessary transcripts of the proceedings in the
trial court within 60 days after entry of the final judgment. “When the appellant fails to ensure that
the record contains transcripts or a written statement of facts necessary to permit resolution of
- 15 - appellate issues, any assignments of error affected by such omission will not be considered.” Rule
5A:8(b)(4)(ii). See also Smith v. Commonwealth, 281 Va. 464, 470 (2011).
It is undisputed that the same judge heard appellant’s guilty pleas and presided over the
hearing to withdraw the pleas as well as the subsequent trial. But appellant failed to file a transcript
of the hearing held on June 25, 2021, during which the judge decided to grant appellant’s motion to
withdraw her guilty pleas. Because a judge is presumed to “know and follow the law,” Echavarry,
60 Va. App. at 188 n.5, and because Rule 3A:8(c)(6) allows a judge to preside over a defendant’s
trial after receiving the plea when the parties agree to it, we must presume that the parties agreed
that the same judge would preside over appellant’s trial after receiving her pleas. We also cannot
apply the ends-of-justice exception when we do not have the necessary transcripts to determine
whether a “a miscarriage of justice has occurred.” Wandemberg, 70 Va. App. at 137 (quoting Holt,
66 Va. App. at 209); see also Rule 5A:8(b)(4)(ii). We therefore do not consider this assignment of
error. See Rule 5A:8(b)(4)(ii).
CONCLUSION
The court did not abuse its discretion in excluding Dr. Hendricks’s expert opinion and
granting Jury Instruction 13. The court made no erroneous statements to the jury when determining
whether they would continue deliberations or return the next day. Further, the evidence was
sufficient for the jury to find the elements of first-degree murder. Finally, because appellant did not
provide a transcript or a statement of facts in lieu of a transcript, we cannot consider her contention
that the court erred in presiding over the trial after accepting appellant’s guilty pleas. For these
reasons, we affirm.
Affirmed.
- 16 -