Jamal Shagun Winston, a/k/a, et al. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia
JAMAL SHAGUN WINSTON, A/K/A
JAMAL SHAQUAN WINSTON OPINION BY
v. 	Record No. 0373-97-2 	JUDGE LARRY G. ELDER
MARCH 17, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Maureen L. White for appellant.
John H. McLees, Jr., Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Jamal S. Winston ("appellant") appeals his convictions of
possession of cocaine in violation of Code § 18.2-250, possession
of a firearm while simultaneously possessing cocaine in violation
of Code § 18.2-308.4, carrying a concealed weapon in violation of
Code § 18.2-308, and grand larceny. 	He contends the trial court
erred when it denied his motion to set aside his convictions for
lack of subject matter jurisdiction. 	He also contends the
evidence was insufficient to support his convictions of carrying
a concealed weapon and of grand larceny. 	For the reasons that
follow, we affirm.
I.
FACTS
Appellant was charged with committing five crimes: 	grand
larceny of an automobile, possession of cocaine, possession of a

2
firearm while in possession of cocaine, carrying a concealed
weapon, and possession of tools with intent to commit larceny.
All of these crimes were allegedly committed on January 31, 1996.
The proceedings against appellant were not initiated in a
juvenile and domestic relations district court. 	Appellant was
tried by the circuit court ("trial court") on April 24, 1996.
During appellant's arraignment, the trial court asked appellant
to state his name, age, and his date of birth. 	Appellant replied
that his name was "Jamal Shagun Winston," that he was nineteen
years old, and that he was born on August 6, 1976.
At the conclusion of the Commonwealth's case and again after
resting without presenting evidence, appellant moved to strike
three of the charges against him: 	grand larceny, carrying a
concealed weapon, and possession of tools with the intent to
commit larceny. 	The trial court denied appellant's motions with
respect to the charges of grand larceny and carrying a concealed
weapon, but granted appellant's motion to strike regarding the
charge of possession of tools with intent to commit larceny.
Following appellant's motions to strike, the trial court
convicted appellant of the remaining four charges against him.
Appellant subsequently filed a timely notice of appeal and a
timely petition for appeal. 	On November 5, 1996, appellant filed
a motion in this Court to set aside his convictions for lack of
subject matter jurisdiction. 	On November 20, 1996, this Court
remanded appellant's convictions to the trial court "for factual

3
findings regarding appellant's age at the time of the alleged
offense and disposition as appropriate."
On December 16, 1996 and January 17, 1997, the trial court
held hearings to receive evidence regarding appellant's age.
Following the hearings, the trial court denied appellant's motion
to set aside the verdicts for lack of subject matter
jurisdiction. 	The trial court made two findings. 	The trial
court first found that appellant's age "cannot be determined by
the exhibits introduced by [appellant]." 	Then, relying on the
evidence presented by the Commonwealth, it found that both
appellant and his mother "held [appellant] out to be an adult [on
January 31, 1996] and have produced no evidence to convince this
Court otherwise." 	The trial court also stated that appellant was
not "permitted to come before the court and claim a juvenile
status so as to benefit from his perjury and his alleged willful
misrepresentations as to his age before the court."
II.
SUBJECT MATTER JURISDICTION
Appellant contends the trial court erred when it denied his
motion to set aside the convictions for lack of subject matter
jurisdiction. 	He argues the trial court erred when it found that
he failed to prove he was a juvenile on the date the offenses
were committed. 	We disagree.
A criminal conviction is void ab initio if it has been
entered by a court that did not have subject matter jurisdiction

4
over the charge against the defendant. 	See Humphreys v.
Commonwealth, 186 Va. 765, 772, 43 S.E.2d 890, 893-94 (1947)
(stating that, if a trial court lacked subject matter
jurisdiction over a criminal charge, "its trial of the charge was
a vain thing and the judgment pronounced was a nullity"); see
also Brown v. Commonwealth, 215 Va. 143, 145, 207 S.E.2d 833,
835-36 (1974).
Under Code § 16.1-241(A), the juvenile and domestic
relations district courts ("J&DR courts") have "exclusive
original jurisdiction" over "all cases, matters and proceedings"
involving a juvenile who is alleged to be delinquent. 	See
Burfoot v. Commonwealth, 23 Va. App. 38, 45, 473 S.E.2d 724, 728
(1996). 	A juvenile is defined by Code § 16.1-228 to be "a person
less than eighteen years of age." 	"Delinquent acts" include "an
act designated a crime under the law of this Commonwealth
. . . ." 	Code § 16.1-228 (defining "delinquent act"). 	The ages
specified in the Juvenile and Domestic Relations District Court
Law "refer to the age of the child at the time of the acts
complained of . . . ." 	Code § 16.1-241.
Pursuant to Code § 16.1-269.1, a circuit court may obtain
jurisdiction to try a juvenile charged with certain criminal
offenses after a transfer hearing is held by a J&DR court. 	The
holding of a transfer hearing and the making of the findings
required by Code § 16.1-269.1 by a J&DR court are essential
prerequisites of the circuit court's exercise of jurisdiction in

