COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

MICHAEL A. S. PARKER 

 OPINION BY 

v. Record No. 2124-95-2 JUDGE LARRY G. ELDER 

 MAY 13, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY 

Paul M. Peatross, Jr., Judge 

 Willis J. Spaulding; Leslie Lee Robinson for 

appellant. 

 Margaret Ann B. Walker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Michael A. S. Parker (appellant) appeals his conviction of 

stalking in violation of Code § 18.2-60.3. Appellant contends 

that the evidence was insufficient to support his conviction. In 

the alternative, he contends that the stalking statute is 

unconstitutionally vague and overbroad. For the reasons that 

follow, we affirm. 

 I. 

 FACTS 

 Appellant was convicted of first offense stalking in 

violation of Code § 18.2-60.3. The evidence at trial, viewed in 

the light most favorable to the Commonwealth, was that appellant 

and the victim had been involved in a relationship since 1989 

that was marked by many breakups and reconciliations. The victim 

testified that the relationship was "abusive," and she was in 
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constant fear during the relationship. The record, which 

consists of a written statement of facts and the exhibits 

introduced at trial, provides no detail regarding the extent and 

nature of abuse inflicted by appellant on the victim or whether 

the relationship was still ongoing. The record does establish 

that appellant was convicted of stalking the victim in 1994 under 

a prior version of Code § 18.2-60.3. At that time, appellant was 

convicted on an arrest warrant that charged him of "[o]n more 

than one occasion, engag[ing] in conduct with the intent to cause 

emotional distress to [the victim] by placing that person in 

reasonable fear of death or bodily injury." The trial court 

checked the box on the reverse side of the arrest warrant stating 

that appellant was found "guilty as charged." 

 In early March, 1995, appellant was incarcerated in jail. 

On March 2, the Commonwealth's attorney notified the victim that 

appellant's tentative release date from jail was May 16, 1995 and 

advised her to document all contact with appellant. The victim 

obtained a caller identification device and learned the number of 

the only phone in the jail to which appellant had access. 

 On March 5, 8, 10, and 11, respectively, the victim received 

a barrage of phone calls that the caller identification device 

indicated were made from the phone in appellant's cell block. 

Most of the calls ended when the caller hung up without speaking. 

 However, appellant did briefly speak during seven of the phone 

calls. The victim never spoke during any of the calls. 
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 On March 5, the victim received telephone calls from 

appellant's cell block at 8:05, 8:10, 8:55, 8:57, 9:01, 9:04, 

9:06, 9:11, 9:12, 9:14, and 9:17, respectively. During the 9:01 

call, appellant said, "Okay, let's end it." During the 9:11 

call, appellant said, "It will never end." During the 9:12 call, 

appellant said, "You know you lied." During the 9:17 call, 

appellant told the victim, "I'll be out." 

 On March 8, the victim received telephone calls from 

appellant's cell block at 3:54, 4:00, 4:02, 4:06, 4:28, 4:42, 

4:50, and 5:03, respectively. During the 4:42 call, appellant 

said, "Don't be afraid." During the 4:50 call, he said, "Please 

pick up." During the 5:03 call, he said, "You hate me." 

 On March 10, the victim received more telephone calls from 

appellant's cell block at 8:26, 8:42, 8:45, 8:46, and 8:47, 

respectively. On March 11, the victim received calls at 11:51, 

2:35, 4:11, 4:18, and 4:23, respectively. Appellant did not 

speak during any of these calls. The victim testified that 

appellant's calls made her fearful. 

 At the conclusion of the Commonwealth's evidence and again 

at the conclusion of his case, appellant moved to strike on the 

grounds that the evidence was insufficient and that the stalking 

statute was unconstitutionally vague and overbroad as it applied 

to him. The trial court denied appellant's motions and convicted 

him of stalking. Appellant then made a motion to set aside the 

verdict on these same grounds, which the trial court also denied. 
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 II. 

SUFFICIENCY OF THE EVIDENCE 

 Appellant contends that the evidence fails to prove that he 

violated Code § 18.2-60.3. We disagree. 

 Under Code § 18.2-60.3, a person is guilty of stalking if 

the Commonwealth proves that he or she: 

 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 spouse or child . . . . 

