Kyle A. Burks, Sometimes Known as Kyle Andrew Burks v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 31, 2026
• Docket: 0254254
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Raphael and Bernhard UNPUBLISHED

Argued at Arlington, Virginia

KYLE A. BURKS, SOMETIMES KNOWN AS KYLE ANDREW BURKS MEMORANDUM OPINION * BY v. Record No. 0254-25-4 JUDGE DAVID BERNHARD MARCH 31, 2026 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER William W. Eldridge, IV, Judge

Lauren E. Brice, Assistant Public Defender (Virginia Indigent Defense Commission, on briefs), for appellant.

Craig Stallard, Senior Assistant Attorney General (Jason S. Miyares,1 Attorney General, on brief), for appellee.

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.

This Court holds the trial court did not abuse its discretion in finding that Burks willfully

violated Condition 6 of his probation when, after receiving extensive assistance from his

probation officer in accessing the required virtual treatment platform, he accumulated three

unexcused absences from his court-ordered sex offender treatment program, made no effort to

obtain excused absences as directed, and was discharged for non-compliance. Because the

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026. record supports the conclusion that Burks’s failure to complete the program was the product of

his own conduct rather than circumstances beyond his control, we affirm the circuit court’s

judgment.

BACKGROUND

We consider the evidence from a revocation hearing in the light most favorable to the

Commonwealth, as the prevailing party, including all the reasonable and legitimate inferences

that may properly be drawn from that evidence. Green v. Commonwealth, 75 Va. App. 69, 76

(2022). “In revocation appeals, the trial court’s ‘findings of fact and judgment will not be reversed

unless there is a clear showing of abuse of discretion.’” Id. (quoting Jacobs v. Commonwealth, 61

Va. App. 529, 535 (2013)).

On May 31, 2016, the trial court convicted Burks of burglary and two counts of sexual

battery. The court sentenced him to a total of 20 years’ and 24 months incarceration, with 16 years

and 24 months suspended. His suspended sentence was conditioned on, among other things, his

successful completion of supervised probation and a “therapeutic program.” While incarcerated,

Burks “received Sex Offender services,” though his institutional treatment provider noted that the

services were not a “substitute for outpatient treatment” and that Burks “should at minimum receive

outpatient sex offender treatment.” Indeed, while incarcerated, Burks had “failed to successfully

implement the skills and strategies he ha[d] learned over his numerous sex offender treatment

participations.” Burks finished his term of active incarceration and began supervised probation in

February 2024.

On the day he was released, he met with his probation officer, Brian Loomis, who explained

the “expectations of supervision” and that Burks was required to register as a sex offender 2 and

2 Burks’s registration requirement arose from prior offenses, as the sexual battery convictions were misdemeanors and not “Registry Offenses.” In addition, Loomis testified that he referred Burks to sex offender treatment based on the discharge summary from his treatment while incarcerated “and the nature of the underlying conditions.” -2- participate in weekly “group treatment sessions.” Burks “was resistant” to those instructions,

“stating that he had completed Sex Offender program[m]ing while” incarcerated, but his probation

officer reiterated that “group treatment was the norm and would be required.”

Six months later, Loomis reported that Burks had violated his probation by failing to comply

with Loomis’s directions and instructions. Burks had been assigned to a treatment group in March

2024, but “for the next several months” he “balk[ed] at participating” and insisted that “he was not

supposed to be in the group and that he did not meet the legal definition of a Sex Offender.” As of

April 19, 2024, he had not yet begun treatment “and claimed that []he knew little about technology.”

Accordingly, Loomis “created an email account for [Burks] to use” to attend treatment sessions.

Eleven days later, Burks “indicated he needed specialized help from the Probation Office to access

his email with the group meeting’s Zoom link.” Consequently, on May 13, 2024, Loomis went to

Burks’s “residence to show him how to open his email and click the Zoom link.” While there,

Loomis saw “one email on [Burks’s] phone that appeared to relate to some form of Spam with

sexually charged content.” Loomis looked at the phone’s internet search history, which

demonstrated that Burks “had performed internet browsing for ‘Strip Clubs.’” Loomis reprimanded

Burks.

