Timothy P. Heil v. Commonwealth of Kentucky ( 2008 )

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RENDERED : MAY 22, 2008
NOT TO BE PUBLISHED
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2007-SC-000162-MR
TIMOTHY P . HEIL APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT
V. HONORABLE STEPHEN K. MERSHON, JUDGE
NO. 05-CR-002767
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
REVERSING AND REMANDING
Timothy Heil appeals as a matter of right from a January 25, 2007 Judgment of
the Jefferson Circuit Court convicting him of first-degree wanton endangerment and
first-degree stalking . In accord with the jury's recommendation, the trial court
sentenced Heil as a second-degree persistent felon to two consecutive ten-year terms
of imprisonment .' The Commonwealth accused Heil of stalking his estranged wife, Lori
Heil, and of wantonly endangering Lori's friend, Channin Daugherty . Heil contends that
the improper admission of extensive evidence of collateral bad acts, a stalking
instruction not supported by the evidence, and a non-unanimous verdict on the stalking
offense denied him a fair trial. We agree that collateral evidence of an uncharged crime
and a non-unanimous verdict with respect to the stalking charge entitle Heil to relief.
' Heil was also found guilty of third-degree terroristic threatening, for which he was
sentenced to one day in jail, and he was acquitted of menacing .
RELEVANT FACTS
The Heils were married in July 1993 and made their home in Charlestown,
Indiana . Lori brought a daughter to the union, K. H., whom Tim adopted . The couple
also had three sons together. Lori testified that in the fall of 1993, when she was
pregnant with the first boy, she and Tim engaged in one of the arguments that came to
characterize their relationship . During the argument Tim pushed her so hard that she
fell. The fall knocked the breath out of her, necessitated a stay in the hospital so that
her pregnancy could be monitored, and caused her deep concern for the child's well
being . Thereafter, Lori testified, Tim's anger became one of the constants of the
marriage . When he was angry, Lori said, Tim would break things . At different times he
broke chairs, kicked or punched holes in the wall, and once he broke the footboard of a
bed .
Lori and Channin Daugherty both testified about one of Tim's angry outbursts
that occurred in January 1996, when the Heils had invited Channin ; her husband,
Michael ; and their children to the Heilses' home for a birthday party. Lori and Michael
had been friends since childhood, she and Channin worked together, the couples
attended the same church, and their children were friends and participated in many of
the same activities . On this occasion, however, a disagreement between Channin and
Tim caused Tim to fly into a rage . He loudly insisted that the Daughertys get out of his
house, he pushed Channin, and he tried to start a fight with Michael . Concerned
neighbors summoned the police, and the next day Channin obtained a protective order
against Tim . The upshot was a permanent rift between Tim and the Daughertys . For
some time he insisted that Lori and the children have nothing to do with them, and even
when contact was eventually resumed he remained disapproving .
The Commonwealth sought to introduce another fact from the early years of the
marriage . In 2000 Tim was convicted in Indiana for having molested, in 1995, one of
the Heilses' babysitters . This evidence, however, the trial court excluded .
Notwithstanding the arguments and the tensions arising from Tim's anger, Lori
testified that the marriage remained functional until about 2004, when Tim began
insisting on virtually complete control over her. He monopolized the couple's finances
and financial records and began demanding that Lori account for her whereabouts
whenever she was away from home . This scrutiny became more and more oppressive
and occasioned seemingly constant arguing . Following an outburst in December 2004,
she and the children were trying to get out of the house when Tim pushed K. H. down
the steps and grabbed Lori around the throat. Matters came to a head in the summer
of 2005 . Lori testified that one evening she was going to be late getting home and so
she left a somewhat sarcastic message on Tim's voice-mail to the effect that she was
reporting in as required . When she arrived home, she found vegetables-a gift from a
neighbor's garden--thrown and smashed all over the kitchen .
That was the last straw . With Channin Daugherty's help Lori contacted a divorce
attorney and tried to figure out if there was any way she and the children could afford to
separate from Tim. In late July 2005, Lori told Tim that if she could afford it she would
proceed with a divorce immediately . Tim warned her that his children would never
spend the night in a house with another man . On July 31, 2005, Tim found in Lori's car
a list of questions in Channin's handwriting for the divorce attorney. He confronted Lori
with the list and demanded to know who had written it. They argued about the list and
they also argued over K. H .'s birthday party. K. H. was turning fourteen and was to
have a pool party that afternoon at her aunt's house . Tim wanted to attend, but Lori felt
it would be inappropriate for him to attend a party for adolescent girls . The trial court
correctly excluded any mention of Tim's conviction as a reason for Lori's feeling . In
addition to the party, Lori, a musician, was scheduled to perform at a wedding that
night . As she and the children were preparing to leave, Tim blocked her in a closet and
told her that after the party and the wedding she should leave the children with relatives
and come home alone so that they could have out their differences "once and for all ."
