Rogers v. Commonwealth

Decision Date19 July 2022
Docket Number0713-21-2
CourtVirginia Court of Appeals



No. 0713-21-2

Court of Appeals of Virginia

July 19, 2022


Jennifer Quezada (Miriam Airington-Fisher; Bianca White; Airington Law, on briefs), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Russell, [*] Ortiz and Raphael Argued at Richmond, Virginia



William David Rogers appeals his convictions for abducting his wife and for possession of ammunition by a felon. He raises nine assignments of error that challenge every phase of the trial court's handling of this case, from its decision not to disqualify the prosecutor to its admission of prior-bad-acts evidence at the sentencing hearing. Finding that none of his challenges has merit, we affirm.


We recite the facts "in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth, 74 Va.App. 225, ___(2022) (quoting


Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires that we "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 to be drawn therefrom." Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

On March 31, 2019, William Rogers and his wife, Sherry, arrived home after spending several hours at a local bar. Rogers was intoxicated. He was also upset that he had been "cut off" by the bartender. C.V., Sherry's thirteen-year-old son, was at home playing with two friends, L.N. and D.N. Rogers asked L.N. to go into the master bedroom and retrieve a bottle of wine that was stored in the closet.

When L.N. could not find the wine, Sherry told him that it was not in the closet. Rogers became enraged, entering the bedroom and yelling at Sherry that she was undermining what he had said-he was certain there was wine in the closet.

Sherry tried to leave the bedroom, but Rogers pushed her over the bed and blocked her exit. She eventually got out and collected her keys and cell phone, but Rogers grabbed them from her, jumped on top of her, and restrained her arms. Sherry pried her hands loose and pushed Rogers hard enough to throw him off balance. She then escaped through the back door, ran to the neighbor's house, and called the police.

Deputy Ann Phelps arrived at the house after the confrontation. Rogers refused to open the door, yelling at Deputy Phelps, "F--- you, Ann." After settling down, and with the deputy's insistence, Rogers returned the cell phone to Sherry. Police charged Rogers with assault and battery and abduction.

Another incident occurred on February 16, 2020. Rogers confronted Sherry in the bedroom, telling her that she was "useless" and complaining she "wasn't helping around the house." Sherry went to the living room to avoid the confrontation. Rogers followed her there,


telling her to "get out." The argument moved to the kitchen. C.V. began to scream, "[L]eave us alone, we'll leave." Rogers yelled at C.V., grabbing him with both hands around the back of his neck. As a result of that incident, Rogers was arrested on February 27, 2020, and charged with assault and battery.

After Rogers was arrested, Sherry told the Commonwealth's Attorney that Rogers had ammunition in the house. Since Rogers was a felon, his possession of ammunition would violate Code § 18.2-308.2. Detective O'Bier obtained a search warrant. When he arrived to execute the warrant, however, Sherry was present and consented to the search. After Detective O'Bier found a box of ammunition in Rogers's bedroom closet, Rogers was charged with being a felon in possession of ammunition.

In August 2020, Rogers was tried on two counts of assault and battery against a household member and one count of abduction. He was convicted of all three offenses. After acquiring new counsel, Rogers moved to vacate the convictions. The court dismissed the 2019 assault-and-battery charge as duplicative of the abduction charge and vacated the 2020 assault-and-battery charge for ineffective assistance of counsel. The court left the abduction conviction intact.

Before Rogers was tried on the felon-in-possession charge, he moved to disqualify the prosecutor and to suppress the ammunition evidence. The trial court denied both motions. Rogers was tried and convicted of the felon-in-possession charge. The trial court denied his motion for reconsideration.

At the sentencing hearing, the Commonwealth attempted to introduce various evidence of Rogers's prior bad acts. The court admitted several exhibits but excluded others. The trial court sentenced Rogers to five years in prison, all suspended, on the felon-in-possession conviction, ten years, four suspended, on the abduction conviction, and ten years' supervised probation


following his release from incarceration. Rogers was also barred from contacting Sherry Rogers or any member of her family.


