Parker v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia

MICHAEL A. S. PARKER
OPINION BY
v. Record No. 2124-95-2 JUDGE LARRY G. ELDER
MAY 13, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge

Willis J. Spaulding; Leslie Lee Robinson for
appellant.

Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

Michael A. S. Parker (appellant) appeals his conviction of

stalking in violation of Code § 18.2-60.3. Appellant contends

that the evidence was insufficient to support his conviction. In

the alternative, he contends that the stalking statute is

unconstitutionally vague and overbroad. For the reasons that

follow, we affirm.

I.

FACTS

Appellant was convicted of first offense stalking in

violation of Code § 18.2-60.3. The evidence at trial, viewed in

the light most favorable to the Commonwealth, was that appellant

and the victim had been involved in a relationship since 1989

that was marked by many breakups and reconciliations. The victim

testified that the relationship was "abusive," and she was in
constant fear during the relationship. The record, which

consists of a written statement of facts and the exhibits

introduced at trial, provides no detail regarding the extent and

nature of abuse inflicted by appellant on the victim or whether

the relationship was still ongoing. The record does establish

that appellant was convicted of stalking the victim in 1994 under

a prior version of Code § 18.2-60.3. At that time, appellant was

convicted on an arrest warrant that charged him of "[o]n more

than one occasion, engag[ing] in conduct with the intent to cause

emotional distress to [the victim] by placing that person in

reasonable fear of death or bodily injury." The trial court

checked the box on the reverse side of the arrest warrant stating

that appellant was found "guilty as charged."
In early March, 1995, appellant was incarcerated in jail.

On March 2, the Commonwealth's attorney notified the victim that

appellant's tentative release date from jail was May 16, 1995 and

advised her to document all contact with appellant. The victim

obtained a caller identification device and learned the number of

the only phone in the jail to which appellant had access.

On March 5, 8, 10, and 11, respectively, the victim received

a barrage of phone calls that the caller identification device

indicated were made from the phone in appellant's cell block.

Most of the calls ended when the caller hung up without speaking.

However, appellant did briefly speak during seven of the phone

calls. The victim never spoke during any of the calls.

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 On March 5, the victim received telephone calls from

appellant's cell block at 8:05, 8:10, 8:55, 8:57, 9:01, 9:04,

9:06, 9:11, 9:12, 9:14, and 9:17, respectively. During the 9:01

call, appellant said, "Okay, let's end it." During the 9:11

call, appellant said, "It will never end." During the 9:12 call,

appellant said, "You know you lied." During the 9:17 call,

appellant told the victim, "I'll be out."

On March 8, the victim received telephone calls from

appellant's cell block at 3:54, 4:00, 4:02, 4:06, 4:28, 4:42,

4:50, and 5:03, respectively. During the 4:42 call, appellant

said, "Don't be afraid." During the 4:50 call, he said, "Please

pick up." During the 5:03 call, he said, "You hate me."
On March 10, the victim received more telephone calls from

appellant's cell block at 8:26, 8:42, 8:45, 8:46, and 8:47,

respectively. On March 11, the victim received calls at 11:51,

2:35, 4:11, 4:18, and 4:23, respectively. Appellant did not

speak during any of these calls. The victim testified that

appellant's calls made her fearful.

At the conclusion of the Commonwealth's evidence and again

at the conclusion of his case, appellant moved to strike on the

grounds that the evidence was insufficient and that the stalking

statute was unconstitutionally vague and overbroad as it applied

to him. The trial court denied appellant's motions and convicted

him of stalking. Appellant then made a motion to set aside the

verdict on these same grounds, which the trial court also denied.

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 II.

SUFFICIENCY OF THE EVIDENCE

Appellant contends that the evidence fails to prove that he

violated Code § 18.2-60.3. We disagree.

Under Code § 18.2-60.3, a person is guilty of stalking if

the Commonwealth proves that he or she:
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 spouse or child . . . .

