                        COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
          Bray, Annunziata, Bumgardner, Frank, Humphreys, Clements
          and Agee
Argued at Richmond, Virginia


ELSTON BURWELL, S/K/A
 ELSTON E. BURWELL
                                            MEMORANDUM OPINION * BY
v.   Record No. 1777-99-2                JUDGE JERE M. H. WILLIS, JR.
                                                 APRIL 17, 2001
COMMONWEALTH OF VIRGINIA


                        UPON A REHEARING EN BANC

           FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
                    William L. Wellons, Judge

           Robert R. Meeks, Assistant Public Defender
           (Office of the Public Defender, on brief),
           for appellant.

           Thomas M. McKenna, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


     On appeal from his bench trial conviction for stalking in

violation of Code § 18.2-60.3, Elston Burwell contends that the

trial court erred (1) in ruling that principles of double jeopardy

and res judicata did not preclude consideration of his previous

misconduct and convictions, and (2) in finding the evidence

sufficient to support his conviction.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     In an unpublished opinion, a divided panel of this Court

found the evidence insufficient to support Burwell's conviction

and reversed the judgment of the trial court on that ground

without addressing Burwell's double jeopardy and res judicata

contentions.   See Burwell v. Commonwealth, No. 1777-99-2 (Va. Ct.

App. July 25, 2000).   On motion of the Commonwealth, we stayed the

mandate of that decision and granted rehearing en banc.    Upon

rehearing en banc, we vacate the mandate of the panel decision and

affirm the judgment of the trial court.

                           I.   BACKGROUND

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"     Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).

"We will not reverse the judgment of the trial court, sitting as

the finder of fact in a bench trial, unless it is plainly wrong or

without evidence to support it."   Reynolds v. Commonwealth, 30 Va.

App. 153, 163, 515 S.E.2d 808, 813 (1999) (citation omitted).

     On January 31, 1998, at 5:00 a.m., Burwell, with whom the

victim was not acquainted, knocked on her front door.    When the

victim asked what he wanted and whether there was an emergency, he

stated that he wanted to talk about the two of them.    The victim

replied, "No" and shut the door.   Whereupon, Burwell began to

shout, "Why won't you talk to me?"



                                - 2 -
     Between September 18 and September 29, 1998, Burwell twice

went to the victim's home and left letters on her porch.    On

October 22, 1998, he was convicted of stalking, pursuant to Code

§ 18.2-60.3, for conduct on "[m]ore than one occasion between

September 18, 1998 and September 29, 1998."    The judge imposing

that conviction also issued a protective order requiring that

Burwell "have no further contact of any type with [the victim or

her] family or household member(s)."

     On April 2, 1999, Burwell sent the victim a letter.     On April

3, 1999, at 5:40 a.m., he appeared at her front door and demanded

that she talk with him.   The victim called the police.   Burwell

was arrested and charged with the stalking offense on appeal.

     At trial, the victim testified that she was "scared" of

Burwell.   She further testified, "I don't know him.    I don't know

why he keeps bothering me.   I don't know what his intentions are.

I have told him I don't have any interest.    The judge told him

that."

               II.   RES JUDICATA AND DOUBLE JEOPARDY

     The Double Jeopardy Clause of the Fifth Amendment provides

that no person shall "be subject for the same offense to be

twice put in jeopardy of life or limb."    U.S. Const. amend. V.

This clause assures that a criminal defendant will not be

subjected to "repeated prosecutions for the same offense."

Oregon v. Kennedy, 456 U.S. 667, 671 (1982).



                               - 3 -
        The mere presentation of evidence that might have been used

in a previous trial does not provide a double jeopardy

violation.     See United States v. Dixon, 509 U.S. 688, 703-12

(1993); Moore v. Commonwealth, 14 Va. App. 198, 202, 415 S.E.2d

247, 250 (1992).    When a new, distinct offense is predicated

upon prior adjudicated conduct, evidence of the prior

adjudication is admissible as proof of an element of the new

offense on trial.     See Spencer v. Texas, 385 U.S. 554 (1967);

Pittman v. Commonwealth, 17 Va. App. 33, 434 S.E.2d 694 (1993).

The issue on trial is the new conduct charged, not the

previously adjudicated conduct, which provides merely a

contextual element.

        Burwell was tried in this case for his conduct on April 3,

1999.    He was not on trial for his conduct on January 31, 1998,

or his conduct between September 18 and September 29, 1998.