Lori testified that his manner and his ultimatum terrified her. She feared that she could
not safely return home. After the wedding she obtained some money from her father,
and then she, her children, the Daughertys, and their children drove to a Louisville
restaurant to eat and to find a shelter for Lori and her children .
Channin Daugherty testified that she was the first to finish eating and that
because their various cell phones all needed charging, she took Lori's cell phone to
Lori's van where there was a charger. She was sitting in the van talking to a staff
member of a shelter when Tim appeared at the window and furiously demanded to
know where Lori was. Hoping to lead him away from the others, Channin gestured
away from the restaurant and, with Tim pounding on the window, backed the van out of
its parking space and pulled into traffic. Tim followed her in his truck. According to
Channin, he repeatedly tried to force her to the side of the road and finally succeeded in
forcing her onto the median. She escaped again, however, when he got out of his
truck, and in the meantime she called 911 . The emergency operator contacted police
officers . When Tim finally abandoned his pursuit, Channin returned to the restaurant
and told the others and the police what had happened. The police arranged for all of
them to spend the night at a Louisville motel and took measures to ensure that they
were not followed as they drove there. Soon after they arrived, there began a nightlong
barrage of phone calls from Tim. They did not answer those calls, but knew that Tim
was calling through caller identification . Phone records confirmed that Tim had called
each of their cell phones numerous times into the early morning, and that he began
calling again soon after sunrise . Phone records and other witnesses also indicated that
during the night of July 31, 2005 and for several days thereafter Tim made repeated
calls to Lori's friends, acquaintances, and family members and several times threatened
that if Lori did not contact him he would destroy her belongings and leave her with
nothing .
The next morning, Lori and the Daughertys planned to go directly to the
Jefferson County Judicial Center to apply for protective orders, but when they went to
the motel's parking lot Lori's van was missing. Because Tim was the only other person
with a key to the van, they inferred that he had taken it, and it frightened them that he
knew where they were despite police assurances that he had not followed them . Lori
did obtain a protective order, which was served on Tim the next day, August 2, 2005.
Channin, too, applied for a protective order and also filed charges against Tim for
terroristic threatening and wanton endangerment . Both families continued to hide for
several days. On about August 6, 2005, as testified to by Michael Daugherty and
confirmed by Ron Harmon, an official and acquaintance from the couples' church,
Harmon called Michael to warn him that he had just accompanied an apparently
suicidal Tim to the hospital and that en route Tim had expressed a frightening degree of
anger toward the Daughertys and a desire to harm them . On about August 8, 2005,
Tim appeared at the hearing on Lori's motion for a domestic violence order, and at the
conclusion of the hearing he was arrested on the charges filed by Channin .
The next day Lori was able to return to her Charlestown residence . She found
the house in disarray . Although the children's rooms and belongings were not
disturbed, the contents of drawers and closets were strewn about the rest of the house.
Most of Lori's clothes, family records, and other items of particular value to her were
missing . She found an axe on her bedroom floor. Her van was not at the house. The
next day one of her sons showed her a small television monitor concealed in the
basement . The monitor showed K. H.'s bedroom . Lori summoned Charlestown police
officers, and in addition to a clock-radio with a hidden camera in K. H .'s room, they
found a device for recording phone conversations .
K. H . then revealed to Lori, as K. H. testified, that sometime in 2004 Tim had
begun harassing her in sexual ways. Once while she was sleeping on the couch he
had awakened her by placing his hand inside her shirt on her breast . He frequently
came into her room and watched her change clothes . She had been awakened several
times during the night by what she believed was the sound of his masturbating in her
doorway, and on other occasions she had awakened and found semen on her face.
Once, not long before July 31, he had appeared fully naked before her and urged her to
"wrestle ." When she ran to her room and locked the door, he pounded on it,
threatening to break it down and to "fuck" her. He warned her not to tell anyone,
because her brothers would hate her for getting him in trouble. These allegations gave
rise to criminal charges in Indiana .
