COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Huff and O’Brien UNPUBLISHED
Argued by videoconference
DARRIN MARK ROBERTSON MEMORANDUM OPINION* BY v. Record No. 0318-19-4 JUDGE GLEN A. HUFF OCTOBER 20, 2020 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Daniel S. Fiore, II, Judge
Andrew O. Clarke (Andrew Clarke Law, PLCC, on brief), for appellant.
A. Anne Lloyd, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
The trial court found Darrin Robertson (“appellant”) in violation of his probation for
refusing to answer the non-incriminating questions in a sexual history disclosure form required
by his sexual offender treatment program. The trial court revoked appellant’s suspended
sentence and re-suspended the entirety of appellant’s sentence. Appellant contends that the trial
court erred in overruling his Fifth Amendment challenge to completing the sexual history
disclosure form.
Appellant’s constitutional arguments are procedurally defaulted for failure to satisfy the
requirements of Rule 5A:12. Furthermore, the trial court did not abuse its discretion in finding
appellant in violation of the terms of his probation for failing to answer the questions appellant
agreed were non-incriminatory. Therefore, this Court affirms in part and dismisses in part.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. BACKGROUND
“This Court considers ‘the evidence presented at trial in the light most favorable to the
Commonwealth, the prevailing party below.’” Hawkins v. Commonwealth, 64 Va. App. 650,
652 (2015) (quoting Bolden v. Commonwealth, 275 Va. 144, 148 (2008)). So viewed the
evidence is as follows.
On November 6, 2009, appellant pled guilty to and was convicted of breaking and
entering with the intent to commit rape and attempted rape. Appellant was sentenced to
twenty-five years’ incarceration, with fifteen years suspended. Appellant’s probation upon
release was conditioned upon successful participation in any mental health counseling and
treatment prescribed by his probation officer. Following appellant’s release to probation, he
signed a form entitled “Sex Offender Special Instructions” acknowledging that his probation
required him to “attend and successfully complete a Sex Offender Treatment Program” approved
by his probation officer.
Appellant began an approved treatment program with Counseling and Forensic
Services, Inc. On January 24, 2018, Madlyn Humphreys, appellant’s sex offender treatment
provider, wrote a letter to appellant’s probation officer detailing his progress. She explained that
appellant “appears to take responsibility for his offense as well as all behaviors included in the
offense” and had “offered good feedback to other group members regarding assignments as well
as relapse related issues.” Additionally, he had completed a “group assignment regarding his
offense disclosure and did well on [it].” However, Humphreys explained that appellant had
“often derailed from group discussion in an attempt to argue the legality of his placement in Sex
Offender Treatment as well as his frustrations with both probation and the treatment process.”
Furthermore, she stated that appellant was refusing to disclose “any additional information
regarding his sexual history” or participate in related group assignments. In particular, appellant
-2- had refused to answer any question on the sexual history disclosure form and was invoking the
Fifth Amendment to argue that he could not be required to do so. Humphreys explained that this
had halted appellant’s treatment as it prohibited the development of an individualized treatment
plan.
On January 29, 2018, appellant’s probation officer submitted a major violation report to
the trial court. The report alleged that appellant was violating the conditions of his probation by
failing to complete the sexual history disclosure form as it prevented him from successfully
continuing with his treatment.
The trial court held an initial hearing on June 8, 2018. The Commonwealth contended
that appellant was in violation of his terms of probation for failing to complete the portions of the
sexual history disclosure form that could not be incriminating. Specifically, the Commonwealth
pointed to questions regarding appellant’s consensual sexual activities with age-appropriate
peers, participation in group sex episodes, participation in sexual chat rooms, calls to sex lines,
non-sexual intimate behavior, and masturbation. It further noted the non-incriminatory nature of
questions regarding appellant’s sexual orientation and whether he was aroused by certain smells,
memories, or types of fetishes such as sadism, masochism, coprophilia, or urophilia. Lastly, the
Commonwealth highlighted other, non-sexual questions, which asked appellant to disclose things
such as his criminal history and history of alcohol or drug use.
