COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Petty and Beales

Argued by videoconference

YAMINA ANNA JORDAN

MEMORANDUM OPINION* BY

v. Record No. 0648-20-2 JUDGE WILLIAM G. PETTY

MARCH 2, 2021

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF FREDRICKSBURG

Sarah L. Deneke, Judge

Kevin E. Calhoun (Charles C. Cosby, Jr.; The Law Office of Charles 

C. Cosby, Jr., P.C., on brief), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Mark R. 

Herring, Attorney General, on brief), for appellee.

Yamina Anna Jordan appeals her conviction for perjury, in violation of Code § 18.2-434. 

She asks this Court to use the ends of justice exception to Rule 5A:18 to reach her argument on 

appeal that the evidence was insufficient to support the conviction. For the reason below we decline 

to do so and thus affirm.

I. BACKGROUND

Because this is an unpublished opinion that carries no precedential value and the parties 

are fully conversant with the record, we recite only those facts and incidents of the proceedings 

as are necessary to the parties’ understanding of the disposition of this appeal. As with any 

criminal appeal challenging the sufficiency of the evidence, we consider the evidence in the light 

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

UNPUBLISHED 
- 2 -

most favorable to the prevailing party, here the Commonwealth. Hall v. Commonwealth, 55 

Va. App. 451, 453 (2009). 

Officers Piersol and Menck with the Fredericksburg Police Department responded to a 

Hardee’s on April 13, 2019, after reports that a customer refused to leave the restaurant. The 

officers found belongings with Jordan’s name on them and located Jordan across the street from 

the Hardee’s. Officer Menck handed Jordan a copy of a trespass notice, which she refused to 

sign. Both officers were wearing body cameras during the interaction with Jordan. Several days 

after the interaction near Hardee’s, Jordan filed petitions for a protective order against both 

officers, alleging “[i]illegal stalking and targeting of Petitioner, abuse of power, unlawful 

conduct, violations of civil rights.” 

During the general district court hearing on the petitions for protective orders, Jordan 

testified that the officers engaged in “illegal activity” and that their conduct was an “extenuation 

of harassment.” She stated that she “received threats of . . . being put in danger by certain 

officers.” She testified multiple times that one of the officers called her a “whore.” The court

responded, “that’s still not grounds for a protective order.” She testified that Officer Piersol1

“fe[d her] some sort of verbal threat” and that Officer Menck made derogatory comments and 

used verbal threats and body language to “connote[] domination.” Jordan also testified that 

police officers “like” Menck and Piersol were going to find and kill her. The general district

court dismissed both petitions, finding no evidence that either officer engaged in behavior 

warranting a protective order.

Jordan was charged with three counts of perjury—two based on her sworn statements in 

petitions for the protective orders against Officers Menck and Piersol, and one based on her 

1

Jordan could not remember Officer Piersol’s name during her testimony in the general 

district court. She also later admitted in her circuit court testimony that she had mixed up 

Officers Menck and Piersol in her general district court testimony.
- 3 -

testimony during the general district court hearing for those petitions. The circuit court held a 

bench trial for Jordan’s perjury charges on July 1, 2019. 

During Jordan’s perjury trial, the Commonwealth introduced the body camera video of 

the April 13, 2019 interaction and presented testimony from the two officers. Both Officers 

Menck and Piersol testified that they did not touch or threaten Jordan during this interaction. 

Officer Piersol testified that his interaction with Jordan was “pleasant.” Officer Menck testified 

that he was “professional.” After the Commonwealth rested, Jordan testified and incorporated 

her closing argument into her testimony. In evaluating the evidence, the trial court stated, “The 

body cameras are the best witness that this [c]ourt or anyone else has as to what occurred in your 

interactions between these officers.” The trial court further stated that Jordan’s statements that 

Officer Menck threatened Jordan and called her names and her “allegation . . . that officers like 

him” were going to find and kill her “just did not happen.” 

[Officer Menck] never said one word to you that wasn’t 

professional, that wasn’t within the bounds of why he’d been 

called there. He never stepped out of line. . . . [Officer Piersol] 

was never anything but polite to you. He was never anything other 

than professional. He never threatened you.

The court found Jordan guilty of all three counts of perjury. It stated, “What I’m concerned with 

primarily in your testimony before the General District Court is where you tell the Judge that this 

officer called you a whore on multiple occasions . . . . It did not happen.” This appeal followed.2 

II. ANALYSIS

Rule 5A:18 states 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 . . . .” 

