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my wife accused me of threatening her 3 days after we had an

argument. she said i raised...
my wife accused me of threatening her 3 days after we had an argument. she said i raised my fist with intent to hit her. i would never hit a woman, wasn't raised that way plus my son was there. i may have called her a few choice names but never threatened her life. do i need a lawyer, can she drop the charges
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Answered in 3 minutes by:
7/28/2013
S. Huband, Esq.
S. Huband, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 1,628
Experience: Experienced and knowledgeable criminal defense attorney.
Verified

shuband :

Good morning and thank you for the opportunity to assist you. What state are you in?

Customer:

va

shuband :

Ok, I'm a criminal defense attorney licensed in VA. So, you're charged under 18.2-57.2?

Customer:

i see 182-60.3

shuband :

Gotcha. That's the stalking code section. When I read the facts of your question, I interpreted it to mean assault (i.e. a threat to commit a battery). Those are pretty different in terms of proof. Why does she say you're stalking her?

Customer:

she has both stalking and assault charges and a protective order which came with the stalking charge. we separated 2 mon ago, we have a 2 yr old special needs child and and a 6 yr old boy. she plays softball for the church and i have been to several of her games with the kids which usually end in an argument. I also rode passed her moms house where she was staying at midnight on the 17th of july, noticed a truck i was unfamiliar with and parked down the street and walked to the house to get a better look at the truck. I was caught by her stepdad and told him i was there cause i missed my wife and kids and wanted to talk. She refrained from speaking to me or letting me speak to my kids for the next 2 days. On the 19th she had a ballgame and said via facebook chat that i could come and visit with my son which led to the argument she claims i threatened her life and raised my fist with intent to hit her which are both false but she has friends on the team and says she has a witness. That argument arouse because she told me who the truck belonged to, along time friend of mine who she, while we were married for 8 yrs, together for 13 didn't even like as a person. It made me very mad but i did not threaten her life nor ball my fist with intent to strike. Also another piece of info is that this so called fried called her a week after we separated and told her if she needed anything to give him a call. I told him never to call my wife again.

shuband :

Thanks for the info. Let's take the charges one at a time.

shuband :

As for the stalking charge, that's a class 1 misdemeanor, maximum punishment 12 months in jail and/or a $2500 fine. It requires that the "stalker" on more than one occasion follows or engages in conduct that is reasonably intended to make the other person feel fear death, criminal sexual assault or bodily injury. If you've only been over to her house once, when you saw the truck in the driveway and got by her step dad, that doesn't qualify for stalking, unless that's the second or later time when she claims you've hung around and scared her.

shuband :

As for the ball game on the 19th, she invited you via Facebook, right? So that could not be stalking. I assume you saved her Facebook post?!?!

shuband :

Would you rather me switch to Q&A format so that I can give you a full answer and you can respond later?

Customer:

yes

Customer:

sry

shuband :

No problem! Thanks. Talk to you again soon.

Ask Your Own Criminal Law Question
Thanks for your patience.

Stalking
Here's the relevant portion of the statute for stalking in VA:

"...[a person commits stalking when] ... on more than one occasion [he] engages in conduct directed at another person 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 to that other person or to that other person's family or household member."

As I said in our chat session, the ball game incident could not be the second incident as required by statute. You were invited. Enough said. Hopefully, she's not claiming that you were "stalking" her when you took your children to watch her play softball. Ridiculous!

The protective order is standard procedure when a stalking charge is done. Violation of that order is an additional charge.

Assault charge
That's code section 18.2-57.2. An assault in Virginia is a threat to do bodily harm, or an attempted battery.

An assault that is a threat has to be credible, so it just depends on the circumstances. Calling someone "choice names" could be a threat, if it is up in the person's face, or is a very angry stream of insults made in close proximity to the person. Just calling someone names, though, no matter how insulting, is not a crime by itself. The circumstances have to show that you intended to threaten her by calling her names and that she reasonably felt threatened.

An assault which is an attempted battery is like swinging at someone but missing. For this to be an assault, you have to be within physical range to commit the completed crime (battery). If I swung at you from 100 yards away, it's not an assault because I can't reasonably complete the action. That's just me acting like a fool.

Are there other witnesses who can back you up to dispute what she says happened at the ball game? You yourself can testify at your trial, if you wish, but if you have others to corroborate what really happened, that would help. When you meet with an attorney (more on this later), make sure you take the names, telephone numbers, and addresses of the witnesses you believe to be helpful to you.

What to do now
First order of business, get an attorney. You may need two. One for criminal defense, and one for family law. A lot of attorneys do both. If you cannot afford an attorney, the court can appoint one to represent you on the protective order and assault cases, but not for a divorce, custody or visitation case. If you do not know an attorney in your area, try the Virginia State Bar attorney referral service. They should be able to point you in the right direction.

If you don't already have one, you may wish to get a temporary custody and visitation order from either a J&DR court or, if you are heading toward a divorce, from a Circuit Court. Again, you will probably need an attorney to help you handle these matters.

For now, stay away from her at all costs. You may be understandably emotionally bothered by what appears to be her being way too friendly with another man, but the worst thing you could do is violate the protective order and risk losing visitation with or custody of the children. If necessary, have someone else (a friend, your mom or dad, a cousin, etc.) go with you when you pick up and drop off the children for visitation, so there's no mistaking what happened.

I wonder if her relationship with this man started before your marriage ended? If so, she might have committed adultery. That would be a grounds for divorce and might help you to "lock and load" in preparation for a divorce, if that's coming down the road.

Get advice from an attorney in your area as to how best to proceed. Do NOT talk to the cops or anyone else, for that matter, (except for your attorney, obviously) about anything you're charged with.

I hope my response has been helpful. If you have follow-up questions or concerns on this topic, please ask. Otherwise, please rate my answer positively so that I can receive credit for my work. Doing so will NOT cost you any additional fee.

Take care,
Shuband
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Customer reply replied 4 years ago

do you think a court appointed lawyer would suffice in theses cases, i have a witness for the event on the 19th who will testify that she followed behind me to the parking lot antagonizing me. the only reason i ask is because i would rather spend my money on the custody situation

Thanks for the update.

As with any attorney, some are better than others. If you qualify for court appointed services, get one appointed and meet with him or her. If you don't feel that person cannot adequately represent your interests, or you don't feel confident in his or her ability level, you can always hire any attorney of your choosing.

Whatever you do, act quickly so that your rights and interests are preserved.

Best wishes with this difficult, but all too common, situation.
Shuband
S. Huband, Esq.
S. Huband, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 1,628
Experience: Experienced and knowledgeable criminal defense attorney.
Verified
S. Huband, Esq. and 87 other Criminal Law Specialists are ready to help you
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Hello,

I was notified that you rated the answer I gave positively and that you generously applied a bonus payment for my efforts. Thank you so much. I am very pleased and gratified that I was able to help you. I sincerely hope the matter(s) we discussed turn out well for you.

Please ask for me in the future if you have additional questions or concerns. Again, thank you very much for the opportunity to assist you.

Take care,
Shuband
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S. Huband, Esq.
S. Huband, Esq.
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Category: Criminal Law
Satisfied Customers: 1,628
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