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09/30/94 JOHN PERVIE MORTON v. STATE

September 30, 1994

JOHN PERVIE MORTON
v.
STATE



Appeal from Chambers Circuit Court. CC-93-312. Dale Segrest, TRIAL JUDGE.

Rule 39(k) Motion Denied November 10, 1994. Rehearing Denied November 10, 1994. Released for Publication March 10, 1995.

Bowen

The opinion of the court was delivered by: Bowen

BOWEN, PRESIDING JUDGE

John Pervie Morton, the appellant, was convicted of the crime of aggravated stalking and was sentenced to 20 years' imprisonment. At that same trial he was also convicted of burglary in the third degree and of assault in the third degree and was sentenced to 10 years' imprisonment, to be served concurrently with the sentence for stalking and to 12 months' imprisonment, to be served consecutively with his sentence for stalking, respectively. The appellant raises five issues on this direct appeal from those convictions.

I.

The appellant was charged with stalking Deborah McDaniel in 1993. At trial, Sherry Sherrer White was properly allowed to testify as to her relationship with the appellant and as to the appellant's harassing conduct toward her. The appellant's harassing conduct toward Ms. White occurred in 1990. Defense counsel's objection that this testimony was "not probative and too far removed in time," and that it was "not related to any events here at issue," (R. 390) was properly overruled. *fn1

Evidence of the collateral offense concerning Ms. White was admissible to prove the appellant's intent in connection with his actions toward Ms. McDaniel.

"If the accused is charged with a crime that requires a prerequisite intent, then prior criminal acts are admissible to show that he had the necessary intent when he committed the now-charged crime. This rule is based upon the theory that, because the unintentional doing of an act is abnormal and unusual, the more a person does other acts similar to the act in question, the greater the likelihood that the act in question was not done inadvertently."

C. Gamble, McElroy's Alabama Evidence § 69.01(5) (4th ed. 1991) (footnotes omitted). See also J. Colquitt, Alabama Law of Evidence 4.4(c) (1990).

In Alabama, the offense of stalking requires a specific intent.

"A person who intentionally and repeatedly follows or harasses another person and who makes a credible threat, either express 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."

Ala. Code 1975, § 13A-6-90(a). In connection with the crime of stalking, "harasses" means:

"Engages in an intentional course of conduct directed at a specified person which alarms or annoys that person, or interferes with the freedom of movement of that person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress. Constitutionally protected conduct is not included within the definition of this term."

§ 13A-6-92(c).

Ms. White testified that she began dating the appellant in 1990. She stated that after they had been dating about three months, their relationship changed and the appellant became "real possessive." R. 390. She testified as to the appellant's violent conduct and the arguments they had had; to the foul names he had called her; to the appellant's theft of her rings; to his violent physical assaults upon her; to the appellant's breaking and entering her residence; to his wrecking her automobile that was parked in her driveway by repeatedly backing his automobile into hers; to the appellant's blowing his automobile horn and "hollering and screaming" in her driveway at 1:00 a.m. (R. 399); to the appellant's following and physically attacking and choking her, assaulting her date, and shattering the windshield of her automobile; and to the appellant's taking her dog. All of this testimony concerned the appellant's conduct in 1990. We find that the appellant's conduct toward Ms. White in 1990 was not too remote in time to his conduct toward Ms. McDaniel in 1993 to be relevant. See McElroy's at § 69.02(6).

II

The appellant contends that the trial court erred in refusing to allow the admission into evidence of photographs taken by the appellant of Ms. McDaniel while she was naked.

Prior to trial, the State filed a motion in limine seeking to prevent the appellant from mentioning or introducing the photographs. C.R. 8-9. Immediately before trial, the trial Judge found that the use of the photographs had no probative value. The trial Judge further found that the appellant's attempt to introduce the photographs was "an attempt to further stalk in my courtroom," stating, "It's clear to ...


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