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Criminal – Stalking – Defendant’s Repeat Appearances

A defendant who was unknown to a woman but who was observed several times in the street in front of her home, pacing, hiding and rapidly departing when police were called, and who appeared on her front porch one night, peered into her home, and uttered “weird, strange stuff” when she confronted him, and whose picture she purportedly identified in the Internet sex offender registry, cannot be convicted under Va. Code § 18.2-60.

The court finds the conduct of defendant on Oct. 20, 2007, when the woman found him standing on her porch, was directed toward the woman and that defendant might reasonably know that his conduct at the time would cause the woman to fear bodily injury or sexual assault, and that her fearful response was reasonable. At the time the second contact was made, defendant and the woman had seen each other; his comments to her would raise reasonable concerns as to why he was furtively peeping into her home. The woman’s flight to a neighbor was reasonably attendant to having a strange man return to her doorstep with no explanation in the evening hours, and conduct himself in the way defendant did.

A closer reading of the statute does suggest that each of the elements necessary to a conviction, excepting the second or subsequent act, must be proven to that which precedes the offense date. Otherwise, the statute would not permit actions to differing victims to serve as predicate to the offense charged.

The commonwealth must, in order to sustain a conviction in this case, prove beyond a reasonable doubt that defendant’s conduct on Oct. 17, 2007, was directed at the woman, he intended to place her in fear of death, criminal sexual assault or bodily injury, or knew, or reasonably should have known, that such conduct placed her in such fear.

In the instant case, the court cannot conclude beyond a reasonable doubt either that the conduct of Oct. 17, 2007, was directed at the woman or that such conduct could reasonably be expected to cause fear of death, bodily injury or sexual assault to the person to whom such conduct was directed. This is the only predicate action that could support a conviction for the conduct of defendant on Oct. 20, 2007.

There is no evidence the parties knew or had seen each other previously. All of the actions of defendant were committed in the street outside the woman’s home. Under the circumstances, although unusual and highly suggestive of nefarious activity, it is as likely that defendant’s actions were directed at the property of the woman as they would be directed at her person.

His pacing, hiding, staring and rapid departure are all consistent with suspicious motives directed at either property or person. Similarly, it is just as likely as not that a person in the position of defendant might reasonably know that the unusual activity, as described on a public street, would cause anxiety over property interests rather than fear of death, sexual assault or bodily injury.

The court cannot exclude every reasonable hypothesis consistent with the innocence of defendant. The court finds as a matter of law that the evidence does not support the instant charge before the court on appeal and defendant will be found not guilty and the charge dismissed.

Commonwealth v. Mercurio (Horne, J.) Cr. No. 19423, March 31, 2008; Loudoun County Cir. Ct. VLW 008-8-117, 6 pp.

VLW 008-8-117

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