Edward N. Furby, s/k/a Edward Nathaniel Furby v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Huff, Fulton and White
Argued at Norfolk, Virginia
EDWARD N. FURBY, SOMETIMES KNOWN AS
EDWARD NATHANIEL FURBY
MEMORANDUM OPINION* BY
v. Record No. 0267-22-1 JUDGE JUNIUS P. FULTON, III
MARCH 14, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
Richard H. Rizk, Judge
Charles E. Haden for appellant.
Erin Dugan Whealton, Senior Assistant Attorney General (Jason S.
Miyares, Attorney General, on brief), for appellee.
Edward Nathaniel Furby appeals a civil commitment order entered under Virginia’s
Sexually Violent Predators Act (SVPA). Code §§ 37.2-900 through -921. Furby argues that the
evidence was insufficient to prove that he remains a sexually violent predator. Because the record
in this case supports the trial court’s conclusion that the Commonwealth proved, by clear and
convincing evidence, that Furby remains a sexually violent predator,1 we affirm.
BACKGROUND
A person is considered a sexually violent predator if “he ha[s] been convicted of a sexually
violent offense and . . . because of a mental abnormality or personality disorder, he finds it difficult
to control his predatory behavior which makes him likely to engage in sexually violent acts.”
*
This opinion is not designated for publication. See Code 17.1-413.
Furby does not challenge the trial court’s conclusion that he was not a suitable
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candidate for outpatient treatment and conditional release. We therefore do not address that
issue.
Commonwealth v. Squire, 278 Va. 746, 749 (2009) (citing Code §§ 37.2-900 and -908). That
determination must “be based on the totality of the record, including but not limited to expert
testimony.” DeMille v. Commonwealth, 283 Va. 316, 318 (2012). During a sexually violent
predator annual (or biennial) review, the Commonwealth has the burden of proving, by clear and
convincing evidence, “that the respondent remains a sexually violent predator.” Code § 37.2-910.
If the Commonwealth satisfies this burden and the court finds that the respondent remains a sexually
violent predator, the court “shall order that he remain in the custody of the Commissioner for secure
inpatient hospitalization and treatment or that he be conditionally released.” Id. If the respondent is
no longer a sexually violent predator, he shall be released “from secure inpatient treatment.” Id.
Code § 37.2-910(B) requires that, before a review hearing, a report must be completed and
filed with the court “reevaluating the respondent’s condition and recommending treatment. The
report shall be prepared by a licensed psychiatrist or a licensed clinical psychologist skilled in the
diagnosis and risk assessment of sex offenders and knowledgeable about the treatment of sex
offenders.”
Furby was convicted of contributing to the delinquency of a minor in 1974. In 1977 he was
convicted of attempted rape and maiming. In 2006 he was again convicted of contributing to the
delinquency of minor. In 2008, the Commonwealth petitioned to commit Furby as a sexually
violent predator pursuant to Code § 37.2-901 et seq. The circuit court subsequently found that
Furby was a sexually violent predator and ordered him committed to the custody of the Department
of Behavioral Health and Developmental Services (DBHDS). In February 2022, the circuit court
conducted a biennial review hearing to determine whether Furby remained a sexually violent
predator and if he could be conditionally released to outpatient treatment. See Code
§§ 37.2-910, -912.
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Dr. Daniel Montaldi, a clinical psychologist at DBHDS, evaluated Furby and prepared a
clinical report. Dr. Montaldi concluded that Furby remains a sexually violent predator “in need of
inpatient treatment.” He explained that although Furby was doing well “behaviorally,” he was “not
participating in regular treatments.” Dr. Montaldi diagnosed Furby with antisocial personality
disorder and various substance abuse disorders. Furby’s personality disorder “causes him difficulty
controlling his behavior and predisposes him to engage in violent acts.” His actuarial risk
assessment is above average, putting him at a high risk of recidivism. Moreover, Furby had
“continued to refuse” to participate in treatment and had made “no progress” in treatment over the
preceding year. Dr. Montaldi opined that Furby has “a defiant attitude towards authority and a
history of oppositional behavior.” By declining to participate in sex offender treatment, Furby had
been “unable to address treatment related concepts such as internal and external risk factors, his
offense pathway/pattern, and risk management/relapse prevention plan[s].” Dr. Montaldi found that
Furby “continues to need inpatient treatment at [the Virginia Center for Behavioral Rehabilitation
(VCBR)].”