On May 22, 2024, Burks “claimed to have attempted to log in to his Zoom group,” but

“there was no evidence that he had” done so. The link was “forwarded” to him again. A month

later, Burks sent a text message to Loomis stating, “I know how to work zoom now, so I don’t have

to come to the office on Wednesday to get on Zoom.” He attended two meetings, but his “progress

deteriorated” and he had “an unexcused absence on July 10, 2024.” Burks claimed he did not attend

that session because “the link disappeared.” Loomis acknowledged at the hearing that Burks had

reported the link problem when it occurred. Loomis nonetheless treated the absence as unexcused.

One week later, on July 17, 2024, Dr. Gravers—Burks’s treatment provider—emailed

Loomis stating that Burks had “attended group,” but he was “disrespectful and angry.” The -3- provider reported that Burks displayed “oppositional behavior, minimization, distortions, and

denial.” Loomis informed Burks via text message that “attending group was the most important

responsibility he had for successfully completing probation.” Burks responded with an “angry

emoji,” though he later claimed that was an accident.

On August 6, 2024, Burks had a second unexcused absence, and Loomis informed him on

August 12, 2024, that a third unexcused absence would result in his discharge from the group and a

return to court. One week later, on August 19, 2024, Burks texted Loomis that he had a job

interview that would prevent him from attending an upcoming “group treatment.” Loomis told

Burks that he needed to contact his treatment provider to obtain “permission to miss group.” Burks

did not contact his treatment provider, however, and failed to attend the meeting. His absence was

unexcused, and he was discharged from the program.

At the revocation hearing, 3 Loomis testified that he worked with Burks “for a protracted . . .

time” to get him “set up with an email address and to get Zoom on his personal phone.” Eventually,

Burks began participating, and Loomis regularly encouraged him to attend treatment. Loomis

clarified that Dr. Gravers would decide whether an absence was excused, which is why he

instructed Burks to clear his absence for the job interview with her first.

After the close of the evidence, Burks argued that he had not willfully violated Loomis’s

instructions because this case was about “technical difficulties” that impeded his ability to attend the

group sessions. He insisted that he had tried to attend the sessions, but malfunctioning links and

other circumstances prevented him from doing so. The trial court stated that it was Burks’s

obligation “to get it done” and asked whether there was “an intent element to this.” Burks

responded that he had “to intend to violate probation” and that a reckless or negligent violation

3 The parties agreed that the alleged violation was a “technical violation” only. Because this was Burks’s first technical violation, the trial court revoked and resuspended his suspended sentences, consistent with Code § 19.2-306.1(C). -4- would not sustain a violation. He insisted that he missed his meetings because he could not “figure

out the electronics.” The Commonwealth suggested there was no “intent element” and asked the

trial court to find him in violation, “[r]evoke and resuspend everything,” and order “Sex Offender

Special Conditions.”

The trial court found that Burks had violated the terms of his probation because Loomis

instructed him to complete the “group counseling meetings, which he tried to do or did go initially.”

Regardless of whether “there were issues with the Zoom on some of the meetings,” there were

“three unexcused absences,” which led to his discharge. Thus, the uncontroverted evidence

demonstrated that he did not attend the sessions. The court emphasized that Burks had a duty to

comply with his probation officer’s instructions, and he had to “get it done” even if “some links” did

not function. “He should have been jumping up and down back at the counseling center trying to

get this worked out if there was truly some sort of technical issue, too, to make sure that he followed

his probation officer’s directions.” Accordingly, the court revoked and resuspended Burks’s

suspended sentence, adding as a special condition that Burks “abide by all of the Sex Offender

Special Conditions including sex offender counseling.”

On appeal, Burks argues there was no reasonable cause to find him in violation because he

did not willfully disregard Loomis’s instructions. He contends that “his absences were the result of

his inability to figure out the technology required to attend the meetings, not an intentional decision

to just not attend.” He maintains that by finding that he should have been “jumping up and down”

to “get it done,” and by asking whether there was an “intent element,” the trial court held him

“strictly liable for his issues with attendance” instead of correctly determining whether his dismissal

from the group was “the result of a willful action.” Continuing, he contends that the court erred by

finding that his dismissal “was the result of a willful act.” Emphasizing his lengthy incarceration

before this incident, he argues that he had to “adapt to . . . advances in technology,” and his

struggles to do so did not constitute a willful violation. Finally, he says that his last unexcused -5- absence was the result of an “impossible decision, choosing between” maintaining employment and

attending group, which also was not a willful violation.

