Opinion
CIVIL ACTION No. 03-3266-KHV
March 29, 2004
MEMORANDUM AND ORDER
Pursuant to 28 U.S.C. § 2254, Harlan Lee Freeman, Jr. seeks a writ of habeas corpus based on the double jeopardy clause of the United States Constitution and insufficient evidence to sustain his conviction.Petition For A Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 By A Person In State Custody (Doc. #1) filed June 23, 2003. For reasons stated below, the Court denies plaintiff's petition.
I. Procedural Background
On October 7, 1999, the Wyandotte County Attorney filed criminal charges against Freeman for (1) one count of stalking in violation of K.S.A. § 21-3428; and (2) one count of criminal threat in violation of K.S.A. § 21-3419. See Docs. #5 and 8 in Kansas v. Freeman, Case No. 99CR2046 in the District Court of Wyandotte County, Kansas. On March 7, 2000, a jury found Freeman guilty on both counts. See Docs. #24 and 25 in Case No. 99CR2046. The state court sentenced Freeman to 20 months in prison.
Before filing a federal habeas corpus petition, an inmate must exhaust available state remedies. See 28 U.S.C. § 2254(b)(1). "A state prisoner is ordinarily not able to obtain federal habeas corpus relief unless it appears that the applicant has exhausted the remedies available in the courts of the State." Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994) (quotations omitted). To satisfy this exhaustion requirement, petitioner must first present the issues raised in the federal habeas action to the highest Kansas court, either by direct appeal or by the post-conviction process.Id. To satisfy the state exhaustion requirement through his direct appeal, Freeman must have presented the "substance" of each of the federal constitutional claims which he raises in his federal habeas petition. Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir. 1989). He did so, and exhaustion is not an issue here. Represented by counsel, Freeman filed a direct appeal to the Kansas Court of Appeals.
On appeal, Freeman argued that (1) his convictions for stalking and criminal threat were multiplicitous and that punishment for both crimes violated the double jeopardy clause prohibition of multiple punishments for the same offense, and (2) the record contained insufficient evidence to support his conviction for stalking. See Brief Of Appellant in Kansas v. Freeman 37 P.3d 48 (Kan.Ct.App. Dec. 21, 2001).
Specifically, Freeman argued that the double jeopardy clause of the Fifth Amendment protected him from multiple punishments for the same offense and that the doctrine of multiplicity (which prohibits multiple prosecutions for the same act) provided him constitutional and statutory relief. Brief Of Appellant in Kansas v. Freeman 37 P.3d 48 (citing State v. Gulledge, 257 Kan. 915, 920, 896 P.2d 378 (1995); State v. Freeman, 236 Kan. 274, 280, 689 P.2d 885 (1984) and K.S.A. § 21-3107). Multiplicity exists if the state uses a single wrongful act as the basis for multiple charges. See State v. Robbins, 272 Kan. 158, 171-72, 32 P.3d 171 (2001).
In effect, the double jeopardy clauses of the United States Constitution and the Kansas Constitution provide that no person shall be twice placed in jeopardy for the same offense. U.S. Const. amend. V; Kan. Const. Bill of Rights § 10. The Kansas Supreme Court has noted, however, that the language of the Fifth Amendment guarantees the accused no greater protection than Section 10 of the Kansas Constitution Bill of Rights. Therefore the underlying protection contained in the double jeopardy clause of the United States Constitution is contained in Section 10 of the Kansas Constitution Bill of Rights. Gulledge, 254 Kan. at 396-97, 867 P.2d 270. By statute, Kansas law also prohibits multiple prosecutions for the same act. Specifically, K.S.A. § 21-3107 provides as follows:
(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.
(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is:
(a) A lesser degree of the same crime; (b) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged; (c) an attempt to commit the crime charged; or (d) an attempt to commit a crime defined under subsection (2)(a) or (2)(b).