Later in August, Lori, who was still without her van, found stored in Tim's truck
account records from a satellite tracking service . She was able to access the account
on the internet and discovered that soon after July 23, 2005 Tim had installed a
monitoring device in her van which enabled him to track the van's location through his
e-mail account. The last record of the van's position was from August 2, 2005 on Brim
Drive in Jeffersonville . Lori drove up and down Brim Drive, but did not locate the van. It
was another month, near the end of September 2005, before one of Tim's
acquaintances who lived on Brim Drive phoned Lori and revealed that early in August
she had, at Tim's behest, helped him move the van to the Executive Inn parking lot in
Louisville, which is where Lori found it. The same acquaintance was also able to return
some of Lori's records and other belongings .
On September 15, 2005, a Jefferson County grand jury indicted Tim on charges
of wantonly endangering Channin Daugherty, of stalking Lori, of making a terroristic
threat against the Daughertys, and of menacing Lori. By virtue of his 2000 conviction,
he was also alleged to be a second-degree persistent felon . Prior to trial, the
Commonwealth gave notice pursuant to KRE 404(c) that it intended to introduce
evidence of Tim's prior crime and of his alleged bad acts throughout the marriage . With
the sole exception of the prior conviction, the trial court agreed with the Commonwealth
that all the evidence summarized above was admissible inasmuch as it tended to show
Tim's and Lori's states of mind on July 31, 2005 and during the early part of August .
Tim contends that much of the Commonwealth's proof had little or no relevance to the
crimes charged, but was introduced merely to impugn his character, and that the trial
court thus abused its discretion by admitting it. In particular he objected before and at
trial to the evidence of his alleged spying on and abuse of K. H . ; to the evidence of the
1996 incident involving the Daughertys ; and to all the evidence of prior threatening
behavior against Lori, including the 1993 pushing incident, the property damage, the
incident during which he allegedly pushed K. H. and grabbed Lori, and the incident
involving the smashed vegetables . Although the admission of most of this evidence
was within the trial court's discretion, we agree with Tim that the evidence regarding the
alleged abuse of K. H. was unduly prejudicial . Its admission necessitates a new trial .
ANALYSIS
I. Some, but not all, of the Prior-Bad Acts Evidence should have been Excluded.
As the parties correctly note, evidence of a defendant's "other crimes, wrongs, or
bad acts" is not admissible as proof of the defendant's character or of his propensity to
break the law. KRE 404(b), however, permits the introduction of such evidence
(1) If offered for some other purpose, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident ; or
(2) If so inextricably intertwined with other evidence essential
to the case that separation of the two (2) could not be
accomplished without serious adverse effect on the offering
party .
This rule is to be applied cautiously, we have explained, in accord with its fundamental
purpose of "prohibit[ing] unfair inferences against a defendant ." Anderson v.
Commonwealth , 231 S.W.3d 117, 120 (Ky . 2007) .
To be admissible under the rule, the evidence of other criminal or wrongful acts
must be (1) relevant for some purpose other than to prove criminal predisposition, (2)
sufficiently probative to warrant introduction, and (3) sufficiently probative so that its
probative value outweighs its potential for prejudice to the accused . Id. ; Bell v.
Commonwealth , 875 S .W.2d 882 (Ky. 1994). In other words, the alleged prior wrong
must be relevant to a contested element of the charged crime, and the prior bad act
evidence must be probative in two senses . First, it must be probative that the prior
wrong did in fact occur. This requirement is satisfied "if the jury could reasonably
conclude that the act occurred and that the defendant was the actor." Davis v.
Commonwealth, 147 S .W .3d 709, 724-25 (Ky. 2004). Second, the evidence must also
be sufficiently probative of an element of the charged crime to withstand the KRE 403
balancing test between probative value and prejudicial effect, with the assumption,
moreover, that prior bad act evidence is inherently prejudicial and should be excluded
absent a sufficiently strong countervailing need for it. Anderson v. Commonwealth,
supra. We review the trial court's application of this balancing test under the abuse-of-
discretion standard . Davis v. Commonwealth, supra .
A. Evidence that Tim Spied Upon and Abused K. H. should not have been
Admitted .
Tim first challenges the relevance and probativeness of the evidence that he
spied upon and abused K. H. With respect to relevance, the Commonwealth maintains
that the abuse evidence is relevant to Tim's state of mind, which is an element of both
wanton endangerment (wantonness) and stalking (intention). According to the
Commonwealth, Tim was desperate to prevent the discovery of his acts toward K. H.
and thus desperate to maintain control over his family . That desperation led him to
disregard the serious risk of injury to which he exposed Channin Daugherty and to
purposefully engage in a course of conduct meant to frighten Lori into staying with him.
