Hayes v. State, CR-96-0298

• Citation: 717 So.2d 30
• Decision Date: 17 October 1997
• Docket Number: CR-96-0298
• Parties: Richard Lee HAYES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 30

717 So.2d 30

Richard Lee HAYES v. STATE.

CR-96-0298.

Court of Criminal Appeals of Alabama.

Oct. 17, 1997.

Rehearing Denied Dec. 19, 1997.

Certiorari Denied June 19, 1998

Alabama Supreme Court 1970630.

Thomas S. Smith, Dothan, for appellant.

Bill Pryor, atty. gen., and Jack Willis, asst. atty. gen., for appellee.

BASCHAB, Judge.

The appellant, Richard Lee Hayes, was convicted of stalking under § 13A-6-90, Code of Alabama 1975, and was sentenced to five years imprisonment. That sentence was suspended and the appellant was placed on five years probation.

This case stemmed from the tumultuous relationship between the appellant and his ex-wife, Cherie Jo Hayes. The couple started having problems in 1988 while living in New York State. In 1988, the appellant was convicted of third-degree assault as a result of a beating that he had inflicted on Ms. Hayes. Sometime around 1989 or 1990, the couple moved to Dothan, Alabama, where they currently reside. The appellant and Ms. Hayes separated and reconciled several times. In February 1995, their common-law marriage was dissolved by divorce. In May 1995, the series of incidents that are the basis of this action began.

The State's evidence showed numerous encounters between the appellant and his ex-wife. The appellant had often followed Ms. Hayes in his automobile and, on one occasion, had forced her automobile off the road. The appellant confronted Ms. Hayes at numerous places, including her home, local stores, restaurants, parking lots, and the street in front of the appellant's home. The appellant sent Ms. Hayes numerous letters containing derogatory comments. In addition, evidence showed that the appellant called Ms. Hayes repeatedly at her place of employment. Also, on two occasions, the appellant put his hand to his head and simulated the firing of a gun, saying to Ms. Hayes, "This is for you, bitch." On yet another occasion, after asking Ms. Hayes if she really liked her current boyfriend, he responded, "Good, two for one shot." While Ms. Hayes was dropping her son off at the appellant's home, the appellant approached her and told her that he had a court paper giving him permission to "pack a piece." He then showed Ms. Hayes two shotgun shells and told her that they had her name on them. Furthermore, on numerous occasions, he shouted epithets, such as "whore" and "slut," at Ms. Hayes.

The appellant was arrested and charged with stalking under § 13A-6-90, Code of Alabama 1975. The trial court denied the appellant's motion for a judgment of acquittal made at the close of the State's case and the appellant's motion for a new trial. This appeal followed.

I

The appellant argues that the State failed to prove a prima facie case of stalking.

A reviewing court, when examining the sufficiency of the evidence on a motion for a judgment of acquittal,

"must accept the evidence presented by the state as true, must view that evidence in a light most favorable to the state, and must accord the state all legitimate inferences from the evidence. Rowe v. State, 662 So.2d 1227 (Ala.Cr.App.1995). Where there is legal evidence from which a jury could by fair inference find a defendant guilty, a trial judge should submit the case to the jury. Id."

State v. Grantland, 709 So.2d 1310, 1311-12 (Ala.Cr.App.1997).

Section 13A-6-90, Code of Alabama 1975, states, in pertinent part:

" (a) A person who intentionally and repeatedly follows or harasses another person and who makes a credible threat, either expressed or implied, with the intent to place that person in reasonable fear of death or serious bodily harm is guilty of the crime of stalking."

(emphasis added).

In order to prove a prima facie case of stalking, the State must show three elements. First, the State must prove that the accused "intentionally and repeatedly follow[ed] or harass[ed] another person." Second, the accused must have made a "credible threat." Finally, the accused must have intended to place the victim in reasonable fear of death or serious bodily injury. See § 13A-6-90, Code of Alabama 1975. We recognize that this is not the same test set forth in Culbreath v. State, 667 So.2d 156, 159 (Ala.Cr.App.1995).

Culbreath erroneously stated that the appellant's conduct must have actually placed the victim in reasonable fear of death or serious bodily injury. Id.; see also § 13A-6-90, Code of Alabama, 1975. In Culbreath, the appellant was accused of harassing his ex-wife. The language in question apparently refers to the requirement in § 13A-6-92(c), Code of Alabama 1975, that an intentional course of conduct must actually cause a victim to suffer substantial emotional distress before it rises to the level of harassment. While the State need not show that the victim was actually placed in fear of death or serious bodily injury to prove a prima facie case of stalking, the State must still show that a victim suffered substantial emotional distress in order to prove harassment.

