Opinion
Record No. 1777-99-2
July 25, 2000
Appeal from the Circuit Court of Mecklenburg County William L. Wellons, Judge
Robert R. Meeks, Assistant Public Defender, for appellant.
Thomas M. McKenna, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: Judges Benton, Willis and Humphreys
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.
Appellant was convicted in a bench trial for stalking in violation of Code § 18.2-60.3(A) for conduct that occurred on April 3, 1999. On appeal, appellant argues that the trial court erred in ruling that former jeopardy and res judicata did not preclude the Commonwealth from relying on evidence of prior contacts with the victim, for which he had already been punished, to prove a new stalking offense. Appellant also argues that the evidence of his specific intent to place the victim in reasonable fear of death, criminal sexual assault, or bodily injury was insufficient as a matter of law. We agree that the evidence was insufficient and reverse his conviction. Because we reverse on the second issue presented, we do not address the first issue regarding former jeopardy and res judicata.
I. BACKGROUND
The evidence proved that prior to January 31, 1998, the victim and appellant were not acquainted. On that day, appellant knocked on the victim's front door at 5:00 a.m. The victim asked appellant if there was an emergency, and appellant stated that he wanted to talk about the two of them. The victim replied, "No" and shut the door, whereupon appellant began to shout, "Why won't you talk to me?"
Between September 19 and September 29, 1998, appellant went to the victim's residence on two occasions and left letters on the porch. On October 22, 1998, appellant was convicted of stalking for conduct which occurred on "[m]ore than one occasion between September 18, 1998, and September 29, 1998." In accordance with Code § 18.2-60.3(D), the trial judge also issued a protective order.
On April 2, 1999, appellant sent the victim a letter. On April 3, 1999, appellant appeared at the victim's front door at 5:40 a.m. demanding that she talk with him. The victim testified that after she saw who was at her door, she immediately notified the police. The victim testified that she was "scared" of appellant because "I don't know him. I don't know why he keeps bothering me. I don't know what his intentions are. I have told him I don't have any interest. The judge told him that." Appellant was convicted of violating the protective order for his conduct on April 2 and April 3, 1999.
II. ANALYSIS
"On appeal, 'we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). "We will not reverse the judgment of the trial court, sitting as the finder of fact in a bench trial, unless it is plainly wrong or without evidence to support it." Reynolds v. Commonwealth, 30 Va. App. 153, 163, 515 S.E.2d 808, 813 (1999) (citation omitted).
Code § 18.2-60.3 provides in pertinent part:
(A) Any person who on more than one occasion engages in conduct directed at another person with the intent to place, or with the knowledge that the conduct places, that other person in reasonable fear of death, criminal sexual assault, or bodily injury to that other person or to that other person's family or household member shall be guilty of a Class 1 misdemeanor.
(B) A third or subsequent conviction occurring within five years of a conviction for an offense under this section or for a similar offense under the law of any other jurisdiction shall be a Class 6 felony.
By the plain language of the statute, the Commonwealth must prove that on at least two occasions of contact with the victim, appellant either intended to place her in reasonable fear of death, criminal sexual assault, or bodily injury, or knew that such fear would result from his conduct. See Bowen v. Commonwealth, 27 Va. App. 377, 380, 499 S.E.2d 20, 22 (1998). On this record, the only evidence offered by the Commonwealth to establish appellant's motivation for his conduct was the victim's testimony that appellant repeatedly told her orally and in letters that he wanted to "talk about us."
The Commonwealth presented no evidence that appellant threatened the victim with death, sexual assault, or bodily harm. The Commonwealth asserts that because appellant was convicted of stalking on October 22, 1998, he was on notice that his conduct, at least on that occasion, caused the victim the requisite fear. The evidence of appellant's prior stalking conviction was admitted for the limited purpose of establishing a prior stalking conviction for proving felony stalking. The only evidence offered by the Commonwealth concerning the state of mind of the victim was her testimony that on April 3, 1999, she was "[s]cared . . . because I don't know him. I don't know why he keeps bothering me. I have told him I don't have any interest. The judge told him that." Assuming without deciding that from such testimony a trier of fact could reasonably infer that the victim was in fear of bodily injury or sexual assault, there was no evidence offered to show that her state of mind existed on any prior occasion or that the fact that appellant's conduct was creating such fear was ever communicated to appellant.
For the reasons stated, we find that the evidence as presented was insufficient as a matter of law to support appellant's conviction for stalking.
Reversed and dismissed.
On at least three occasions prior to October 22, 1998, at least one of which was early in the morning, Burwell went to the victim's residence and sought to talk to her "about the two of them." He did so despite the fact that he did not know the victim, nor she him, and despite her repeated assertion that she wanted no contact with him. This conduct so frightened the victim that she called the police. On October 22, 1998, Burwell was convicted of stalking and was put under a court order to attempt no further contact with the victim and to refrain from going onto her property.
On April 2, 1999, Burwell sent the victim a letter. On April 3, 1999, early in the morning, he appeared at her door, demanding that she talk with him. The victim was "scared" and called the police.
While the foregoing events may not prove that Burwell intended to frighten the victim, it is my view that evidence of those events abundantly supports a finding that he should have known that his conduct would place her in reasonable fear of death, criminal sexual assault, or bodily injury. It is not reasonable to presume that a perceptive and prudent woman would feel otherwise.
Evidence of the history of Burwell's prior conduct with respect to the victim and of his October 22, 1998 conviction and subjection to a restraining order was properly received as evidence of his conduct on prior occasions and of the victim's reasonable fear.
I would affirm the judgment of the trial court.