We agree that his abuse of K. H. would doubtlessly have affected Tim's state of mind
during the period in question and so was relevant to that issue.
We also agree that the abuse evidence--K. H .'s testimony and the damningly
corroborative evidence of the hidden camera--were sufficiently probative that the
abuse occurred . We are persuaded, however, that the trial court abused its discretion
by admitting evidence with a grossly prejudicial effect which far outweighs its probative
value. It is true, as the Commonwealth observes, that evidence of a prior wrong may
be admitted when the prior wrong clearly provides a motive for the charged crime and
thus offers substantially probative evidence of the culprit's identity and state of mind . In
Price v. Commonwealth, 31 S .W.3d 885 (Ky. 2000), for example, Price was accused of
murdering his estranged wife . Evidence that he had sexually abused his step-daughter
was deemed admissible where it was also shown that shortly prior to the killing the
murder victim had discovered the abuse and reported it to authorities, thereby denying
Price access to the step-daughter and exposing him to prosecution . The abuse
evidence, the Court explained, was thus inextricably bound up with Price's motive for
the killing.
In this case, however, the connection between the alleged abuse and the crimes
charged was nowhere near so inextricable or so clearly established . On the contrary,
the evidence tended to show that, entirely apart from the alleged abuse, Tim disliked
the Daughertys and resented what he perceived as their meddling in his marriage, and
he had habitually used intimidation against Lori in his attempts to control her. While
fear of discovery may have joined with Tim's anger and desire for dominance in
bringing about his actions in late July and early August 2005, there was no evidence in
this case, unlike Price, that Lori had discovered the abuse or that Tim even suspected
that she had. The "fear of discovery" motive, therefore, was speculative at best, and
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the additional probative value of the abuse evidence was thus extremely limited . On
the other hand, the abuse evidence was devastatingly prejudicial and virtually certain to
have a profound effect on the jury. Because of the Commonwealth's limited need for it
and its overwhelming potential for prejudice, the abuse evidence posed an
unacceptable risk that Tim would, in effect, be tried for an uncharged crime . In these
circumstances the trial court abused its discretion by admitting the evidence of K. H .'s
abuse. The jury's recommendation of the maximum penalty, moreover, suggests at the
very least a reasonable possibility that the error contributed to the result. The error may
not, therefore, be deemed harmless. Anderson v. Commonwealth , supra .
B. Evidence of Tim's Prior Threats Against Lori and Channin was Admissible .
Because the issues could arise at a new trial, we may also note that otherwise
the admission of evidence concerning the 1996 altercation with the Daughertys and the
acts of intimidation against Lori was not an abuse of discretion . In Davis v.
Commonwealth, we observed that
[g]enerally, evidence of prior threats and animosity of the
defendant against the victim is admissible as evidence of
motive, intent, or identity.
147 S .W .3d at 722 . Here Channin Daugherty and Lori were both victims of Tim's
alleged crimes, and the evidence of his prior threats and violence toward them was
sufficiently probative in both senses discussed above to justify admission. Several
witnesses testified concerning Tim's anger, and the Commonwealth produced a
recording of Channin's 911 call during the car chase, all of which made it abundantly
reasonable for a juror to believe that the acts the victims described actually occurred .
Those acts, moreover, again as noted above, were substantially probative of Tim's
state of mind during the car chase and during the first week of August 2005 while he
continued his efforts to force Lori to return. They were also substantially probative of
Lori's state of mind during that period, which, as the trial court correctly noted, is
another element of stalking.
It is true, as Tim argues that several of the alleged prior acts occurred long
before the summer of 2005, but we have several times observed that the temporal
remoteness of an alleged prior bad act "bears more heavily on weight than on
admissibility ." Davis v. Commonwealth , 147 S .W .3d at 725. It was not unreasonable
here for the trial court to conclude that evidence of both the 1996 incident with the
Daughertys and the incidents with Lori contributed significantly to an accurate
understanding of the events of July and August 2005 . Indeed, evidence of the couple's
history was reasonably necessary for the Commonwealth to meet its burden of showing
that Tim's July and August acts were not simply those of an overwrought father trying to
contact his children . The probative value of this prior bad acts evidence, therefore,
sufficiently outweighed whatever tendency it may have had to characterize Tim as
habitually angry and aggressive. The trial court did not abuse its discretion by admitting
that evidence .
