COURT OF APPEALS OF VIRGINIA

Present: Judges AtLee, Friedman and Raphael

Argued at Lexington, Virginia

JOSHUA DOUGLAS RHODES

MEMORANDUM OPINION* BY

v. Record No. 1196-21-3 JUDGE FRANK K. FRIEDMAN

OCTOBER 11, 2022

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROANOKE COUNTY

Charles N. Dorsey, Judge

John S. Koehler (The Law Office of James Steele, PLLC, on briefs),

for appellant.

John Beamer, Assistant Attorney General (Jason S. Miyares, 

Attorney General, on brief), for appellee.

Joshua Douglas Rhodes appeals his three convictions under Code § 54.1-2409.1 for 

continuing to practice chiropractic medicine with a suspended license and one conviction under 

Code § 18.2-178 for accepting payment arising from patients he treated while his license was 

suspended. He argues the evidence was not sufficient to convict him on these charges because 

he relied on advice from counsel, and therefore did not “willfully” practice with a suspended 

license. For the following reasons, we affirm the convictions.

BACKGROUND

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

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

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

(2016)). This “prism requires us to ‘discard the evidence of the accused in conflict with that of 

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

UNPUBLISHED
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the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth 

and all fair inferences to be drawn therefrom.’” Cooper v. Commonwealth, 54 Va. App. 558, 562 

(2009) (quoting Parks v. Commonwealth, 221 Va. 492, 498 (1980)).

Rhodes was first licensed to practice chiropractic medicine in Virginia in November 

2012. Over the following six-year period, Rhodes was involved in several non-medical incidents 

that ultimately resulted in complaints about Rhodes to the Virginia Department of Health 

Professions, of which the Virginia Board of Medicine is a part. In May 2018 the Department of 

Health Professions informed Rhodes he was the subject of professional complaints and there 

would be an informal conference on the matter. At the time, his ability to practice was not 

affected by this information. Following the informal conference, the Department of Health 

Professions advised Rhodes it was progressing to an administrative hearing before the Board of 

Medicine. The Board of Medicine held the hearing on October 19, 2018. Rhodes was 

represented by an attorney, Silverman, at this time. 

On October 31, 2018, the Board entered an order suspending Rhodes’ license to practice 

until he entered a contract with the Virginia Health Practitioner’s Monitoring Program (HPMP). 

The order stated, in relevant part:

1. The license of Joshua Douglas Rhodes, D.C., to practice chiropractic is 

SUSPENDED.

2. The suspension shall be STAYED upon proof of Dr. Rhodes’ entry into a Contract 

with [HPMP] within thirty (30) days of the entry of this Order.

Rhodes, however, continued treating patients immediately after the order was issued. 

There is no dispute he treated patients between November 1, 2018, and December 4, 2018. 

Rhodes asserts that his counsel, Silverman, advised him that he could continue to treat patients 
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following this order so long as he was attempting to enter into a contract with HPMP; Rhodes’ 

only evidence in support of this contention was his own testimony. Silverman did not testify. 

On November 30, 2018, Rhodes did enter into an agreement with HPMP and the Board 

of Medicine was notified of the agreement. The Board sent a letter to Rhodes on December 5, 

2018, advising him that the suspension of his license had been lifted “effective this date.” 

Rhodes fell out of compliance with the HPMP shortly after, on January 11, 2019, because 

of his failure to comply with mandatory professional assessment. The Department of Health 

Professions began another investigation into Rhodes around this time, and medical records 

turned over in this investigation revealed Rhodes had continued to treat patients following the 

October suspension order and during the suspension period. Initially, Rhodes told a Department 

of Health Professions investigator looking into the matter that he “had not seen patients since he 

signed his Board order in October of 2018.” Subsequently Rhodes acknowledged that he had, in 

fact, treated patients between November 1, 2018, and December 4, 2018.

Rhodes was indicted for “willfully, unlawfully, and feloniously” practicing medicine 

between November 1, 2018, and January 17, 2019. The circuit court later struck evidence with 

respect to claims of treatment after December 4, 2018, finding that the license suspension was 

stayed at that time. The sole issue during the bench trial was whether Rhodes had “willfully” 

treated patients during the period of November 1 to December 4, 2018. He was found guilty on 

three felony charges of practicing a health profession with a suspended license and one

misdemeanor count of obtaining money by false pretenses. 

Rhodes testified at trial that he did not think he had restrictions on his license to practice 

after the October 31 hearing. The trial judge specifically found Rhodes’ testimony “incredible.” 

The court stated that “this notion that you just didn’t think you had any restriction on a license to 

practice is almost farcical.” 
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Rhodes moved for reconsideration, which the circuit court denied during the sentencing 

hearing. Rhodes appealed, asserting:

1. The circuit court erred in finding that the evidence established 

beyond a reasonable doubt that Rhodes knowingly and willfully 

violated Code § 54.1-2409.1(iii) where the evidence failed to show 

that Rhodes had been adequately advised that his license would 

remain suspended after he entered into a contract with the Virginia 

Health Practitioners’ Monitoring Program until the Board formally 

advised Rhodes that the stay had been lifted five days later. 