Dr. Dennis R. Carpenter conducted a “second opinion evaluation.” Although Furby refused
to speak with him, Dr. Carpenter reviewed the entire record. He concluded that Furby “possess[es]
a mental abnormality or personality disorder that makes it difficult for him to control his predatory
behavior.” Emphasizing Furby’s refusal to participate in formal sex offender treatment,
Dr. Carpenter concluded that Furby has made poor progress and “is obviously not ready for
conditional release.”
At the hearing, Furby became argumentative and uncooperative; he denied that he has a
felony conviction for attempted rape. During his own testimony, Furby indicated that he had
decided not to re-offend. Further, when asked “[i]f the Judge tells you that if you go to
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treatment . . . then the Judge tells you he’ll release you, will you go to [sex offender] treatment?”
Furby refused.
After considering the evidence and argument of counsel, the circuit court found that Furby
remains a sexually violent predator and ordered his re-commitment and continued in-patient
treatment. Furby appeals.
STANDARD OF REVIEW
In considering whether the evidence was sufficient for the trial court’s judgment, “we
review the evidence and all reasonable inferences from the evidence in the light most favorable
to . . . the prevailing party below,” in this case the Commonwealth, “and 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 (citing Higginbotham v. Commonwealth, 216 Va. 349, 352 (1975)).
ANALYSIS
“The standard of proof adopted by the [Sexually Violent Predators Act] is proof by clear and
convincing evidence.” Ellison v. Commonwealth, 273 Va. 254, 260 (2007); see Code
§ 37.2-910(C). “This evidentiary standard describes an intermediate level of proof that exceeds
the ‘preponderance’ standard, but does not reach the level of certainty required in criminal cases
of ‘beyond a reasonable doubt.’” Commonwealth v. Miller, 273 Va. 540, 551 (2007) (quoting
Grubb v. Grubb, 272 Va. 45, 54 (2006)). This burden rests with the Commonwealth.
Furby contends that the circuit court “erred in ruling that [he] remained a ‘sexually violent
predator’ as defined in []Code § 37.2-900” and that “he was likely to commit sexually violent acts.”
A “sexually violent predator” is any person who “has been convicted of a sexually violent offense,
or has been charged with a sexually violent offense and . . . 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.
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Here, Dr. Montaldi examined Furby and prepared a detailed report. He diagnosed Furby
with antisocial personality disorder and substance abuse disorder. Furby’s personality disorder,
Dr. Montaldi opined, predisposes him to engage in violent acts. Dr. Montaldi found that there had
been no significant decrease in Furby’s risk of re-offending since his last biennial review. He
emphasized that Furby’s refusal to attend sex offender treatment prevents him from addressing his
internal and external risk factors and developing a relapse prevention plan. Although Dr. Carpenter
did not testify at the hearing, the circuit court reviewed his report, which echoed Dr. Montaldi’s
findings. Both doctors concluded that Furby remains a sexually violent predator in need of
continued commitment and in-patient treatment. Furby countered the two experts’ opinions only
with his unsupported claim that he has decided not to re-offend.
The circuit court rejected Furby’s testimony and, based on the evidence, including the expert
opinions, found “by clear and convincing evidence that” Furby “remains a sexually violent predator
and that there is still no suitable lesser restrictive alternative than involuntary secure inpatient
treatment at the VCBR.”
“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.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (quoting Commonwealth v.
Perkins, 295 Va. 323, 327 (2018)). If there is evidentiary support for the trial court’s findings,
“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.” Chavez v. Commonwealth,
69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).
The circuit court “was at liberty to discount [Furby’s] self-serving statements” and accept the expert
testimony. Poole v. Commonwealth, 73 Va. App. 357, 369 (2021) (quoting Becker v.
Commonwealth, 64 Va. App. 481, 495 (2015)).
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The record supports the trial court’s decision. Furby’s stubborn resistance to sex offender
treatment and unwillingness to learn strategies for addressing his risk factors demonstrate he
remains a danger to the community. Rather than comply with the requirement that he attend
treatment, Furby chose to ignore the obligation, claiming that his decision to not re-offend
warranted his conditional release. The expert testimony and detailed reports demonstrated
otherwise; thus, credible evidence in the record supports the circuit court’s judgment. “[T]he factual
determination of whether a respondent is 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, 283 Va. at 318. Having reviewed the record, we find no error with the circuit
court’s reliance on the expert testimony in finding by clear and convincing evidence that Furby
remains a sexually violent predator in need of continued confinement. Id.
CONCLUSION
For the foregoing reasons, we find that the evidence was sufficient to prove Furby
remains a sexually violent predator and affirm the circuit court’s judgment.
Affirmed.
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