5
such cases.
[I]f the [J&DR court] fails to hold a
transfer hearing or to make the required
findings, then the circuit court proceedings
against a juvenile are void for lack of
jurisdiction to try him or her as an adult.
Burfoot, 23 Va. App. at 49, 473 S.E.2d at 730 (citing Mathews v.
Commonwealth, 216 Va. 358, 359, 218 S.E.2d 538, 540 (1975);
Peyton v. French, 207 Va. 73, 80, 147 S.E.2d 739, 743 (1966)).
As with all void judgments, a void criminal conviction may
be attacked collaterally or directly in any court at any time.
See Humphreys, 186 Va. at 772, 43 S.E.2d at 893; see also
Slaughter v. Commonwealth, 222 Va. 787, 793, 284 S.E.2d 824, 827
(1981); Broyhill v. Dawson, 168 Va. 321, 326, 191 S.E. 779, 781
(1937). Jurisdiction of the subject matter can only
be acquired by virtue of the Constitution or
of some statute. 	Neither the consent of the
parties, nor waiver, nor acquiescence can
confer it. 	Nor can the right to object for
want of it be lost by acquiescence, neglect,
estoppel or in any other manner.
Humphreys, 186 Va. at 772-73, 43 S.E.2d at 894.1 Generally, the
1In the juvenile context, there are statutory exceptions to
the general rule regarding the non-waivability of objections to a
circuit court's lack of subject matter jurisdiction. 	For
example, a juvenile charged with an offense "which if committed
by an adult could be punishable by confinement in a state
correctional facility" may waive the jurisdiction of the J&DR
court prior to the commencement of a transfer hearing. 	See Code
§ 16.1-270. 	Such waivers must be both in writing and accompanied
by the written consent of the juvenile's counsel. 	See Code
§ 16.1-270. 	In addition, in 1994, the General Assembly amended
Article 7 of the Juvenile and Domestic Relations District Court
Law (Code § 16.1-269.1 et. seq.) so that "[a]ny objection to the
jurisdiction of the circuit court pursuant to [that] article
shall be waived if not made before arraignment." 	Code

6
party asserting that a judgment is void for lack of subject
matter jurisdiction has the burden of proving that fact. 	Cf.
Shelton v. Sydnor, 126 Va. 625, 633-34, 102 S.E. 83, 86-87
(1920); Carter's Adm'r v. Skillman, 108 Va. 204, 215-16, 60 S.E.
775, 779-80 (1908). 	In a proceeding to attack a judgment for
lack of jurisdiction, "'the record is never conclusive as to the
recital of a jurisdictional fact, and the defendant is always at
liberty to show a want of jurisdiction, although the record avers
the contrary.'" 	Slaughter, 222 Va. at 793, 284 S.E.2d at 827-28
(quoting Broyhill, 168 Va. at 327, 191 S.E. at 782). 	"[T]he
jurisdiction of a court, whether general or of limited
jurisdiction, may be inquired into, although the record of
judgment states facts giving it jurisdiction." 	Broyhill, 168 Va.
at 326-27, 191 S.E. at 782 (citations omitted). 	The party
attacking the judgment is not estopped by the contents of the
record "from showing[] by affirmative proof" that the court that
entered the judgment erred when it concluded that jurisdiction
§ 16.1-269.6(E).
It is clear that the waiver provision of Code
§ 16.1-269.6(E), as currently written, does not apply to this
case. 	Code § 16.1-269.6(E) only applies to proceedings that were
both (1) initiated by the filing of a petition in a J&DR court
and (2) transferred to the circuit court following a valid
transfer hearing pursuant to Code § 16.1-269.1. 	See Burfoot, 23
Va. App. at 51, 473 S.E.2d at 731. 	"The 'objections'
contemplated by Code § 16.1-269.6(E) are arguments concerning
deficiencies in the transfer process involving a particular
juvenile." 	Id. 	The waiver provision of Code § 16.1-269.6(E)
does not apply to cases, such as this one, in which "no petition
was filed or transfer hearing was held." 	Id.