2. Because the evidence failed to prove that Rhodes was guilty of 

violating Code § 54.1-2409.1(iii), the circuit court erred in 

convicting Rhodes of violating Code § 18.2-178 as Rhodes could 

not have received money by false pretenses if he was not 

knowingly and willfully practicing chiropractic medicine in 

violation of Code § 54.1-2409.1(iii).

3. The circuit court erred in failing to grant the post-judgment 

motion to set aside the verdict on the grounds that the evidence 

failed to establish beyond a reasonable doubt that Rhodes 

knowingly and willfully violated Code § 54.1-2409.1(iii).

ANALYSIS

I. The Evidence was Sufficient to Prove Rhodes Violated Code § 54.1-2409.1(iii)

In relevant part, Code § 54.1-2409.1 provides that “[a]ny person who . . . practices a 

profession or occupation after having his license . . . or multistate licensure privilege to do so 

suspended or revoked shall be guilty of a Class 6 felony.” The statute itself does not require 

willfulness or intent. However, the indictments in this case alleged that Rhodes “willfully, 

unlawfully, and feloniously practice[d] a profession or occupation after having his license 

revoked or suspended.” Both parties agree that where the indictment includes narrowing 

language, the prosecution must prove the offense as charged in the indictment. See Purvy v. 

Commonwealth, 59 Va. App. 260, 269 (2011) (noting that specific narrowing language in the 

indictment cannot be considered immaterial surplusage (citing Commonwealth v. Nuckles, 266 
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Va. 519, 523 (2003))). Rhodes contends that the Commonwealth failed to establish a “willful” 

violation. 

A. Rhodes’ Testimony Did Not Establish an Advice of Counsel Defense

Rhodes does not challenge the prima facie case against him. As he stated on brief, he 

“has never disputed that he treated patients [between November 1, 2018, and December 4, 

2018].” However, Rhodes argues that he introduced an “advice of counsel” defense, negating 

the “willful” element of the charge, and the Commonwealth failed to rebut it.1 

Rhodes’ “advice of counsel” argument fails here on factual grounds; the circuit court 

found his testimony incredible and “almost farcical.” Based on these findings, his “advice of 

counsel” defense—which was based entirely on his own rejected testimony—cannot survive. 

With respect to the fact finder’s reading of the evidence, “[t]he judgment of a trial court sitting 

without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it 

appears from the evidence that the judgment is plainly wrong or without evidence to support it.” 

Martin v. Commonwealth, 4 Va. App. 438, 443 (1987) (citing Code § 8.01-680). “The 

credibility of witnesses, the weight accorded testimony, and the inferences to be drawn from 

proven facts are matters solely within the province of the fact finder.” Carter v. Commonwealth, 

1 Appellant notes several times that he relies on the advice of counsel defense, which 

includes an element of good faith. See Nageotte v. Board of Supervisors of King County, 223 

Va. 259, 269 (1982) (finding there was no willful violation where the defendant failed to comply 

with a statute “while acting in good faith with the advice of counsel”). He also references a 

separate “good faith defense,” citing to Miller v. Commonwealth, 25 Va. App. 727 (1997), for

the premise that criminal liability can be negated where the defendant relied upon information 

from the government about the legality of his actions and his reliance was reasonable and in 

good faith. This “good faith” defense “applies where a defendant has reasonably relied upon 

affirmative assurances that certain conduct is lawful, when those assurances are given by a 

public officer or body charged by law with responsibility for defining permissible conduct with 

respect to the offense at issue.” Miller, 25 Va. App. at 735. Appellant “concedes that in forming 

his belief he did not seek an ‘affirmative assurance’ from the Board that his license remained 

active during the 30 days that he had to comply with the remedial provisions, as the defendant 

had done in Miller.” To the extent appellant relies on this “good faith” defense, his argument 

fails, as there is no evidence of reliance on any affirmative assurance from a public body.
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38 Va. App. 116, 119 (2002). “In its role of judging witness credibility, the fact finder is entitled 

to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying 

to conceal his guilt.” Brown v. Commonwealth, 75 Va. App. 388, 414 (2022) (quoting Marable 

v. Commonwealth, 27 Va. App. 505, 509-10 (1998)).

