William Greg Akers, III v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 17, 2025
• Docket: 0620243
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Beales, O’Brien and Lorish Argued at Lexington, Virginia

WILLIAM GREG AKERS, III MEMORANDUM OPINION* BY v. Record No. 0620-24-3 JUDGE RANDOLPH A. BEALES JUNE 17, 2025 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF WYTHE COUNTY Josiah T. Showalter, Jr., Judge

John S. Koehler (M. Brandon Ayers; The Law Office of James Steele, PLLC; M. Brandon Ayers, PLLC, on brief), for appellant.

Sheri H. Kelly, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Following a jury trial, the Circuit Court of Wythe County convicted William Greg Akers,

III of first-degree murder, in violation of Code § 18.2-32, and use of a firearm in the commission

of a felony, in violation of Code § 18.2-53.1. On appeal, Akers argues that the trial court abused

its discretion by excluding evidence that he contends was relevant to his self-defense claim.

I. BACKGROUND

“In accordance with familiar principles of appellate review, the facts will be stated in the

light most favorable to the Commonwealth, [as] the prevailing party at trial.” Gerald v.

Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381

(2016)). “This 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

* This opinion is not designated for publication. See Code § 17.1-413(A). Commonwealth and all fair inferences to be drawn therefrom.’” Kelley v. Commonwealth, 289

Va. 463, 467-68 (2015) (quoting Parks v. Commonwealth, 221 Va. 492, 498 (1980)).

The evidence presented at trial established that on June 21, 2020, around 11:23 p.m.,

Akers and his friend, Tyler Burack, purchased marijuana from Matthew King at a gas station in

Wythe County, Virginia. Shortly thereafter, Akers and Burack agreed to send King a text

message questioning whether they had received the actual amount of marijuana that they believed

they had purchased. Although King did not respond to the text message, he subsequently returned

to the gas station in his truck with three other individuals, including Jace Rediker. Video

surveillance footage from the gas station showed that King parked his truck a couple feet away from

where Akers and Burack had been sitting. During a subsequent police interview, Akers told

Captain Christopher Terry of the Wythe County Sheriff’s Office that he had a concealed firearm in

his front left pants pocket at that time. Akers then stood up and approached King as King got out of

his truck. King, Akers, and Burack talked among themselves for a couple minutes. During the

conversation, Burack made several animated gestures towards King, but King stood still. As

Burack walked away from the conversation, Akers reached down into his left front pocket for his

firearm. King then took a single step towards Akers, and Akers fired a single shot at King, striking

him in the head and killing him. Akers told the police that he then ran to his parents’ home.

Less than an hour after the homicide, Chief Deputy Sheriff Anthony Cline of the Wythe

County Sheriff’s Office transported Akers from his parents’ house back to the gas station where the

homicide had occurred. During that time, Akers made several “spontaneous statements” in the back

seat of Cline’s vehicle. Akers initially claimed that he had acted in self-defense. He then stated that

he had accidentally pulled the trigger on the gun. He later stated that he was “so fucked up” that he

did not even know what had happened. Cline testified at trial that, based on his 22 years of

experience in law enforcement and his involvement in hundreds of arrests of intoxicated

-2- individuals, he did not perceive any indication that Akers was intoxicated at the time. While being

transported in the officer’s vehicle, Akers audibly sighed and then asked where he would be staying

that night. Akers again sighed and stated that “there [was] no getting out of it” and that he never

thought he would be in this situation.

During the early morning hours of June 22, 2020, Captain Terry spoke to Akers as part of

his investigation into the homicide. Akers claimed that King had returned to the gas station “like a

bat out of hell” and that he had “just about ran over me and my buddy.” According to Akers, when

King got out of his truck, King “immediately jumps in [his] and [Burack’s] face.” Akers then stated

that King “said something about beating our asses.” He described King as a “big dude” in contrast

to his own smaller stature. Akers also claimed that Burack had mentioned King “having a gun or

something like that.” Akers then stated that, to the best of his knowledge, he was the only one who

had been armed. He later claimed that King “didn’t say anything about his guns tonight, but

[Burack] said something about guns, and then [King] said something about guns.” Akers then

explained, “I was like, ‘I don’t know what the fuck’s about to happen,’ so I pulled my gun.” The

police did not find a gun in King’s truck or near his body during the investigation at the crime scene.

At trial, Akers’s counsel did not dispute that Akers had shot and killed King, but he

maintained that Akers had done so in self-defense and out of fear for his own safety. During

Rediker’s testimony, Akers’s counsel asked him whether he had “hear[d] anybody make any

statements” during the interaction and subsequent shooting between Akers and King. Outside the

presence of the jury, the attorney for the Commonwealth objected to the question on hearsay

grounds. Akers’s counsel proffered that he wanted to introduce certain statements made by Burack

and King to explain the effect of their statements on Akers and “why he pulled the firearm.” The

attorney for the Commonwealth countered that only Akers could testify to the effect that the

statements had on him. After the trial court sustained the Commonwealth’s objection, Akers’s

-3- counsel proffered that Rediker would have testified that during the discussion in the parking lot,

Burack told King that “there’s two of us and one of you, and we both got guns,” to which King

responded by saying, “Prove it.”

