Stephens v. Rose

PRESENT: All the Justices
JEFFREY STEPHENS
OPINION BY
v. Record No. 131780 JUSTICE S. BERNARD GOODWYN
September 12, 2014
SHELLIE RAE ROSE
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Lorraine Nordlund, Judge
In this appeal, we consider whether the Circuit Court of
Fairfax County erred in issuing a protective order pursuant to
Code § 19.2-152.10.
Background
Shellie Rae Rose (Rose) filed a petition in the General
District Court of Fairfax County for a protective order
against her former boyfriend Jeffrey Paul Stephens (Stephens).
The general district court granted her petition, and Stephens
appealed to the Circuit Court of Fairfax County.
The circuit court conducted an evidentiary hearing and
found “that [Rose had] been reasonably placed in apprehension
of bodily injury” by Stephens’ actions, which constituted
stalking. It granted Rose’s petition. Stephens appeals,
claiming that the circuit court erred in issuing the
protective order because Rose failed to show that he directed
an act of violence, force or threat toward her.
Facts
In 2007, Stephens and Rose were engaged to be married and
had dated for approximately four years when they decided to
end their relationship. According to Rose, the couple
separated because Stephens had “become somewhat moody” and had
“problems with anger management.” At the hearing in circuit
court, she said, “It felt like I was walking on eggshells all
the time. I didn’t know what triggers would cause him to get
angry.”
In 2008, Rose and Stephens communicated infrequently.
On one occasion, they briefly chatted through online instant
messaging. Rose also forwarded two emails to Stephens
pertaining to doctoral programs in which he might be
interested. Soon thereafter Rose emailed Stephens and asked
that he not call her anymore.
From 2009 through 2012, Stephens periodically tried to
contact Rose through email, instant messaging and social
media. During this period, he emailed her numerous times,
sent her seven online instant messages, and tried to contact
her several times through two social media sites. However,
Rose did not respond. In two of his 2010 emails, Stephens
acknowledged Rose’s desire not to communicate with him,
professed his love for her, begged Rose to talk to him and
expressed sorrow at her refusal to communicate with him.
2
Beginning in January 2013, Stephens’ efforts to contact
Rose escalated suddenly. On January 2, 2013, Stephens
unexpectedly visited the home of Rose’s parents in Canton,
Ohio. As Rose’s father Gary Rose (Gary) was about to leave
for work at 6:20 a.m., Stephens approached him in his
driveway. Stephens asked where Rose was currently living;
Gary told Stephens not to contact Rose anymore. After
speaking with Stephens, Gary went inside his home and called
911. In response, the police stopped Stephens and informed
him that Gary had complained about his trespassing.
Upon learning that Stephens had visited her parents’
home, Rose became emotionally disturbed and started crying
because she was afraid. She asked her current boyfriend to
start staying with her because she was afraid to be home
alone.
Stephens began repeatedly calling Rose at her home and
leaving voice messages. Between January 2 and January 9, he
called forty times. Stephens blocked his phone number, but
Rose recognized his voice in the voice messages. According to
her boyfriend, Rose became “very upset, visibly upset,
emotionally upset over the phone calls” from Stephens.
Rose’s boyfriend twice answered Stephens’ phone calls on
January 6 and pretended to be Rose’s husband. He told
Stephens that Stephens had called the wrong number, that “his
3
wife” was not the same Shellie Rose whom Stephens was trying
to locate. He also told Stephens if the calls did not stop,
he would contact the police.
Stephens also tried to contact Rose at work. He called
Rose’s work number and was told she did not work there.
Undeterred, he sent flowers to Rose’s workplace on January 8;
Rose returned them.
On January 9, Stephens called Rose several times between
2:00 and 3:00 a.m. and appeared at the door to her home around
7:00 a.m. with flowers. Rose’s boyfriend called 911. When
police arrived, Stephens was not there, but they observed him
in the parking lot and arrested him. After Stephens was
arrested, Rose moved from her home because she was afraid.
