COURT OF APPEALS OF VIRGINIA
Present: Judges Athey, Friedman and Raphael UNPUBLISHED
Argued at Richmond, Virginia
WILLIAM HARRY ROBERTS MEMORANDUM OPINION* BY v. Record No. 0180-23-2 JUDGE STUART A. RAPHAEL APRIL 16, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LUNENBURG COUNTY J. William Watson, Jr., Judge
Samantha Offutt Thames, Senior Assistant Public Defender (Virginia Indigent Defense Commission, on briefs), for appellant.
Robert D. Bauer, Assistant Attorney General (Jason S. Miyares, Attorney General; Leah A. Darron, Senior Assistant Attorney General, on brief), for appellee.
After holding his mother-in-law at knifepoint and threatening to dismember her, William
Harry Roberts was convicted of various crimes. He challenges only his convictions for
attempted murder, robbery, and abduction. We reject his claim that the Commonwealth failed to
prove that he committed those offenses. And we find unpersuasive his challenges to two
evidentiary rulings. The trial court did not abuse its discretion by admitting into evidence
Roberts’s recorded jailhouse call with his estranged wife in which Roberts admitted wrongdoing
and pressed her to help dismiss the charges. We reject his argument that the call was
inadmissible because it showed he was in jail. We likewise find no abuse of discretion in the
trial court’s admitting the recording of the 911 call in which the wife reported her mother’s
abduction. Roberts argues that the tape was exculpatory and should have been produced earlier
* This opinion is not designated for publication. See Code § 17.1-413(A). than several days before trial. But he conceded that the prosecutor turned over the recording as
soon as she had it. And Roberts declined the trial court’s offer of a continuance if Roberts
needed more time. So we affirm his convictions.
BACKGROUND
On appeal, we review the evidence “in the ‘light most favorable’ to the Commonwealth,
the prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)
(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires that we “discard”
the defendant’s evidence when it conflicts with the Commonwealth’s evidence, “regard as true
all the credible evidence favorable to the Commonwealth,” and read “all fair inferences” in the
Commonwealth’s favor. Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323,
324 (2018)).
In 2020, Roberts and his wife, T.R. (“wife”), had been married for 20 years and were
living together in Lunenburg County. Wife’s mother, P.W.B. (“mother”), moved in with the
couple in October 2020. Mother’s leg had been amputated, and she used a motorized wheelchair
for mobility.
Roberts’s relationship with wife was deteriorating when mother moved in with them.
Roberts was “[s]uper controlling” and “monitor[ed]” everything wife was doing. Wife and
mother walked on “pins and needles” around him. They “couldn’t speak, couldn’t laugh,
couldn’t play with [their] phones” for fear that Roberts would snap into a rage.
In late November, wife told Roberts that she wanted a divorce. In December, Roberts
moved out of the house and into a hotel. He was angry and “[r]eligiously” texted wife,
sometimes using other people’s phones to contact her because he knew she wouldn’t answer his
call. Sometimes wife responded. Sometimes she ignored his messages and calls. She felt
-2- “overwhelm[ed].” Around Christmas, wife moved out of the house and in with her boyfriend.
Mother stayed in the home alone, feeling ready to be more independent.
Roberts repeatedly called wife on Christmas day. She answered once but hung up
another time after he started “cussing” at her. Roberts repeatedly texted her. When she did not
respond, he sent her a picture of a knife, texting that he was “done talking.” Wife was
“unnerved” by the texts. She worried about her mother staying alone in the house. Wife invited
mother to stay with her instead, but mother declined.
On the night of December 26, mother developed a “terrible feeling” that if she dozed off,
Roberts would kill her in her sleep. So mother avoided bed, remaining in her wheelchair.
Mother stayed up all night. By dawn on December 27, she was weary. Feeling safer that it was
light out, mother put down her phone and started to move from her wheelchair to the bed. She
had one leg out of the wheelchair when Roberts burst through her bedroom door, knife in hand.
“[T]his is your day to die,” he said.
Roberts grabbed mother’s phone. Then he disengaged the joystick on her wheelchair and
assumed control over it.1 Roberts wheeled her into the living room and locked the wheelchair in
place. Mother pleaded, “[W]hy are you doing this, . . . I’ve always treated you like a son.”
Roberts answered that wife “took his world,” so “he’s taking hers.”
