ISRAEL BOYD v. COMMONWEALTH OF KENTUCKY
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RENDERED: July 10, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 97-CA-0455-MR
ISRAEL BOYD
v.
APPELLANT
APPEAL FROM FLOYD CIRCUIT COURT
HONORABLE DAVID CAUDILL, JUDGE
CRIMINAL ACTION NO. 96-CR-00072
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * * * *
BEFORE:
BUCKINGHAM, EMBERTON and GUIDUGLI, Judges.
GUIDUGLI, JUDGE.
Israel Boyd (Boyd) appeals from the judgment
entered against him by the Floyd Circuit Court after a jury
verdict found him guilty of stalking in the first degree and
imposed a sentence of one year in the penitentiary.
We affirm.
Appellant married Belinda Boyd (Belinda) in February,
1991.
A son, Justin, was born to the marriage in September,
1992.
In June, 1995, Belinda, then 18 years of age, filed a
domestic violence petition against Boyd alleging he "beat me up
and threatened to kill me and shoved me down on the couch."
emergency protective order (EPO) was issued directing Boyd to
An
remain at least 500 feet away from Belinda.
On July 7, 1995, a
domestic violence order (DVO) was entered continuing the terms of
the EPO for one year.
The couple separated several months later
in October, 1995.
About six months later, on April 10, 1996, Belinda
filed an affidavit alleging that Boyd "has been calling and
threating [sic] me face to face."
A domestic violence show cause
order was entered that day against Boyd.
On April 18, 1996, a
hearing was held and Boyd was found guilty of violation of the
DVO and sentenced to ten (10) days in jail.
Boyd apparently violated the DVO again within the Floyd
County Courthouse and in the presence of a Floyd County Deputy
Sheriff.
EPO.
Boyd was arrested for contempt of court - violation of
Boyd was arraigned the next day, April 19, 1996, pled
guilty, and was sentenced to another ten (10) days in jail to run
concurrently with the ten days he had been sentenced the previous
day.
On April 26, 1996,1 between 8:00 a.m. and 8:30 a.m.,
Belinda was driving to the Community Action office to pick up a
medical card.
driving.
She noticed Boyd was following her and continued
When she arrived at the Community Action office she was
unable to summon help because her car horn was not working.
Before Belinda could get out of her car, Boyd was standing at the
car door.
Boyd grabbed Belinda by her hair and yanked her from
1
The record does not reflect why Boyd was out of jail
seven days after receiving two ten day jail sentences on
April 18th and 19th, 1996.
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the car.
He threatened to kill her if she had him put in jail
again.
The Floyd County Grand Jury returned a two-count
indictment against Boyd charging him with first-degree stalking
and terroristic threatening.
At trial, the jury found Boyd
guilty of both first-degree stalking and terroristic threatening.
The jury recommended a sentence of one year for first-degree
stalking and nine months and a $500 fine for terroristic
threatening.
Boyd was sentenced to the recommended one year in the
penitentiary for first-degree stalking.
Upon motion of Boyd's
counsel, the trial court amended the judgment and dismissed the
terroristic threatening as a lesser included offense of stalking.
Boyd appealed,
alleging the trial court erred in failing to
quash the indictment and that there was insufficient evidence to
sustain his conviction for stalking.
A person is guilty of stalking in the first degree when
he or she intentionally stalks another and makes explicit or
implicit threats intending to place the victim in reasonable fear
of serious bodily injury or death, and the defendant has
previously been served with a protective order protecting the
same victim.
KRS 508.140.
In this appeal, Boyd complains that the indictment
states the violation occurred on April 26, 1996, but lists no
other occurrences of "stalking."
Boyd argues that KRS 508.130
requires a "course of conduct" consisting of two (2) or more acts
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directed at a specific person.
Accordingly, he argues, the trial
court erred by overruling his motion to quash the indictment for
failure to state an offense under KRS 508.140.
We disagree.
The
Kentucky Rules of Criminal Procedure adopted the principle of
notice pleading which applies to indictments:
An indictment is sufficient if it fairly informs the accused
of the nature of the charged crime, without detailing the
formerly "essential" factual elements, Finch v. Commonwealth,
Ky., 419 S.W.2d 146, 147 (1967), and "if it informs the accused
of the specific offense with which he is charged and does not
mislead him." Wylie v. Commonwealth, Ky., 556 S.W.2d 1, 2
(1977).
Thomas v. Commonwealth, Ky., 931 S.W.2d 446, 449 (1996).
We hold the indictment was sufficient as a matter of law to
inform Boyd of the offenses with which he was charged and that he
could not have been misled thereby.
The trial court did not err
in refusing to quash the indictment.
Boyd's sufficiency of the evidence argument must also
fail.
The record clearly shows Boyd committed at least two
"acts" in violation of the July 7, 1995, DVO ordering him to
remain at least 500 feet away from Belinda.
order was effective until July 7, 1996.
DVO.
The July 7, 1995,
Boyd had notice of the
Boyd was found guilty of violating the DVO the first time
on April 18, 1996.
This violation was based upon the April 10,
1996, affidavit of Belinda and the hearing held on the 18th.
On
April 19, 1996, Boyd plead guilty to violating the DVO a second
time, that violation occurring on April 18, 1996, in or about the
courthouse as he appeared for the previous violation.
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Boyd was
present in court for both of these convictions and they were a
matter of public record.
The present indictment for his conduct on April 26,
1996, was the third violation of the DVO in less than three
weeks.
Pursuant to the statute, the Commonwealth's Attorney
presented the case to the grand jury which returned the felony
indictment for first-degree stalking.
At trial, Boyd denied the incident happened.
He
attempted to establish the alibi that he was working at a woman's
home at the time of the alleged events.
This woman's testimony
at trial was that Boyd had arrived just before 8:00 a.m. and
began working, but that she had left her home to drive to the
post office.
Boyd could not establish an alibi during the
relevant time period on April 26, 1996.
The jury believed
Belinda and the verdict was supported by substantial evidence.
The verdict and judgment of the Floyd Circuit Court is
affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paula Fitzgerald
Louisville, KY
A. B. Chandler, III
Attorney General
Carol C. Ullerich
Assistant Attorney General
Frankfort, KY
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