PRESENT:    All the Justices

JEFFREY STEPHENS
                                               OPINION BY
v.   Record No. 131780                 JUSTICE S. BERNARD GOODWYN
                                           September 12, 2014
SHELLIE RAE ROSE


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                     Lorraine Nordlund, Judge

      In this appeal, we consider whether the Circuit Court of

Fairfax County erred in issuing a protective order pursuant to

Code § 19.2-152.10.

                               Background

      Shellie Rae Rose (Rose) filed a petition in the General

District Court of Fairfax County for a protective order

against her former boyfriend Jeffrey Paul Stephens (Stephens).

The general district court granted her petition, and Stephens

appealed to the Circuit Court of Fairfax County.

      The circuit court conducted an evidentiary hearing and

found “that [Rose had] been reasonably placed in apprehension

of bodily injury” by Stephens’ actions, which constituted

stalking.    It granted Rose’s petition.    Stephens appeals,

claiming that the circuit court erred in issuing the

protective order because Rose failed to show that he directed

an act of violence, force or threat toward her.
                              Facts

     In 2007, Stephens and Rose were engaged to be married and

had dated for approximately four years when they decided to

end their relationship.    According to Rose, the couple

separated because Stephens had “become somewhat moody” and had

“problems with anger management.”     At the hearing in circuit

court, she said, “It felt like I was walking on eggshells all

the time.    I didn’t know what triggers would cause him to get

angry.”

     In 2008, Rose and Stephens communicated infrequently.

On one occasion, they briefly chatted through online instant

messaging.    Rose also forwarded two emails to Stephens

pertaining to doctoral programs in which he might be

interested.    Soon thereafter Rose emailed Stephens and asked

that he not call her anymore.

     From 2009 through 2012, Stephens periodically tried to

contact Rose through email, instant messaging and social

media.    During this period, he emailed her numerous times,

sent her seven online instant messages, and tried to contact

her several times through two social media sites.    However,

Rose did not respond.    In two of his 2010 emails, Stephens

acknowledged Rose’s desire not to communicate with him,

professed his love for her, begged Rose to talk to him and

expressed sorrow at her refusal to communicate with him.


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        Beginning in January 2013, Stephens’ efforts to contact

Rose escalated suddenly.    On January 2, 2013, Stephens

unexpectedly visited the home of Rose’s parents in Canton,

Ohio.    As Rose’s father Gary Rose (Gary) was about to leave

for work at 6:20 a.m., Stephens approached him in his

driveway.    Stephens asked where Rose was currently living;

Gary told Stephens not to contact Rose anymore.    After

speaking with Stephens, Gary went inside his home and called

911.    In response, the police stopped Stephens and informed

him that Gary had complained about his trespassing.

        Upon learning that Stephens had visited her parents’

home, Rose became emotionally disturbed and started crying

because she was afraid.     She asked her current boyfriend to

start staying with her because she was afraid to be home

alone.

        Stephens began repeatedly calling Rose at her home and

leaving voice messages.     Between January 2 and January 9, he

called forty times.    Stephens blocked his phone number, but

Rose recognized his voice in the voice messages.    According to

her boyfriend, Rose became “very upset, visibly upset,

emotionally upset over the phone calls” from Stephens.

        Rose’s boyfriend twice answered Stephens’ phone calls on

January 6 and pretended to be Rose’s husband.    He told

Stephens that Stephens had called the wrong number, that “his


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wife” was not the same Shellie Rose whom Stephens was trying

to locate.   He also told Stephens if the calls did not stop,

he would contact the police.

     Stephens also tried to contact Rose at work.    He called

Rose’s work number and was told she did not work there.

Undeterred, he sent flowers to Rose’s workplace on January 8;

Rose returned them.

     On January 9, Stephens called Rose several times between

2:00 and 3:00 a.m. and appeared at the door to her home around

7:00 a.m. with flowers.   Rose’s boyfriend called 911.   When

police arrived, Stephens was not there, but they observed him

in the parking lot and arrested him.    After Stephens was

arrested, Rose moved from her home because she was afraid.

     At the circuit court hearing on the protective order,

Rose admitted that she “never directly told [Stephens] to stop

contacting [her].”    She also testified that Stephens had never

physically abused or threatened to physically abuse her, her

family members, or her boyfriend.

                             Analysis

     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.”    Code §§ 19.2-152.9(D) and -152.10(A)(ii).


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     Stephens argues that 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 Gary and Rose

confirmed at the hearing that he has neither physically harmed

Rose nor threatened to do so.

     An “[a]ct of violence, force, or threat” is defined by

Code § 19.2-152.7:1 as “any act involving violence, force, or

threat that results in bodily injury or places one in

reasonable apprehension of death, sexual assault, or bodily

injury.”   The statute explicitly states, “Such act includes

. . . stalking.”   Id.

