COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Athey, Causey and Chaney
EDWARD N. FURBY, SOMETIMES KNOWN AS EDWARD NATHANIEL FURBY MEMORANDUM OPINION* v. Record No. 1133-24-1 PER CURIAM JUNE 17, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY Richard H. Rizk, Judge
(Charles E. Haden, on brief), for appellant.
(Jason S. Miyares, Attorney General; Susan Barr, Senior Assistant Attorney General; Erin Dugan Whealton, Senior Assistant Attorney General, on brief), for appellee.
Edward Nathaniel Furby (“Furby”) appeals the decision of the Circuit Court of York County
(“trial court”) determining that Furby remains a sexually violent predator under Code § 37.2-910.
On appeal, Furby contends that the evidence failed to show that he “would find it difficult to
control his predatory behavior or be likely to engage in sexually violent acts.” Finding no error in
the trial court’s judgment, we affirm.1
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 After examining the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a). I. BACKGROUND2
In 1974, Furby was charged with attempted rape before pleading guilty to contributing to the
delinquency of a minor. Three years later, Furby was convicted of attempted rape and maiming. In
2006, Furby was charged with rape and sodomy before pleading guilty to contributing to the
delinquency of a minor.
In 2008, as Furby was nearing release from incarceration, the Commonwealth petitioned
the trial court to involuntarily commit him under the Civil Commitment of Sexually Violent
Predators Act. See Code §§ 37.2-900 to -921. Following a trial on the petition, the court
determined that Furby was a sexually violent predator as defined under that statute. As a result,
in January of 2010, the trial court ordered that Furby be committed indefinitely to the custody of
the Department of Behavioral Health and Developmental Services (“DBHDS”). After being in
the custody of DBHDS since 2010, the trial court conducted its most recent statutorily required
biennial review hearing in June of 2024 to determine whether Furby remained a sexually violent
predator and if he could be conditionally released to outpatient treatment. Code § 37.2-910.
Dr. Mario Dennis (“Dr. Dennis”), a forensic psychologist at the Virginia Center for
Behavioral Rehabilitation (“VCBR”), evaluated Furby and prepared a report of his findings.
Upon evaluating Furby, Dr. Dennis diagnosed him with antisocial personality disorder, several
substance abuse disorders, and borderline intellectual functioning. Dr. Dennis opined that
Furby’s personality disorder “affects . . . [his] emotional and/or volitional capacity.” Dr. Dennis
2 When a respondent appeals a trial court’s judgment that he is a sexually violent predator, this Court “view[s] the facts in the light most favorable to the Commonwealth.” Shivaee v. Commonwealth, 270 Va. 112, 127 (2005). “We also accord the Commonwealth the benefit of all inferences fairly deducible from the evidence.” Id. The record in this case was partially sealed. Accordingly, “[t]o the extent that this opinion mentions facts found in the sealed record, we unseal only those specific facts, finding them relevant to the decision in this case. The remainder of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1 (2017). -2- also concluded that this disorder, “by causing him difficulty controlling his predatory behavior,
[it] predisposes him to engage in sexually violent acts.” Dr. Dennis also testified that Furby’s
actuarial risk assessment was above average, putting him at a higher risk of recidivism.
Dr. Dennis explained that Furby had steadfastly refused sex offender treatment for years
and was “still only marginally involved in the low-demand [Overcoming Obstacles to Treatment]
Program.” By refusing to participate in sex offender treatment, Dr. Dennis opined that Furby
was unable to “address important treatment concepts, such as internal and external risk factors,
thinking errors, offense pathways, [and] risk management strategies.” While Dr. Dennis
commended Furby for “ma[king] behavioral progress since his last . . . review,” he explained
that “he continues to avoid meaningful treatment and is dismissive of VCBR’s treatment
program.” In the conclusion of his report, Dr. Dennis described Furby as “essentially an
untreated sex offender” and opined that Furby remained a sexually violent predator who “needs
continued intensive inpatient treatment at VCBR.”
In addition, Dr. Alan von Kleiss (“Dr. von Kleiss”) conducted “a second opinion
evaluation” on Furby. Dr. von Kleiss further opined that based on his evaluation, “Furby’s
personality disorder seems to render him likely to engage in future sexually violent actions.”
Dr. von Kleiss emphasized that “Furby’s repeated demands or expectations that he be given a
chance to prove himself in the community while failing miserably within the confines of VCBR
lack[ed] merit, and . . . should not be taken seriously or even considered remotely possible.”