ANALYSIS

“If the court, after hearing, finds good cause to believe that the defendant has violated the

terms of suspension, then the court may revoke the suspension and impose a sentence in accordance

with the provisions of § 19.2-306.1.” Code § 19.2-306(C). “The sufficiency of the evidence to

sustain an order of revocation ‘is a matter within the sound discretion of the trial court.’” Burford v.

Commonwealth, 78 Va. App. 170, 179 (2023) (quoting Duff v. Commonwealth, 16 Va. App. 293,

297 (1993)). “The discretion required is a judicial discretion, the exercise of which ‘implies

conscientious judgment, not arbitrary action.’” Id. (quoting Duff, 16 Va. App. at 297). In addition,

“revocation hearings are not a stage of criminal prosecution and therefore a probationer is not

entitled to the same due process protections afforded a defendant in a criminal prosecution.” Id. at

180 (quoting Davis v. Commonwealth, 12 Va. App. 81, 84 (1991)). “Thus, ‘proof beyond a

reasonable doubt of [a probation violation] is not required.’” Id. (alteration in original) (quoting

Marshall v. Commonwealth, 202 Va. 217, 221 (1960)). Rather, after suspending “the execution or

imposition of sentence,” a trial court “may revoke the suspension of sentence for any cause the court

deems sufficient that occurred at any time within the probation period, or within the period of

suspension fixed by the court.” Code § 19.2-306(A).

As an initial matter, we reject Burks’s contention that the trial court held him strictly liable.

“[T]he judgment of a trial court comes to us on appeal with a presumption that the law was

correctly applied to the facts.” Yarborough v. Commonwealth, 217 Va. 971, 978 (1977). “Only

‘clear evidence to the contrary in the record’ suffices to rebut the presumption.” Groves v.

Commonwealth, 50 Va. App. 57, 62 (2007) (quoting Campbell v. Commonwealth, 39 Va. App.

180, 186 (2002)). Consistent with those principles, “we will not ‘fix upon isolated statements of

the trial judge taken out of the full context in which they were made, and use them as a predicate -6- for holding the law has been misapplied.’” Id. (quoting Bullock v. Commonwealth, 48 Va. App.

359, 368 (2006)). Additionally, “a ‘trial court’s remark is not, in and of itself, the full context

simply because it represents the only point at which the court expressly addressed the issue in

dispute.’” Id. (quoting Parker v. Commonwealth, 41 Va. App. 643, 656-57 (2003)).

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.

Next, it is well-established that “[t]he cause deemed by the court to be sufficient for

revoking a suspension must be a reasonable cause.” Burford, 78 Va. App. at 180 (quoting Duff, 16

Va. App. at 297). Generally, to be a reasonable cause, a probation violation must be willful. Word

v. Commonwealth, 41 Va. App. 496, 507 (2003); Duff, 16 Va. App. at 298-99. 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. Peyton v. Commonwealth, 268 Va. 503, 511 (2004).

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. Loomis 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 -7- 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 circuit court judge, in assessing witness credibility, could reasonably

disbelieve Burks’s claims that he was having technological difficulties and conclude that he was

prevaricating to conceal his guilt. Flanagan v. Commonwealth, 58 Va. App. 681, 702 (2011). This

case is unlike Peyton, 268 Va. at 511, in which the Supreme Court of Virginia found error where the

defendant was removed from a program due to an unforeseen medical condition entirely outside his

control. Here, 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. Those circumstances

demonstrate another instance in which Burks did not cooperate with but instead disregarded the

instructions of his probation officer, resulting in his discharge from the treatment program, and

providing “reasonable cause” to support the trial court’s revocation of his suspended sentence.

-8- CONCLUSION

For the foregoing reasons, the circuit court’s judgment is affirmed.

Affirmed.

-9-