Appellant argued that completion of the sexual history disclosure form was an “all or
nothing” proposition. Specifically, he contended that his Fifth Amendment protection against
self-incrimination precluded the Commonwealth forcing him to complete the sexual history
disclosure because “the vast majority of the questions asked are all incriminating.”
The trial court rejected appellant’s theory that the sexual history disclosure questionnaire
was an “all or nothing” proposition. It noted that “most, if not all,” of the questions are
-3- non-incriminating. The trial court ordered the matter continued and ordered appellant to answer
the questions that were not self-incriminating. It also stated that it would hear any objections to
specific questions which appellant believed were self-incriminating, if necessary.
The trial court held a second hearing on June 19, 2018 in order to hear the testimony of
Humphreys, appellant’s sex offender treatment provider. The Commonwealth called Humphreys
to explain the purpose behind the sexual history disclosure form. Humphreys explained that the
form is used to create individualized treatment plans for each patient. The answers allow the
treatment providers to glean insight into the sexual behavior of the individual and identify
high-risk situations or triggering events that could lead to recidivism. From there, the treatment
providers are able to assist individuals with creating coping mechanisms and learning which
circumstances or situations should be avoided in order to create a “relapse prevention model.”
She testified that treatment providers often review portions of the packet with patients before it is
completed, as part of their treatment. However, the document is not collected or fully
incorporated into their treatment until it is completed. Humphreys also testified to appellant’s
repeated refusal to complete any portion of the sexual history disclosure form and invocation of
the Fifth Amendment. Following the testimony of Humphreys, appellant’s counsel informed the
trial court that appellant had completed the portions of the sexual history disclosure form that he
believed were non-incriminating and that he was prepared to lodge specific Fifth Amendment
objections, if necessary. The matter was then continued to hear additional testimony.
A final evidentiary hearing was held on July 26, 2018. At the outset, the Commonwealth
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COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Huff and O’Brien UNPUBLISHED
Argued by videoconference
DARRIN MARK ROBERTSON MEMORANDUM OPINION* BY v. Record No. 0318-19-4 JUDGE GLEN A. HUFF OCTOBER 20, 2020 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Daniel S. Fiore, II, Judge
Andrew O. Clarke (Andrew Clarke Law, PLCC, on brief), for appellant.
A. Anne Lloyd, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
The trial court found Darrin Robertson (“appellant”) in violation of his probation for
refusing to answer the non-incriminating questions in a sexual history disclosure form required
by his sexual offender treatment program. The trial court revoked appellant’s suspended
sentence and re-suspended the entirety of appellant’s sentence. Appellant contends that the trial
court erred in overruling his Fifth Amendment challenge to completing the sexual history
disclosure form.
Appellant’s constitutional arguments are procedurally defaulted for failure to satisfy the
requirements of Rule 5A:12. Furthermore, the trial court did not abuse its discretion in finding
appellant in violation of the terms of his probation for failing to answer the questions appellant
agreed were non-incriminatory. Therefore, this Court affirms in part and dismisses in part.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. BACKGROUND
“This Court considers ‘the evidence presented at trial in the light most favorable to the
Commonwealth, the prevailing party below.’” Hawkins v. Commonwealth, 64 Va. App. 650,
652 (2015) (quoting Bolden v. Commonwealth, 275 Va. 144, 148 (2008)). So viewed the
evidence is as follows.
On November 6, 2009, appellant pled guilty to and was convicted of breaking and
entering with the intent to commit rape and attempted rape. Appellant was sentenced to
twenty-five years’ incarceration, with fifteen years suspended. Appellant’s probation upon
release was conditioned upon successful participation in any mental health counseling and
treatment prescribed by his probation officer. Following appellant’s release to probation, he
signed a form entitled “Sex Offender Special Instructions” acknowledging that his probation
required him to “attend and successfully complete a Sex Offender Treatment Program” approved
by his probation officer.
