Banks v. Commonwealth

• Decision Date: 14 February 2017
• Docket Number: Record No. 2055–15–2
• Parties: Alfred BANKS, Jr. v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

67 Va.App. 273

795 S.E.2d 908

Alfred BANKS, Jr.

v.COMMONWEALTH of Virginia

Record No. 2055–15–2

Court of Appeals of Virginia, Richmond.

FEBRUARY 14, 2017

Catherine French, Senior Appellate Coordinator (Dorian Dalton, Senior Assistant Public Defender, on briefs), for appellant.

Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Decker, AtLee and Malveaux

OPINION BY JUDGE MARLA GRAFF DECKER

Alfred Banks, Jr., appeals his conviction for stalking, in violation of Code § 18.2–60.3. He argues that the trial court erred by refusing his proposed jury instructions and in admitting evidence of prior contacts. Further, the appellant contends that the evidence was insufficient to support his conviction because it did not prove that more than one contact occurred during the timeframe alleged in the warrant or that a reasonable person in the victim's position would have experienced fear of death, criminal sexual assault, or bodily injury. For the reasons that follow, we affirm the conviction.

I. BACKGROUND

The appellant's conviction is based on his contacts with D.B., a medical doctor. In 1990, the appellant met D.B. in Richmond, Virginia, at the medical clinic where she was an intern and he was an aide. D.B. described their contact as "cordial." They were not friends and did not socialize outside of work. D.B. did not give the appellant her personal contact information, such as her address or phone number.

After D.B. graduated from medical school in 1990, she moved from Richmond and started her medical residency in Newport News, Virginia. The appellant sent D.B. unsolicited letters at her place of employment in Newport News. In those letters, the appellant wrote that he wanted to move to Newport News and marry her because "he felt like [they] were supposed to be together forever." He also persistently telephoned her at work and at home. D.B. told the appellant that she was not interested in having a relationship with him and wanted him to stop calling her. However, the appellant did not stop until D.B. moved to Washington, D.C., where she lived from 1992 to 1995. During that time, the appellant did not contact her.

D.B. moved back to Richmond in 1995. For the following year, she again received unsolicited letters from the appellant. The letters were left at the front desk of the clinic where she worked. In the letters, the appellant stated that he cared for D.B. and still wanted to "be [her] boyfriend." In one letter, he said that "he was never going to stop trying to talk" to her, which D.B. found "disturbing." During that same time period, the appellant also showed up in the clinic's parking lot at least three times. He asked D.B. why she would not talk to him. According to D.B., the appellant "just started getting more and more sort of aggressive in his tone," which caused her to feel "scared" and "intimidated." D.B. was worried that the appellant "might try to hit [her] or do something violent." She contacted the Chesterfield County and Virginia Commonwealth University (VCU) police departments. D.B. spoke with Lieutenant Carlton Edwards with the VCU police. Edwards contacted the appellant and told him to leave D.B. alone.

For a "few years" after the contacts that occurred from 1995 to 1996, D.B. did not see or hear from the appellant. In 1998 or 1999, the appellant visited her workplace parking lot again. He approached D.B. as she was getting into her car. He grabbed her car door and yelled, "Why won't you talk to me?" The appellant left only after two nurses who were passing by asked D.B. if she was okay. D.B. contacted Lieutenant Edwards again to address the problem. Edwards spoke with the appellant, and the appellant agreed that he would not have any further contact with D.B.

In 2014, however, the appellant contacted D.B. again despite his representation to Edwards. At that time, he repeated his behavior of approaching her in her workplace parking lot. Although she did not recognize him at first, D.B. "didn't feel good about" the man. She told him to go inside the building, where there was a security guard, and that she would talk to him inside. The man ignored her and asked, "Can you be my doctor?" D.B. asked him his name. When he identified himself as Alfred Banks, D.B. recognized him. She said that she could not be his doctor and told him to leave. Despite D.B.'s responses, the appellant remained and repeatedly asked her to be his doctor. D.B. went into the building as the security guard went outside. The appellant left before the guard had the chance to speak with him. According to the security guard, D.B. was upset and said "he['s] back, he found me."

