Elston Burwell, s/k/a Elston E. Burwell v. CW ( 2001 )

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In an unpublished opinion, a divided panel of this Court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?"
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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).
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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
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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.
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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).
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The judgment of the trial court is affirmed.
Affirmed.
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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
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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
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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."
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"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.
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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.
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