State v. Whitesell, No. 82,610.

• Decision Date: 08 December 2000
• Docket Number: No. 82,610.
• Parties: STATE OF KANSAS, Appellee, v. JON L. WHITESELL, Appellant.
• Court: Kansas Supreme Court

270 Kan. 259

13 P.3d 887

STATE OF KANSAS, Appellee, v. JON L. WHITESELL, Appellant.

No. 82,610.

Supreme Court of Kansas.

Opinion filed December 8, 2000.

Daniel E. Monnat, of Monnat & Spurrier, Chartered, of Wichita, argued the cause and was on the brief for appellant.

Charles R. Reimer, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.:

The appellant, Jon L. Whitesell, appeals his conviction for one count of stalking his wife, Julie Whitesell. Whitesell was sentenced to 60 months of probation. Whitesell raises several issues on appeal. This court has jurisdiction pursuant to K.S.A. 20-3018(c).

The relevant facts of this case span over an 8-year period. Julie met Whitesell in 1989, became pregnant, and married him in 1990. Whitesell and Julie rarely lived together as the relationship was abusive from the start. When Julie and Whitesell did live together, Julie would often flee with her children to her sister's house when Whitesell became violent.

In March 1991, Whitesell became very angry during an argument when he discovered his large hunting knife he kept in his vehicle was gone. Evidently, Julie had taken the knife from the truck. Whitesell subsequently threw Julie into a closet and refused to let her out. Julie eventually fled to her mother's home. When Julie returned home, Whitesell had laid out all the knives in the kitchen in a triangle pattern on her kitchen table. Julie believed that Whitesell was considering either suicide or killing her. Whitesell was hospitalized on March 11, 1991, because his family believed he was suicidal.

In April 1991, while Julie was driving Whitesell from the hospital to another medical appointment, Whitesell became angry, reached over, turned off the vehicle, and pulled her out of her seat. Whitesell got into the driver's seat and started driving very fast. Julie begged him not to kill her. At a stop light, Julie jumped out of the car and ran away.

During periods of hospitalization in 1991, Whitesell called Julie repeatedly and accused her of having affairs. He told her that he could come and find her if he needed to and that she "has not seen anything yet" if she thought she was afraid of what had happened before.

In June 1991, in a violent rage, Whitesell threw water on Julie while she lay in bed sleeping. Whitesell told Julie that he was taking their daughter. When Julie tried to stop him from driving away, Whitesell pounded her head against the steering wheel, shoved her to the ground, and pulled out her hair. Whitesell also shoved Julie's older daughter against the side of the house. Whitesell was eventually held down, cursing and screaming, by several firemen who had responded to a nearby emergency. Whitesell was arrested and convicted for domestic battery.

In 1992, Julie filed a protection from abuse order. Whitesell subsequently filed for divorce. Later that year, Julie's brother discovered Whitesell attempting to break into Julie's home. Whitesell had also disabled the air conditioner and had previously removed the spark plugs or distributor from Julie's car.

In October 1992, Whitesell dismissed the divorce action and told Julie that marriage was "till death do us part."

On January 20, 1993, Julie filed another protection from abuse order. Two days later, Whitesell pushed Julie, bruising her arm. Whitesell then locked Julie in the bedroom with him, threw her into the corner, and pressed his pelvis against her. Julie believed that Whitesell was going to rape her. Whitesell then threw Julie out into the hall with so much force that Julie's foot went through the wall.

In April 1993, Julie filed for divorce. Whitesell went to Julie's house to talk to her about the divorce and the two engaged in sexual intercourse. Shortly thereafter, Julie discovered that she was pregnant with Whitesell's baby. Julie eventually dismissed the divorce action. Whitesell moved back in to the house with Julie when they discovered that she had been diagnosed with cancer. In March 1994, Julie became fearful of Whitesell when he became violent and threw a television set. Julie tried to leave the home, but Whitesell slapped her on the back of the head and kicked her. Julie tried to escape to a bedroom with the children but Whitesell kicked in the door. Julie eventually got outside, but Whitesell shoved her and her children to the ground.

Julie then filed another protection from abuse order. In October 1994, Whitesell was arrested for violating the order. Whitesell was angry because Julie had missed a marriage counseling session. Whitesell called Julie and wanted to know where his gun was. He told her, "Since I'm crazy there's no telling what I'll do." Whitesell went to Julie's father's house, beat on the door, and screamed at him to give him his gun. Whitesell then went to Julie's home and broke into the side garage door.