In order to obtain a conviction under Code § 18.2-60.3, 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. 

 When considering the sufficiency of the evidence on appeal, 

"we view the evidence in the light most favorable to the 

Commonwealth, granting to it all reasonable inferences fairly 

deducible therefrom." Higginbotham v. Commonwealth, 216 Va. 349, 

352, 218 S.E.2d 534, 537 (1975). So viewed, the record proved 
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beyond a reasonable doubt that appellant engaged in repeated 

conduct directed at the victim. The record indicates that the 

victim received telephone calls eleven times in rapid succession 

on March 5, 1995. During four of these calls the appellant made 

four single-sentence comments, which included: "Okay, let's end 

it"; "It will never end"; "You know you lied"; and "I'll be out." 

 Upon this proof, the trier of fact could have inferred beyond a 

reasonable doubt that appellant either made all of the calls or 

instigated others to make the calls in which no person spoke. 

The same inferences arise from the eight calls on March 8, when 

appellant made three comments, including: "Don't be afraid"; 

"Please pick up"; and "You hate me." Finally, the same 

inferences arise from the five calls on March 10, and the five 

calls on March 11. 

 The evidence also proved beyond a reasonable doubt that the 

victim was placed in reasonable fear of bodily injury by this 

conduct. First, the victim testified that these calls made her 

fearful. Although the victim did not specify that she was afraid 

for her physical well-being, the evidence in the record of the 

dynamics of her relationship with appellant supplied the 

necessary context for the trial court to conclude that she 

reasonably feared bodily injury or one of the other evils listed 

in Code § 18.2-60.3. The victim testified that her relationship 

was "abusive." In addition, the evidence of appellant's prior 

conviction established that on at least one other occasion, 
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appellant had engaged in conduct that made the victim reasonably 

fear for her physical safety. Against this background, the 

victim was subjected to a barrage of unwelcome phone calls that 

included a reference to appellant's impending release date from 

jail and the never-ending nature of his relationship with the 

victim. Based on these facts, we cannot say that the trial court 

lacked evidentiary support to conclude that appellant's conduct 

caused the victim to experience a reasonable fear of bodily harm. 

 Finally, evidence proved beyond a reasonable doubt that 

appellant knew that his jail cell phone calls would place the 

victim in fear of bodily harm. Appellant was a party to the 

relationship described by the victim as "abusive." In addition, 

he was aware from his previous stalking conviction that his 

conduct in the past had caused the victim to reasonably fear 

physical violence by him. Finally, the victim's silent demeanor 

on the phone immediately indicated to appellant that his phone 

calls were not welcome. Appellant acknowledged that he was 

causing the victim to experience fear on March 8 when he said, 

"Don't be afraid." Thus, the trial court had a factual basis to 

conclude that appellant knew that his continued barrage of phone 

calls would be interpreted by the victim as indicative of an 

impending physical threat. We hold that the evidence was 

sufficient to prove that appellant stalked the victim in 

violation of Code § 18.2-60.3. 
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 III. 

CONSTITUTIONALITY OF CODE § 18.2-60.3 

 Appellant contends that Code § 18.2-60.3 is 

unconstitutionally vague and overbroad, both on its face and as 

applied to him. We disagree. 

 "In assessing the constitutionality of a statute, we must 

presume that the legislative action is valid. The burden is on 

the challenger to prove the alleged constitutional defect." 

Perkins v. Commonwealth, 12 Va. App. 7, 14, 402 S.E.2d 229, 233 

(1991). 

 A. 

 Appellant asserts that Code § 18.2-60.3 is 

unconstitutionally vague because it does not adequately inform 

ordinary citizens of what actions are proscribed as stalking. 

Appellant's attack of the stalking statute appears aimed at the 

"reasonable fear" element of the crime. He argues the statute is 

vague because it proscribes a limitless range of conduct, 

including speech, that is not actually threatening to the victim 

but is deemed illegal because of the victim's purely subjective 

fears. He argues that the statute is vague as applied to him 

because, as an incarcerated citizen who had no opportunity to 

harm the victim, he could not possibly have known that his 

conduct would subject him to prosecution under Code § 18.2-60.3. 