The jury found the appellant guilty of misdemeanor stalking. In accordance with the recommendation of the jury, the court sentenced him to twelve months in jail, with six months suspended.

II. ANALYSIS

The appellant argues that the trial court erred by denying his proposed jury instructions on prior offense evidence. He also contends that the trial court erred in admitting evidence of prior contacts during the 1990s as proof that he "engaged in conduct directed at [D.B.] on more than one occasion under the first element" of the stalking statute. Additionally, the appellant argues that the evidence was insufficient to support his conviction because the Commonwealth did not prove that he "engaged in conduct directed" at the victim "on more than one occasion during April of 2014" as was alleged in the warrant. Finally, he contends that the evidence was insufficient to support his conviction because the Commonwealth failed to prove that his conduct placed D.B. in reasonable fear of death, criminal sexual assault, or bodily injury.

A. Jury Instructions and Scope of Evidence

The appellant argues that the trial court erred by refusing his proposed jury instructions limiting consideration of the evidence of his previous contacts with D.B. and allowing the jury to consider them as evidence of the "on more than one occasion" element of stalking. The Commonwealth responds that the appellant's proffered instructions would improperly have prevented the jury from considering whether those contacts established an element of the offense for which he was on trial.

In proposing possible jury instructions, the appellant first suggested that the jury be instructed that it "may consider evidence of [d]efendant's prior contacts with [D.B.], specifically contact which occurred prior to the dates of the alleged offense, only as evidence of the defendant's intent in connection with the offense for which he is on trial and for no other purpose." Alternatively, the appellant offered an instruction limiting consideration of the testimony about prior conduct for purposes of establishing intent, motive, and factors other than the element of "on more than one occasion." The court refused both instructions based on its ruling that the evidence of the appellant's prior contacts with D.B. could be considered for purposes of establishing any element of the offense.

The appellant argues that it was error for the trial court to refuse to give either of these instructions to the jury. He reasons that consideration of the evidence of his prior contacts with D.B. that occurred earlier than the preceding year violated the one-year statute of limitations for the stalking charge. See Code §§ 18.2–60.3, 19.2–8.

The decision regarding granting or denying a jury instruction generally rests "in the sound discretion of the trial court." Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187 (2009). However, whether an instruction "accurately states the relevant law is a question of law" that the appellate court reviews de novo . Sarafin v. Commonwealth, 288 Va. 320, 325, 764 S.E.2d 71, 74 (2014) (quoting Lawlor v. Commonwealth, 285 Va. 187, 228, 738 S.E.2d 847, 870 (2013) ). This Court's "sole responsibility in reviewing" the trial court's decision "is to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises." Cooper, 277 Va. at 381, 673 S.E.2d at 187 (quoting Molina v. Commonwealth, 272 Va. 666, 671, 636 S.E.2d 470, 473 (2006) ).

This assignment of error requires interpretation of Code § 18.2–60.3. We apply de novo review to purely legal questions of statutory interpretation. L.F. v. Breit, 285 Va. 163, 176, 736 S.E.2d 711, 718 (2013) ; see also Taylor v. Commonwealth, 64 Va.App. 282, 285, 767 S.E.2d 721, 723 (2015) (noting that whether a claim is barred by the statute of limitations is a question of law). Further, under accepted principles of statutory construction, we look to the plain meaning of the words contained in a statute to determine the General Assembly's intent. Elliott v. Commonwealth, 277 Va. 457, 463, 675 S.E.2d 178, 182 (2009). "If the language is clear and unambiguous, we will assign the statute its plain meaning." Browning–Ferris Indus. of S. Atl. v. Residents Involved in Saving the Env't, Inc., 254 Va. 278, 284, 492 S.E.2d 431, 435 (1997). Consistent with this standard, "[t]he plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction." Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007) (alteration in original) (quoting Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998) ). Additionally, this Court must "give effect to the legislature's intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity." Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007). When statutory language is subject to more than one interpretation, "we must apply the interpretation that will carry out the legislative intent behind the statute." Id. Separate "statutes must be read ‘as a consistent and harmonious whole to give effect to the overall statutory scheme.’ " L.F., 285 Va. at 178, 736 S.E.2d...