Herbert v. State
311 Ga. App. 396
| Ga. Ct. App. | 2011Background
- Herbert and the victim met in 2005 and married in 2007, after which Herbert began abusing the victim.
- In 2005, Herbert confronted the victim about a social-network profile, wielded a large knife to her throat, and threatened to kill her if she cried.
- Between 2005 and 2007, Herbert violently confronted the victim, forced her from their home, broke belongings, and struck her.
- In 2007, Herbert drove his car at the victim as she ran, and after she avoided being struck, he beat her with his fists.
- In 2008, Herbert forced the victim’s six-year-old son from the home, threatened to kill them if the son did not listen, and made other threats and acts of intimidation (e.g., pulling fingers, pouring ice water, breaking the victim’s phone, ripping phone lines).
- On April 15, 2009, Herbert was arrested for family violence battery and cruelty to children, was bonded out with a stay-away order, and five days later approached the victim and their infant in a Wal‑Mart, whispered the victim’s name, tried to take the baby, threatened to knock her block off, and threatened to kill her.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence shows a pattern of harassing and intimidating behavior necessary for aggravated stalking | State argues the history and Wal‑Mart incident establish a pattern | Herbert contends prior confrontations alone cannot prove a pattern | Yes; evidence shows a pattern including prior history and Wal‑Mart incident |
| Whether a single violation of a protective order can support aggravated stalking when part of a pattern | Louisyr supports that a single violation can suffice if part of a pattern | Burke suggests a single violation by itself is insufficient | Yes; pattern evidence permits a single violation to sustain if part of a pattern |
| Role of prior history and overt actions in proving pattern | Prior history and consolidating actions indicate a pattern | Pre-order confrontations alone are not enough | The pattern can be shown by cumulative conduct including prior history and recent acts |
Key Cases Cited
- Louisyr v. State, 307 Ga.App. 724, 706 S.E.2d 114 (2011) (Ga. Ct. App. 2011) (pattern analysis includes prior history and various conduct to prove harassment and intimidation)
- Burke v. State, 287 Ga. 377, 695 S.E.2d 649 (2010) (Ga. 2010) (single violation alone not enough; requires pattern)
- Hervey v. State, 308 Ga.App. 290, 707 S.E.2d 189 (2011) (Ga. Ct. App. 2011) (evidence of repeated threats before a violation supports pattern)
- Davidson v. State, 295 Ga.App. 702, 673 S.E.2d 91 (2009) (Ga. Ct. App. 2009) (probation-violation context with preconditioned threats supports pattern)
- Daker v. Williams, 279 Ga. 782, 621 S.E.2d 449 (2005) (Ga. 2005) (course of conduct equates to pattern of behavior)