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.
 7 

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. 
 9 

 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
 10 

 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 
 13 

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.