In November 1994, Whitesell returned to Julie's house and tore off a storm drain, broke a flower pot, and kicked in her garage door.

In late 1994 or early 1995, Julie filed a mental commitment on Whitesell. Whitesell called the district attorney's office in a rage and said that he was going to kill Julie and that he had a gun. A few days later Whitesell went to the district attorney's office and told them that he was very angry, that he owned a gun, and that he would kill Julie and himself.

Whitesell was hospitalized from January through March 1995. In August 1995, Whitesell called Julie and threatened suicide. Whitesell was very angry as he had seen Julie with another man. Police officers went to Whitesell's apartment to check on him. Whitesell told officers that he had been hospitalized nine times and that he did not want to go back. Three hours later, after the SWAT team was called in and after police had agreed not to arrest Whitesell or take him to the hospital, Whitesell was taken into custody.

After the August 1995 incident, Julie isolated herself with her children. Julie did not allow her children to ride their bikes and only let them play in the backyard. Julie never opened the blinds or left the garage door open.

In early September 1995, Julie called police and reported that Whitesell was following her, driving by her home, repeatedly calling her, and was checking the tags of cars in her driveway. Whitesell also sent Julie a note referencing spousal abuse and the O.J. Simpson trial which was being televised at the time.

In December 1996, Julie returned to work. Shortly afterwards, Julie began to find suicidal notes from Whitesell taped to the steering wheel of her locked car. In October 1996, Whitesell sent Julie a birthday card telling her "I will not quit!"

In April 1997, Julie filed for divorce a second time. During the 4-month period from March to July 1997, there was a dramatic escalation in Whitesell's activities with Julie. Julie believed that this was prompted by her decision to seek a divorce. Whitesell's actions during this period prompted the district attorney's office to file this stalking case against him. Because several of the issues in this case turn on the particular facts, we will review the events of this period in greater detail.

March 23, 1997. Julie called the police to complain that Whitesell was driving in the area and told police that she was scared of him. Julie told officers that Whitesell had been hospitalized before for "different reasons" and that Whitesell had "homicidal thoughts." As the responding officer left Julie's house, he saw Whitesell driving down the street. The officer pulled Whitesell over. Whitesell explained that he was in the area to check on Julie's safety. Whitesell was arrested for driving on a suspended license.

April 18, 1997. Julie filed a divorce petition and obtained temporary orders notifying Whitesell that his return to said residence without the permission or upon the invitation of the petitioner could be considered as criminal trespass.

April 23, 1997. Julie called the police in the early morning hours to request an "extra watch" on the house. Julie told officers that Whitesell had threatened to harm her throughout the divorce proceedings. Julie told officers that she had seen Whitesell riding a bicycle by her house several times, including the previous evening. Whitesell's parents later stated that Whitesell was on vacation in Albuquerque, New Mexico, with them at the time.

May 11, 1997. Divorce papers with temporary orders were served on Whitesell. May 25, 1997. While performing a routine patrol at approximately 11:20 p.m., Deputy James Moreland found Whitesell parked down the street about six houses from Julie's house with his lights off. Whitesell had a pair of binoculars in his vehicle. Moreland advised Whitesell to go home. Whitesell told Moreland that he was sad because he wanted to see his children and that Julie had refused to let him see them. Moreland told Whitesell that he was "starting to get close to borderline stalking." Whitesell also told Moreland that he wanted to say a prayer for his children before he left the area; however, Moreland told Whitesell to go home and pray. After Whitesell left, Moreland talked with Julie. Julie was scared and trembling and had a "look of panic on her face." Julie was afraid that Whitesell was going to kill her.

May 31, 1997. Julie called the police to complain that Whitesell was yelling threats at the house; however, Whitesell was not there when the responding officer arrived. Julie told the officer that Whitesell had driven by several times while staring intently. Julie also told the officer that Whitesell pulled up to the front of the house to find Kyle Foland, Julie's new boyfriend, mowing the lawn. Whitesell asked Kyle if he was a Christian and then made crude comments to Julie about what he thought was makeup on her face. Whitesell called Julie a slut...