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GILBERT v. COMMONWEALTH


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GILBERT

v.

COMMONWEALTH


MAY 22, 2001

Record No. 0418-00-2

Present: Chief Judge Fitzpatrick, Judges Willis
and Clements

Argued at Alexandria, Virginia

NORMAN LESTER GILBERT, S/K/A

NORMAN LESTER GILBERT, IV

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY

William H. Ledbetter, Jr., Judge


MEMORANDUM OPINION[1] BY JUDGE
JEAN HARRISON CLEMENTS

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.

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 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 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 "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 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.

FOOTNOTES:

[1] Pursuant to Code ? 17.1-413, this opinion is not
designated for publication.

 

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