Roger Lee Eubanks, Jr. v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 5, 2025
• Docket: 1005242
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Causey, Raphael and Senior Judge Clements

ROGER LEE EUBANKS, JR. MEMORANDUM OPINION* v. Record No. 1005-24-2 PER CURIAM NOVEMBER 5, 2025 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY Claude V. Worrell, II, Judge

(David A. Eustis; Eustis & Graham, PC, on briefs), for appellant.

(Jason S. Miyares, Attorney General; Sabina B. Thaler, Assistant Attorney General, on brief), for appellee.

Following a bench trial, the Circuit Court of Albemarle County convicted Roger Lee

Eubanks, Jr., of strangulation and assault and battery of a family or household member. By final

order entered on June 11, 2024, the trial court sentenced him to a total of 5 years and 12 months

of incarceration with all but 1 year and 18 months suspended. On appeal, Eubanks asserts that

the trial court “erred in rejecting [his] self-defense argument.” For the following reasons, we

affirm.1

BACKGROUND

On appeal, “we review the evidence in the ‘light most favorable’ to the Commonwealth.”

Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc) (quoting Commonwealth v.

* 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 agrees that oral argument is unnecessary because “the dispositive issue or issues have been authoritatively decided, and the appellant has not argued that the case law should be overturned, extended, modified, or reversed.” Code § 17.1-403(ii)(b); Rule 5A:27(b). Hudson, 265 Va. 505, 514 (2003)). That principle requires us to “discard the evidence of the

accused in conflict with that of the Commonwealth, and regard as true all the credible evidence

favorable to the Commonwealth and all fair inferences that may be drawn therefrom.” Kelly v.

Commonwealth, 41 Va. App. 250, 254 (2003) (en banc) (quoting Watkins v. Commonwealth, 26

Va. App. 335, 348 (1998)).

In September 2023, Deana Lane lived on Overlook Drive in Albemarle County. She had

ended her previous romantic relationship with Eubanks but temporarily allowed him to stay at

her residence because he was homeless. Although she was not “fully comfortable” with this

arrangement, she did not “want to rock the boat” because he had abused her in the past.

On the morning of September 15, 2023, Eubanks argued with Lane as soon as she awoke.

She told him to stop because she was tired of the verbal abuse. The argument turned physical in

the living room. Lane “tapped him on the cheek[] because he was getting in [her] face,” and she

did not “deserve to be treated that way.” Her contact was “[d]efinitely a tap” because she was

“not going to start a conflict with somebody” who had “threatened [her] before.” Her “tap” did

not leave a mark on Eubanks’s face.

Eubanks then threw Lane onto the couch and pinned her arm against it. As she resisted,

she was pushed to the floor. He pinned her arms with one hand, placed his body weight on her

legs, and choked her for 20 to 25 seconds with his other hand. She could not breathe and lost

control of her bladder.

When Eubanks stood, and released Lane, she grabbed her phone, locked herself in the

bathroom, and called the police. Eubanks picked the bathroom door lock, pinned her against the

shower, and held a knife to her throat. He threatened to kill her, and that if she “did this to him,”

they both were “going to die.”

-2- Eubanks fled before the police arrived. Albemarle County Police Officer Conner

responded to the residence and spoke with Lane, who was “[v]ery frantic” and “[t]errified.”

Lane had significant marks on her collar bone, bruising on her neck and wrist, and a sore left

knee. Lane went to the emergency room for treatment, though she declined a forensic exam

because of the cost. Lane and Officer Conner both photographed Lane’s injuries at the hospital.

Officer Conner obtained arrest warrants for and a protective order against Eubanks the same day.

After Lane returned home from work later that day, Eubanks texted her that he had “left

something for” her and that he was looking into her home through the blinds. When Lane left

for work the next day, she saw Eubanks sitting in the passenger seat of her car. She called the

police before Eubanks saw her, but she feared that he would flee in her car when the police

arrived. Accordingly, she opened the driver’s door, took the keys, and walked away.2 Eubanks

followed her and asked to take a shower in her residence. Upon consideration, Lane agreed so

that the police could arrest him when they arrived, which they did.

After the incident, Lane had trouble speaking for several days due to the bruising and

swelling on her neck. She also had trouble eating.