Roberts badgered mother about where wife was living and with whom. He scrolled
through mother’s cellphone messages and accused her of lying about wife’s whereabouts.
Roberts grew enraged. His forehead turned red. Mother feared for her life.
1 The wheelchair’s occupant uses a joystick to control it. The joystick is disengaged by flipping two levers on the back. When that happens, the user can no longer control the chair, but someone else can push the chair from behind. -3- Roberts used mother’s phone to call wife. Wife answered, thinking it was mother, but
wife realized that Roberts had broken into the home. Wife demanded that Roberts give the
phone back to mother and leave. But Roberts refused.
Roberts asked wife where she was; she said it was “none of his business.” Roberts swore
at her and warned, “[I]t’s going to be your business because I have your mother and I’m going to
kill her.” He said that “he had lost something that he loved,” so wife would lose something she
loved too.
When asked what he meant, Roberts said he “was going to start cutting” off mother’s toes
on her remaining leg. Mother’s bare foot lay exposed on the wheelchair footrest. Roberts placed
the blade of his knife between mother’s toes and then moved the knife to the top of her foot. He
warned wife she had 15 minutes to get there before he would “start with the toes,” then cut off
mother’s “foot,” then her “leg, and then . . . her head.” Wife heard mother screaming, “he’s
really gonna do it”!
Wife told Roberts she could not get there that fast because she was in Farmville, more
than an hour away. Roberts responded he had “masturbated fifteen times in the hotel and that
wasn’t enough,” so when wife got there, he was “going to rape [her] anally and then kill [her].”
He threatened to slit her throat. Over the phone, wife heard mother crying and begging Roberts
not to hurt her.
Wife called 911 and reported that Roberts was holding mother “hostage at knife point and
was going to kill her.”2 Multiple law-enforcement officers arrived at the home: Sergeant Brian
2 Wife couldn’t recall if she used two phones to remain on the line with Roberts and call 911, or if she put Roberts on hold to call 911 and then merged the calls. Wife testified that she remained on the phone with the dispatcher until after the incident was over. But the recording of her 911 call indicates that the call ended after wife relayed the information to the dispatcher. -4- Burns from the Lunenburg County Sheriff’s Office, and Trooper Benjamin Rhodes and Sergeant
Keith Pearce from the Virginia State Police.
After opening the front door a crack and seeing a police car, Roberts became enraged,
“swearing and cussing” at wife for calling the police. He said that he and mother would not
“make it out alive.” Wife tried to reason with him, urging that he turn himself in, but Roberts
wouldn’t listen. Wheeling mother from the living room to the dining room, Roberts took up a
defensive position behind her. He held the knife in one hand and used his other to control her
head by grabbing her hair.
Sergeant Pearce and Trooper Rhodes approached the front door and knocked. They
heard yelling inside. Roberts threatened to cut mother’s throat if they came in. Mother yelled
that Roberts was holding a knife to her throat. Roberts shouted at them, “get the f--- out.”
The officers stayed on the front porch and called for a “tact team” and hostage
negotiators. But before anyone else could get there, the officers heard more screaming from
inside. Trooper Rhodes believed that Roberts was trying “to cut [mother’s] throat or to harm
her.” Sergeant Burns kicked in the door, taser in his hand, leading the other officers inside.
Burns saw mother in the wheelchair with Roberts standing right behind her, “something
silver” in his hand. Burns tased him. When Roberts fell to the floor, Burns saw the silver object
fly out of his hand. Roberts resisted as the officers tried to place him in handcuffs. He cursed at
them and tried to goad them into shooting him.
After Roberts was handcuffed, Burns turned to mother. She was “very distraught,” and
her neck was wounded. It appeared that some skin had been sliced off. Burns recovered a silver
knife with a red handle on the floor where he had tased Roberts. Roberts was taken into custody.
While being held in the county jail, Roberts called wife on a recorded telephone line. An
automated voice identified that the call was coming from an inmate. Roberts apologized to wife
-5- for what he had done. He said he would “move away” and asked wife and mother to “get the
charges dropped.” The call lasted 6 minutes and 29 seconds.
The grand jury indicted Roberts on charges of abduction by force, attempted malicious
wounding, attempted assault and battery of a law enforcement officer, attempted murder,
robbery, using profane language over public airways, and multiple counts of violating a
protective order. Before trial, Roberts moved to exclude the recording of the jailhouse telephone
call on the ground that it “needlessly” revealed that he was incarcerated. The trial court denied
the motion.