When Rediker resumed his testimony at trial, he stated, without recounting the exact

statements made, that there was “some tension” in the exchange and that people were speaking

somewhat loudly before the shooting. Akers’s counsel then asked Rediker whether the statements

that he heard had worried him. Rediker testified that he had not feared an outbreak of physical

violence, but that he had worried about the “verbal context” of the situation.

During closing argument, Akers’s counsel argued that once King “drove that truck in there

like a bat out of hell,” Akers was terrified “that this two hundred twenty pound man was going to

beat him” and “whip [his] ass.” While replaying the video surveillance footage, Akers’s counsel

urged the jury to focus on King’s act of taking a step toward Akers before the gunshot. Akers’s

counsel also argued that Akers had been “trying to save himself” when he shot King.

The trial court instructed the jury on first-degree murder, second-degree murder, involuntary

manslaughter, accident, and excusable self-defense. The jury subsequently convicted Akers of

first-degree murder and use of a firearm in the commission of a felony. Akers now appeals his

convictions to this Court.

II. ANALYSIS

On appeal, Akers argues, “The circuit court erred in sustaining the Commonwealth’s

objection to the admission of hearsay statements during the testimony of Jace Rediker where the

statements were not offered for their truth but to show their impact on the Defendant as relevant

to his assertion of self-defense.” He contends that he has “consistently maintained from the time

of the shooting that he drew his weapon in response to King’s challenge to prove that Akers and

Bura[c]k were armed out of concern for his safety.”

-4- “The admissibility of evidence is within the broad discretion of the trial court, and a ruling

will not be disturbed on appeal in the absence of an abuse of discretion.” Bazemore v.

Commonwealth, 82 Va. App. 478, 495 (2024) (quoting Wolfe v. Commonwealth, 67 Va. App. 97,

106 (2016)). “In evaluating whether a trial court abused its discretion, . . . ‘we do not substitute our

judgment for that of the trial court. Rather, we consider only whether the record fairly supports the

trial court’s action.’” Carter v. Commonwealth, 293 Va. 537, 543 (2017) (alteration in original)

(quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)). “The abuse-of-discretion standard

[also] includes review to determine that the discretion was not guided by erroneous legal

conclusions.” Id. at 543-44 (alteration in original) (quoting Porter v. Commonwealth, 276 Va. 203,

260 (2008)). “On appellate review of issues involving the admissibility of evidence, the Court

views the evidence in the light most favorable to the Commonwealth as the party who prevailed

below.” Bazemore, 82 Va. App. at 495 (quoting Haas v. Commonwealth, 71 Va. App. 1, 5 n.1

(2019), aff’d in part and vacated in part, 299 Va. 465 (2021)).

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter asserted.” Va. R. Evid. 2:801(c). See

also Commonwealth v. Swann, 290 Va. 194, 197 (2015) (noting that “hearsay ‘includes testimony

given by a witness who relates what others have told him’” (quoting Lawrence v. Commonwealth,

279 Va. 490, 496 (2010))). “Hearsay evidence is inadmissible unless it falls within one of the

recognized exceptions to the hearsay rule, and the party attempting to introduce a hearsay statement

has the burden of showing the statement falls within one of the exceptions.” Riner v.

Commonwealth, 268 Va. 296, 336 (2004) (quoting Robinson v. Commonwealth, 258 Va. 3, 6

(1999)). For example, the general prohibition against admitting hearsay does not exclude a

statement offered “merely for its effect on the listener,” Jones v. Commonwealth, 71 Va. App. 70,

91 (2019), or a statement offered “for the mere purpose of explaining or throwing light on the

-5- conduct of the person to whom it was made,” Garcia v. Commonwealth, 21 Va. App. 445, 451

(1995) (en banc) (quoting Fuller v. Commonwealth, 201 Va. 724, 729 (1960)).

Assuming without deciding that the trial court here erred in excluding Rediker’s testimony

about the statements made by Burack and King, we hold that any such error was harmless. See

Commonwealth v. White, 293 Va. 411, 419 (2017) (observing the duty of appellate courts to decide

cases on the best and narrowest ground and noting that one such ground may be concluding that any

error was harmless). It is well-settled that “evidentiary errors are subject to non-constitutional

harmless error review.” Jones, 71 Va. App. at 91. “Non-constitutional error is harmless ‘[w]hen it

plainly appears from the record and the evidence given at the trial that the parties have had a fair

trial on the merits and substantial justice has been reached.’” Salahuddin v. Commonwealth, 67

Va. App. 190, 212 (2017) (alteration in original) (quoting Code § 8.01-678). “‘If, when all is said

and done,’ the reviewing court is ‘sure that the [non-constitutional] error did not influence the

jury, or had but slight effect, the verdict and the judgment should stand.’” Smith v.

Commonwealth, 72 Va. App. 523, 543 (2020) (alteration in original) (quoting Clay v.