Lane stated on cross-examination that she tapped Eubanks on the cheek because he “kept

yelling” at her and she “was getting very stressed out.” She denied punching Eubanks. She also

denied throwing hot coffee at him, but said that a cup of coffee spilled when he threw her against

the couch. She acknowledged that the police never asked for the knife, so she never gave it to

them and eventually she threw it away.3

2 Lane testified that she routinely left her keys in the car “to help it be easier for me in the morning to get going.” 3 On direct examination Lane described the knife as a “switch blade”; on cross-examination, she agreed that it was a “pocket knife.” -3- Eubanks did not present evidence. In closing, the prosecutor argued that the trial court

should convict Eubanks based on Lane’s testimony, which was bolstered by the photographic

evidence and her contemporaneous reports. Eubanks’s trial counsel argued that “Lane testified

that she hit him first.” Trial counsel stated: “[Lane] said she attacked him first, she hit him, and

he says he was defending himself. That is his defense. He was defending himself, and she

admitted that she hit him first.” The defense also argued that there was “no evidence of any kind

of a serious injury.”

The prosecutor responded: “The defense presented no evidence of self-defense.

[Eubanks] doesn’t say anything. He didn’t say he was defending himself.”4 Moreover, the

prosecutor contended that any assertion of self-defense would be incredible, because Lane

“slapp[ing]” or “tapp[ing]” Eubanks to “get [him] out of [her] face” could not justify him

choking her or holding a knife to her throat. The prosecutor also asserted that Lane’s testimony

and the photographic evidence were “powerful evidence of her injuries.”

The trial court summarized that Lane testified that Eubanks “assaulted her and strangled

her,” and defense counsel had stated that this was done as a result of Lane’s tapping or slapping

his face. The trial court stated that “even without . . . Eubanks having testified,” there was “some

evidence that the [c]ourt [could] consider” regarding self-defense. But the trial court concluded

that even if there was “some reason that” Eubanks “needed to defend himself,” he “certainly

exceed[ed] that by introducing a deadly weapon” and strangling Lane. Rather, the trial court

stated that Eubanks’s behavior was “part and parcel of just plain assaultive conduct.”

Accordingly, the trial court convicted Eubanks of strangulation and assault and battery.

Eubanks now appeals, asserting that the trial court “erred in rejecting” his “self-defense

4 Eubanks did not object to this argument or move for a mistrial. -4- argument,” given that the prosecutor “commented upon [his] decision not to testify,” and the trial

court “acknowledged and itself remarked” on that fact.

ANALYSIS

“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is

presumed correct and will not be disturbed unless it is plainly wrong or without evidence to

support it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original)

(quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does

not ask itself whether it believes that the evidence at the trial established guilt beyond a

reasonable doubt.’” Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204,

228 (2018)). “Rather, the relevant question is whether ‘any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.’” Vasquez v.

Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193

(2009)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted

to substitute its own judgment, even if its opinion might differ from the conclusions reached by

the finder of fact at the trial.’” McGowan, 72 Va. App. at 521 (quoting Chavez v.

Commonwealth, 69 Va. App. 149, 161 (2018)).

“Any person who, without consent, impedes the blood circulation or respiration of

another person by knowingly, intentionally, and unlawfully applying pressure to the neck of such

person resulting in the wounding or bodily injury of such person is guilty of strangulation.”

Code § 18.2-51.6. Further, “[a]ny person who commits assault and battery against a family or

household member is guilty of a Class 1 misdemeanor.” Code § 18.2-57.2(A). “A battery is the

‘willful or unlawful touching of the person of another by the assailant, or by some object set in

motion by him.’” Woodson v. Commonwealth, 74 Va. App. 685, 693 (2022) (quoting Wood v.

Commonwealth, 149 Va. 401, 404 (1927)). “An intentional touching qualifies as a battery unless

-5- the actor has some legal justification or excuse. The presence of a justification or excuse

transforms what would otherwise be a criminal offense into a permissible act. Common

justifications for battery include consent and self-defense.” Id. at 694.

Virginia law “has long recognized that a person who reasonably apprehends bodily harm

by another is privileged to exercise reasonable force to repel the assault.” Diffendal v.

Commonwealth, 8 Va. App. 417, 421 (1989). “A defendant bears the burden of introducing

evidence supporting the affirmative defense of self-defense.” Washington v. Commonwealth, 75

Va. App. 606, 617 (2022). “‘Whether an accused’ meets this threshold ‘is a question of fact.’”

Id. (quoting Smith v. Commonwealth, 17 Va. App. 68, 71 (1993)). “In order to establish

self-defense, a defendant must show that he . . . ‘reasonably believed that [he] was in danger of’”

bodily harm. See id. (alterations in original) (quoting Jones v. Commonwealth, 71 Va. App. 70,

86 (2019)).

Virginia law recognizes two forms of self-defense: “‘self-defense without fault,’ referred

to as justifiable self-defense, and ‘self-defense with fault,’ known as excusable self-defense.” Id.

(quoting Bell v. Commonwealth, 66 Va. App. 479, 487 (2016)). Justifiable self-defense “occurs

when the accused is ‘without any fault on his part in provoking or bringing on the difficulty.’”

