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December 30, 1998; 10:00 a.m. NOT TO BE PUBLISHED

C ommonwealth O f K entucky C ourt O f A ppeals
NO. 1997-CA-001419-MR MICHAEL L. DRAKE APPELLANT

v.

APPEAL FROM DAVIESS CIRCUIT COURT HONORABLE THOMAS O. CASTLEN, JUDGE ACTION NO. 96-CR-000256

COMMONWEALTH OF KENTUCKY OPINION AFFIRMING ** ** ** ** ** BEFORE: HUDDLESTON, McANULTY, AND SCHRODER, JUDGES.

APPELLEE

SCHRODER, JUDGE:

This is an appeal of a conviction for first-

degree stalking enhanced as a first-degree PFO to a fifteen-year sentence. The appeal deals with the propriety of introducing

prior bad acts/convictions into evidence. On November 5, 1994, the appellant married Sandy Thomason and separated five days later, on November 9, after appellant hit and threatened his wife and held her against her will. On December 23 or 24, 1994, the appellant attempted to

break into his wife's house, did a lot of damage, and threatened bodily harm. Appellant pled guilty to charges relating to both

incidents and served jail time from December 24, 1994 until midJuly of 1995. In January of 1995, appellant's wife obtained an

emergency protective order (EPO) against the appellant.

Upon

release from jail in July of 1995, appellant was riding in a car with his mother when he jerked the wheel out of her hands and caused a wreck. He wanted to go to his wife's (Sandy's) As a result of

residence, but his mother wouldn't drive there.

the accident, three people were injured and the appellant went to jail for wanton endangerment until April of 1996. During the period from May 1, 1996 to July 5, 1996, appellant's wife was attending beauty school. Even though

personal calls were not allowed at the beauty school, appellant called his wife fifteen to twenty times during that period. Once

in May, appellant showed up at his wife's home around 1:00 a.m. and started beating on the door. he left before they arrived. His wife called the police and

In the first phone call, appellant In

was told there was no possibility of a reconciliation.

subsequent calls, appellant made threats and told his wife that he was watching her apartment and proceeded to describe, for example, the color and make of visiting cars and when her lights were on. Appellant wanted to know who she was seeing and whose On July 5, 1996, appellant called his wife

cars were visiting.

and described his observations of his wife and her nephew setting off fireworks, and seeing a black man leave her apartment. threatened her and she sought a warrant for stalking. She He

divorced appellant on December 10, 1996, prior to trial. A trial ensued in which the appellant was convicted of first-degree stalking for which he received a five-year sentence, enhanced to fifteen years as a persistent felony offender in the

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first degree.

On appeal, appellant alleges the trial court erred

in failing to grant a directed verdict of acquittal and erred in allowing the Commonwealth to introduce bad acts and prior convictions in its case-in-chief. Appellant's first argument is that the trial court erred in not granting his motions for directed verdict. He

contends that KRS 508.140 does not include telephoning, and there was insufficient evidence of stalking, as defined by the statute. KRS 508.130 sets forth the definitions to be used in conjunction with the stalking statute: As used in KRS 508.130 to 508.150, unless the context requires otherwise: (1)(a) to "stalk" means to engage in an intentional course of conduct: 1. Directed at a specific person or persons; 2. Which seriously alarms, annoys, intimidates, or harasses the person or persons; and 3. Which serves no legitimate purpose. (b) The course of conduct shall be that which would cause a reasonable person to suffer substantial mental distress. (2) "Course of conduct" means a pattern of conduct composed of two (2) or more acts, evidencing a continuity of purpose. Constitutionally-protected activity is not included within the meaning of "course of conduct." If the defendant claims that he was engaged in constitutionally protected activity, the court shall determine the validity of the claim as a matter of law and, if found valid, shall exclude that activity from evidence. Under KRS 508.140, a person is guilty of stalking in the first degree: (a) When he intentionally: 1. Stalks another person; and

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2.

(b) 1.

2.

3.

4.

Makes an explicit or implicit threat with the intent to place that person in reasonable fear of: a. Sexual contact as defined in KRS 510.010; b. Serious physical injury; or c. Death; and A protective order or other judicial order as provided for in KRS Chapter 403 has been issued by the court to protect the same victim or victims and the defendant has been served with the summons or order or has been given actual notice; or A criminal complaint is currently pending with a court, law enforcement agency, or prosecutor by the same victim or victims and the defendant has been served with a summons or warrant or has been given actual notice; or The defendant has been convicted of or pled guilty within the previous five (5) years to a felony or to a Class A misdemeanor, other than a violation of KRS 508.150, against the same victim or victims; or The act or acts were committed while the defendant had a deadly weapon on or about his person.

A directed verdict is warranted only where the Commonwealth's evidence fails to establish guilt. Commonwealth, Ky., 516 S.W.2d 326 (1974). Butler v.