Appellant began an approved treatment program with Counseling and Forensic
Services, Inc. On January 24, 2018, Madlyn Humphreys, appellant’s sex offender treatment
provider, wrote a letter to appellant’s probation officer detailing his progress. She explained that
appellant “appears to take responsibility for his offense as well as all behaviors included in the
offense” and had “offered good feedback to other group members regarding assignments as well
as relapse related issues.” Additionally, he had completed a “group assignment regarding his
offense disclosure and did well on [it].” However, Humphreys explained that appellant had
“often derailed from group discussion in an attempt to argue the legality of his placement in Sex
Offender Treatment as well as his frustrations with both probation and the treatment process.”
Furthermore, she stated that appellant was refusing to disclose “any additional information
regarding his sexual history” or participate in related group assignments. In particular, appellant
-2- had refused to answer any question on the sexual history disclosure form and was invoking the
Fifth Amendment to argue that he could not be required to do so. Humphreys explained that this
had halted appellant’s treatment as it prohibited the development of an individualized treatment
plan.
On January 29, 2018, appellant’s probation officer submitted a major violation report to
the trial court. The report alleged that appellant was violating the conditions of his probation by
failing to complete the sexual history disclosure form as it prevented him from successfully
continuing with his treatment.
The trial court held an initial hearing on June 8, 2018. The Commonwealth contended
that appellant was in violation of his terms of probation for failing to complete the portions of the
sexual history disclosure form that could not be incriminating. Specifically, the Commonwealth
pointed to questions regarding appellant’s consensual sexual activities with age-appropriate
peers, participation in group sex episodes, participation in sexual chat rooms, calls to sex lines,
non-sexual intimate behavior, and masturbation. It further noted the non-incriminatory nature of
questions regarding appellant’s sexual orientation and whether he was aroused by certain smells,
memories, or types of fetishes such as sadism, masochism, coprophilia, or urophilia. Lastly, the
Commonwealth highlighted other, non-sexual questions, which asked appellant to disclose things
such as his criminal history and history of alcohol or drug use.
Appellant argued that completion of the sexual history disclosure form was an “all or
nothing” proposition. Specifically, he contended that his Fifth Amendment protection against
self-incrimination precluded the Commonwealth forcing him to complete the sexual history
disclosure because “the vast majority of the questions asked are all incriminating.”
The trial court rejected appellant’s theory that the sexual history disclosure questionnaire
was an “all or nothing” proposition. It noted that “most, if not all,” of the questions are
-3- non-incriminating. The trial court ordered the matter continued and ordered appellant to answer
the questions that were not self-incriminating. It also stated that it would hear any objections to
specific questions which appellant believed were self-incriminating, if necessary.
The trial court held a second hearing on June 19, 2018 in order to hear the testimony of
Humphreys, appellant’s sex offender treatment provider. The Commonwealth called Humphreys
to explain the purpose behind the sexual history disclosure form. Humphreys explained that the
form is used to create individualized treatment plans for each patient. The answers allow the
treatment providers to glean insight into the sexual behavior of the individual and identify
high-risk situations or triggering events that could lead to recidivism. From there, the treatment
providers are able to assist individuals with creating coping mechanisms and learning which
circumstances or situations should be avoided in order to create a “relapse prevention model.”
She testified that treatment providers often review portions of the packet with patients before it is
completed, as part of their treatment. However, the document is not collected or fully
incorporated into their treatment until it is completed. Humphreys also testified to appellant’s
repeated refusal to complete any portion of the sexual history disclosure form and invocation of
the Fifth Amendment. Following the testimony of Humphreys, appellant’s counsel informed the
trial court that appellant had completed the portions of the sexual history disclosure form that he
believed were non-incriminating and that he was prepared to lodge specific Fifth Amendment
objections, if necessary. The matter was then continued to hear additional testimony.
A final evidentiary hearing was held on July 26, 2018. At the outset, the Commonwealth
informed the trial court that appellant had still not turned over to his treatment providers the
answers to the non-incriminating questions on the sexual history disclosure form. The
Commonwealth recommended that appellant be ordered to do so and that the matter be continued
until the answers were reviewed. The Commonwealth suggested that if the answers were
-4- satisfactory to restart treatment, it would ask the trial court to find a violation but impose no
active jail time and allow appellant to reenter treatment. Appellant argued that the trial court
could not find him in violation of the terms of probation for failing to answer the
non-incriminatory questions because the entire form “in and of itself is highly incriminating.”