     The criminal offense of stalking is described in 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.

     This Court has not had an occasion to address Code

§ 18.2-60.3(A), but the Court of Appeals has correctly

identified three elements necessary to prove stalking under

this statute: (1) the defendant directed his or her conduct



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toward the victim on at least two occasions; (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.”   See Parker

v. Commonwealth, 24 Va. App. 681, 685, 485 S.E.2d 150, 152

(1997) (decided under a former version of Code § 18.2-60.3).

     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, “includ[ing], but . . . not limited to . . .

stalking.”   Rose argued at trial, and the circuit court found,

that she 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.

     Stephens argues that the evidence does not establish the

elements of stalking because Rose’s “fear of some

unarticulated subjective potential harm” is not sufficient to

do so.   He insists that only “serious, violent and hostile

conduct . . . is proscribed, not conduct that makes one

uncomfortable or is annoying.”




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     When an appellant challenges the sufficiency of the

evidence, this Court views the evidence in the light most

favorable to the prevailing party below.     Viney v.

Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005).      We

presume the circuit court’s decision is correct unless it is

“plainly wrong” or unsupported by the evidence.     Id. (internal

quotation marks omitted).

     Our review of the evidence presented to the circuit court

indicates that it 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.    Stephens claimed

before the circuit court that he did not intend to cause fear

and that he did not know his actions caused fear, but 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


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would cause fear.   See Code § 18.2-60.3(A) (“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”) (emphasis added).

     Evidence that the defendant received notice that his

contacts were unwelcome may be sufficient to support a trial

court’s finding that the defendant should have known his

continued contacts would cause fear.   See Parker, 24 Va. App.

at 685-86, 485 S.E.2d at 152-53 (reasoning that the victim’s

silence informed the defendant that his contacts were

unwelcome).

     In this case, the evidence amply supports that finding.

Soon after they stopped dating, Rose asked Stephens not to

call her.   For the next four years, Stephens tried

unsuccessfully to contact Rose through 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.   Cf. id. at 686, 485

S.E.2d at 153 (“Appellant acknowledged that he was causing the

victim to experience fear . . . when he said, ‘Don’t be

afraid.’”).   Additionally, in 2013, Gary 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, Stephens received a similar


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message from Rose’s boyfriend over the phone.   Moreover, Rose

returned the 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 were

unwelcomed and would cause fear.   The evidence is sufficient

to satisfy the second element of stalking.

     The third element of stalking requires that the

defendant’s conduct cause the victim to experience “reasonable

fear of death, criminal sexual assault, or bodily injury.”

Code § 18.2-60.3(A).   The standard is an objective one.   See

Parker, 24 Va. App. at 688, 485 S.E.2d at 153 (“By qualifying

the word fear with the word ‘reasonable,’ the General Assembly

intended to limit the reach of Code § 18.2-60.3 to conduct

that would render an ordinary, reasonable person in the

victim’s circumstances in fear for his or her physical well-

being.”).

     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 after, Rose began receiving an excessive number of

telephone calls from Stephens, some between 2:00 and 3:00 a.m.


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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.

     When asked why the police were called, Rose responded,

“Because I was scared.”   She explained,

          Because I thought this was over. I thought Mr.
     Stephens had moved on, and I didn’t know what else
     to expect of him. . . . I’m scared because I don’t
     know how he’s going to react in the future. I don’t
     know if this is going to happen again. I need some
     sort of documentation that it has happened to
     protect me in an event that harm should occur.

A victim need not specify what particular harm she fears to

satisfy the third element of stalking.     See Parker, 24 Va.

App. at 685-86, 485 S.E.2d at 152 (upholding the trial court’s

finding of sufficient evidence of reasonable fear of bodily

harm, “[a]lthough the victim did not specify that she was

afraid for her physical well-being”).

     Other evidence corroborated Rose’s claim of being afraid

of bodily harm.   Rose became emotionally upset and cried when

she learned that Stephens had visited her parents’ home.    In

fact, she was so afraid that she asked her boyfriend to stay

with her at her home.   When presented with this evidence, we

cannot say the circuit court was plainly wrong in determining




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that Rose was reasonably afraid of criminal sexual assault or

bodily injury.

                          Conclusion

     Code § 19.2-152.7:1 expressly includes stalking as an act

of violence, force or threat.   There is sufficient evidence to

support the circuit court’s finding of stalking on the part of

Stephens under Code § 18.2-60.3(A).    Therefore, we hold that

the circuit court did not err in granting Rose’s petition for

a protective order under Code § 19.2-152.10.   The judgment of

the circuit court will be affirmed.

                                                       Affirmed.




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