Roberts also moved to exclude the recording of the 911 call, arguing that it was provided
to defense counsel “less than five business days from trial.” Roberts conceded, however, that the
prosecutor had given him the recording “the minute she had it.” The Commonwealth responded
that the contents of the 911 call were no surprise to Roberts. The substance had been “largely
summarized” in statements provided to Roberts from the responding officers and from wife. The
trial court denied the motion.
A three-day jury trial began on March 1, 2022. After the trial court denied his motion to
strike, Roberts called Sergeant Burns as an adverse witness and rested. The trial court denied
Roberts’s renewed motion to strike. The jury found Roberts guilty of attempted murder,
abduction, robbery, and making threats over the phone. Roberts later pleaded no-contest to
attempted assault and battery of a law-enforcement officer and to two violations of a protective
order. The trial court sentenced Roberts to 35 years and 36 months of incarceration, with 25
years and 36 months suspended, for an active sentence of 10 years. Roberts noted a timely
appeal.
-6- ANALYSIS
Roberts challenges only his convictions for attempted murder, robbery, and abduction.
He raises five assignments of error.
A. The phone call from jail (Assignment of Error I)
The “‘admissibility of evidence is within the discretion of the trial court,’ and an
appellate court will not reject such decision absent an ‘abuse of discretion.’” Williams v.
Commonwealth, 71 Va. App. 462, 487 (2020) (quoting Tirado v. Commonwealth, 296 Va. 15, 26
(2018)). A trial court “by definition abuses its discretion when it makes an error of law.”
Landrum v. Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 357 (2011). We review
constitutional issues presenting questions of law de novo. Ali v. Commonwealth, 75 Va. App.
16, 33 (2022).
Roberts argues that the trial court erred by admitting into evidence the recording of his
telephone call to wife from jail. Roberts relies on Estelle v. Williams, 425 U.S. 501 (1976),
where the Supreme Court held that it would violate a defendant’s right to a fair trial under the
Fourteenth Amendment to force a defendant to appear in prison garb during a jury trial. Id. at
504-05. Roberts argues that the telephone recording revealed to the jury that he was in jail when
he called wife, so the recording should have been excluded.
The analogy to Estelle is unpersuasive. Estelle hinged on the need to ensure the
presumption of innocence by “carefully guard[ing] against dilution of the principle that guilt is to
be established by probative evidence and beyond a reasonable doubt.” Id. at 503 (emphasis
added). How the defendant is dressed during his jury trial is irrelevant to whether he committed
the offenses charged. Thus, “compelling an accused to wear jail clothing furthers no essential
state policy.” Id. at 505. Worse, the defendant’s jail “clothing is so likely to be a continuing
-7- influence throughout the trial that . . . an unacceptable risk is presented of impermissible factors
coming into play.” Id.
Those considerations do not justify excluding the recording of Roberts’s incriminating
telephone call to wife from jail. Unlike the irrelevance of a defendant’s courtroom attire, this
call was “probative evidence,” id. at 503, of Roberts’s consciousness of guilt. Roberts told wife
he was sorry, acknowledged “it’s my fault,” and asked wife and mother to “drop the charges.”
He admitted, “I made a big mistake and I know I did and I’m really really sorry for it.” And
unlike the concern in Estelle about a defendant’s appearing in prison garb throughout trial, a
“constant reminder” to the jury of his incarceration, Estelle, 425 U.S. at 504, the jail references
in this recording were intermittent and fleeting. We see nothing in Estelle that would require
trial courts to exclude a defendant’s incriminating statements whenever they are made in a
telephone call in which the defendant’s incarcerated status is apparent. Moreover, Roberts did
not request a limiting instruction about the jail references, nor did he argue that the jail
references could and should have been redacted.
In short, because Roberts’s statements on the call to his wife from jail were probative of
guilt, the trial court did not abuse its discretion in admitting the recording into evidence.