 We disagree. 

 A penal statute is unconstitutionally void-for-vagueness if 
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it does not "define the criminal offense with sufficient 

definiteness that ordinary people can understand what conduct is 

prohibited and in a manner that does not encourage arbitrary and 

discriminatory enforcement." Kolendar v. Lawson, 461 U.S. 352, 

357, 103 S. Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). 

 This doctrine protects two due process 

interests. First, it requires "that laws 

give the person of ordinary intelligence a 

reasonable opportunity to know what is 

prohibited, so that he may act accordingly." 

 Second, it prevents arbitrary and 

discriminatory enforcement by requiring that 

"laws . . . provide explicit standards to 

those who apply them." 

Coleman v. City of Richmond, 5 Va. App. 459, 466, 364 S.E.2d 239, 

243, reh'g denied, 6 Va. App. 296, 368 S.E.2d 298 (1988) (quoting 

Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 

2294, 2298-99, 33 L.Ed.2d 222 (1972)). The vagueness doctrine 

recognizes that legislatures encounter "practical difficulties in 

drawing criminal statutes both general enough to take into 

account a variety of human conduct and sufficiently specific to 

provide fair warning that certain kinds of conduct are 

prohibited." Colten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct. 

1953, 1957, 32 L.Ed.2d 584 (1972). As a result, penal statutes 

need only define crimes to "'a reasonable degree of certainty.'" 

Woolfolk v. Commonwealth, 18 Va. App. 840, 850, 447 S.E.2d 530, 

535 (1994) (quoting Boyce Motor Lines v. United States, 342 U.S. 

337, 340, 72 S. Ct. 329, 331, 96 L.Ed. 367 (1952)). 

 We hold that Code § 18.2-60.3 is not unconstitutionally 
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vague either on its face or as applied to appellant. Both the 

"reasonable fear" element and the requirement of specific intent 

make the statute sufficiently clear to inform both citizens and 

law enforcement officers of what acts constitute stalking. 

First, the objective "reasonable fear" element provides 

considerable guidance about the scope of stalking under Code 

§ 18.2-60.3. 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. Contrary to appellant's assertions, 

this objective standard protects citizens who engage in 

non-threatening day-to-day contact with others from surprise 

prosecution because the conduct proscribed by Code § 18.2-60.3 

"does not vary with the particular psychological makeup of the 

victim." Woolfolk, 18 Va. App. at 849, 447 S.E.2d at 535. 

 In addition, the "reasonable fear" element restrains law 

enforcement officers who investigate reports of stalking from 

arbitrarily enforcing Code § 18.2-60.3 because they have an 

objective baseline with which to evaluate the victim's complaint. 

 Under this objective standard, the statute provides adequate 

notice that it proscribes repeated conduct that is either an 

express threat of physical harm or would be reasonably 

interpreted by the victim as a threat of impending physical harm 

in light of the history of the parties' relationship. 
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 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 that 

effect. Appellant interprets Code § 18.2-60.3 to reach Orwellian 

proportions and argues that the statute is so vague that ordinary 

telephone solicitation, bill collecting and political polling 

could be deemed stalking. However, the inclusion of the 

requirement of specific intent or knowledge provides notice to 

individuals engaging in these activities in an ordinary manner 

that they are not stalking their callers within the meaning of 

Code § 18.2-60.3 unless they intend to do so or know that they 

are doing so. "By requiring specific intent in conjunction with 

more than one overt act, the statute gives a person of ordinary 

intelligence a reasonable opportunity to know what is 

proscribed." Woolfolk, 18 Va. App. at 851, 447 S.E.2d at 536 

(citing Boyce, 342 U.S. at 342, 72 S. Ct. at 331-32 (stating that 

requirement of specific intent does much to destroy any force in 

argument that statute is vague)). 