Prior to the trial court ruling on that dispute, the Commonwealth called appellant’s probation
officer to testify. Appellant’s probation officer, like Humphreys, testified to the general purpose
of the sexual history disclosure form and to appellant’s repeated refusal to complete any portion
of the form. Afterwards, appellant renewed his argument that the trial court could not find him
in violation for failing to complete even the non-discriminatory portions of the form.
Specifically, appellant contended that the trial court could not “find him in violation for good
cause when more than half of the questions are potentially incriminating.”
The trial court rejected appellant’s argument. It specifically declined to rule on his
invocation of the Fifth Amendment to avoid answering any of the potentially incriminating
questions. Instead, the trial court ruled that appellant’s refusal to answer any of the questions he
agreed were non-incriminatory violated the terms of his probation. The matter was then
continued to a final dispositional hearing.
At the dispositional hearing on January 4, 2019, the Commonwealth informed the trial
court that appellant’s sexual offender treatment providers had reviewed his answers to the
non-incriminatory questions in the sexual history disclosure form. The Commonwealth
represented that appellant’s providers found the answers satisfactory to restart his treatment.
Accordingly, both appellant and the Commonwealth suggested that the trial court impose no
active incarceration and allow appellant to resume treatment. The trial court agreed, revoked
appellant’s suspended sentence, re-suspended it in its entirety, and ordered appellant to resume
the sex offender treatment program. This appeal followed.
-5- II. STANDARD OF REVIEW
This Court reviews a trial court’s revocation of a suspended sentence for abuse of
discretion. Hamilton v. Commonwealth, 217 Va. 325, 327 (1976). The trial court has “broad”
discretion to revoke a suspended sentence, and the “alleged violation upon which revocation is
based need not be proven beyond a reasonable doubt.” Id. at 326. When reviewing a trial
court’s decision for abuse of discretion, this Court does not “substitute [its] judgment” for the
trial court’s; this Court considers “only whether the record fairly supports the trial court’s
action.” Grattan v. Commonwealth, 278 Va. 602, 620 (2009) (citation omitted).
III. ANALYSIS
Appellant contends that the trial court erred when it found him in violation of his
probation for asserting his Fifth Amendment right against self-incrimination. Alternatively, he
contends that it was not reasonable for the trial court to find him in violation. Both arguments
are without merit.
A. Rule 5A:12 Bars Consideration of Appellant’s Constitutional Argument
Rule 5A:12 provides that assignments of error “shall list . . . the specific errors in the
rulings below . . . upon which the party intends to rely.” An assignment of error that “does not
address the [trial court’s ruling] . . . is not sufficient.” Rule 5A:12(c)(1)(ii). Whenever a party’s
“assignments of error do not address a ruling made by the trial court[,] [this Court will] not
consider them.” Teleguz v. Commonwealth, 273 Va. 458, 471 (2007) (citation omitted); see also
Martin v. Lahti, 295 Va. 77, 88-89 (2019) (deeming appellant’s argument waived when the
assignment of error failed to address the “basis upon which” the trial court made its ultimate
ruling).
Appellant argues that the trial court erred by finding him in violation of his probation for
asserting his Fifth Amendment right against self-incrimination. However, the trial court did no
-6- such thing. Indeed, the trial court explicitly declined to rule on the Fifth Amendment issues.
Instead, it found appellant in violation of the terms of his probation for refusing to answer
questions that appellant agreed were non-incriminatory. Therefore, the trial court’s ruling was
based on appellant’s refusal to answer questions to which no Fifth Amendment right could
attach. See Zebbs v. Commonwealth, 66 Va. App. 368, 376 (2016) (“[T]he Fifth Amendment
does not immunize people from making . . . embarrassing disclosures. Nor does it provide
sanctuary from the obligation to respond to questions whose answers are not incriminating.”
(citations omitted)).
Appellant attempts to side-step this by arguing that completion of the sexual history
disclosure form was an all or nothing proposition. Therefore, appellant argues, invoking his
Fifth Amendment protections against self-incrimination in refusing to complete some parts of the
form excused his failure to complete the non-incriminatory portions of the form as well.