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was proper. 	Id. at 327, 191 S.E. at 782 (citations omitted).2
Thus, if, at the hearing on his motion to set aside the verdicts,
appellant met his burden of proving that he was under the age of
eighteen on the date the offenses were committed, his convictions
are void because the record established that the charges against
appellant were not transferred from a J&DR court prior to his
trial in circuit court.
We hold that the trial court did not err when it denied
appellant's motion to set aside the verdicts for lack of subject
matter jurisdiction. 	The trial court's finding that appellant
failed to meet his burden of proving he was a juvenile on
2The Virginia Supreme Court has stated that, when a judgment
is collaterally attacked, the attacking party is precluded from
admitting any new or parol evidence. 	Farant Inv. Corp. v.
Francis, 138 Va. 417, 429-30, 122 S.E. 141, 143 (1924) (stating
that "the record is presumed to speak the truth and can be tried
by inspection only; extrinsic evidence not being allowed to
impeach the verity of the record"). 	Although this evidentiary
prohibition may apply when prior convictions are collaterally
attacked on non-jurisdictional grounds, the Virginia Supreme
Court has expressly ratified the procedure of hearing evidence in
addition to the record when a judgment is attacked for lack of
jurisdiction. 	See Slaughter, 222 Va. at 793-94, 284 S.E.2d at
827-28; Broyhill, 168 Va. at 326-28, 191 S.E. at 782. 	To the
extent that Farant Inv. Corp. stands for a contrary proposition,
it appears to have been implicitly overruled on this point by
Broyhill and Slaughter. 	As the Supreme Court has stated:
Notwithstanding the rule that a recitation in
a court's order is a verity, a recitation of
jurisdiction is subject to collateral
attack. . . . 	"If the court had no
jurisdiction, it had no power to make a
record, and the supposed record is not in
truth a record."
Slaughter, 222 Va. at 793, 284 S.E.2d at 827-28 (quoting
Broyhill, 168 Va. at 327, 191 S.E. at 782).

8
January 31, 1996, the date the offenses were committed, is
supported by credible evidence in the record.
At the hearing to determine appellant's age on the date the
offenses were committed, conflicting evidence was presented.
Appellant offered two birth certificates issued by the City of
Newark, New Jersey. 	One certificate stated that "Jaream Tyrell
Winston" was born on August 17, 1976; the other certificate
stated that "Jameel Shaquan Winston" was born on August 6, 1978.
(Emphasis added). 	Appellant also offered four juvenile
petitions and a social history report, all referring to "Jameel
Shaquan Winston," which stated that "Jameel's" birthday was
August 6, 1978. 	(Emphasis added). 	Furthermore, the trial court
had the following exchange with appellant at the hearing:
TRIAL COURT: 	Stand please, sir. 	What is
your name?
APPELLANT: 	Jamel Shaquan Winston
TRIAL COURT: 	Spell your first name.
APPELLANT: 	J-A-M-E-L
TRIAL COURT: 	What happened to Jamal, J-A-M-A-L?
APPELLANT: 	That's what they got down.
That's what they've been calling me the whole
time I've been locked up.
TRIAL COURT: 	Tell me what name[s] are on
these many birth certificates . . . that are
coming in.
APPELLANT'S COUNSEL: 	J-A-R-E-A-M and
J-A-M-E-E-L, Jameel.
TRIAL COURT: 	Jaream is your brother; is that right?
APPELLANT: 	Yes.

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TRIAL COURT: 	And you are -- spell your name again?
APPELLANT: 	J-A-M-E-L.
The Commonwealth introduced the testimony of Officers James F.
Hannah and Mark Wooten, which established that appellant told
them following his arrest on January 31, 1996, that he was born
on August 6, 1976 and that he was nineteen years old. 	In
addition, the trial court read into the record a portion of the
transcript from appellant's trial in which he told the trial
court that he was nineteen and that his date of birth was August
6, 1976.
As the trier of fact, the trial court was entitled to weigh
the evidence and determine the credibility of the witnesses. 	Cf.
Witt v. Commonwealth, 215 Va. 670, 674-75, 212 S.E.2d 293, 297
(1975). 	When appellant's spelling of his first name failed to
match the spelling of the person's name who had the birthdate of
"August 6, 1978" on all of appellant's exhibits, the trial court
was within its discretion to discount this evidence and credit
appellant's previous statements that he was born on August 6,
1976. 	Because credible evidence supports the trial court's
conclusion that appellant failed to prove he was less than
eighteen years of age on the date the offenses were committed, we
cannot say the trial court erred when it denied appellant's
motion to set aside his convictions for lack of subject matter
jurisdiction.3

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III.
SUFFICIENCY OF THE EVIDENCE
Appellant next contends the evidence was insufficient to
support his convictions of carrying a concealed weapon and grand
larceny.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." 	Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 	This Court does
not substitute its judgment for that of the trier of fact. 	See
Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220
(1992). 	Instead, the trial court's judgment will not be set
aside unless it appears that it is plainly wrong or without
supporting evidence. 	Josephs v. Commonwealth, 10 Va. App. 87,
99, 390 S.E.2d 491, 497 (1990) (en banc).
A.
CARRYING A CONCEALED WEAPON
Appellant argues the Commonwealth failed to prove that the
3Appellant also argues that the trial court erred when it
concluded that he was estopped by his and his mother's
representations to authorities that he was an adult on the date
the offenses were committed from collaterally challenging the
circuit court's subject matter jurisdiction over the charges
against him. 	See Humphreys, 186 Va. at 772-73, 43 S.E.2d at 894;
but see Peyton v. Penn, 270 F.Supp. 981, 984-85 (W.D. Va. 1967).
However, we need not address this argument because, even
assuming the trial court's analysis on this point was erroneous
and that appellant was entitled to challenge the validity of his
conviction on jurisdictional grounds, appellant failed to meet
his burden of proof at the hearing on his motion.

