Frazier v. Commonwealth, Record No. 0725-06-2 (Va. App. 7/31/2007)

• Decision Date: 31 July 2007
• Docket Number: Record No. 0725-06-2.
• Court: Virginia Court of Appeals
• Parties: GEORGE ROBERT FRAZIER v. COMMONWEALTH OF VIRGINIA.

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Unpublished Opinion

GEORGE ROBERT FRAZIER v.COMMONWEALTH OF VIRGINIA.

Record No. 0725-06-2.

Court of Appeals of Virginia, Richmond.

July 31, 2007.

Appeal from the Circuit Court of Henrico County, L.A. Harris, Jr., Judge.

Anthony G. Spencer for appellant.

Leah A. Darron, Senior Assistant Attorney General(Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Clements and McClanahan

MEMORANDUM OPINION^*

JUDGE ELIZABETH A. McCLANAHAN.

George Robert Frazier appeals his bench trial conviction for stalking in violation of Code§ 18.2-60.3.He argues the evidence was insufficient to sustain his conviction.Finding the evidence sufficient, we affirm.

On appeal, when considering a challenge to the sufficiency of the evidence, a reviewing court does not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt."Jackson v. Virginia, 443 U.S. 307, 318-19(1979)(emphasis in original)(citation and internal quotation marks omitted).Rather, "the relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."Id. at 319(emphasis in original)."The inferences to be drawn from proven facts, so long as they are reasonable, are within the province of the trier of fact."Hancock v. Commonwealth, 12 Va. App. 774, 782, 407 S.E.2d 301, 306(1991).

Under settled principles, we review the evidence in the "light most favorable" to the Commonwealth.Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786(2003).This principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom."Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759(1980)(emphasis in original)(internal quotation marks and citation omitted).

So viewed, the evidence¹ demonstrated that in mid-May of 1999, the victim moved from her apartment on Park Avenue in the City of Richmond to an apartment on West Grace Street and did not publish her new address or list her phone number.In mid-July of 2003 while the victim was unloading groceries at her apartment on West Grace Street, Frazier stopped her, addressed her by name, and said he used to be her neighbor on Park Avenue.The victim, who did not know Frazier, told him she had "gotten married and moved."Frazier stated, "I'm sorry," then remarked, "I always thought you were a nice person."The victim was frightened because she did not know Frazier and he knew where she had moved.On January 3, 2004, the victim was getting into her vehicle that was parked around the block from her apartment on West Grace Street when Frazier drove by, stopped abruptly in the middle of the street, exited his vehicle, approached the victim's car, and asked whether she was still married.When the victim responded "yes," Frazier stated he"wanted to share his life" with her.In late May of 2005, the victim moved to Fitzhugh Avenue in Henrico County and again did not publish her new address and did not tell anyone her new address.She changed her phone number and kept it unlisted.

At trial, Jesse Goode, the victim's neighbor on Fitzhugh Avenue, testified he had noticed Frazier driving "up and down the neighborhood for the last month."Goode observed Frazier "stop in front of [the victim's] residence . . . ."Goode further testified Frazier would "go up and down the street three or four times in the afternoon hours, sometimes as late as 10:00 o'clock at night."Goode testified Frazier drove to the victim's home on July 14, 2005, during the early morning and placed something on the victim's porch.²After Goode reported this incident to the victim, the victim testified she"became very scared," and Goode observed her immediately begin to cry.

Pam Profitt, another neighbor on Fitzhugh Avenue, noticed Frazier's vehicle driving through the neighborhood every evening for about a month and observed that Frazier slowed down in front of the victim's home.In the afternoon on July 15, 2005, the victim was standing outside with Goode and Profitt, when they saw Frazier drive by, slowing down as he drove past the victim's home.After observing Frazier as the driver of the vehicle, the victim stated to her neighbors that he was the "man who's been following me around."The victim went inside her home.Profitt followed Frazier in her vehicle, and when they were stopped beside one another at a stoplight, Profitt asked Frazier why he kept driving through their neighborhood.Frazier twice responded he was "taking care of business."When Profitt suggested he was "stalking" the victim, the stoplight turned green and Frazier drove away without responding.Approximately thirty minutes later, Frazier telephoned the victim at her new, unlisted telephone number to apologize and stated he"never meant to hurt" the victim.

Frazier was convicted of stalking under Code§ 18.2-60.3(A), which provides that any person who engages in conduct directed at another person on more than one occasion "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" is guilty of Class 1 misdemeanor stalking.Prior to 2001, this Code section required that the accused must be shown to have acted "with the intent to place, or with the knowledge that the conduct places, [the victim] in reasonable fear of death, criminal sexual assault, or bodily injury [to the victim] or to [the victim's] family or household member."Code§ 18.2-60.3(A).In Bowen v. Commonwealth, 27 Va. App. 377, 499 S.E.2d 20(1998), the Court held that the pre-2001 version of the statute required the Commonwealth to prove that the defendant either intended to place the victim in reasonable fear of death, criminal sexual assault, or bodily injury, or actually knew that such fear would result from his conduct for the crime of stalking to be proven.In 2001, however, the Virginia General Assembly amended Code§ 18.2-60.3(A), expanding the statute to include conduct that the accused "reasonably should know" would create such a fear, and thereby adding "constructive knowledge" to the mens rea requirement of stalking.SeeMorrison v. Commonwealth, 37 Va. App. 273, 280, 557 S.E.2d 724, 728(2002)("constructive knowledge" means "under circumstances where one reasonably should know");see alsoBlack's Law Dictionary 888 (8th ed. 2004)("constructive knowledge" is "knowledge that one using reasonable care or diligence should have, and therefore is attributed by law to a given person").This statutory amendment"change[d] the proof of knowledge of the defendant," House Bill 2112, Summary as Passed (2001), and "remove[d] the barriers to prosecution by specifying that it is not necessary to prove the offender's intent to carry out a threat . . . ."Virginia Criminal Sentencing Commission, Impact Analysis on Proposed Legislation for House Bill 2112 (2001).

Under our standard of review, viewing the evidence in the light most favorable to the Commonwealth, including any reasonable inferences therefrom, the evidence proved that Frazier, a complete stranger to the victim, continued finding and approaching the victim over a number of years.On the second occasion that the victim stated to Frazier she was married, Frazier made an unwanted romantic and intimate advance on her when she was getting into her vehicle parked near her apartment building.Cf.Parker v. Commonwealth, 24 Va. App. 681, 686, 485 S.E.2d 150, 152-53(1997)³(affirming stalking conviction based, in part, because "victim's silent demeanor on the phone immediately indicated to appellant that his phone calls were not welcome")....