Dr. von Kleiss also opined in his report that Furby remained a sexually violent predator who
required “continued intensive inpatient treatment.”
During both evaluations, Furby argued that he was “showing self-regulation” and
“believes he is doing what is necessary to justify release.” Furby also asserted that “he was not
guilty of the offenses that brought him . . . to VCBR” and “indicated he was noncompliant with
-3- treatment expectations in large part because of the requirement to admit to his history of sex
offending behavior.” “Furby maintain[ed] that he did not commit his offenses and [did] not
belong at VCBR.” Also, “[h]e flatly denies sexually offending and made harsh, demeaning
comments about his last victim.”
On June 24, 2024, the trial court conducted the review hearing. At the hearing,
Dr. Dennis provided an update on Furby’s behavior in the intervening months since his
evaluation. He noted that in the first quarter of 2024, Furby attended “90 percent of his
overcoming obstacles to treatment sessions with his therapist, which [was] good,” and his
behavior was “relatively satisfactory.” He also testified that Furby still refused to participate in
sex offender treatment. Dr. Dennis explained that Furby’s antisocial personality disorder was
connected to his sexual offenses and continued to manifest in his “opposition[] and defiance” to
participate in sex offender treatment. Dr. Dennis maintained his opinion that Furby was a
sexually violent predator who required secure inpatient treatment. Dr. Dennis concluded his
update by recommending that Furby needed to re-enter sex offender treatment and make serious
progress before he would recommend Furby’s release.
Dr. Dennis agreed that Furby’s behavior had improved over the two-year evaluation
period, and he showed “some better adjustments and better accommodation to redirection from
the staff.” In addition, Dr. Dennis acknowledged that he did not recollect and that he had not
received any reports of Furby “engaging in prohibited sexual behavior at the facility,” or
“inappropriate relationships with staff,” unlawful behavior, physical aggressiveness within the
past several years, or possessing “dangerous contraband.” Dr. Dennis further testified that Furby
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COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Athey, Causey and Chaney
EDWARD N. FURBY, SOMETIMES KNOWN AS EDWARD NATHANIEL FURBY MEMORANDUM OPINION* v. Record No. 1133-24-1 PER CURIAM JUNE 17, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY Richard H. Rizk, Judge
(Charles E. Haden, on brief), for appellant.
(Jason S. Miyares, Attorney General; Susan Barr, Senior Assistant Attorney General; Erin Dugan Whealton, Senior Assistant Attorney General, on brief), for appellee.
Edward Nathaniel Furby (“Furby”) appeals the decision of the Circuit Court of York County
(“trial court”) determining that Furby remains a sexually violent predator under Code § 37.2-910.
On appeal, Furby contends that the evidence failed to show that he “would find it difficult to
control his predatory behavior or be likely to engage in sexually violent acts.” Finding no error in
the trial court’s judgment, we affirm.1
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 After examining the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a). I. BACKGROUND2
In 1974, Furby was charged with attempted rape before pleading guilty to contributing to the
delinquency of a minor. Three years later, Furby was convicted of attempted rape and maiming. In
2006, Furby was charged with rape and sodomy before pleading guilty to contributing to the
delinquency of a minor.
In 2008, as Furby was nearing release from incarceration, the Commonwealth petitioned
the trial court to involuntarily commit him under the Civil Commitment of Sexually Violent
Predators Act. See Code §§ 37.2-900 to -921. Following a trial on the petition, the court
determined that Furby was a sexually violent predator as defined under that statute. As a result,
in January of 2010, the trial court ordered that Furby be committed indefinitely to the custody of
the Department of Behavioral Health and Developmental Services (“DBHDS”). After being in
the custody of DBHDS since 2010, the trial court conducted its most recent statutorily required
biennial review hearing in June of 2024 to determine whether Furby remained a sexually violent
predator and if he could be conditionally released to outpatient treatment. Code § 37.2-910.
Dr. Mario Dennis (“Dr. Dennis”), a forensic psychologist at the Virginia Center for
Behavioral Rehabilitation (“VCBR”), evaluated Furby and prepared a report of his findings.