However, the trial court found that completion of the sexual history disclosure form was
not an all or nothing proposition and appellant did not assign error to that finding. Moreover, a
review of the record reveals that this finding is not plainly wrong or without evidentiary support.
Humphreys did testify that she only collects the form once it is completed. However, she also
explained that completion of the form is often a multi-week process where patients bring her
partially completed forms to review. She testified that this is part of the treatment process. She
also testified that appellant’s complete refusal to answer any questions was unique and severely
hampered her ability to provide treatment. Accordingly, the trial court’s finding that appellant
could have completed the non-incriminatory portions of the form is binding on this Court.
Therefore, appellant’s assignment of error challenges a ruling that the trial court did not
make. As such, it fails to satisfy the requirements of Rule 5A:12(c). This Court does not possess
active jurisdiction to adjudicate the merits of assignments of error which violate the requirements
-7- of Rule 5A:12(c). See Davis v. Commonwealth, 282 Va. 339, 339-40 (2011); see also Whitt v.
Commonwealth, 61 Va. App. 637, 646-49 (2013). Therefore, this Court dismisses appellant’s
first assignment of error.
B. The Trial Court Did Not Abuse Its Discretion
Appellant contends that the trial court abused its discretion because it was not reasonable
to find appellant in violation of the terms of his probation. Appellant argues that the questions he
failed to answer were superfluous and, therefore, it was arbitrary to find him in violation for not
answering them. This Court disagrees.
Appellant relies solely on one statement within his probation officer’s testimony in which
she indicated that appellant’s disclosure of merely the age and sex of prior victims might be
sufficient to continue with treatment. This, however, does not render the remainder of the sexual
history disclosure form superfluous or unnecessary. As Humphreys testified, substantial
completion of the form is necessary to develop individualized treatment plans for patients.
Indeed, appellant’s probation officer also testified to the purpose and value of sex offenders
providing complete answers to the entire sexual history disclosure form.
Appellant’s argument also mischaracterizes the nature of his probation officer’s
testimony. His probation officer testified that she was attempting to mediate the situation and
find middle ground upon which to move forward—given appellant’s refusal to answer even the
non-incriminating questions on the sexual history disclosure form. His probation officer’s
attempt to find a compromise did not render the other questions on the sexual history disclosure
form unnecessary to his treatment.
Furthermore, appellant’s argument undercuts the role of the trial court in determining
whether appellant was in compliance with the terms of his probation. “Under Code § 19.2-306,
‘[a] trial court has broad discretion to revoke a suspended sentence and probation.’” Davis v.
-8- Commonwealth, 70 Va. App. 722, 731 (2019) (quoting Davis v. Commonwealth, 12 Va. App.
81, 86 (1991)). A trial court may revoke a suspended sentence for any reasonable cause the
court deems sufficient. Code § 19.2-306. Accordingly, it is the court that is the final arbiter of a
probationer’s terms of probation and whether he or she has complied with them.
The trial court heard testimony from multiple individuals regarding the importance of
appellant substantially completing the sexual history disclosure form in furthering his treatment.
Yet, despite admitting that many of the questions were not self-incriminating, appellant refused
to answer any question on the form for a long period of time. Appellant’s recalcitrance rendered
him unable to continue with the sexual offender treatment services which were a condition of his
probation.
Given these circumstances, the trial court did not abuse its discretion in ruling that there
was good cause to find appellant in violation of the terms of his probation and revoking his
suspended sentence.
IV. CONCLUSION
Appellant’s constitutional arguments are procedurally defaulted for failure to assign error
to an actual ruling of the trial court. Therefore, appellant’s first assignment of error is dismissed
for lack of jurisdiction. Furthermore, the trial court did not abuse its discretion when it found
appellant in violation of the terms of his probation. For a long period of time, appellant refused
to answer the non-incriminatory questions on the sexual history disclosure form required by his
treatment. As a result, the sexual offender treatment services required by his terms of probation
could not continue. Therefore, this Court affirms the judgment below.
Affirmed in part; dismissed in part.
-9-