In order to obtain a conviction under Code § 18.2-60.3, the

Commonwealth must prove three elements. First, the Commonwealth

must prove the defendant engaged in multiple instances of conduct

directed at a person or that person's spouse or child. Second,

the Commonwealth must prove that this conduct caused that person

or their spouse or child to experience reasonable fear of death,

criminal sexual assault, or bodily injury. Third, the

Commonwealth must prove that the defendant either intended to
cause this fear or knew that it would result from his or her

conduct.

When considering the sufficiency of the evidence on appeal,

"we view the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom." Higginbotham v. Commonwealth, 216 Va. 349,

352, 218 S.E.2d 534, 537 (1975). So viewed, the record proved

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beyond a reasonable doubt that appellant engaged in repeated

conduct directed at the victim. The record indicates that the

victim received telephone calls eleven times in rapid succession

on March 5, 1995. During four of these calls the appellant made

four single-sentence comments, which included: "Okay, let's end

it"; "It will never end"; "You know you lied"; and "I'll be out."

Upon this proof, the trier of fact could have inferred beyond a

reasonable doubt that appellant either made all of the calls or

instigated others to make the calls in which no person spoke.

The same inferences arise from the eight calls on March 8, when

appellant made three comments, including: "Don't be afraid";

"Please pick up"; and "You hate me." Finally, the same

inferences arise from the five calls on March 10, and the five

calls on March 11.
The evidence also proved beyond a reasonable doubt that the

victim was placed in reasonable fear of bodily injury by this

conduct. First, the victim testified that these calls made her

fearful. Although the victim did not specify that she was afraid

for her physical well-being, the evidence in the record of the

dynamics of her relationship with appellant supplied the

necessary context for the trial court to conclude that she

reasonably feared bodily injury or one of the other evils listed

in Code § 18.2-60.3. The victim testified that her relationship

was "abusive." In addition, the evidence of appellant's prior

conviction established that on at least one other occasion,

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appellant had engaged in conduct that made the victim reasonably

fear for her physical safety. Against this background, the

victim was subjected to a barrage of unwelcome phone calls that

included a reference to appellant's impending release date from

jail and the never-ending nature of his relationship with the

victim. Based on these facts, we cannot say that the trial court

lacked evidentiary support to conclude that appellant's conduct

caused the victim to experience a reasonable fear of bodily harm.
Finally, evidence proved beyond a reasonable doubt that

appellant knew that his jail cell phone calls would place the

victim in fear of bodily harm. Appellant was a party to the

relationship described by the victim as "abusive." In addition,

he was aware from his previous stalking conviction that his

conduct in the past had caused the victim to reasonably fear

physical violence by him. Finally, the victim's silent demeanor

on the phone immediately indicated to appellant that his phone

calls were not welcome. Appellant acknowledged that he was

causing the victim to experience fear on March 8 when he said,

"Don't be afraid." Thus, the trial court had a factual basis to

conclude that appellant knew that his continued barrage of phone

calls would be interpreted by the victim as indicative of an

impending physical threat. We hold that the evidence was

sufficient to prove that appellant stalked the victim in

violation of Code § 18.2-60.3.

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 III.

CONSTITUTIONALITY OF CODE § 18.2-60.3

Appellant contends that Code § 18.2-60.3 is

unconstitutionally vague and overbroad, both on its face and as

applied to him. We disagree.

"In assessing the constitutionality of a statute, we must

presume that the legislative action is valid. The burden is on

the challenger to prove the alleged constitutional defect."

Perkins v. Commonwealth, 12 Va. App. 7, 14, 402 S.E.2d 229, 233

(1991).

A.

Appellant asserts that Code § 18.2-60.3 is

unconstitutionally vague because it does not adequately inform

ordinary citizens of what actions are proscribed as stalking.

Appellant's attack of the stalking statute appears aimed at the

"reasonable fear" element of the crime. He argues the statute is

vague because it proscribes a limitless range of conduct,

including speech, that is not actually threatening to the victim

but is deemed illegal because of the victim's purely subjective

fears. He argues that the statute is vague as applied to him

because, as an incarcerated citizen who had no opportunity to

harm the victim, he could not possibly have known that his

conduct would subject him to prosecution under Code § 18.2-60.3.