A. Intentionally and Repeatedly Following or Harassing Element

Under this element, the State must show that the accused either followed the victim on more than one occasion or that the accused harassed the victim on more than one occasion. State v. Randall, 669 So.2d 223, 227 (Ala.Cr.App.1995) (defining the word "repeatedly").

Harassing is defined in § 13A-6-92(c), Code of Alabama 1975. In order to prove harassing conduct, the State must show that (1) the accused "engag[ed] in an intentional course of conduct directed at a specified person," (2) that conduct "alarm[ed] or annoy[ed] that person, or interfere[d] with the freedom of movement of that person, and which serve[d] no legitimate purpose," and (3) the course of conduct is "such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress." § 13A-6-92(c), Code of Alabama 1975 (emphasis added).

The evidence showed that the appellant not only followed Ms. Hayes on more than one occasion, but he also harassed her on numerous occasions. The appellant admitted that he knew where Ms. Hayes lived, worked, and shopped. The State presented evidence of numerous occasions when he would follow her and confront her at these places. After following her on one occasion, the appellant forced her car off the road. In one instance, the appellant saw Ms. Hayes pulling into a shopping center as he was leaving. When Ms. Hayes entered a store in the center, the appellant followed her in and confronted her about her boyfriend. On other occasions, the appellant called Ms. Hayes repeatedly at work and left messages that he would call DHR if she did not call him back. There was also evidence that the appellant called Ms. Hayes's employer, co-workers, and friends to talk about her. The appellant also admitted that he had written a flyer, which contained derogatory statements about Ms. Hayes, that had been distributed around the Dothan area. The appellant yelled at Ms. Hayes numerous times, calling her names such as "whore" and "slut." The appellant also made gestures as if he were firing a gun at his head, telling Ms. Hayes, "This is for you, bitch." He also made a comment about "two for one shot" upon hearing that Ms. Hayes liked her boyfriend. Furthermore, the appellant showed Ms. Hayes two shotgun shells and told her that they had her name on them. Such acts could cause a reasonable person to suffer substantial emotional distress. Furthermore, they showed a pattern of intentional conduct directed at Ms. Hayes.

The State also presented evidence that the appellant's conduct not only alarmed and annoyed Ms. Hayes, but that it also caused her to fear that the appellant would kill her. She also testified that, on occasion, the appellant's conduct made her feel "low," "awful," and embarrassed. There was ample evidence that the victim suffered substantial emotional distress.

After reviewing the evidence in a light most favorable to the State, we find that a jury, by fair inference, could have found that the appellant repeatedly followed and harassed Ms. Hayes.

B. Credible Threat Element

"Within reasonable bounds, any question of the 'credibility' of the threat made to the victim [is] a question for the jury to resolve." Culbreath, 667 So.2d at 163. A threat, whether express or implied, is "credible" if (1) it is made with the intent to cause the victim "to fear for his or her safety or the safety of a family member"; (2) the accused has the apparent ability to carry out the threat; (3) it causes the victim to fear for her safety or the safety of a family member; and (4) it causes reasonable mental anxiety, anguish or fear. § 13A-6-92(b), Code of Alabama 1975.

This court has not yet addressed the question of whether the accused must actually intend to carry out his threat before it will be deemed a "credible threat." We hold that our stalking statute has no such requirement. Alabama has little caselaw interpreting the language of § 13A-6-92, Code of Alabama 1975. The Alabama stalking statute is substantially similar to California's stalking statute. Culbreath v. State, 667 So.2d at 159; State v. Randall, 669 So.2d 223, 226 (Ala.Cr.App.1995). The California Court of Appeal, when looking at the credible threat requirement of California's statute, held that there is no requirement that the accused have the actual intent to carry out the threat. People v. Falck, 52 Cal.App.4th 287, 60 Cal.Rptr.2d 624, 630 (1997). ¹ According to that court,

"[i]t is enough that the threat causes the victim reasonably to fear for her safety or the safety of her family, and that the accused makes the threat with the intent to cause the victim to feel that fear."

Id. In examining our statute we agree with the California Court of Appeal and hold that the State need only show that the accused intended to cause the victim to fear for his safety or the safety of his family.

The question of intent is usually incapable of direct proof and is usually left...