C. The Reason Lori Objected to Tim's Attendance at the Pool Party Should Not
Have Been Admitted.
We may note, finally, that an allusion to Tim's prior conviction should not have
been admitted in conjunction with testimony regarding K. H.'s birthday party. As noted
above, Lori testified that she objected to Tim's attendance at the party because she felt
it inappropriate for him to be around adolescent girls . Tim contends that this allusion to
his conviction for molestation improperly suggested to the jury an unspecified prior bad
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act. We agree . At retrial, while the fact that Tim and Lori argued over Tim's attendance
at the party is admissible to show the hostility that existed that day, Lori's reasons for
objecting should be excluded .
11. Tim was not Entitled to a Dismissal of the Stalking Charge .
Tim next argues that the stalking charge should have been dismissed for lack of
evidence and excluded from the jury instructions . The General Assembly created the
crime of stalking in 1992. Acts, 1992 c 443 § 1, (effective July 14, 1992). Where there
is repetitive, threatening behavior, the stalking statutes are intended to allow for
intervention before the victim has actually been attacked . In its current form, which was
the version in effect at the time of Tim's alleged crime, KRS 508.130 defines "stalk" as
follows:
(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.
"Course of conduct," the statute continues,
means a pattern of conduct composed of two (2) or more
acts, evidencing a continuity of purpose .
Next, KRS 508.140 makes first-degree stalking a class-D felony and defines the
offense, in pertinent part, as follows:
A person is guilty of stalking in the first degree,
(a) When he intentionally:
1 . Stalks another person ; and
2 . Makes an explicit or implicit threat with the intent to
place that person in reasonable fear of:
a . Sexual conduct as defined in KRS 510.010 ;
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b . Serious physical injury ; or
c. Death; and
(b) 1 . A protective order 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 .
To establish that Tim stalked Lori, therefore, the Commonwealth was obliged to prove
(1) that after August 2, 2005, when Tim was served with Lori's protective order, he (2)
intentionally threatened Lori, either explicitly or implicitly, so as to place her in fear of
sexual contact, serious injury, or death, and that he intentionally stalked her, i.e. (3) that
he engaged in a course of two or more harassing, annoying, alarming or intimidating
acts directed toward her with (4) no legitimate purpose and which both (5) would have
caused a reasonable person in Lori's position substantial mental distress and (6) did in
fact cause Lori substantial distress .
The stalking charge was correctly presented to the jury if the evidence permitted
a rational juror to believe all of these elements beyond a reasonable doubt .
Commonwealth v. Benham , 816 S.W .2d 186 (Ky. 1991). Tim maintains, however, that
there was insufficient evidence that after August 2, 2005 he either threatened Lori or
subjected her to an intimidating or harassing course of conduct. We disagree . The
statute requires no more than an implicit threat, and a rational juror could have believed
that Tim's dire threats on August 6, 2005 against the Daughertys, which were conveyed
to the Daughertys and to Lori by Ron Harmon, implicitly threatened Lori, as well as the
Daughertys, with serious injury or death for her act of separation. There was ample
evidence, moreover, that the course of intimidating conduct Tim began on July 31,
2005-the car chase, the harassing phone calls, the phone calls to family members and
acquaintances, the use of surveillance to appear unexpectedly where Lori was, and the
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removal of Lori's van-continued to and beyond August 2, 2005. In particular, a
rational juror could have believed that Tim's continuing concealment of the van, his
August 6 threat, his pestering Lori's family and acquaintances with phone calls
threatening the destruction of Lori's property, and his ransacking of their residence and
leaving a axe in Lori's bedroom, were all acts directed ultimately at Lori, were acts
occurring, continuing, or communicated to Lori after August 2, 2005, and were
harassing acts without legitimate purpose that would have seriously distressed a
rational person and that did in fact distress Lori, particularly in light of her prior
experience with Tim's temper. The trial court did not err, therefore, when it refused to
dismiss the stalking charge .
111. The Jury Instruction on Stalking was Reversibly Flawed .
Finally, Tim contends that even if a stalking instruction was appropriate, the
instruction the trial court gave misstated the law and allowed for a non-unanimous
verdict. The instruction-"Instruction No . 3, Stalking in the First Degree'-provided as
follows:
You will find the defendant, Timothy Paul Heil, guilty under
this Instruction if, and only if, you believe from the evidence
beyond a reasonable doubt, all of the following :
(A) That in this county, between the 30th day of July, 2005
and the 12th day of August, 2005, the defendant :
(1) Intentionally stalked Lori Heil ; AND
(2) Explicitly or implicitly threatened Lori Heil with the
intent to place her in reasonable fear of sexual contact,
serious physical injury, or death ; AND
(B) (1) That when he did so, he knew that a protective order
had been issued against him by the Jefferson Family Court
to protect Lori Heil from such conduct.
