ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Friday, September 13, 1996 TAG: 9609130148
SECTION: VIRGINIA PAGE: B-3 EDITION: METRO
DATELINE: FINCASTLE
SOURCE: MATT CHITTUM STAFF WRITER
Darren Swain appealed his July conviction of stalking a Botetourt County woman, but when it came time for his appeal to be heard, he and his attorney decided they probably couldn't overcome the evidence against him - evidence of Swain's own making.
As he followed his former girlfriend of six years - even after two judges had told them to avoid one another - he painstakingly documented his every move on a minicassette recorder.
On Thursday, Swain, 33, a Roanoke pharmaceutical salesman, pleaded guilty in Botetourt County Circuit Court as part of an agreement reached with Commonwealth's Attorney Joel Branscom. He will serve 60 days in jail - less the 12 days he's already served - with 10 months suspended. He had been sentenced in General District Court by Judge E.C. Westerman to serve one year.
With the reduced sentence on the table, Swain apparently didn't want to take any chances.
"I think he's had a taste of jail now and it made a big impression on him," Branscom said.
He will be on supervised probation for a year, and is forbidden from having any direct or indirect contact with Rhonda Reed, his former girlfriend. He is to report to the Botetourt County jail Sept.27.
"I came prepared to fight," Swain said after the trial. "But there was nothing I could do."
When Circuit Judge George Honts asked Swain if he was pleading guilty because he was in fact guilty of stalking Reed - a routine question - Swain paused for several seconds, shaking his head and looking at the floor, before saying "yes."
Outside court, Swain maintained his innocence, saying that he in no way intended to harm Reed, and that she knew that.
"I was set up," he said. In General District Court, Swain testified that he had a tape of Reed saying, "I'm going to nail your slave na--."
He maintained Thursday that he was following Reed and making the incriminating tape to prove that she was seeing someone else even while she continued to have friendly contact with him. He said he believed that would prove she was really out to get him.
Thursday's trial was actually Swain's fourth court appearance on a total of three separate stalking charges in two jurisdictions.
In April, Westerman convicted Swain of stalking Reed and sentenced him to a six-month suspended sentence, with an admonition that the pair stay away from each other.
About the same time, Reed brought a stalking charge against Swain in Roanoke County. That charge didn't come to trial until July 1. In the meantime, according to testimony from both Swain and Reed, they continued to have contact. Reed also admitted using Swain's answering machine code to check the messages he was getting. As recently as June, Reed admitted, she bought Swain gifts.
When the Roanoke County charge came before General District Judge Vincent Lilley, he dismissed it and ordered the pair to keep apart. The next day, Swain was caught driving by and phoning Reed's house. Botetourt sheriff's deputies confiscated Swain's tape recorder and learned from it that Swain had begun following Reed again only an hour after Lilley told him not to.
Lilley then cited Swain for contempt and sentenced him to a year in jail, but that charge was dismissed on appeal because Lilley didn't have jurisdiction. Swain's attorney, Harold Eads, argued that Lilley could not impose conditions on Swain or Reed when he had already dismissed the charge.
In the past 2 1/2 months, Swain has, by all accounts, stayed away from Reed, and Branscom said that led him to offer Swain the plea agreement. Swain was also served Thursday with a notice that the suspension of the six-month sentence he got in April might be revoked, but Branscom said he'll probably recommend it be taken under advisement.
"Rhonda Reed says she bears no ill will toward Mr. Swain," Branscom said in summarizing his case. "She just wants to be left alone."
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