Upon evaluating Furby, Dr. Dennis diagnosed him with antisocial personality disorder, several
substance abuse disorders, and borderline intellectual functioning. Dr. Dennis opined that
Furby’s personality disorder “affects . . . [his] emotional and/or volitional capacity.” Dr. Dennis
2 When a respondent appeals a trial court’s judgment that he is a sexually violent predator, this Court “view[s] the facts in the light most favorable to the Commonwealth.” Shivaee v. Commonwealth, 270 Va. 112, 127 (2005). “We also accord the Commonwealth the benefit of all inferences fairly deducible from the evidence.” Id. The record in this case was partially sealed. Accordingly, “[t]o the extent that this opinion mentions facts found in the sealed record, we unseal only those specific facts, finding them relevant to the decision in this case. The remainder of the previously sealed record remains sealed.” Levick v. MacDougall, 294 Va. 283, 288 n.1 (2017). -2- also concluded that this disorder, “by causing him difficulty controlling his predatory behavior,
[it] predisposes him to engage in sexually violent acts.” Dr. Dennis also testified that Furby’s
actuarial risk assessment was above average, putting him at a higher risk of recidivism.
Dr. Dennis explained that Furby had steadfastly refused sex offender treatment for years
and was “still only marginally involved in the low-demand [Overcoming Obstacles to Treatment]
Program.” By refusing to participate in sex offender treatment, Dr. Dennis opined that Furby
was unable to “address important treatment concepts, such as internal and external risk factors,
thinking errors, offense pathways, [and] risk management strategies.” While Dr. Dennis
commended Furby for “ma[king] behavioral progress since his last . . . review,” he explained
that “he continues to avoid meaningful treatment and is dismissive of VCBR’s treatment
program.” In the conclusion of his report, Dr. Dennis described Furby as “essentially an
untreated sex offender” and opined that Furby remained a sexually violent predator who “needs
continued intensive inpatient treatment at VCBR.”
In addition, Dr. Alan von Kleiss (“Dr. von Kleiss”) conducted “a second opinion
evaluation” on Furby. Dr. von Kleiss further opined that based on his evaluation, “Furby’s
personality disorder seems to render him likely to engage in future sexually violent actions.”
Dr. von Kleiss emphasized that “Furby’s repeated demands or expectations that he be given a
chance to prove himself in the community while failing miserably within the confines of VCBR
lack[ed] merit, and . . . should not be taken seriously or even considered remotely possible.”
Dr. von Kleiss also opined in his report that Furby remained a sexually violent predator who
required “continued intensive inpatient treatment.”
During both evaluations, Furby argued that he was “showing self-regulation” and
“believes he is doing what is necessary to justify release.” Furby also asserted that “he was not
guilty of the offenses that brought him . . . to VCBR” and “indicated he was noncompliant with
-3- treatment expectations in large part because of the requirement to admit to his history of sex
offending behavior.” “Furby maintain[ed] that he did not commit his offenses and [did] not
belong at VCBR.” Also, “[h]e flatly denies sexually offending and made harsh, demeaning
comments about his last victim.”
On June 24, 2024, the trial court conducted the review hearing. At the hearing,
Dr. Dennis provided an update on Furby’s behavior in the intervening months since his
evaluation. He noted that in the first quarter of 2024, Furby attended “90 percent of his
overcoming obstacles to treatment sessions with his therapist, which [was] good,” and his
behavior was “relatively satisfactory.” He also testified that Furby still refused to participate in
sex offender treatment. Dr. Dennis explained that Furby’s antisocial personality disorder was
connected to his sexual offenses and continued to manifest in his “opposition[] and defiance” to
participate in sex offender treatment. Dr. Dennis maintained his opinion that Furby was a
sexually violent predator who required secure inpatient treatment. Dr. Dennis concluded his
update by recommending that Furby needed to re-enter sex offender treatment and make serious
progress before he would recommend Furby’s release.
Dr. Dennis agreed that Furby’s behavior had improved over the two-year evaluation
period, and he showed “some better adjustments and better accommodation to redirection from
the staff.” In addition, Dr. Dennis acknowledged that he did not recollect and that he had not
received any reports of Furby “engaging in prohibited sexual behavior at the facility,” or
“inappropriate relationships with staff,” unlawful behavior, physical aggressiveness within the
past several years, or possessing “dangerous contraband.” Dr. Dennis further testified that Furby
had been “verbally aggressive with staff” on several occasions but that was not a consistent
problem; he generally was not disruptive. Dr. Dennis agreed that Furby’s substance abuse
disorders did not predispose him to engage in sexually violent acts but explained that using drugs
-4- or alcohol could “raise the risk” of Furby reoffending. He also knew of no reports of Furby
using drugs or alcohol while committed and acknowledged that increased age generally reduces
the risk of recidivism. Asked whether Furby’s ability to “refrain from any sexually inappropriate
behaviors for at least 18 years” suggested Furby could “control [himself] and refrain from
sexually violent behavior,” Dr. Dennis replied that “it certainly is a positive step.” But he noted
VCBR’s “structured environment” with staff “who can not only provide support, but provide
additional structure, [and] redirection.” Dr. Dennis then concluded that VCBR is “not a true test
of how [Furby] might react in the community.”