On appellate review,

the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then is the defendant entitled to a directed verdict of acquittal. Commonwealth v. Benham, Ky., 816 S.W.2d 186 (1991); A defendant

Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977). is not entitled to a directed verdict of acquittal on

insufficient evidence if it would not be unreasonable for a jury to find him guilty. Yarnell v. Commonwealth, Ky., 833 S.W.2d 834

(1992); Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983). -4-

Reviewing the evidence presented at trial, including the testimony of appellant's ex-wife, we believe the jury could have believed appellant's former wife's version of the events. There was evidence of repeated telephone calls and visits by the appellant which threatened physical violence toward his ex-wife. We find nothing in the statutes which excludes telephone calls and appellant gives no authority for such an interpretation. Given the totality of the evidence, it was reasonable for the jury to find the appellant guilty of the stalking charge. Next, appellant alleges the trial court erred by allowing the Commonwealth to introduce evidence of uncharged bad acts and prior convictions in its case-in-chief. The

Commonwealth had given notice under KRE 404(b) of its intent to introduce evidence of various bad acts (not just the subsequent convictions thereon): the December 24, 1994 incident1 and the

November 9, 1994 incident2, contending that these acts were intertwined with the charged acts. Subsequently, the

Commonwealth moved to amend the indictment to allow introduction of appellant's previous convictions as aggravating factors under KRS 508.140(1)(b). The court ruled that the Commonwealth would

be permitted to "[i]ntroduce into evidence testimony regarding the underlying facts for which the protective order was sought." The court also granted the Commonwealth's motion to amend its

Appellant allegedly appeared at his wife's home, knocked on the doors and windows while yelling obscenities, broke windows, slashed two tires, and threatened to kill his wife and others. Five days after their wedding, appellant allegedly hit his wife, held her against her will for over two hours, and threatened to kill her in numerous ways. -52

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indictment to include reference to the existence of the protective order and reference to appellant's conviction within five years of a Class A misdemeanor against his ex-wife. Appellant contends that the evidence of acts which occurred during the marriage, but prior to the May 1, 1996 through July 31, 1996 time frame in the indictment, was irrelevant and unfairly prejudicial in the guilt phase of the trial, and by objecting, appellant was requesting, and this Court should require, the court to bifurcate the trial. Under

appellant's theory, the court could find stalking without the evidence of prior bad acts, crimes, EPOs, and the like, and in the second phase, decide the degree of stalking. Appellant cites

Dedic v. Commonwealth, Ky., 920 S.W.2d 878 (1996), a multiple DUI case, as authority for bifurcation in this first-degree stalking case. As a general rule, evidence of uncharged prior bad acts of a criminal defendant is inadmissible to prove the defendant's bad character or to show that a defendant's actions are in conformity with his prior acts. KRE 404(a). However, such

evidence may be admissible if offered for some other purpose. KRE 404(b)(1). It may also be admissible if the evidence is so

inextricably intertwined with other evidence essential to the case that separation of the two could not be accomplished without serious adverse effect on the offering party. KRE 404(b)(2).

In the present case, the evidence of the two prior incidents was relevant to show the victim's state of mind. The

definition of stalking requires that the defendant's course of

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conduct "shall be that which would cause a reasonable person to suffer substantial mental distress." KRS 508.1130(1)(b).

Evidence of the victim's state of mind was an element of the stalking charge to show that she suffered substantial mental distress. A finding that a victim suffered substantial mental distress cannot be made in a vacuum. It must be based upon the Matthews v.

circumstances surrounding the course of conduct.

Commonwealth, Ky., 709 S.W.2d 414, 418 (1986), cert. denied, 479 U.S. 871, 107 S. Ct. 245, 93 L. Ed. 2d 170 (1986). The evidence

of appellant's acts of violence and intimidation during the two incidents was relevant to understand the victim's reaction to his threatening conduct. While the charged acts comprising the

offense of stalking took place from May 1, 1996 through July 31, 1996, appellant's threats against his wife and others carried weight with her because she had direct experience with his prior conduct. Furthermore, the evidence was relevant to establish

that appellant's threats placed the victim "in reasonable fear of . . . serious physical injury or death." KRS 508.140(1)(a).

Once the trial court decides the prior bad acts are relevant, it must conduct a balancing test to determine whether the probative value of the bad acts outweighs their unfairly prejudicial effect. (1994). Bell v. Commonwealth, Ky., 875 S.W.2d 882

In the case sub judice, in addition to providing the

fact finder with evidence of the victim's mental state, the acts in question also provide us with evidence of the appellant's

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character and information as to the degree of the stalking as discussed hereafter. Appellant's argument, that his objection to the admission of prior convictions is tantamount to a request for a bifurcated trial, must also fail. Even if we agreed that said

objection was tantamount to a request for a bifurcated trial, there is no such requirement for first-degree stalking under KRS 508.140. Dedic v. Commonwealth, Ky., 920 S.W.2d 878 (1996)

involved a misdemeanor DUI trial which heretofore had allowed the admission of prior DUI convictions. The Court in Dedic, 920

S.W.2d at 879, noted that "prior DUI convictions are not elements of additional crimes but rather are penalty guidelines." Therefore, using the rationale of Commonwealth v. Ramsey, Ky., 920 S.W.2d 526 (1996), the Court ordered a bifurcated trial in misdemeanor DUI trials. In a first-degree stalking case under

KRS 508.140, the prior conviction involving the same victim becomes an element of the crime which distinguishes this case from Dedic. The U.S. Supreme Court case of Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997) also does not change the result of this case. In that case, the

Court ruled that where a prior conviction becomes an element of the present charge, the defendant may offer to stipulate the element and prevent the prosecutor from introducing the name of the prior conviction. In the case sub judice, after the trial

court ruled in favor of the priors' being admitted, the appellant neither offered to stipulate a statutory element nor requested an

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admonition to the jury.

Under the circumstances of the case sub

judice, the trial court's ruling was correct. For the foregoing reasons, the judgment of the Daviess Circuit Court is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: Susan Jackson Balliet Frankfort, Kentucky BRIEF FOR APPELLEE: A. B. Chandler, III Attorney General Kent T. Young Assistant Attorney General Frankfort, Kentucky

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