“However, Rule 5A:18 permits us to overlook the appellant’s failure to preserve the issue and 

2 Although Jordan’s petition for appeal included all three convictions, we only granted 

her appeal of the conviction based on her testimony before the district court.
- 4 -

consider the merits of [her] argument for the first time on appeal if the ends of justice so 

demand.” Brittle v. Commonwealth, 54 Va. App. 505, 512 (2009). “Nonetheless . . . ‘[t]he 

“ends of justice” exception . . . is “narrow and is to be used sparingly.”’” Id. (quoting Pearce v. 

Commonwealth, 53 Va. App. 113, 123 (2008)). 

“Therefore, ‘in examining a case for miscarriage of justice, we do not simply review the 

sufficiency of the evidence under the usual standard, but instead determine whether the record 

contains affirmative evidence of innocence or lack of a criminal offense.’” Flanagan v. 

Commonwealth, 58 Va. App. 681, 695 (2011) (quoting Wheeler v. Commonwealth, 44 Va. App. 

689, 692 (2005)). The Commonwealth’s failure to prove an element of the offense does not 

alone warrant application of the ends of justice exception; the Commonwealth’s evidence must 

either “prove[] that an essential element ha[s] not occurred” or that “the defendant was convicted 

for conduct that was not criminal.” Redman v. Commonwealth, 25 Va. App. 215, 223 (1997). 

Jordan contends on appeal that the evidence was insufficient to establish the materiality 

element of perjury.

3 At no point did Jordan make the argument to the trial court she now makes 

on appeal—that her statements in the general district court were immaterial to the issuance of a 

protective order. Rather, Jordan argued that the events she described in the general district court 

had actually transpired and were “evidence.” She concedes that she did not make this argument 

before the trial court. Nonetheless, she contends that without evidence of a material false 

3

“In order to sustain a perjury conviction under [Code § 18.2-434], the Commonwealth 

ha[s] the burden of proving: (1) that an oath was lawfully administered; (2) that the defendant 

wilfully swore falsely; and (3) that the facts to which [s]he falsely swore were material to a 

proper matter of inquiry.” Pijor v. Commonwealth, 294 Va. 502, 513 (2017) (first and second 

alterations in original) (quoting Mendez v. Commonwealth, 220 Va. 97, 102 (1979)). 

“Testimony is material if it is relevant to a main or collateral issue on trial.” Sheard v. 

Commonwealth, 12 Va. App. 227, 232 (1991). “Evidence is relevant if it has any logical 

tendency, however slight, to establish a fact at issue in the case.” Ragland v. Commonwealth, 16 

Va. App. 913, 918 (1993) (emphasis added). See also Ronald J. Bacigal, 7 Virginia Practice: 

Criminal Offenses and Defenses 480 (2016) (“In the perjury context, materiality ‘means that the 

statement must be one about a fact that could influence the outcome of the proceeding.’”).
- 5 -

statement, the crime of perjury did not occur, thus warranting application of the ends of justice 

exception to Rule 5A:18.

“This argument ignores the distinction between lack of proof of an element and 

affirmative proof that the element did not occur. Arguing that the record is devoid of evidence of 

an element does not equate with affirmative proof that an element did not occur.” Le v. 

Commonwealth, 65 Va. App. 66, 75 (2015). Here, the evidence did not affirmatively establish 

that an element of the crime of perjury did not occur or that Jordan was convicted for conduct 

that was not criminal. The Commonwealth’s evidence established that Jordan testified under 

oath that one of the officers called her a “whore” and that the officers behaved in a threatening 

manner. Nowhere does the record show that Jordan did not, in fact, make those statements in the 

general district court. In addition, nowhere does the record affirmatively establish that Jordan 

made no material false statements. The record contains observations by the general district court 

that, based on Jordan’s allegations, protective orders were not warranted. Contrary to Jordan’s 

contention on appeal to this Court, these observations do not establish that each of her statements 

in the general district court was immaterial to the proceeding. Instead, these observations merely 

demonstrate the general district court’s conclusions about the weight of Jordan’s evidence.

Because Jordan has failed to identify where the “record contains affirmative evidence of 

innocence or lack of a criminal offense,” the ends of justice exception has not been met.

Flanagan, 58 Va. App. at 695 (quoting Wheeler, 44 Va. App. at 692). Therefore, because she did 

not raise this argument to the trial court, and the ends of justice exception does not apply, we will 

not consider her claim that the evidence was insufficient. See Rule 5A:18.
- 6 -

III. CONCLUSION

We conclude that Jordan has failed to meet the requirements of the ends of justice exception 

to Rule 5A:18, and we decline to consider the merits of her argument on appeal. Therefore, we 

affirm.

Affirmed.