At the circuit court hearing on the protective order,
Rose admitted that she “never directly told [Stephens] to stop
contacting [her].” She also testified that Stephens had never
physically abused or threatened to physically abuse her, her
family members, or her boyfriend.
Analysis
Code § 19.2-152.10 authorizes a court to issue a
protective order if the petitioner proves by a preponderance
of the evidence “that [he or she] is or has been, within a
reasonable period of time, subjected to an act of violence,
force, or threat.” Code §§ 19.2-152.9(D) and -152.10(A)(ii).
4
Stephens argues that Rose’s “articulated reasons for
being scared” are not the result of any act of violence, force
or threat and that the circuit court erred in issuing a
protective order because he did not commit an act of violence,
force or threat. Stephens maintains that both Gary and Rose
confirmed at the hearing that he has neither physically harmed
Rose nor threatened to do so.
An “[a]ct of violence, force, or threat” is defined by
Code § 19.2-152.7:1 as “any act involving violence, force, or
threat that results in bodily injury or places one in
reasonable apprehension of death, sexual assault, or bodily
injury.” The statute explicitly states, “Such act includes
. . . stalking.” Id.
The criminal offense of stalking is described in Code §
18.2-60.3(A):
Any person . . . who on more than one occasion
engages in conduct directed at another person with
the intent to place, or when he knows or reasonably
should know 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 is
guilty of a Class 1 misdemeanor.
This Court has not had an occasion to address Code
§ 18.2-60.3(A), but the Court of Appeals has correctly
identified three elements necessary to prove stalking under
this statute: (1) the defendant directed his or her conduct
5
toward the victim on at least two occasions; (2) the defendant
intended to cause fear or knew or should have known that his
or her conduct would cause fear; and (3) the defendant’s
conduct caused the victim “to experience reasonable fear of
death, criminal sexual assault, or bodily injury.” See Parker
v. Commonwealth, 24 Va. App. 681, 685, 485 S.E.2d 150, 152
(1997) (decided under a former version of Code § 18.2-60.3).
Physical harm or threatened physical harm to a victim is
not a necessary prerequisite to the granting of a protective
order under Code § 19.2-152.10, because Code §§ 19.2-152.7:1
and -152.9(D) provide that such an order may be premised upon
other acts, “includ[ing], but . . . not limited to . . .
stalking.” Rose argued at trial, and the circuit court found,
that she was entitled to a protective order in this case
because Stephens had stalked her. Therefore, if Rose proved
by a preponderance of the evidence that Stephens stalked her,
the circuit court did not err in issuing the protective order.
Stephens argues that the evidence does not establish the
elements of stalking because Rose’s “fear of some
unarticulated subjective potential harm” is not sufficient to
do so. He insists that only “serious, violent and hostile
conduct . . . is proscribed, not conduct that makes one
uncomfortable or is annoying.”
6
When an appellant challenges the sufficiency of the
evidence, this Court views the evidence in the light most
favorable to the prevailing party below. Viney v.
Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005). We
presume the circuit court’s decision is correct unless it is
“plainly wrong” or unsupported by the evidence. Id. (internal
quotation marks omitted).
Our review of the evidence presented to the circuit court
indicates that it was sufficient to support the issuance of
the protective order. There is no question that Stephens
directed his conduct at Rose. Over a period of several years,
Stephens persistently tried to contact Rose online through
social media and email. In January 2013, Stephens contacted
her parents to inquire of her whereabouts, called her at home,
called her workplace, sent her flowers at work, and visited
her home. Thus, Rose’s evidence was sufficient to establish
the first element of stalking.
The evidence also established that Stephens should have
known his actions caused Rose to fear him. Stephens claimed
before the circuit court that he did not intend to cause fear
and that he did not know his actions caused fear, but Code
§ 18.2-60.3(A) does not require intent to cause fear or even
actual knowledge. The mens rea element is satisfied if the
evidence shows the defendant should have known his conduct
7
would cause fear. See Code § 18.2-60.3(A) (“when he knows or
reasonably should know that the conduct places that other
person in reasonable fear of death, criminal sexual assault,
or bodily injury”) (emphasis added).