(3) Whenever charges are filed against a person, accusing the person of a crime which includes another crime of which the person has been convicted, the conviction of the lesser included crime shall not bar prosecution or conviction of the crime charged if the crime charged was not consummated at the time of conviction of the lesser included crime, but the conviction of the lesser included crime shall be annulled upon the filing of such charges. Evidence of the person's plea or any admission or statement made by the person in connection therewith in any of the proceedings which resulted in the person's conviction of the lesser included crime shall not be admissible at the trial of the crime charged. If the person is convicted of the crime charged, or of a lesser included crime, the person so convicted shall receive credit against any prison sentence imposed or fine to be paid for the period of confinement actually served or the amount of any fine actually paid under the sentence imposed for the annulled conviction.
K.S.A. § 21-3107.
On December 21, 2001, the Kansas Court of Appeals affirmed Freeman's convictions. Memorandum Opinion, Case No. 85,955. It rejected Freeman's double jeopardy argument, holding that it could not be considered for the first time on appeal. Id. The Kansas Court of Appeals also addressed the merits, however, and found from the charging documents and jury instructions that Freeman's convictions were not multiplicious because the crimes alleged were separate and distinct: the criminal threat allegedly occurred on July 20, 1999 and the stalking charge covered a course of conduct between July 22 and October 5, 1999. Id.
The Court of Appeals also found sufficient evidence of stalking. Kansas law defines stalking as "an intentional, malicious and repeated following or harassment of another person and making a credible threat with the intent to place such person in reasonable fear for such person's safety." K.S.A. § 21-3438(a). It defines "credible threat" as "a verbal or written threat, including that which is communicated via electronic means, or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for such person's safety." K.S.A. § 21-3438(d)(3). The Kansas Court of Appeals held that although the information did not expressly allege a written or verbal threat between July 22 through October 5, 1999, the record contained sufficient evidence from which the jury could find a threat implied by a pattern of conduct. Id. at 3.
The Kansas Court of Appeals specifically noted as follows:
Freeman and Smith [the victim] had a tumultuous relationship with a history of restraining orders and physical abuse. Soon after Freeman threatened to damage her vehicle, Smith found her vehicle with slashed tires and broken windows. On July 20, 1999, Freeman told Smith that he was going to kill her and cut her body up so that it could not be identified. These past incidences caused Smith to fear Freeman and know that he did follow through with some of his threats.
After the restraining order was in place and during the time period of the alleged stalking, Freeman called Smith on her cell phone, at her residence, and at her grandmother's residence, all in violation of the restraining order. Smith testified that there were at least two occasions where Freeman violated the restraining order by being present outside of her grandmother's residence. On at least two occasions, Freeman violated the restraining order by following Smith's vehicle. Smith testified that she was worried that Freeman would kill her. This conduct, coupled with his prior acts of damage to her property and the threat on her life, can be viewed as a threat implied by a pattern of conduct that would cause Smith to reasonably fear for her safety.Memorandum Opinion at 3-4, Case No. 85,955.
On March 19, 2002, the Kansas Supreme Court denied review.
On June 23, 2003, Freeman filed a petition for writ of habeas corpus in this Court, asserting under Section 2254 essentially the arguments raised in his direct appeal in state court.
II. Evidence At Trial
Freeman's trial in state court was a two-day jury trial on March 6 and 7, 2000. Freeman and the victim, Misha Smith, had known each other since October of 1994 and had a tumultuous relationship. Transcript Of Jury Trial ("Tr") at 50. Smith and Freeman had a son, Harlan Freeman, who was born on June 25, 1995.
Smith testified that she and Freeman had many problems between 1997 and 1999. Tr. 58-59. In September of 1997, Smith worked at an Amoco. store. After incidents at the store, Amoco. obtained a business restraining order against Freeman. On September 15, 1997, Freeman went to the store, exchanged words with Smith, and shattered the windshield of her car. On September 25, 1997, Freeman assaulted Smith at the store. Tr. 51-52 and 55-57. He later entered a plea of no contest to a battery charge arising from that incident. Tr. 121. On numerous other occasions, Freeman was physically abusive towards Smith, and on some occasions his mother witnessed the abuse. Tr. 87.
