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Protective Order Upheld for Stalking

Deborah Elkins//September 16, 2014

Protective Order Upheld for Stalking

Deborah Elkins//September 16, 2014

The Supreme Court of Virginia upholds issuance of a protective order against a man who continued for years to contact his former fiancée despite her expressed wish to have no contact, culminating in his appearance at her parents’ home in Ohio to ask where she lived and showing up at her home at 7:00 a.m., prompting her to call police; there was sufficient evidence that she feared risk of physical harm.

Virginia 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.

Appellant Jeffrey Stephens argues that appellee Shellie 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 Rose and her father confirmed at the hearing that he has neither physically harmed Rose nor threatened to do so.

An act of violence, force or threat is defined by Code § 19.2-152.7:1 as “any act of violence, force or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault or bodily injury.”

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, including, but not limited to, stalking. The circuit court found that Rose 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. There 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. 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 would cause fear. Evidence that defendant received notice that his contacts were unwelcome may be sufficient to support a trial court finding that defendant should have known his continued contacts would cause fear.

Soon after they stopped dating, Rose asked Stephens not to call her. For the next four years, Stephens tried unsuccessfully to contact Rose thorough 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.” Also, in 2013, Rose’s father 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, he received the same message from Rose’s boyfriend over the phone. Rose also returned 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 would cause fear. 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 thereafter, Rose began receiving an excessive number of telephone calls from Stephens, some between 2:00 and 3:00 a.m. 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.

Rose said she called police because she was scared. A victim need not specify what particular harm she fears to prove stalking. Rose became emotionally upset and cried when she learned Stephens had visited her parents’ home. She was so afraid that she asked her boyfriend to stay with her at her home.

We cannot say the circuit court was plainly wrong in determining that Rose was reasonably afraid of criminal sexual assault or bodily injury.

Judgment affirmed.

Stephens v. Rose (Goodwyn) No. 131780, Sept. 12, 2014; Fairfax Cir.Ct. (Nordlund) Peter M. Fitzner for appellant; Mehagen D. McRae for appellee. VLW 014-6-067, 11 pp.

VLW 014-6-067

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