We disagree.

A penal statute is unconstitutionally void-for-vagueness if

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it does not "define the criminal offense with sufficient

definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement." Kolendar v. Lawson, 461 U.S. 352,

357, 103 S. Ct. 1855, 1858, 75 L.Ed.2d 903 (1983).
This doctrine protects two due process
interests. First, it requires "that laws
give the person of ordinary intelligence a
reasonable opportunity to know what is
prohibited, so that he may act accordingly."
Second, it prevents arbitrary and
discriminatory enforcement by requiring that
"laws . . . provide explicit standards to
those who apply them."

Coleman v. City of Richmond, 5 Va. App. 459, 466, 364 S.E.2d 239,

243, reh'g denied, 6 Va. App. 296, 368 S.E.2d 298 (1988) (quoting

Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct.

2294, 2298-99, 33 L.Ed.2d 222 (1972)). The vagueness doctrine

recognizes that legislatures encounter "practical difficulties in

drawing criminal statutes both general enough to take into

account a variety of human conduct and sufficiently specific to

provide fair warning that certain kinds of conduct are

prohibited." Colten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct.

1953, 1957, 32 L.Ed.2d 584 (1972). As a result, penal statutes

need only define crimes to "'a reasonable degree of certainty.'"

Woolfolk v. Commonwealth, 18 Va. App. 840, 850, 447 S.E.2d 530,

535 (1994) (quoting Boyce Motor Lines v. United States, 342 U.S.

337, 340, 72 S. Ct. 329, 331, 96 L.Ed. 367 (1952)).

We hold that Code § 18.2-60.3 is not unconstitutionally

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vague either on its face or as applied to appellant. Both the

"reasonable fear" element and the requirement of specific intent

make the statute sufficiently clear to inform both citizens and

law enforcement officers of what acts constitute stalking.

First, the objective "reasonable fear" element provides

considerable guidance about the scope of stalking under Code

§ 18.2-60.3. 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. Contrary to appellant's assertions,

this objective standard protects citizens who engage in
non-threatening day-to-day contact with others from surprise

prosecution because the conduct proscribed by Code § 18.2-60.3

"does not vary with the particular psychological makeup of the

victim." Woolfolk, 18 Va. App. at 849, 447 S.E.2d at 535.

In addition, the "reasonable fear" element restrains law

enforcement officers who investigate reports of stalking from

arbitrarily enforcing Code § 18.2-60.3 because they have an

objective baseline with which to evaluate the victim's complaint.

Under this objective standard, the statute provides adequate

notice that it proscribes repeated conduct that is either an

express threat of physical harm or would be reasonably

interpreted by the victim as a threat of impending physical harm

in light of the history of the parties' relationship.

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 The requirement of specific intent also enhances the

delineation in Code § 18.2-60.3 of stalking from otherwise legal

conduct. Citizens know that they are subject to prosecution for

causing reasonable fear in others only if they intended their

conduct to have this effect or know that it will have that

effect. Appellant interprets Code § 18.2-60.3 to reach Orwellian

proportions and argues that the statute is so vague that ordinary

telephone solicitation, bill collecting and political polling

could be deemed stalking. However, the inclusion of the

requirement of specific intent or knowledge provides notice to

individuals engaging in these activities in an ordinary manner

that they are not stalking their callers within the meaning of

Code § 18.2-60.3 unless they intend to do so or know that they

are doing so. "By requiring specific intent in conjunction with

more than one overt act, the statute gives a person of ordinary

intelligence a reasonable opportunity to know what is

proscribed." Woolfolk, 18 Va. App. at 851, 447 S.E.2d at 536

(citing Boyce, 342 U.S. at 342, 72 S. Ct. at 331-32 (stating that
requirement of specific intent does much to destroy any force in

argument that statute is vague)).