Smith testified that as far back as 1997, Freeman had threatened to damage her property and then followed through on his threats by flattening her tires and breaking her car windows. Tr. 65.
In June of 1999, Smith told Freeman that she was taking her kids and moving to Texas. Things did not work out in Texas, however, and Smith asked Freeman to help make arrangements for her and her son to return to Kansas. Freeman agreed to send money but he never did. Smith borrowed money from her mother and returned to Kansas.
On July 13, 1999, Smith applied for a restraining order because Freeman had physically threatened her and placed her in fear of immediate bodily injury. Smith testified that on July 18, 1999, Freeman called her on the telephone and asked to see little Harlan. When she said no, he threatened to bust the windows of her car. Shortly thereafter, Smith found that two tires on her 1990 Eagle Premiere had been slashed. Tr. 65-66. Smith called the police and after the incident, parked her vehicles at her grandmother's house. On July 20, 1999, Freeman called Smith on her cell phone and said that he was going to cut her body up "to where it couldn't be identified." Tr. 66-67.
On July 22, 1999, the court entered a temporary restraining order against Freeman. Tr. 62-64. That night, while Smith and her sister were sleeping at their grandmother's house, a loud crashing noise woke her sister. Tr. 67-68. The next morning Smith discovered that the windshields of her 1990 Eagle Premiere and her 1989 Cruiser station wagon had been smashed. Tr. 68.
On August 4, 1999, Smith went to a municipal court hearing regarding the restraining order against Freeman. The court entered a permanent restraining order which directed Freeman to stay away from Smith and the residences of Smith and her grandmother. Tr. 72-74. Freeman called Smith several times after that. Tr. 74. Usually, Smith would say hello but hang up after hearing that it was Freeman. Tr. 74. Freeman's cell phone records verified the calls to Smith's cell phone. Tr. 78-81. Smith's grandmother also testified that Freeman had called her house on numerous occasions after Smith sought the restraining order. Tr. 18-20.
Smith testified that on at least two occasions after the restraining order was issued, she saw Freeman sitting in his car near her apartment. On one occasion in September of 1999, Freeman followed Smith. When she stopped at a red light at 14th and Central in Kansas City, Kansas, Freeman (who was driving his sister's car) pulled up next to Smith's car. Smith kept driving and noticed that Freeman was following her. She tried to make many turns, driving up one block and turning down another, to see if he would keep following her. When he did, she started to drive toward the police department. When Smith got to Eighth and Minnesota, she saw a police officer writing a parking ticket. She pulled over, rolled down her window and told the police officer that the guy in the car was following her and that she had a restraining order against him. Freeman apparently saw Smith talking to the police officer and turned off. On another occasion Freeman followed Smith from her job to her grandmother's home. Tr. 81-86.
Smith's roommate, Benita Lyerly, and Smith's cousin, Kee Kee Baker, corroborated much of Smith's testimony about the damage to her vehicles, the phone calls and Freeman following Smith. Tr. 27-32 and 40-43. Smith testified that Freeman's behavior scared her. Tr. 86. Specifically, she believed that he would kill her because of all the things that she put him through, like taking him to court and prosecuting him
Freeman testified at trial. He denied knowledge of the business restraining order at the Amoco. store. He testified that he was not arrested following the incident on September 15, 1997 when he exchanged words with Smith and shattered her windshield at the Amoco. store. Freeman testified that he was arrested ten days later, on September 25, 1997, when he returned to the Amoco. store and assaulted Smith. Freeman also denied that after the restraining order was issued, he followed Smith, went to her apartment or called her. He also denied threatening to kill Smith. He testified that Smith called him and threatened him and his girlfriend. Tr. 116-17. Also, even though municipal court records indicate that Freeman entered a plea of guilty regarding the broken windshield and flat tires on Smith's vehicles in July of 1999, Freeman denied entering such a plea. He also stated that he had not paid any restitution and had no intention of doing so.
