Clarence Linwood Bowen v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Willis and Elder
Argued at Alexandria, Virginia
CLARENCE LINWOOD BOWEN OPINION BY
v. 	Record No. 1692-97-4 	JUDGE JERE M. H. WILLIS, JR.
MAY 19, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge
Richard E. Gardiner for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Clarence Linwood Bowen contends that the evidence is
insufficient to support his conviction of a second offense of
stalking. 	He argues that Code § 18.2-60.3 requires proof that he
had actual knowledge that his conduct would place the victim in
reasonable fear of death, criminal sexual assault, or bodily
injury. 	Because the trial court misinterpreted the statute, we
reverse and remand the case. 	We do not reach the sufficiency of
the evidence.
I.
In 1991, the complainant, D.M., ended an abusive
relationship with Bowen. 	Bowen was subsequently convicted of
unlawfully wounding D.M. with a knife. 	In 1994, he was convicted
of stalking D.M. and was ordered to have no further contact with
her.
Between March 15 and April 15, 1997, D.M. saw Bowen walking

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repeatedly on the street in front of her apartment. 	Bowen
testified that he was merely walking between his residence and
the hospital. 	On April 14, 1997, Bowen tied a scarf on the
antenna of D.M.'s automobile. 	The following day, he went to her
apartment. 	When she opened her door, she saw him standing there,
holding a telephone. 	She closed the door and called the police.
After kicking the door, Bowen left. 	D.M. testified that Bowen's
actions, in light of his prior conduct, placed her in fear of
death or bodily injury.
Bowen testified that he did not intend to place D.M. in
fear, and did not know she was afraid of him. 	He testified that
he went to her apartment on April 15 to deliver flowers and a
telephone. 	He testified that a friend of D.M.'s had told him
that D.M. was upset with him because he had not contacted her at
Easter. 	He testified that he and D.M. had dined together in the
fall of 1996. 	However, D.M. denied having dined with Bowen or
having invited him to her home since 1991.
The trial court tried the case without a jury and convicted
Bowen of a second offense of stalking. 	Code § 18.2-60.3. 	The
order of conviction, entered June 19, 1997, provided, in
pertinent part:In consideration of the evidence heard
and argument of Counsel, the Court found the
Defendant, CLARENCE LINWOOD BOWEN, guilty of
STALKING - SECOND OFFENSE, as charged in the
warrant.
The Court further found that the
Defendant knew, or reasonably should have
known, that his conduct placed the victim in

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reasonable fear of death, criminal sexual
assault, or bodily injury, and that actual
knowledge was unnecessary.
We read the second paragraph recited above to set forth the
predicate for the conviction recited in the first paragraph.
On August 5, 1997, the trial court entered the following
order: It appearing to the Court that, due to
clerical error, the order entered on June 19,
1997, stated "that the Defendant knew, or
reasonably should have known, that his
conduct placed the victim in reasonable fear
of death, criminal sexual assault, or bodily
injury" when it should have stated "that the
Defendant reasonably should have known that
his conduct placed the victim in reasonable
fear of death, criminal sexual assault, or
bodily injury"; therefore
The Court ORDERED that the order of June
19, 1997, be amended to reflect "that the
Defendant reasonably should have known that
his conduct placed the victim in reasonable
fear of death, criminal sexual assault, or
bodily injury".
Read together, the orders of June 19, 1997 and August 5,
1997 unquestionably bespeak the trial court's determination that
Code § 18.2-60.3 did not require proof that Bowen had actual
knowledge that his conduct would place D.M. in reasonable fear of
death, criminal sexual assault, or bodily injury, but rather
required only proof that he "reasonably should have known" that
such fear would result, and demonstrate plainly that the trial
court applied the evidence against that standard. 	This was
error.

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Code § 18.2-60.3(A) provides:
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
person . . . shall be guilty of a Class 2
misdemeanor.
In addition to proving the number and nature of the contacts
between D.M. and Bowen, the Commonwealth bore the burden of
proving that Bowen either intended to place D.M. in reasonable
fear of death, criminal sexual assault, or bodily injury, or knew
that such fear would result from his conduct. 	Parker v.
Commonwealth, 24 Va. App. 681, 685, 485 S.E.2d 150, 152 (1997).
This holding is consonant with the strict construction we
apply to penal statutes, see Mayhew v. Commonwealth, 20 Va. App.
484, 489, 458 S.E.2d 305, 307 (1995), and our analysis in Parker.
In Parker, we upheld the constitutionality of the stalking
statute, saying:
The requirement of specific intent also
enhances the delineation in Code § 18.2-60.3
of stalking from otherwise legal conduct.
Citizens know that they are subject to
prosecution for causing reasonable fear in
others only if they intended their conduct to
have this effect or know that it will have
this effect.
24 Va. App. at 689, 485 S.E.2d at 154. 	Thus, 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

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element of the offense.
For the foregoing reasons, the conviction is reversed and
this case is remanded to the trial court for further proceedings,
if the Commonwealth be so advised.
Reversed and remanded.