We also hold that Code § 18.2-60.3 was not

unconstitutionally vague as applied to appellant. The language

of the statute gave him reasonable notice that his conduct in

this case was stalking. The evidence proved that appellant

engaged in frenzied sprees of phone calls that he knew would

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cause the victim to worry for her safety upon his pending release

from jail. He was aware of his past abusive relationship with

the victim and the fact that he had previously been convicted for

placing her in reasonable fear of bodily harm. He knew that his

release date from jail was in two months. Appellant also knew

from his first few calls on March 5 that his contact with the

victim was unwelcome. Undaunted by this knowledge, he continued

his barrage of calls. On March 5, he told the victim, "I'll be

out," and, "It will never end." On March 8, appellant indicated

his own awareness that his calls made the victim fearful when he

said to her, "Don't be afraid." He proceeded to call her two

more times on March 8, five times on March 10, and five times on

March 11. Contrary to appellant's characterization, this series

of calls is not indicative of a benign lover's quarrel. Instead,

when viewed in context, appellant's calls were part of a

concerted effort to plant fear in the victim's mind that his

conduct would escalate into actual physical violence upon his

release from jail. This type of intentional campaign of

intimidation is within the clear ambit of Code § 18.2-60.3.
B.

OVERBREADTH

Appellant contends that Code § 18.2-60.3 is

unconstitutionally overbroad because it chills protected speech.

Appellant argues that the face of the statute prohibits

legitimate speech by a lover attempting to reconcile a dispute

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with his or her companion. Appellant argues that the statute is

overbroad as applied to him because he was attempting such a

reconciliation by calling the victim from his jail cell. He also

asserts that his conviction was based solely on the content of

his short messages during these calls. We disagree.

A statute may be overbroad if it "is one that is designed to

burden or punish activities which are not constitutionally

protected, but the statute includes within its scope activities

which are protected by the First Amendment." Woolfolk, 18 Va.

App. at 851, 447 S.E.2d at 536 (citation omitted). Overbreadth

is a doctrine whose reach dissipates when a statute proscribes

primarily conduct and not speech. If a penal statute proscribes

both conduct and speech, "the overbreadth of the statute must

. . . be substantial . . . in relation to the statute's plainly

legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93

S. Ct. 2908, 2917-18, 37 L.Ed.2d 830 (1973). "[T]here must be a

realistic danger that the statute itself will significantly

compromise recognized First Amendment protections of parties not

before the court for [the statute] to be facially challenged on

overbreadth grounds." City Council v. Taxpayers for Vincent, 466

U.S. 789, 800-01, 104 S. Ct. 2118, 2126, 80 L.Ed.2d 772 (1984)

(citation omitted) (footnote omitted).

We hold that Code § 18.2-60.3 is not facially overbroad.

The statute's purpose is legitimate: to protect innocent

citizens from intentional or knowingly threatening conduct that

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subjects them to a reasonable fear of physical harm.

Furthermore, the statute is tailored so that it does not

substantially infringe upon speech protected by the First

Amendment. It regulates the manner in which individuals

interrelate with one another and prohibits individuals from

communicating with others in a way that is intended or known to

cause fear of physical harm. Code § 18.2-60.3 is not directed

primarily at speech nor does it overreach to prevent contact,

speech or otherwise, between quarreling lovers as appellant

suggests. Indeed, the statute permits all communications between

individuals that are conducted in a time, place and manner that

do not intentionally or knowingly cause the receiver of the

message reasonably to fear for his or her physical safety. The

statute's legitimate sweep does not portend any substantial

burden on constitutionally protected conduct, and we find no

realistic danger that the statute will compromise the First

Amendment rights of parties not before the Court.

Turning to appellant's conduct, we hold that Code

§ 18.2-60.3 was not overbroad as applied to him. Contrary to his

assertion, appellant was not convicted of stalking solely because

of the seven sentences he uttered on March 5 and March 8. He

violated the stalking statute because he made a barrage of calls

to a person with whom he had an abusive relationship with the

knowledge that the calls caused the victim to reasonably fear

bodily injury at his hands. Appellant's intimidating phone

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contact and veiled threats rendered his interaction with the

victim from March 5 to March 11 without constitutional protection

and violative of Code § 18.2-60.3.

For the foregoing reasons, we affirm the conviction of

stalking in violation of Code § 18.2-60.3.

Affirmed.

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