B. The 911 call (Assignment of Error II)
Roberts argues that the recording of the 911 call should have been excluded as a “late
disclosure” in violation of Brady v. Maryland, 373 U.S. 83 (1963). “[T]he suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of
the prosecution.” Id. at 87. To constitute a Brady violation, however, “[t]he evidence at issue
must be favorable to the accused, either because it is exculpatory, or because it is impeaching;
that evidence must have been suppressed by the State, either willfully or inadvertently; and
-8- prejudice must have ensued.” Coley v. Commonwealth, 55 Va. App. 624, 631 (2010) (quoting
Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). The defendant bears the burden to establish a
Brady violation. Skinner v. Switzer, 562 U.S. 521, 536 (2010).
Roberts argues that the recording of the 911 call was exculpatory and usable as
impeachment material because wife “had been saying that she was in a hotel, not at her
boyfriend’s house in Cumberland,” from where she placed the call. We assume without deciding
that the recording qualifies as impeachment evidence under Brady.3 Even so, Roberts failed to
carry his burden to show that the late disclosure resulted in prejudice.
“Brady is not violated, as a matter of law, when impeachment evidence is made
‘available to [a] defendant[] during trial’ if the defendant has ‘sufficient time to make use of [it]
at trial.’” Commonwealth v. Tuma, 285 Va. 629, 635 (2013) (alterations in original) (quoting
Read v. Va. State Bar, 233 Va. 560, 564-65 (1987)). “It is the defendant’s ability to utilize the
evidence at trial, and not the timing of the disclosure, that is determinative of prejudice.”
Moreno v. Commonwealth, 10 Va. App. 408, 417 (1990). There is no prejudice when the
Commonwealth discloses the evidence as soon as it receives it or when evidence is disclosed “in
time to be put to use.” Bennett v. Commonwealth, 236 Va. 448, 467 (1988). And “a defendant
who ‘failed to move for a continuance or even for a recess in order to consider the material’
untimely disclosed by the prosecution w[ill] not ‘be heard to complain that he had insufficient
time to prepare for trial.’” Tuma, 285 Va. at 637 (quoting Frye v. Commonwealth, 231 Va. 370,
384 (1986)).
Applying those standards, we find no abuse of discretion here. Roberts conceded that the
prosecutor disclosed the recording of the 911 call as soon as she had it, and Roberts already had
3 This Court need not “reach the issue of materiality” under Brady “unless we first determine that the evidence was not available” to Roberts. Porter v. Warden of the Sussex I State Prison, 283 Va. 326, 332 (2012). -9- a written summary. Roberts argues that he did not have “the exact words” that wife used or the
location data that came with the recording. But Roberts had the recording before trial, “in time
[for it] to be put to use.” Bennett, 236 Va. at 467. What is more, he “did not request either a
postponement or a continuance.” Tuma, 285 Va. at 637 (quoting Davis v. Commonwealth, 230
Va. 201, 204 (1985)). Indeed, he turned down the offer of a continuance, insisting without sound
basis that the 911 call should be excluded altogether. Thus, the trial court acted well within its
discretion to deny that request and admit the recording.
C. The sufficiency of the evidence (Assignments of Error III-V)
Roberts challenges the trial court’s denial of his motion to strike the charges for
attempted murder, robbery, and abduction. We must “uphold the judgment of the trial court
unless it is plainly wrong or without evidence to support it.” Moore v. Commonwealth, 59
Va. App. 795, 804 n.4 (2012). As noted at the outset, we take the facts in the light most
favorable to the Commonwealth and resolve all reasonable inferences in the Commonwealth’s
favor as well. Cady, 300 Va. at 329; Hammer, 74 Va. App. at 231. “The relevant issue on
appeal is, ‘upon review of the evidence in the light most favorable to the prosecution, whether
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” Lambert v. Commonwealth, 298 Va. 510, 515 (2020) (quoting Pijor v.
Commonwealth, 294 Va. 502, 512 (2017)).
Attempted murder
A conviction for attempted murder requires proof that the defendant possessed the
specific intent to kill the victim and took an overt act toward doing so. Secret v. Commonwealth,
296 Va. 204, 228 (2018). “Whether the intent required for attempted murder exists ‘is generally
a question for the trier of fact.’” Id. (quoting Nobles v. Commonwealth, 218 Va. 548, 551
(1977)). “It is permissible for the fact finder to infer that every person intends the natural,
- 10 - probable consequences of his . . . actions.” Ellis v. Commonwealth, 281 Va. 499, 507 (2011).