Evidence that the defendant received notice that his
contacts were unwelcome may be sufficient to support a trial
court’s finding that the defendant should have known his
continued contacts would cause fear. See Parker, 24 Va. App.
at 685-86, 485 S.E.2d at 152-53 (reasoning that the victim’s
silence informed the defendant that his contacts were
unwelcome).
In this case, the evidence amply supports that finding.
Soon after they stopped dating, Rose asked Stephens not to
call her. For the next four years, Stephens tried
unsuccessfully to contact Rose through instant messaging,
email and social media. Stephens acknowledged in his 2010
emails that Rose no longer wished to associate with him and
told her he did not wish to “upset” her. Cf. id. at 686, 485
S.E.2d at 153 (“Appellant acknowledged that he was causing the
victim to experience fear . . . when he said, ‘Don’t be
afraid.’”). Additionally, in 2013, Gary told Stephens to
leave Rose alone and move on with his life. This should have
been additional indicia to Stephens that Rose had already done
the same. Shortly thereafter, Stephens received a similar
8
message from Rose’s boyfriend over the phone. Moreover, Rose
returned the flowers Stephens sent to her workplace.
After several years of seeking a response from Rose to no
avail, Stephens should have known that his suddenly renewed
and abnormally persistent efforts to contact Rose were
unwelcomed and would cause fear. The evidence is sufficient
to satisfy the second element of stalking.
The third element of stalking requires that the
defendant’s conduct cause the victim to experience “reasonable
fear of death, criminal sexual assault, or bodily injury.”
Code § 18.2-60.3(A). The standard is an objective one. See
Parker, 24 Va. App. at 688, 485 S.E.2d at 153 (“By qualifying
the word fear with the word ‘reasonable,’ the General Assembly
intended to limit the reach of Code § 18.2-60.3 to conduct
that would render an ordinary, reasonable person in the
victim’s circumstances in fear for his or her physical well-
being.”).
From 2009 until 2012, Rose did not respond to Stephens’
efforts to communicate with her over the internet. In January
2013, without warning, Stephens reinitiated and dramatically
escalated his efforts to contact Rose. He unexpectedly
appeared at her parents’ home in Ohio early in the morning.
Shortly after, Rose began receiving an excessive number of
telephone calls from Stephens, some between 2:00 and 3:00 a.m.
9
He sent flowers to her at work and called her office telephone
number. Despite Rose’s failure to respond and warnings from
third parties to leave her alone, Stephens appeared uninvited
at her home in northern Virginia one week after appearing at
her parents’ home in Ohio.
When asked why the police were called, Rose responded,
“Because I was scared.” She explained,
Because I thought this was over. I thought Mr.
Stephens had moved on, and I didn’t know what else
to expect of him. . . . I’m scared because I don’t
know how he’s going to react in the future. I don’t
know if this is going to happen again. I need some
sort of documentation that it has happened to
protect me in an event that harm should occur.
A victim need not specify what particular harm she fears to
satisfy the third element of stalking. See Parker, 24 Va.
App. at 685-86, 485 S.E.2d at 152 (upholding the trial court’s
finding of sufficient evidence of reasonable fear of bodily
harm, “[a]lthough the victim did not specify that she was
afraid for her physical well-being”).
Other evidence corroborated Rose’s claim of being afraid
of bodily harm. Rose became emotionally upset and cried when
she learned that Stephens had visited her parents’ home. In
fact, she was so afraid that she asked her boyfriend to stay
with her at her home. When presented with this evidence, we
cannot say the circuit court was plainly wrong in determining
10
that Rose was reasonably afraid of criminal sexual assault or
bodily injury.
Conclusion
Code § 19.2-152.7:1 expressly includes stalking as an act
of violence, force or threat. There is sufficient evidence to
support the circuit court’s finding of stalking on the part of
Stephens under Code § 18.2-60.3(A). Therefore, we hold that
the circuit court did not err in granting Rose’s petition for
a protective order under Code § 19.2-152.10. The judgment of
the circuit court will be affirmed.
Affirmed.
11