At a hearing on October 7, 1999, Freeman testified that he had not made any calls to Smith after July 4, 1999. At trial, however, Freeman testified that he did not remember whether he had called Smith after July 4, 1999, but acknowledged that his cell phone bill reflected calls to Smith's cell phone on August 10 and 29 and September 3, 1999.
Aerial Communications, the cellular phone company, was only able to provide bills from August 2 to October 5, 1999. Tr. 75.
Freeman testified that he did not know that Smith had returned from Texas until he saw her on Minnesota Avenue in September of 1999. He admitted, however, that he saw her in court in Kansas City on August 4, 1999. Tr. 133.
Freeman's mother, Charlotte Freeman, testified that Smith called her in July of 1999 — right after Smith returned from Texas — but that she did not tell her son that Smith was back. Tr. 144. In late July of 1999, Freeman showed the restraining order to his mother and told her that he knew Smith was back from Texas because Smith had called him. Tr. 145.
III. Legal Standards
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254 (incorporating 28 U.S.C. § 2244), governs the Court's review in this case. See Paxton v. Ward, 199 F.3d 1197, 1204 (10th Cir. 1999) (AEDPA applies to habeas petitions filed after April 24, 1996, regardless of date of criminal trial forming basis of conviction). Under Section 2254, as amended by the AEDPA, the Court may not issue a writ of habeas corpus with respect to any claim which the state court adjudicated on the merits unless that adjudication resulted in a decision:
(1). . . that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) . . . that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1)-(2). Under the "contrary to" clause, the Court may issue a writ of habeas corpus only if (1) the state court arrived at a conclusion opposite to that reached by the United States Supreme Court on a question of law, or (2) the state court decided the case differently than the Supreme Court on a set of materially indistinguishable facts.Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the "unreasonable application" clause, the Court may grant habeas relief if the state court "correctly identifie[d] the governing legal rule but applie[d] it unreasonably to the facts of a prisoner's case."Id. at 407-08. The Court may not issue a writ simply because, in its independent judgment, it concludes that the state court applied clearly established federal law erroneously or incorrectly; rather the application must be objectively unreasonable. Id. at 409-11.
IV. Analysis
As noted above, Freeman argues that (1) his convictions of stalking and criminal threat violate the prohibition against multiple punishments for the same offense, and (2) the record contains insufficient evidence to support his conviction for stalking.
In this proceeding, Freeman does not specify whether his convictions violate the double jeopardy clause of the United States Constitution, the Kansas Constitution or state statutes. As noted above, counsel represented Freeman on direct appeal in state court and Freeman alleged that the double jeopardy clause of the Fifth Amendment, and the doctrine of multiplicity, protect him from multiple punishments for the same offense. See Brief Of Appellant in Kansas v. Freeman 37 P.3d 48 (citing State v. Gulledge, 257 Kan. 915, 920, 896 P.2d 378 (1995); State v. Freeman, 236 Kan. 274, 280, 689 P.2d 885 (1984) and K.S.A. § 21-3107). Here, Freeman proceeds pro se and the Court assumes that he intends to reiterate the arguments raised on direct appeal.
A. Double Jeopardy Clause
Freeman argued for the first time on direct appeal that his convictions for stalking and criminal threat were multiplicitous, that the double jeopardy clause prohibits multiple punishments for the same offense, and that his convictions were therefore unconstitutional. As noted above, the Kansas Court of Appeals nominally refused to consider this argument because Freeman had not presented it to the trial court. The State therefore urges the Court to apply the procedural default doctrine to this claim.
The procedural default doctrine precludes federal habeas review of a federal claim that a state court has declined to consider due to petitioner's noncompliance with state procedural rules unless the petitioner can show (1) both cause and prejudice or (2) manifest injustice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). InColeman, the Supreme Court held that if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, petitioner's claims are procedurally defaulted for purposes of federal habeas regardless of the decision of the last state court to which petitioner actually presented his claims. Id. at 735 n. 1; see also Dulin v. Cook, 957 F.2d 758, 759 (10th Cir. 1992) (petitioner's failure to properly present claims in state court constitutes procedural default for purposes of federal habeas review).