Furby then argued that he had demonstrated “he is able to refrain . . . from sexually
predatory behavior or sexually violent acts” because he had done so for the past 18 years. He
noted that expert opinions are not dispositive. Furby contended that the Commonwealth did not
connect his personality disorder to evidence that he was likely to commit a sexually violent act.
After considering the evidence and argument of counsel, the trial court found that Furby
remained a sexually violent predator and was not suitable for release. The court was “mindful”
that VCBR’s “structured setting” and “controlled environment [is] much different than the
community where one can come and go and do as he or she pleases.” The trial court also
credited Dr. Dennis and Dr. von Kleiss’s opinions on Furby’s progress and potential to reoffend.
The trial court ordered Furby’s continued commitment to DBHDS for treatment. Furby
appealed.
II. ANALYSIS
A. Standard of Review
On appeal, we defer to the trial court’s balancing of expert testimony. See
Commonwealth v. Squire, 278 Va. 746, 751 (2009); Shivaee v. Commonwealth, 270 Va. 112,
-5- 127-28 (2005). We “will not reverse the judgment of the trial court unless it is plainly wrong or
without evidence to support it.” Squire, 278 Va. at 749.
B. The evidence in the record was sufficient from which the trial court could conclude Furby remained a sexually violent predator.
Furby contends that because the record contained evidence showing he had made progress
in his treatment and had not committed sex-related infractions while he was incarcerated and civilly
committed that the trial court erred in determining he was still a sexually violent predator. We
disagree.
A “[s]exually violent predator” is “any person who (i) has been convicted of a sexually
violent offense . . . ; and (ii) because of a mental abnormality or personality disorder, finds it
difficult to control his predatory behavior, which makes him likely to engage in sexually violent
acts.” Code § 37.2-900. At a review hearing, the Commonwealth must prove “by clear and
convincing evidence that the respondent remains a sexually violent predator.” Code § 37.2-910(C).
Whether a respondent remains “a sexually violent predator likely to engage in sexually violent
acts is to be based on the totality of the record, including but not limited to expert testimony.”
DeMille v. Commonwealth, 283 Va. 316, 318 (2012).
Here, Furby contends that his lack of sex-related offenses and institutional infractions while
incarcerated and civilly committed demonstrates he can control his predatory behavior and refrain
from engaging in sexually violent acts. Yet Furby’s lack of recent sexual offenses did not change
either Dr. Dennis’s or Dr. von Kleiss’s opinions that he is a sexually violent predator who should be
participating in intensive treatment. As Dr. Dennis explained, VCBR’s “structured environment” is
“not a true test of how [Furby] might react in the community.” Dr. von Kleiss recommended
rejecting Furby’s “demands . . . that he be given a chance to prove himself in the community while
failing miserably within the confines of VCBR,” asserting such “should not be taken seriously or
even considered remotely possible.” Both experts noted Furby’s steadfast refusal to participate in -6- sex offender treatment, which is driven by his continued denial of his sexual offenses. Also,
contrary to Furby’s contention, both experts connected Furby’s antisocial personality disorder with
his likelihood of engaging in sexually violent acts if released.
The trial court noted that VCBR’s “controlled environment [is] much different than the
community” and credited both experts’ opinions. We “will not substitute [our] judgment on the
credibility of a witness for that of the circuit court.” Commonwealth v. Jackson, 276 Va. 184, 197
(2008). After considering the evidence and arguments, the trial court found that Furby remained a
sexually violent predator. DeMille, 283 Va. at 318. We also note that decades passed between
Furby’s second and third sex offense convictions. Thus, he has committed a new sex offense
after a prior period of abstention. Accordingly, the trial court’s finding that Furby remained a
sexually violent predator is neither plainly wrong nor without evidentiary support. Squire, 278 Va.
at 749; Shivaee, 270 Va. at 127-28.
III. CONCLUSION
For the foregoing reasons, we find no error. Therefore, the trial court’s judgment is
affirmed.
-7-