A. The Jury Instruction did not Misstate the Stalking Statute.
Tim contends, first, that by directing the jury in part (A) to consider conduct
15
occurring prior to August 2, 2005, the instruction misstated the law that stalking must
(under the facts of this case) follow notice of a protective order. Tim did not preserve
this issue by making a timely objection at trial, and without a more fully developed
record we are unable to say that the trial court erred in this regard at all, much less that
it palpably erred . Part (A) merely tracked the indictment, which identified the period of
time during which all of the alleged charges occurred . Part (B)(1) made it sufficiently
clear that the stalking offense pertained only to that portion of the period following Tim's
receipt of the protective order, and defense counsel's closing argument guarantees that
the jury understood that point . Tim is not entitled to relief on this ground
B. The Jury Instruction Permitted a Non-unanimous Verdict.
Tim also maintains that the instruction was flawed by permitting the jury to reach
a non-unanimous verdict . This objection was properly preserved. The trial court's
instruction was based upon the pattern First-Degree Stalking instruction in Cooper and
Cetrulo, Kentucky Instructions to Juries, Fifth Edition, § 3.63 (2006). Part A . (2) of the
pattern instruction provides that the defendant "explicitly or implicitly threatened [victim]
with the intent to place [victim] in reasonable fear of [sexual contact] [(or) serious
physical injury] [(or) death]." The pattern instruction thus expressly indicates that only
those alternatives supported by the evidence should be included in the instruction as
given . The trial court's instruction included all three alternatives .
As Tim correctly notes, under Ky. Const. § 7, a defendant cannot be convicted of
a criminal offense except by a unanimous verdict . Burnett v. Commonwealth , 31
S .W.3d 878 (Ky. 2000). This Court has explained that
a "combination" instruction permitting a conviction of the
same offense under either of two alternative theories does
not deprive a defendant of his right to a unanimous verdict if
16
there is evidence to support a conviction under either theory .
. . . Otherwise, the verdict cannot be shown to be unanimous
and the conviction must be reversed .
Miller v. Commonwealth , 77 S.W .3d 566, 574 (Ky. 2002) (citation omitted) . Tim
contends that the combination instruction here violated his right to a unanimous verdict
because there was no evidence to support the theory that he threatened Lori with
sexual contact . We agree.
Indeed, while there was ample evidence in this case that Tim's anger had often
led to acts of property destruction and threats of violence and that after August 2, 2005
he had made a serious threat of injury or death against Lori, there was no evidence
whatsoever that Tim had ever subjected Lori to unwanted sexual contact or that he
threatened to do so during the events at issue . Even if the allegations regarding K. H.
had been admissible, moreover, those allegations in no way tended to show that Tim
had sexually threatened Lori. The sexual-threat "theory" of the case was nothing but
speculation . By including the unsupported sexual-threat stalking instruction, therefore,
the trial court violated Tim's right to a unanimous verdict, and because the denial of a
unanimous verdict generally is not subject to harmless error analysis, Burnett v.
Commonwealth , supra, Tim's stalking conviction must be reversed on this ground as
well .
CONCLUSION
In sum, although Tim is not entitled to a dismissal of the stalking charge, his trial
was reversibly marred by the introduction of collateral and unduly prejudicial evidence
that he had abused his adopted daughter, and by the inclusion in the jury instructions of
an unsupported theory of stalking. We are obliged, accordingly, to reverse the January
17
25, 2007 Judgment of the Jefferson Circuit Court in its entirety and to remand for
additional proceedings consistent with this opinion . Evidence that Tim abused his
adopted daughter should not be admitted at a new trial, and unless the evidence
includes proof of a sexual threat against Lori during the relevant period, the jury
instructions should not include the sexual-threat theory of stalking.
All sitting . All concur
COUNSEL FOR APPELLANT :
Elizabeth B. McMahon
Assistant Public Defender
Office of the Jefferson District Public Defender
200 Advocacy Plaza
717-719 West Jefferson Street
Louisville, KY 40202
Frank Wm . Heft, Jr.
200 Theatre Building
629 Fourth Avenue
Louisville, KY 40202
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
Samuel J. Floyd, Jr.
Assistant Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601-8204