Rogers asserts nine assignments of error challenging six aspects of the trial proceedings: the denial of his motion to suppress the ammunition evidence, the denial of his motion to disqualify the prosecutor, the sufficiency of the evidence for each conviction, the admission of prior-bad-acts evidence at sentencing, and the trial court's upward departure from the sentencing guidelines.

A. The trial court did not err in denying the motion to suppress (Assignment of Error 4).

"A defendant's claim that evidence was seized in violation of the Fourth Amendment presents a mixed question of law and fact that an appellate court must review de novo on appeal." Bryant v. Commonwealth, 72 Va.App. 179, 186 (2020) (quoting Commonwealth v. Robertson, 275 Va. 559, 563 (2008)).

Rogers claims that the search-warrant affidavit for the ammunition was defective. The affidavit by Detective O'Bier detailed his phone conversation with Sherry in which she told him that there was ammunition in the residence and that it had "always been" there. It also stated that Rogers is a felon. Rogers claims that the affidavit was defective because it did not say where in the house the ammunition was located or whether the ammunition belonged to Rogers. He also complains that the affidavit omitted that Rogers had already been arrested on other charges and that Sherry, who was pressing charges against him, was the person who told the police about the ammunition. Rogers's brief, however, identifies no legal authority that the affidavit-which was regular on its face-had to contain those details.

What is more, Rogers offers no response to the Commonwealth's argument that the validity of the search-warrant affidavit is irrelevant because Sherry consented to the search of the


marital home. While the Fourth Amendment has been interpreted to "prohibit[] the warrantless entry of a person's house as unreasonable per se," there is an exception when a search is conducted "with the voluntary consent of an individual possessing authority." Georgia v. Randolph, 547 U.S. 103, 109 (2006). A person with authority to consent could be "the householder" or "a fellow occupant wh.o shares common authority over property, when the suspect is absent." Id. A person who has "joint access or control for most purposes" may also consent. Glenn v. Commonwealth, 275 Va. 123, 130 (2008) (quoting United States v. Matlock, 415 U.S. 164, 171 n.7 (1974)).

Under that standard, Sherry had authority to consent to the search. She had lived in the marital home since marrying Rogers in 2017. Although Sherry and C.V. lived with her mother after Rogers behaved violently towards C.V. in 2020, Sherry continued to go back and forth to the house to get her belongings. She had the key and retained unfettered access to the marital residence. Indeed, Rogers never challenged her authority to consent to the search.

Thus, the trial court did not err in denying the motion to suppress the ammunition evidence.

B. The trial court did not err in denying the motion to disqualify the prosecutor (Assignment of Error 7).

Rogers challenges the trial court's denial of his motion to disqualify the prosecutor, arguing that Commonwealth's Attorney Anthony Spencer had a personal interest in the matter that called into question his objectivity and impartiality. In reviewing a trial court's ruling on such a disqualification motion, we defer to "the historical facts" found by the trial court but "apply a de novo review to determine" whether the trial court erred in refusing disqualification. Price v. Commonwealth, 72 Va.App. 474, 488 n.5 (2020) (quoting Henderson v. Commonwealth, 285 Va. 318, 329 (2013)).


To "ensure that the accused receives a fair trial," the prosecutor must "conduct '[an] impartial prosecution.'" Id. at 485 (quoting Lux v. Commonwealth, 24 Va.App. 561, 568 (1997)). "The due process rights of a criminal defendant under both the Virginia and United States Constitutions are violated when a Commonwealth's Attorney who has a conflict of interest relevant to the defendant's case prosecutes the defendant." Powell v. Commonwealth, 267 Va. 107, 138 (2004); Price, 72 Va.App. at 485.

Whether a prosecutor has a disqualifying conflict of interest depends on "the circumstances of the individual case, and the burden is on the party seeking disqualification . . . to present evidence establishing the existence of disqualifying bias or prejudice." Brown v. Commonwealth, 74 Va.App. 721, 737 (2022) (alteration in original) (quoting Powell, 267 Va. at 138). Disqualifying conflicts include when the prosecutor has a former or ongoing attorney-client relationship with the defendant or persons with a financial interest in the outcome, or a "direct personal interest arising...

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