 We also hold that Code § 18.2-60.3 was not 

unconstitutionally vague as applied to appellant. The language 

of the statute gave him reasonable notice that his conduct in 

this case was stalking. The evidence proved that appellant 

engaged in frenzied sprees of phone calls that he knew would 
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cause the victim to worry for her safety upon his pending release 

from jail. He was aware of his past abusive relationship with 

the victim and the fact that he had previously been convicted for 

placing her in reasonable fear of bodily harm. He knew that his 

release date from jail was in two months. Appellant also knew 

from his first few calls on March 5 that his contact with the 

victim was unwelcome. Undaunted by this knowledge, he continued 

his barrage of calls. On March 5, he told the victim, "I'll be 

out," and, "It will never end." On March 8, appellant indicated 

his own awareness that his calls made the victim fearful when he 

said to her, "Don't be afraid." He proceeded to call her two 

more times on March 8, five times on March 10, and five times on 

March 11. Contrary to appellant's characterization, this series 

of calls is not indicative of a benign lover's quarrel. Instead, 

when viewed in context, appellant's calls were part of a 

concerted effort to plant fear in the victim's mind that his 

conduct would escalate into actual physical violence upon his 

release from jail. This type of intentional campaign of 

intimidation is within the clear ambit of Code § 18.2-60.3. 

 B. 

 OVERBREADTH 

 Appellant contends that Code § 18.2-60.3 is 

unconstitutionally overbroad because it chills protected speech. 

 Appellant argues that the face of the statute prohibits 

legitimate speech by a lover attempting to reconcile a dispute 
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with his or her companion. Appellant argues that the statute is 

overbroad as applied to him because he was attempting such a 

reconciliation by calling the victim from his jail cell. He also 

asserts that his conviction was based solely on the content of 

his short messages during these calls. We disagree. 

 A statute may be overbroad if it "is one that is designed to 

burden or punish activities which are not constitutionally 

protected, but the statute includes within its scope activities 

which are protected by the First Amendment." Woolfolk, 18 Va. 

App. at 851, 447 S.E.2d at 536 (citation omitted). Overbreadth 

is a doctrine whose reach dissipates when a statute proscribes 

primarily conduct and not speech. If a penal statute proscribes 

both conduct and speech, "the overbreadth of the statute must 

. . . be substantial . . . in relation to the statute's plainly 

legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 

S. Ct. 2908, 2917-18, 37 L.Ed.2d 830 (1973). "[T]here must be a 

realistic danger that the statute itself will significantly 

compromise recognized First Amendment protections of parties not 

before the court for [the statute] to be facially challenged on 

overbreadth grounds." City Council v. Taxpayers for Vincent, 466 

U.S. 789, 800-01, 104 S. Ct. 2118, 2126, 80 L.Ed.2d 772 (1984) 

(citation omitted) (footnote omitted). 

 We hold that Code § 18.2-60.3 is not facially overbroad. 

The statute's purpose is legitimate: to protect innocent 

citizens from intentional or knowingly threatening conduct that 
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subjects them to a reasonable fear of physical harm. 

Furthermore, the statute is tailored so that it does not 

substantially infringe upon speech protected by the First 

Amendment. It regulates the manner in which individuals 

interrelate with one another and prohibits individuals from 

communicating with others in a way that is intended or known to 

cause fear of physical harm. Code § 18.2-60.3 is not directed 

primarily at speech nor does it overreach to prevent contact, 

speech or otherwise, between quarreling lovers as appellant 

suggests. Indeed, the statute permits all communications between 

individuals that are conducted in a time, place and manner that 

do not intentionally or knowingly cause the receiver of the 

message reasonably to fear for his or her physical safety. The 

statute's legitimate sweep does not portend any substantial 

burden on constitutionally protected conduct, and we find no 

realistic danger that the statute will compromise the First 

Amendment rights of parties not before the Court. 

 Turning to appellant's conduct, we hold that Code 

§ 18.2-60.3 was not overbroad as applied to him. Contrary to his 

assertion, appellant was not convicted of stalking solely because 

of the seven sentences he uttered on March 5 and March 8. He 

violated the stalking statute because he made a barrage of calls 

to a person with whom he had an abusive relationship with the 

knowledge that the calls caused the victim to reasonably fear 

bodily injury at his hands. Appellant's intimidating phone 
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contact and veiled threats rendered his interaction with the 

victim from March 5 to March 11 without constitutional protection 

and violative of Code § 18.2-60.3. 

 For the foregoing reasons, we affirm the conviction of 

stalking in violation of Code § 18.2-60.3. 

Affirmed.