Those earlier events provided only a historical context in which

his April 3, 1999 conduct was adjudged.    Thus, evidence of those

prior events imposed no double jeopardy violation, and the trial

court did not err in receiving evidence of that earlier conduct

and of Burwell's October 22, 1998 conviction.

        The doctrine of res judicata fixes as settled between the

parties an issue that has been litigated by them to a

conclusion.    The doctrine applies to the same cause of action

between the same parties.     See Horton v. Morrison, 248 Va. 304,

306, 448 S.E.2d 629, 630 (1994); Highsmith v. Commonwealth, 25

                                 - 4 -
Va. App. 434, 439-43, 489 S.E.2d 239, 241-43 (1997).    This case

does not involve the same cause of action as that which underlay

Burwell's October 22, 1998 conviction.   The cause of action that

underlay that earlier conviction involved Burwell's conduct

between September 18 and September 29, 1998.   The cause of

action on appeal involves his conduct on April 3, 1999.

     Furthermore, res judicata merely settles an issue.      It does

not foreclose further proceedings and remedies based upon that

adjudication.   See Groh v. B.F. Saul Real Estate Inv. Trust, 224

Va. 156, 159, 294 S.E.2d 859, 861 (1982).   Thus, the doctrine of

res judicata affords Burwell no exoneration in this case.

                 III.   SUFFICIENCY OF THE EVIDENCE

     Code § 18.2-60.3 provides, in pertinent part:

          (A) 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.

Unquestionably, and undenied by him, Burwell engaged in conduct

directed at the victim on more than one occasion:     January 31,

1998, two occasions between September 18 and September 29, 1998,

April 2, 1999, and April 3, 1999.   Burwell argues that he

intended no harm to the victim, that he had no knowledge that

his conduct caused her fear, and that she had no reasonable

cause to fear death, criminal sexual assault, or bodily injury.

                                - 5 -
He argues that the evidence fails to prove that he harbored such

intent or knowledge.

     Whatever Burwell's intent may have been, we focus our

inquiry on his knowledge.    It is beyond reason to think that a

woman would not fear death, criminal sexual assault, or bodily

injury at the prospect of a strange man coming to her door early

in the morning, demanding to talk to her about the two of them.

Burwell's conduct toward the victim does not end there.   After

being rebuffed by the victim, he persevered in that conduct to

the end that he was convicted under Code § 18.2-60.3 on October

22, 1998, was sentenced to punishment for his offense, and was

put under an express court order to have "no further contact of

any type" with the victim.   Notwithstanding that plain

presentation to him of the effect of his conduct and that

unequivocal admonition by a judge, Burwell renewed his conduct

on April 2 and April 3, 1999, the first occasion remotely by

letter, the second occasion directly, defiantly, and

aggressively by his appearance at the victim's front door, again

early in the morning.   The suggestion that he did not know the

terrorizing effect of his conduct defies credence.

     The evidence abundantly supports the reasonableness of the

victim's fear and the trial court's conclusion that Burwell knew

that his conduct inspired that fear.    See Parker v.

Commonwealth, 24 Va. App. 681, 485 S.E.2d 150 (1997).



                                - 6 -
The judgment of the trial court is affirmed.

                                               Affirmed.




                         - 7 -
Humphreys, J., with whom Benton, J., joins, dissenting.

     I dissent from the majority's holding that the evidence

presented by the Commonwealth was sufficient as a matter of law

to establish that Burwell had the specific intent to place the

victim in reasonable fear of death, criminal sexual assault, or

bodily injury.   Moreover, I would hold that there was

insufficient evidence offered by the Commonwealth to support a

finding that Burwell's actions caused the requisite specific

fear on the part of the victim.

     By the plain language of Code § 18.2-60.3:

          [i]n order to obtain a conviction . . . 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 v. Commonwealth, 24 Va. App. 681, 685, 485 S.E.2d 150,

152 (1997) (emphasis added).

     Here, there is no question that Burwell engaged in multiple

instances of conduct directed toward the victim.   However, the

only evidence offered by the Commonwealth concerning the state

of mind of the victim was her testimony that on January 18,

1998, she was "startled" because "I really didn't know what was


                               - 8 -
going on, and I didn't know him," and on April 3, 1999 that she

was "[s]cared . . . because I don't know him.   I don't know why

he keeps bothering me.   I have told him I don't have any

interest."   This testimony was insufficient to establish that on

both of these occasions, the victim experienced the requisite

fear of bodily injury, sexual assault, or death.

     Nevertheless, even assuming, without deciding, that from

such testimony a trier of fact could reasonably infer that the

victim was in fear of one or all of the specifically enumerated

harms, the Commonwealth failed to establish that Burwell

intended to cause this fear, or knew that it would result from

his actions.

