0471251
Va. Ct. App.Jul 7, 2026Background
- Lowther and an accomplice arranged a nighttime meeting with K.P., a minor, and Lowther suggested the wooded location where the encounter occurred. 1
- In the secluded area, K.P. was shot in the neck, then Lowther and the accomplice took marijuana, a handgun, and K.P.'s phone. 2
- Police found K.P. paralyzed by a bullet wound and forensic analysis linked the wound to a .380 bullet; Lowther later told a friend he had shot someone with a .380. 3
- A grand jury indicted Lowther for aggravated malicious wounding, firearm use, robbery causing serious bodily injury, and conspiracy to commit robbery. 4
- At trial, Lowther moved to strike for insufficient proof of concerted action, but the court denied the motion and instructed the jury on principal-in-the-second-degree and concert-of-action liability. 5
- The jury convicted Lowther on all counts, and the court imposed an aggregate 113-year sentence with 10 years suspended. 6
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the evidence sufficient for principal-in-second-degree liability? 7 | Lowther said the Commonwealth failed to prove knowledge, assistance, or shared intent. | The Commonwealth said Lowther planned the meeting, aided the robbery, and joined the attack. | Yes; the evidence supported concerted action and liability. 8 |
| Does Lowther's term-of-years sentence warrant Eighth Amendment proportionality review? 9 | Lowther argued his 113-year sentence is grossly disproportionate. | The Commonwealth said proportionality review is unavailable for this non-life sentence. | No; proportionality review is unavailable for this sentence. 10 |
| Was the sentence an abuse of discretion because it exceeded statutory limits? 11 | Lowther contended the sentence was excessive and unconstitutional. | The Commonwealth said each sentence fell within the statutory ranges. | No; the sentence was within statutory maximums and affirmed. 12 |
Key Cases Cited
- Commonwealth v. Garrick, 303 Va. 176 (Va. 2024) (appellate sufficiency review is limited 13)
- Pijor v. Commonwealth, 294 Va. 502 (Va. 2017) (trial judgment presumed correct unless plainly wrong or unsupported 14)
- Commonwealth v. Barney, 302 Va. 84 (Va. 2023) (whether any rational factfinder could find guilt beyond a reasonable doubt 15)
- Thomas v. Commonwealth, 279 Va. 131 (Va. 2010) (defines principal in the second degree 16)
- Allard v. Commonwealth, 24 Va. App. 57 (Va. Ct. App. 1997) (principal-in-second-degree requires presence and shared criminal intent or overt act 17)
- McGhee v. Commonwealth, 221 Va. 422 (Va. 1980) (aider or abettor must know or have reason to know the criminal intent and intend to encourage it 18)
- Rollston v. Commonwealth, 11 Va. App. 535 (Va. Ct. App. 1991) (concerted action and aider/abettor intent requirements 19)
- Davis v. Commonwealth, 36 Va. App. 291 (Va. Ct. App. 2001) (principal-in-second-degree liability may rest on concert of action 20)
- Spradlin v. Commonwealth, 195 Va. 523 (Va. 1954) (participants in concert are liable for incidental probable consequences 21)
- Khine v. Commonwealth, 82 Va. App. 530 (Va. Ct. App. 2024) (sentencing decisions reviewed for abuse of discretion 22)
- Minh Duy Du v. Commonwealth, 292 Va. 555 (Va. 2016) (sentence within statutory range generally not an abuse of discretion 23)
- Cole v. Commonwealth, 58 Va. App. 642 (Va. Ct. App. 2011) (proportionality review unavailable for sentences less than life without parole 24)
- Hutto v. Davis, 454 U.S. 370 (U.S. 1982) (non-life sentence within statutory limits not cruel and unusual by itself 25)
- Ewing v. California, 538 U.S. 11 (U.S. 2003) (Eighth Amendment contains a narrow proportionality principle for noncapital sentences 26)
- Harmelin v. Michigan, 501 U.S. 957 (U.S. 1991) (Eighth Amendment bars punishments greatly disproportionate to the offense 27)