When a state court is presented with a federal claim, "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989) (citations omitted). Here the Kansas Court of Appeals noted that Freeman had not raised his double jeopardy claim at the trial level and that the issue could not be considered for the first time on appeal.Memorandum Opinion Case No. 85,955 at 2 (quoting State v. Smith, 268 Kan. 222, 243, 993 P.2d 1213 (1999)). This statement constitutes a clear and express finding that plaintiff's claim is barred on state procedural grounds. State v. Williams, 275 Kan. 284, 288-89, 64 P.3d 353, 357 (2003); State v. Conley, 270 Kan. 18, 30-31, 11 P.3d 1147 (2000); State v. Smith, 268 Kan. 222, 243, 993 P.2d 1213 (1999). Therefore, the procedural default doctrine precludes federal habeas review of this claim.
The Kansas Court of Appeals, however, went on to reject plaintiff's claim on the merits, stating that
[i]n any event, a review of the charging documents and the jury instructions shows that the convictions cannot be multiplicitous. The criminal threat was alleged to have occurred on July 20, 1999. The stalking charge covered a course of conduct between July 22, 1999 and October 5, 1999. The crimes charged were separate and distinct crimes, and the convictions were not multiplicitous.Id. The Court agrees with the Kansas Court of Appeals that the crimes charged were separate and distinct, that the convictions are not multiplicitous, and that the double jeopardy clause is not implicated. Therefore it need not decide whether defendant's default should be excused under Coleman.
The double jeopardy clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V; Monge v. California, 524 U.S. 721, 727-28 (1998);Benton v. Maryland, 395 U.S. 784, 794 (1969). The double jeopardy clause protects the criminal defendant against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple criminal punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977).
To establish that two counts of an indictment punish him for the same offense, petitioner must show that he was prosecuted under two separate statutory provisions based on a single act. See Blockburger v. United States, 284 U.S. 299, 304 (1932) (citations omitted) ("where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not"). Multiplicity is not present if each count of the indictment requires proof of elements that other counts do not require.See id.; United States v. Dixon, 509 U.S. 688, 696, 704 (1993).
Freeman argues that the charges against him are multiplicitous because they "are similar in definition." Freeman, however, has not shown that the government prosecuted or punished him for multiple offenses based on the "same act." The indictment alleged two factually and legally distinct crimes. The criminal threat allegedly occurred on July 20, 1999, when Freeman called Smith on her cell phone and said he was going to cut her body up "to where it couldn't be identified." The stalking charge covered a course of conduct between July 22 (the date of the temporary restraining order) and October 5, 1999, during which Freeman intentionally, maliciously and repeatedly followed and harassed Smith and made a credible threat with intent to put her in fear. Throughout that period, a temporary restraining order was in place.
The crimes are also legally distinct. Under K.S.A. § 21-3438, stalking is "an intentional, malicious and repeated following or harassment of another person and making a credible threat with the intent to place such person in reasonable fear for such person's safety." In contrast, under K.S.A. § 21-3419, criminal threat is "any threat to: (1) Commit violence communicated with intent to terrorize another, . . . or in reckless disregard of the risk of causing such terror." K.S.A. § 21-3419(a).
The Court therefore overrules Freeman's argument that the charges against him violate the double jeopardy clause.