Id. (quoting Avent v. Commonwealth, 279 Va. 175, 199 (2010)). By contrast, excusable

self-defense

occurs when the accused is at “some fault in the first instance in provoking or bringing on the difficulty” but, when attacked, he “retreats as far as possible, announces his desire for peace,” and acts “from a reasonably apparent necessity to preserve his own life or save himself from great bodily harm.”

Id. (quoting Bell, 66 Va. App. at 487). Both types of self-defense constitute a complete defense.

See Jones, 71 Va. App. at 94.

-6- Lane testified that, as Eubanks continued to verbally harass her, she tapped his cheek. He

then threw her onto the sofa, pinned her to the floor, and choked her for 20 to 25 seconds, thereby

preventing her from breathing and causing her bruising and swelling. After she fled into the

bathroom, he pursued her, held a knife to her throat, and threatened to kill her. This testimony,

viewed in the light most favorable to the Commonwealth, amply established the elements of

strangulation and assault and battery of a family or household member. See Code

§§ 18.2-51.6, -57.2(A).

The trial court also was entitled to reject Eubanks’s assertion of self-defense. The trial court

noted that Lane’s testimony that she tapped Eubanks’s cheek could be “some evidence” that he

apprehended some degree of bodily harm. But there was no evidence establishing that it was

reasonably necessary for Eubanks to throw Lane onto the couch and choke her on the ground for 20

to 25 seconds to repel her “attack,” such that it was. Eubanks then pursued her into the bathroom,

held a knife to her throat, and threatened to kill her. Indeed, this evidence suggests that Eubanks

acted out of anger rather than fear.

Eubanks seeks to intertwine another argument on appeal: that the prosecutor and the trial

court improperly commented on his exercise of his right not to testify. “It is firmly established that

any comment made by a prosecutor referring to the defendant’s right not to testify is a violation of

the defendant’s privilege against self-incrimination guaranteed by the Fifth Amendment of the

United States Constitution.” Hazel v. Commonwealth, 31 Va. App. 403, 411 (2000). Further, Code

§ 19.2-268 prescribes that a criminal defendant’s “failure to testify” may not “be the subject of any

comment before the court or jury by the prosecuting attorney.”

We reject Eubanks’s contention that the prosecutor’s closing argument violated his Fifth

Amendment right. A remark by a prosecutor that might otherwise be improper “may become

proper under the invited error doctrine when the area has been opened to fair comment by the

-7- argument and comment of defense counsel.” Johnson v. Commonwealth, 236 Va. 48, 51 (1988)

(quoting Lincoln v. Commonwealth, 217 Va. 370, 373 (1976)). Although “the prosecutor may not

treat a defendant’s exercise of his right to remain silent at trial as substantive evidence of guilt,” that

principle does not “forbid the prosecutor from fairly responding to an argument of the defendant by

adverting to that silence.” Id. at 52 (quoting United States v. Robinson, 485 U.S. 25, 34 (1988)).

During closing arguments, defense counsel asserted that Lane “said she attacked [Eubanks]

first, she hit him, and he says he was defending himself.” The prosecutor accurately rejoined

that Eubanks did not “say anything. He didn’t say he was defending himself.” Although the

prosecutor’s argument necessarily referenced the fact that Eubanks did not testify, she was not

asking the trial court to draw any impermissible inferences from that fact. Rather, she was

“fairly responding” to Eubanks’s claim of self-defense. Johnson, 236 Va. at 52. Neither the

Fifth Amendment nor Code § 19.2-268 required the prosecutor to let defense counsel’s

inaccurate description of the evidence go unanswered.

We further conclude that the trial court did not improperly consider Eubanks’s silence in

reaching its verdicts. The trial court—no less than the prosecutor—had to address Eubanks’s

misplaced assertion that “he sa[id] he was defending himself” from Lane. Moreover, viewed in

context, the trial court’s statement does not show either that it considered Eubanks’s silence as

substantive evidence of his guilt or drew any adverse inferences from it. Quite the contrary, by

observing that there was some evidence that might support Eubanks’s self-defense claim even

though he did not testify, the trial court endeavored to frame that self-defense claim—however

tenuous—in the best possible light. The trial court then concluded that, even examining the

self-defense claim in the most charitable fashion, the claim lacked any merit.

In sum, we find no basis to conclude that either the prosecutor or the trial court violated

Eubanks’s Fifth Amendment right against self-incrimination. Rather, Eubanks’s argument in

-8- support of a self-defense claim prompted an accurate response from the prosecutor and a verbal

ruling from the trial court. Thus, there is no basis for this Court to disturb the trial court’s

verdicts, which are fully supported by the evidence.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment.

Affirmed.

-9-