Rhodes asserts that his counsel told him he could continue to treat patients following the 

October 2018 suspension order. Rhodes did not produce any evidence of this, other than his 

own, discredited testimony.2 Rhodes also acknowledged that he had prior misdemeanor 

convictions for crimes of moral turpitude.3 See Parr v. Commonwealth, 198 Va. 721, 724 (1957) 

(“[P]roof of conviction of a misdemeanor involving moral turpitude is admissible to impeach the 

credibility of a witness . . . .”). Rhodes also admitted that he lied to the Board investigator. In its 

suspension order, the Board noted that Rhodes’ testimony frequently conflicted with others, and 

it “did not find Dr. Rhodes to be believable,” also noting he obfuscated and failed to answer the 

Board truthfully in his testimony at times. The circuit court, too, specifically found Rhodes

“incredible,” and his explanations “almost farcical.”

2 As a preliminary matter, we note that appellant does not cite any authority to suggest 

Virginia applies the advice of counsel defense in a criminal context and acknowledges the 

defense “is most often exercised in Virginia in a civil matter involving a tort.” Because Rhodes’ 

testimony as to the defense was roundly rejected by the fact finder, we find it unnecessary to 

reach the question of whether the defense applies to criminal matters in Virginia state courts. 

Federal courts have found that the defense can be permissible in a criminal context, where it is 

properly established by credible evidence. See, e.g., United States v. Painter, 314 F.2d 939, 943 

(4th Cir. 1963) (“If in good faith reliance upon legal advice given him by a lawyer . . . one 

engages in a course of conduct later found to be illegal, the trier of fact may in appropriate 

circumstances conclude that the conduct was innocent because the ‘guilty mind’ was absent.”); 

see United States v. Westbrooks, 780 F.3d 593, 595-96 (4th Cir. 2015) (listing factors 

establishing claim). 

3 Rhodes was convicted of identity theft and obstruction of justice to avoid arrest 

following an incident in which Rhodes lied about his identity and gave his brother’s information 

when stopped for speeding. 
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These findings regarding Rhodes’ credibility rendered his advice of counsel defense 

unsalvageable. Such credibility determinations are entitled to great weight by this Court absent 

an abuse of discretion. Given Rhodes’ confessed misstatements to the Board investigator, his 

false, initial denials that he treated any patients during the suspension, his credibility lapses, and 

past convictions, we cannot say the circuit court abused its discretion here when it rejected his 

testimony. See Reed v. Commonwealth, 62 Va. App. 270, 282 (2013). Ultimately, Rhodes 

produced no credible evidence to support an advice of counsel defense, and his purported 

defense fails.

B. Rhodes’ Alleged Interpretation of the Suspension Order Also Fails

Rhodes asserts “[t]he wording of the Board of Medicine’s order did not provide Rhodes 

with adequate notice that he was required to await formal notification of the reinstatement of his 

license.” He argues that ambiguities in the order (coupled with the advice of counsel) render the 

evidence insufficient to establish that he “willfully” violated the suspension order. We uphold 

the circuit court’s finding that the order was not ambiguous. The order bluntly stated that his 

license “is SUSPENDED”; the order further explained that Rhodes’ suspension would be stayed 

“upon proof of [his] entry into a contract” with HPMP. It did not in any way suggest that mere 

discussions with HPMP about a future agreement were sufficient to stay the suspension. The 

order clearly states that his license “is SUSPENDED” until a “contract” with HPMP is executed. 

Rhodes attempts to circumvent this language by suggesting, again, that his interpretation 

of the order is reasonable given the advice of counsel. However, as noted previously, Rhodes’

only evidence to support the advice of counsel defense is his own uncorroborated testimony 

which the circuit court found “incredible” and “almost farcical.” The circuit court’s finding that 

Rhodes willfully violated the order was not plainly wrong or without evidence to support it. We 

find no error in the circuit court’s convictions under Code § 54.1-2409.1(iii).
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II. The Evidence was Sufficient to Prove Rhodes Violated Code § 18.2-178 by Receiving

 Money Under False Pretenses 

Rhodes also assigns error to the finding that he willfully received money under false 

pretenses—he asserts that because the prosecution failed to establish a willful violation of Code 

§ 54.1-2409.1(iii), the false pretenses conviction cannot stand. However, as set out above, the 

evidence was sufficient to convict Rhodes for violating Code § 54.1-2409.1(iii) and there is no 

error in the circuit court’s conviction under Code § 18.2-178. Rhodes’ explanations for his 

conduct were flatly rejected by the fact finder. His credibility was expressly discredited by both 

the circuit court and the Board. He offered no corroborating evidence to bolster his advice of 

counsel claims. Rhodes provided no legitimate basis for believing he could practice during the 

suspension period. Thus, in addition to willfully practicing with a suspended license, he also 

improperly received payments for treatment he provided without a valid license.4

CONCLUSION

For the foregoing reasons, the circuit court’s ruling is affirmed.

Affirmed.

4 For the same reasons that the circuit court did not err in convicting Rhodes for violating 

Code §§ 54.1-2409.1(iii) and 18.2-178, the court similarly did not err in its denial of Rhodes’ 

motion to set aside the verdict.