Criminal – Record shows defendant violated terms of condition

Where the defendant’s pattern of resistance to conditions of probation, selective technology proficiency and failure to seek excused absences was a product of his own conduct, the trial court did not err when it found he violated the terms and conditions of his probation.

Background                              

Kyle Andrew Burks appeals the trial court’s finding that he violated the terms and conditions of his probation by not obeying his probation officer’s instructions. He contends that the evidence failed to demonstrate a willful violation sufficient to constitute reasonable cause to revoke the suspension of his sentence and that the trial court applied an erroneous legal standard.

Standard

As an initial matter, this court rejects Burks’s contention that the trial court held him strictly liable. Burks’s argument hinges upon the trial court’s statement that it was “on him to get it done . . . intentional or not, you know.” But he leaves out the larger context, which demonstrates that the trial court was not making a ruling of law in this case.

Rather, it made the above comment in the course of explicitly asking the parties whether there was an “intent element.” The above exchange does not establish that the trial court held Burks strictly liable. The record, viewed as a whole, rebuts any inference that the trial court applied a strict liability standard.

Cause

It is well-established that “[t]he cause deemed by the court to be sufficient for revoking a suspension must be a reasonable cause.” Generally, to be a reasonable cause, a probation violation must be willful. Indeed, the Supreme Court has rejected the proposition that a defendant’s suspension of sentence may be revoked, and active time imposed when the defendant is completely without fault for violating the conditions of the suspension.

Here, the record demonstrates that the trial court had reasonable cause to revoke the suspension of Burks’s sentence. Although Burks insists that his absences were caused by his inability to use the technology necessary to attend group treatment sessions, the trial court did not have to credit that explanation.

Brian Loomis, his probation officer, had established an email account for Burks to use and spent a “protracted . . . time” teaching him how to use it to attend the online sessions before Burks sustained any absence as unexcused. Moreover, Burks generally demonstrated his ability to use the requisite technology: his phone contained a received email with sexually charged content, his browser history showed internet searches for strip clubs and he attended several online group sessions.

In addition, Burks repeatedly disregarded his obligation to attend the group sessions, and when he did attend, he displayed “oppositional behavior, minimization, distortions, and denial.” Given those circumstances, the trial court could reasonably find that Burks’s pattern of resistance, selective technology proficiency and failure to seek excused absences was a product of his own conduct, not of circumstances beyond his control.

Further, the record does not demonstrate that Burks was placed in the “impossible” position of choosing between going to a job interview and attending his group session. Rather, Loomis instructed Burks that if he wanted to miss the group session to attend a job interview, he needed to communicate with his treatment provider to ensure the absence would be excused. He did not do so, and the subsequent absence was deemed unexcused.

Burks’s argument also fails that Code § 19.2-306.1(A)(ii) required him to prioritize maintaining employment over treatment attendance. The record does not reflect that Burks faced an unavoidable conflict. Loomis provided a clear path to resolving the tension by instructing Burks to contact Dr. Gravers about obtaining an excused absence. Because the conflict was fully avoidable through compliance with his probation officer’s instructions, no irreconcilable collision between probation conditions existed.

Affirmed.

Burks v. Commonwealth, Record No. 0254-25-4, March 31, 2026. CAV (unpublished opinion) (Bernhard). From the Circuit Court of the City of Winchester (Eldridge IV). Lauren E. Brice, Assistant Public Defender (Virginia Indigent Defense Commission, on briefs), for appellant. Craig Stallard, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 026-7-119. 9 pp.

Full-Text Opinion

VLW 026-7-119
Virginia Lawyers Weekly