“[A]n overt act is any ‘act apparently adopted to produce the result intended’ so long as that act
is not ‘mere preparation.’” Commonwealth v. Herring, 288 Va. 59, 78 (2014) (quoting Martin v.
Commonwealth, 195 Va. 1107, 1110-11 (1954)).
There was ample evidence here from which the jury could conclude that Roberts intended
to kill his mother-in-law. He stormed into her bedroom with a knife in his hand and said, “this is
your day to die.” Roberts then disengaged her wheelchair and moved her into the living room,
where he called wife and repeated his threats to kill mother. Roberts held his knife between
mother’s toes, threatening to dismember her from the toes on up. When the police arrived,
Roberts threatened that he would “cut her throat” if they came in. He even sliced off some of
mother’s skin from her neck. A reasonable trier of fact could conclude from that evidence that
Roberts had the specific intent to kill his mother-in-law and that he made an overt act toward that
goal.
Robbery
Robbery is a common law crime against the person. It means “the taking, with intent to
steal, of the personal property of another, from his person or in his presence, against his will, by
violence or intimidation.” Pierce v. Commonwealth, 205 Va. 528, 532 (1964). The intent to
steal is the intent to permanently deprive the owner of property. Id. at 533. “The fact finder
‘may infer the felonious intent from the immediate asportation and conversion of the property, in
the absence of satisfactory countervailing evidence . . . .’” Clay v. Commonwealth, 30 Va. App.
254, 261 (1999) (en banc) (quoting Pierce, 205 Va. at 533). “Intent may, and most often must,
be proven by circumstantial evidence and the reasonable inferences to be drawn from proven
facts are within the province of the trier of fact.” Fleming v. Commonwealth, 13 Va. App. 349,
353 (1991).
- 11 - Viewed in the light most favorable to the Commonwealth, the evidence showed that
Roberts intended to steal mother’s phone. She testified that when Roberts burst into her
bedroom, he immediately grabbed her phone and moved it out of her reach. He then moved her
to the living room, where he used her phone to call wife while repeatedly threatening to kill
mother. As evidence that he did not intend to steal mother’s phone, Roberts notes that he took it
a few days earlier to call wife before returning it. But that does not prove that he lacked the
intent to steal the phone on the day of the offense. “The mere possibility that the accused might
have had another purpose than that found by the fact finder is insufficient to reverse a conviction
on appeal.” Hancock v. Commonwealth, 12 Va. App. 774, 782-83 (1991). The jury could infer
from the Commonwealth’s evidence, including Roberts’s repeated threats to kill mother, that he
intended to permanently deprive her of the phone.
We also reject Roberts’s argument that he could not “steal” the phone because he had a
“bona fide claim of right to” to possess it. Roberts asserts that he had paid for the phone. But
taken in the light most favorable to the Commonwealth, the evidence belied that claim. Wife
testified without contradiction that she had given the phone to mother and did not intend to take
it back. Wife added that she and Roberts jointly paid the phone bill. The jury could properly
find that wife gifted the phone to mother and that Roberts did not have a claim of right to possess
it. So the trial court was not “plainly wrong” to deny his motion to strike the evidence
supporting the robbery charge.
Abduction
A defendant is guilty of abduction when he “detains his victim by keeping [her] in a
specific place ‘through the use of force, intimidation, or deception.’” Brown v. Commonwealth,
74 Va. App. 721, 731 (2022) (quoting Herring, 288 Va. at 74). The defendant must have the
- 12 - specific intent to deprive the victim of liberty. Id. An abduction occurs even if the victim is
detained for only “the briefest of moments.” Id. at 733.
The record contains ample evidence from which the jury could find that Roberts detained
his mother-in-law with the specific intent to take away her liberty. When he burst into her
bedroom, Roberts disengaged the controls on mother’s motorized wheelchair, preventing her
from controlling it on her own. Roberts then wheeled mother into the living room against her
will and locked the wheelchair in place, all the while threatening to kill her. And when the
police arrived, Roberts moved mother into the kitchen, holding the knife to her throat and
grabbing her hair. The jury could thus conclude that Roberts detained his mother-in-law “in a
specific place ‘through the use of force [or] intimidation.’” Id. at 731 (quoting Herring, 288 Va.
at 74).
CONCLUSION
We find no basis to disturb the judgment.
Affirmed.
- 13 -