11
handgun he was carrying was, in fact, "concealed." 	We disagree.
We hold that the evidence was sufficient to prove the
handgun carried by appellant was concealed. 	Under Code
§ 18.2-308(A), it is unlawful for a person to carry a "weapon
designed or intended to propel a missile of any kind" "about his
person, hidden from common view." 	(Emphasis added). 	We have
previously stated that a weapon is hidden from common view under
Code § 18.2-308(A) when it is "hidden from all except those with
an unusual or exceptional opportunity to view it." 	Main v.
Commonwealth, 20 Va. App. 370, 372-73, 457 S.E.2d 400, 402 (1995)
(en banc).
In this case, the Commonwealth proved with direct evidence
that the handgun carried by appellant was hidden from common
view. 	Officer Hannah testified that, while he was pursuing
appellant on foot, he had an opportunity to view appellant from
the back and front. 	He testified that he observed no visible
sign that appellant was carrying a weapon. 	After the two scaled
a large fence, Officer Hannah saw appellant retrieve a handgun
from his right coat pocket and drop it on the ground. 	Even
though Officer Hannah's pursuit of appellant occurred in
darkness, his direct observation of appellant before he retrieved
the gun from his coat pocket was sufficient to support the trial
court's conclusion that this gun was "hidden from common view."
B.
GRAND LARCENY

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Appellant also contends the evidence failed to prove that he
was the person who took the victim's blue Pontiac. 	Specifically,
he argues that the "larceny inference" cannot apply to him
because the Commonwealth failed to prove that the victim's
automobile was "recently" stolen when he was caught driving it.
We disagree.
"[L]arceny is the taking and carrying away of the goods and
chattels of another with intent to deprive the owner of the
possession thereof permanently." 	Lund v. Commonwealth, 217 Va.
688, 691, 232 S.E.2d 745, 748 (1977). 	Under Code § 18.2-95,
grand larceny includes "larceny not from the person of another of
goods and chattels of the value of $200 or more." 	It is well
established that "[o]nce the [larceny] is established, the
unexplained possession of recently stolen goods permits an
inference of larceny by the possessor." 	Bright v. Commonwealth,
4 Va. App. 248, 251, 356 S.E.2d 443, 444 (1987); see also Castle
v. Commonwealth, 196 Va. 222, 226-27, 83 S.E.2d 360, 363 (1954).
For the "larceny inference" to arise, the Commonwealth must
establish that the accused was in exclusive possession of
recently stolen property. 	See Best v. Commonwealth, 222 Va. 387,
389, 282 S.E.2d 16, 17 (1981).
We hold that the evidence was sufficient to prove that
appellant was the person who stole the blue Pontiac from Ms.
Yeoman. 	Although no evidence directly proved that appellant
stole the automobile, the evidence proved that appellant was in

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exclusive possession of the automobile shortly after it was
stolen. 	Sally Rebecca Yeoman, the owner of the automobile,
testified that she parked it near her home between 1:00 p.m. and
2:00 p.m on January 31, 1996, and discovered shortly after 8:00
p.m. that evening that the car had been stolen. 	Officer Hannah
testified that he spotted appellant driving the automobile
"around 9:30" p.m. on January 31 and that appellant was the only
occupant of the car. 	Appellant's exclusive possession of the
stolen automobile was sufficiently "recent" to justify the
inference that he was the thief. 	See Montgomery v. Commonwealth,
221 Va. 188, 190, 269 S.E.2d 352, 353 (1980) (holding that
"[f]our weeks is not, as a matter of law, so long a time that
goods may not be considered recently stolen"); Wright v.
Commonwealth, 2 Va. App. 743, 748, 348 S.E.2d 9, 13 (1986)
(holding that "the one month time lapse between when the items
were discovered missing and when they were found in [the
defendant's possession] is sufficiently brief to be construed as
recent possession"). 	Because credible evidence supports the
reasonable inference that appellant stole the blue Pontiac and no
reasonable hypothesis of innocence flows from the evidence, we
cannot say the trial court erred when it convicted appellant of
grand larceny.
For the foregoing reasons, we affirm the convictions.
Affirmed.