Virginia Lawyers Weekly VA Lawyers Weekly
On reconsideration, the court again denies petitioner’s motion for a protective order because she did not prove that respondent, more than once, placed her “in reasonable fear of death, criminal sexual assault, or bodily injury.”
The statutes
“The petition was brought pursuant to Code § 16.1-279.1(A): ‘In cases of family abuse … the court may issue a protective order to protect the health and safety of the petitioner and family or household members of the petitioner’.
“For purposes of Code § 16.1-279.1(A), ‘family abuse’ is defined by Code § 16.1-228 as: ‘[A]ny act involving violence, force, or threat that results in bodily injury or places one in reasonable apprehension of death, sexual assault, or bodily injury and that is committed by a person against such person’s family or household member. Such act includes, but is not limited to, stalking[.]’ … (emphasis added).
“Petitioner asserted that Respondent had engaged in ‘stalking,’ which is a crime defined by Code § 18.2-60.3(A):
“‘Any person … who on more than one occasion engages in conduct directed at another person with the intent to place, or when he knows or reasonably should know 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 is guilty of a Class 1 misdemeanor.’”
Stalking
Petitioner argues that the court used an incorrect standard when determining that she did not prove respondent was stalking her. She relies on two cases. “Petitioner cites to Stephens v. Rose, 288 Va. 150 (2014) and Parker v. Commonwealth, 24 Va. App. 681 (1997). Petitioner has misconstrued those cases. …
“In Parker, … the Court of Appeals held: ‘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.’ …
“Parker’s understanding of the statute is consistent with the plain language of the statute.
“The more recent case relied upon by Petitioner, Stephens v. Rose, 288 Va. 150 (2014), held that Parker ‘correctly identified three elements necessary to prove stalking under this statute[.]’ …
“Unfortunately, however, in affirming the holding of Parker, Stephens’ explanation reversed the order of the second and third elements as described in Parker, holding that the second and third elements are:
“‘(2) the defendant intended to cause fear or knew or should have known that his or her conduct would cause fear; and (3) the defendant’s conduct caused the victim ‘to experience reasonable fear of death, criminal sexual assault, or bodily injury.’ …
“The result of this reversal is that the ‘fear’ mentioned in Parker’s third element – i.e., the ‘fear’ the defendant intended to be caused by his conduct (or that the defendant knew or reasonable should have known was caused by his conduct), which Parker states as ‘this fear’ – is not linked in Stephens to the ‘reasonable fear of death, criminal sexual assault, or bodily injury’ as in Parker’s second element.
“This missing linkage makes Stephens appear to hold that the victim must simply be put in fear, without limiting the fear to ‘reasonable fear of death, criminal sexual assault, or bodily injury[.]’ …
“In view, however, of Stephens’ explicit statement that Parker ‘correctly identified three elements necessary to prove stalking under this statute,’ this court does not view Stephens’ statement of the second and third elements as intending to overturn sub silentio Parker’s statement of those elements.”
Proof
“Based upon the evidence adduced at trial, the court finds that Petitioner did not prove, by a preponderance of the evidence, that, on more than one occasion, she was ‘in reasonable fear of death, criminal sexual assault, or bodily injury[.]’ …
“[W]hen asked if she was ‘afraid of’ Respondent, she testified: ‘Very much so’ … and that, when she was asked of what she was afraid, she testified:
“‘He’s shown himself repeatedly capable and willing to act out physically on the children and myself. You know, with the shoving, the grabbing, screaming, the threats, you know, things about throwing the children through the wall, ripping their arms off.’ …
“Finally, when Petitioner was asked how she felt when she saw Respondent at church, she testified that she was ‘intimidated and frightened[.]’ …
“It is not enough that Respondent’s conduct placed her in fear; that fear must be ‘reasonable’ and it must be fear of death, criminal sexual assault, or bodily injury. … [T]he above evidence does not show that Petitioner had a reasonable fear of death or of criminal sexual assault or of bodily injury.
“As to Petitioner’s testimony that Respondent has ‘shown himself repeatedly capable and willing to act out physically on the children and myself,’ the fact that Respondent was ‘capable and willing’ to ‘act out physically’ does not prove that Petitioner had a ‘reasonable’ fear of death or of criminal sexual assault or of bodily injury.
“Moreover, Petitioner points to nothing in the record to support that statement, i.e., evidence of shoving or grabbing which would have caused her reasonably to fear that Respondent would, on more than one occasion, cause her death or would criminally sexually assault her or would cause her bodily injury. …
“The instances recounted in Petitioner’s motion (‘driving by the home on two occasions, sending a courier to her home, approaching her at church, waiting for her in the church parking lot, and approaching her with a caterpillar in a jar at a school function’) … are not sufficient to prove that Respondent had ‘the intent to place’ Petitioner in ‘reasonable fear of death, criminal sexual assault, or bodily injury’ … or that Respondent ‘kn[ew] or reasonably should [have known]’ that he ‘place[d]’” Petitioner in ‘reasonable fear of death, criminal sexual assault, or bodily injury[.]”‘
The motion to reconsider is denied.
Ewer v. Ewer, Case No. JA 2011-12, Aug. 26, 2021, Fairfax County Circuit Court (Gardiner). Rebecca Wade, James A. DeVito for the parties. VLW 021-8-111, 8 pp.
