Norman Lester Gilbert, s/k/a v. Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Clements
Argued at Alexandria, Virginia
NORMAN LESTER GILBERT, S/K/A
NORMAN LESTER GILBERT, IV
MEMORANDUM OPINION * BY
v. Record No. 0418-00-2 JUDGE JEAN HARRISON CLEMENTS
MAY 22, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
William H. Ledbetter, Jr., Judge
Mark S. Gardner (Gardner, Maupin & Sutton,
P.C., on brief), for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Appellant Norman Lester Gilbert, IV, was convicted in a bench
trial of, among other crimes, stalking in violation of Code
§ 18.2-60.3. On appeal, he contends the evidence was not
sufficient to sustain the conviction. We disagree and affirm the
conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts necessary to a
disposition of this appeal.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
When the sufficiency of the evidence is challenged on appeal,
we review the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1987). "In so doing, we must 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 that may be
drawn therefrom." Watkins v. Commonwealth, 26 Va. App. 335, 349,
494 S.E.2d 859, 866 (1998). We may not disturb the conviction
unless it is plainly wrong or unsupported by the evidence.
Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337 S.E.2d 897, 898
(1985). We are further mindful that the "credibility of a
witness, the weight accorded the testimony, and the inferences to
be drawn from proven facts are matters solely for the
fact[ ]finder's determination." Keyes v. City of Virginia Beach,
16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993).
Specifically, Gilbert claims the Commonwealth failed to prove
beyond a reasonable doubt that, on at least two occasions, he
either intended to place the victim in reasonable fear of death,
criminal sexual assault, or bodily injury, or knew that such fear
would result from his conduct. While conceding he made numerous
telephone calls to the victim over a three-week period in August
1999, Gilbert asserts he intended no harm to her and had no
knowledge that any of his calls placed her in fear. Gilbert
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further argues that the victim had no reasonable cause based on
his conduct to fear death, criminal sexual assault, or bodily
injury. Thus, he concludes, the evidence was insufficient to
prove he was guilty of stalking in violation of Code § 18.2-60.3.
Code § 18.2-60.3 provides, in pertinent part:
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.
Thus, to convict Gilbert of stalking under Code § 18.2-60.3, the
Commonwealth had to prove beyond a reasonable doubt that, on at
least two occasions, Gilbert either intended to cause the victim
fear of the enumerated harms or knew his conduct would cause the
victim such fear. See Bowen v. Commonwealth, 27 Va. App. 377,
380, 499 S.E.2d 20, 22 (1998). The knowledge of the accused may
be inferred from the surrounding facts and circumstances. See
Parker v. Commonwealth, 24 Va. App. 681, 686, 485 S.E.2d 150,
152-53 (1997). Furthermore, in drawing inferences from all the
circumstances, the fact finder may discount a defendant's
explanation for his acts. See Woolfolk v. Commonwealth, 18 Va.
App. 840, 845, 447 S.E.2d 530, 532 (1994).
The trial court found by inference that, on at least two
occasions, Gilbert knew his conduct placed the victim in
reasonable fear of criminal sexual assault or bodily injury. Our
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review of the record convinces us that the trial court's finding
is supported by the evidence and is not plainly wrong.
The evidence presented at trial established that Gilbert, a
friend of the victim's boyfriend, began making daily telephone
calls to the victim in early August 1999 from his grandparents'
home in North Carolina. The victim, who was seventeen years old,
did not know Gilbert very well and had not given him her telephone
number. Gilbert initially told the victim he wanted to talk to
her about how he had changed and "found God." They discussed God
and going to church, and he invited her to his baptism. Gilbert
also told her he had tried to commit suicide. The victim felt
that talking with Gilbert would help him, and, knowing he was
unstable, she did not want to hurt him. The first couple of
calls, according to the victim, were "normal," "friendly"
conversations during which Gilbert was "very nice" and "polite."
Then, "out of nowhere," Gilbert began to interject "a lot of
sexual comments" into their conversations, telling the victim that
he would "love to have sex with" her, "to be inside of" her, "to
get head from" her. Gilbert also called the victim at work,
sometimes "over and over in the same day." She would make up
excuses to avoid having to talk to him. On one such occasion,
when she said she could not talk because she was busy, he replied,
"I guess I can't get head then." Gilbert also made sexual
comments about her friends, saying that one of them was going to
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"give him some head" and that he was going to "get stuff" from
another.
The victim, who was "scared" by Gilbert's "bizarre behavior"
of "suddenly making these sexual comments," attempted to change
the subject when Gilbert brought up sexual matters. During one
such attempt, as the victim was describing items she owned that
were her favorite color, Gilbert told her not to wear her yellow
bathing suit around him "because I'll rape you." When the victim
protested, "No, you won't," Gilbert responded, "Yes, I will." The
victim testified that the rape comment made her "very scared,
because [Gilbert] said it so seriously, and he didn't back down
when [she] said, 'No, you won't.'"
At the victim's request, her boyfriend told Gilbert to stop
calling the victim because she was scared of him, but Gilbert
continued to call. On August 23, 1999, following his arrest for
assault and battery and breaking and entering the home of friends
of the victim, Gilbert called the victim from jail. When the
victim refused Gilbert's request for help in getting bail money
for him, he threatened her by saying he would "remember that" when
he got out of jail. Afraid of Gilbert, the victim told him to
never call her again and had a block placed on her phone number to
prevent him from calling her from the jail.
We hold that this evidence amply supports the trial court's
conclusion that, on at least two occasions, Gilbert knew his
conduct placed the victim in fear of criminal sexual assault or
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bodily injury and that the victim's fear was reasonable. See
Parker, 24 Va. App. at 685-86, 485 S.E.2d at 152-53. Accordingly,
the judgment of the trial court is affirmed.
Affirmed.
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