     First, the Commonwealth presented no evidence that Burwell

actually threatened the victim with death, sexual assault, or

bodily harm.    In fact, the victim admitted that Burwell made no

such threats.   In addition, the only evidence offered by the

Commonwealth to establish Burwell's intent or motivation in

approaching the victim and writing her letters was that Burwell

wanted to "talk about us."   This clearly falls short of

demonstrating Burwell's specific intent to "place the victim in

reasonable fear of death, criminal sexual assault, or bodily

injury."

     The Commonwealth urges this Court to consider the

circumstantial evidence of Burwell's intent.    Circumstantial

evidence of intent may include the conduct and statements of the

                                - 9 -
alleged offender, and "[t]he finder of fact may infer that [he]

intends the natural and probable consequences of his acts."

Campbell v. Commonwealth, 12 Va. App. 476, 484, 405 S.E.2d 1, 4

(1991) (en banc).   However, it is well established that "[i]f

evidence of intent is wholly circumstantial, all necessary

circumstances proved must be consistent with guilt and

inconsistent with innocence and exclude every reasonable

hypothesis of innocence."   Shackleford v. Commonwealth, 32 Va.

App. 307, 327, 528 S.E.2d 123, 133 (2000) (citations omitted).

     Here, the only evidence presented from which the trial

court might infer that Burwell intended to place the victim in

fear of bodily harm, sexual assault, or death, was the letters

and the book of matches found on the victim's porch, as well as

Burwell's repeated contacts with the victim which consistently

met with a response of police action.   Although the victim

testified that the letters "threatened" her, neither the letters

nor their contents were introduced at trial.   Furthermore, there

was no evidence relating the book of matches to Burwell, only

the fact that they were found on the victim's front porch after

he had left.   Finally, Burwell's continued attempts to contact

the victim do not establish that he intended to place her in

fear of one of the requisite harms.    At most, they establish

that he was trying to do just what he told her he was trying to

do, and that is to "talk about us."



                              - 10 -
        "Where the Commonwealth fails to prove a specific intent to

cause fear, proof that the defendant actually knew that his

conduct would place the victim in fear of the enumerated harms

is a necessary element of the offense."       Bowen v. Commonwealth,

27 Va. App. 377, 380, 499 S.E.2d 20, 22 (1998) (emphasis added).

Here, there was no evidence presented to establish that any

subjective fear held by the victim was ever communicated to

Burwell. 1     The Commonwealth asserts that because Burwell was

convicted of stalking on October 22, 1998, he was on notice that

his conduct caused the victim the requisite fear.      However, the

evidence of Burwell's prior stalking conviction was admitted for

the limited purpose of establishing a prior stalking conviction

for proving felony stalking.      Although the trial court reserved

its ruling on whether to consider the resulting protective order

for purposes other than the order itself, the protective order

standing alone does nothing but establish that Burwell was

ordered to stay away from the victim for a certain period of

time.       It does not, in and of itself, establish that Burwell

derived "actual knowledge" his conduct was placing the victim in

fear of bodily injury, sexual assault, or death.      Furthermore,

Burwell's conviction for trespass would similarly stand to prove


        1
       The victim did state that the judge communicated her fear
to Burwell "the last time we were in court." However, Burwell
objected to her testimony regarding what the judge may have told
Burwell, and the trial court sustained the objection, without
exception or further inquiry on the part of the Commonwealth.


                                  - 11 -
only that Burwell had been punished for trespassing on the

victim's property.    It would not establish that Burwell gleaned

the requisite "actual knowledge" that his conduct was placing

the victim in fear of one of the specifically enumerated harms
                  2
in the statute.

     While these facts may very well prove that Burwell should

have known that his conduct was placing the victim in fear, they

do not establish the actual knowledge which is necessary for a

conviction pursuant to Code § 18.2-60.3.    See id. at 379-80, 499

S.E.2d at 21-22 (reversing a trial court's finding of guilt

based only on proof that the defendant "reasonably should have

known" fear of bodily injury, sexual assault, or death would

result).

     For these reasons I dissent from the majority's holding in

this regard and would reverse and dismiss Burwell's conviction.

Because I would reverse and dismiss based upon the sufficiency

of the evidence, I would not decide the issues of double

jeopardy or res judicata.




     2
       One must be sympathetic to the plight of the victim in
this matter, but the fact remains that the prosecutor failed to
produce more than speculative allusions to evidence of either
the appellant's specific intent or the victim's specific fear.


                               - 12 -