Commonwealth, 262 Va. 253, 260 (2001)); see also Shifflett v. Commonwealth, 289 Va. 10, 12

(2015) (noting that an appellate court will not reverse “evidentiary errors that were harmless to

the ultimate result”). Thus, a non-constitutional error is harmless “where ‘other evidence of guilt

is so overwhelming and the error so insignificant by comparison that the error could not have

affected the verdict.’” Smith, 72 Va. App. at 543 (quoting Salahuddin, 67 Va. App. at 212).

“Self-defense is an affirmative defense . . . and in making such a plea, a ‘defendant

implicitly admits the killing was intentional and assumes the burden of introducing evidence of

justification or excuse that raises a reasonable doubt in the minds of the jurors.’” Bell v.

Commonwealth, 66 Va. App. 479, 486 (2016) (alteration in original) (quoting Commonwealth v.

-6- Cary, 271 Va. 87, 99 (2006)); see also McGhee v. Commonwealth, 219 Va. 560, 562 (1978)

(same). The Supreme Court has explained:

To establish a claim of self-defense, a defendant must show that he reasonably feared death or serious bodily harm at the hands of his victim. Whether the danger is reasonably apparent is judged from the viewpoint of the defendant at the time of the incident. The defendant must also show that he was in imminent danger of harm, that is, a showing of an overt act or other circumstance that affords an immediate threat to safety.

Carter, 293 Va. at 544 (quoting Hines v. Commonwealth, 292 Va. 674, 679 (2016)). “In order to

justify an accused in striking another with a deadly weapon, as the accused admits he did in this

case, a threatening attitude alon[e] affords no justification.” Harper v. Commonwealth, 196 Va.

723, 733 (1955). Rather, the accused “must demonstrate ‘an immediate, real threat to one’s

safety.’” Small v. Commonwealth, 292 Va. 292, 299 (2016) (quoting Commonwealth v. Sands,

262 Va. 724, 729 (2001)).

“An overt act is an act suggesting present danger which ‘afford[s] a reasonable ground

for believing there is a design . . . to do some serious bodily harm, and imminent danger of

carrying such design into immediate execution.’” Jones, 71 Va. App. at 86 (alterations in

original) (quoting Sands, 262 Va. at 729). ‘“[B]are fear that a person intends to inflict serious

bodily injury on the accused, however well-grounded,’ is insufficient without an overt act.” Id.

(alteration in original) (quoting Yarborough v. Commonwealth, 217 Va. 971, 975 (1977)). Even

in the context of a victim stating that he “should shoot” the defendant, we have held that “[m]erely

reaching toward one’s waistband is insufficient as a matter of law” to establish “more than a

scintilla of evidence of an overt act reasonably likely to cause fear.” Id. at 87, 89.

In this case, Rediker’s excluded testimony—i.e., that King had challenged Burack to

“prove” his claim that he and Akers were armed—was insufficient to establish an overt act

“suggesting present danger” that would have justified Akers’s use of deadly force in this

-7- situation. See id. at 86. The record before this Court on appeal established that King was

unarmed, and the context of the entire statement demonstrates that Burack—not King—was the

actual aggressor. Even if the jury credited Akers’s claims concerning King’s larger size and his

“threatening attitude,” those circumstances, standing alone, were insufficient to support Akers’s

self-defense claim because King never made an overt act “suggesting present danger.” See id.

Indeed, the surveillance video shows that King took a single step toward Akers only after Akers

reached into his front pants pocket to retrieve his firearm.

Furthermore, the evidence of premeditation in this case was overwhelming. The Supreme

Court has stated:

In deciding [whether premeditation and deliberation exist], the jury may properly consider the brutality of the attack, and whether more than one blow was struck, the disparity in size and strength between the defendant and the victim, the concealment of the victim’s body, and the defendant’s lack of remorse and efforts to avoid detection.

Avent v. Commonwealth, 279 Va. 175, 208 (2010) (alteration in original) (quoting Epperly v.

Commonwealth, 224 Va. 214, 232 (1982)). The record before this Court on appeal supports a

finding that Akers and Burack sent King a text message to lure him to the confrontation. After

King arrived and a tense conversation had ensued, Akers, who was armed, then fired a single

shot, striking an unarmed King in the head at close range and killing him. Instead of summoning

medical attention for the wounded King, however, Akers fled the gas station and went to his

parents’ home. While in police custody less than an hour after the fatal shooting, Akers appeared

upset but expressed no concern for King and no remorse for shooting him. See Knight v.

Commonwealth, 41 Va. App. 617, 626 (2003) (“The jury could determine from this evidence that

his emotions were the result of concern for his own predicament and not regret over his actions.”).

In short, because there was ample evidence to support the jury’s finding of a premeditated killing in

the first degree, any error by the trial court in excluding the statements was harmless. -8- III. CONCLUSION

In short, assuming without deciding that the trial court in this case erred by excluding

Rediker’s testimony about the statements made by Burack and King, we hold that any such error

was harmless because the excluded testimony did not establish that King committed an overt act

that would excuse Akers’s use of deadly force. Therefore, for the foregoing reasons, we do not

disturb the judgment of the trial court.

Affirmed.

-9-