B. Sufficiency of the Evidence
It is settled that habeas petitioners may challenge the sufficiency of the evidence in federal habeas corpus proceedings. See Torres v. Mullin, 317 F.3d 1145, 1151 (10th Cir. 2003):see also Jackson v. Virginia, 443 U.S. 307 (1979) (habeas challenge based on insufficiency of evidence states federal constitutional claim). The Court presumes that factual determinations by the state court are correct, and petitioner bears the burden of rebutting this presumption with clear and convincing evidence.Martinez v. Zavaras, 330 F.3d 1259, 1262 (10th Cir. 2003) (citing § 2254(e)(1) and Fields v. Gibson, 277 F.3d 1203, 1221 (10th Cir. 2002)). This presumption, however, does not extend to legal determinations or to mixed questions of law and fact. Id. (citing Herrera v. Lemaster, 225 F.3d 1176, 1178-79 (10th Cir. 2000)). In other words, the deferential standard of review does not apply if the state court employed the wrong legal standard in deciding the merits of the federal issue. Id. (quoting Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003)). Ultimately, our review of the state court proceedings is quite limited, as section 2254(d) sets forth a highly deferential standard for evaluating state-court rulings. Anderson v. Mullin, 327 F.3d 1148, 1152 (10th Cir. 2003).
Viewing the evidence in the light most favorable to the State, the Court will grant habeas relief only if "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 319. This standard "gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. at 319. The Court does not weigh the evidence, and "must accept the jury's resolution of the evidence as long as it is within the bounds of reason." Kelly v. Roberts, 998 F.2d 802, 808 (10th Cir. 1993). To be sufficient, the evidence supporting the conviction must be substantial; that is, it must do more than raise a mere suspicion of guilt. Id.
Freeman alleges that insufficient evidence supported his conviction of stalking. In support of this claim, he argues that (1) the alleged conduct occurred over a 75-day span during which the cellular phone records show only six calls with a combined total of 17 seconds of air-time; (2) Smith did not file any police reports which substantiate her fear or her testimony; (3) during that time, the State presented no evidence of violence, attempted violence or a realistic attempt of physical contact with Smith; and (4) the State only presented evidence of incidents which occurred during Freeman's relationship with Smith, before the time-frame at issue.
The Kansas Court of Appeals rejected this claim, holding that a rational factfinder could have found Freeman guilty beyond a reasonable doubt. This Court agrees.
As noted above, under K.S.A. § 21-3438, stalking is "an intentional, malicious and repeated following or harassment of another person and making a credible threat with the intent to place such person in reasonable fear for such person's safety." K.S.A. § 21-3438(a). The statute defines "credible threat" as "a verbal or written threat, including that which is communicated via electronic means, or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for such person's safety." K.S.A. § 21-3438(d)(3) (emphasis added). The statute does not require victims to file police reports to "back up" their fear. Further, it does not require evidence of violence, attempted violence or a realistic attempt of physical contact. Instead, a credible threat can be implied by a pattern of conduct.
The State presented evidence from which a rational factfinder could find that Freeman's conduct between July 22 and October 5, 1999 violated K.S.A. § 21-3438. In fact, even aside from the conduct charged on July 20, 1999, the State presented evidence of a pattern of conduct dating back to 1997. Amoco. had obtained a business restraining order against Freeman after incidents at the store. Freeman violated that restraining order by exchanging words with Smith, shattering the windshield of her car and assaulting her at the Amoco. store. The State also presented evidence that Freeman entered a plea of no contest to a battery charge arising at the Amoco. store in September of 1997; that Freeman was physically abusive toward Smith on numerous other occasions; that as far back as 1997, Freeman had threatened to damage her property and followed through on these threats by flattening tires and breaking windows on her car. These past incidences caused Smith to fear Freeman and to know that he followed through with at least some threats. The State also presented evidence that Freeman made cell phone calls to Smith, violated the restraining order by calling Smith from pay phones and his mother's phone, waited outside Smith's apartment and her grandmother's residence, and followed her.
The evidence was sufficient to establish beyond a reasonable doubt the offense of stalking. The Court therefore denies Freeman's petition on this ground. IT IS THEREFORE ORDERED that plaintiff's Petition For A Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 By A Person In State Custody (Doc. #1) filed June 23, 2003 be and hereby is DENIED.
Dated this 29th day of March, 2004 at Kansas City, Kansas.