Shelton v. Commonwealth
992 S.W.2d 849
Aug. 28, 1998.
ACTION: Affirmed.


Sixteen-year-old defendant was convicted in the Knox Circuit Court of manslaughter in the first degree and unlawful taking over $300.00, and sentenced as a juvenile youthful offender. Upon reaching age eighteen, defendant returned to Court for resentencing. The Court, Roderick Messer, J., found that defendant was not victim of domestic violence, and defendant appealed. The Court of Appeals, Dyche, J., held that defendant was not a victim of domestic violence so as to be exempt from parole eligibility restrictions of violent offender statute.

DYCHE, Judge.
Doris Jean Shelton appeals from an order of the Knox Circuit Court holding that she is not a victim of domestic violence, and therefore does not qualify for the exception to the requirement that a violent offender serve fifty percent (50%) of an imposed sentence before becoming eligible for parole. We affirm.

On June 23, 1994, sixteen-year-old Shelton stabbed Ned Stewart to death with a knife and fled from his house with a diamond ring and $146.00 in cash. The case was transferred from the juvenile division of the Knox District Court to Knox Circuit Court, where appellant was indicted for murder and first-degree robbery. On May 15, 1995, the day the trial was set to commence, appellant entered a guilty plea to the amended charges of manslaughter in the first degree and theft by unlawful taking over $300.00. In exchange for this plea, the Commonwealth recommended sentences of 15 years and 2 1/2 years, respectively, with the sentences to run concurrently. As a juvenile youthful offender, appellant was imprisoned in a juvenile facility until she reached the age of eighteen, at which time she returned to Knox Circuit Court for re-sentencing.

A pre-sentence investigation report prepared prior to appellant's original sentencing revealed that she came from what can only be described as a "dysfunctional" family. Her parents never married, and her mother had "a succession of paramours." Appellant was allowed to marry at the age of 13. She had a history of truancy, was last enrolled in eighth grade, and did not complete elementary school requirements. She had a juvenile record in Madison and Knox Counties, Kentucky, and a juvenile charge in Ohio that apparently was never adjudicated. She had a history of substance abuse, had twice attempted suicide, and had been a victim of sexual abuse in her home.

Appellant provided her own version of the events leading up to Stewart's death in the pre-sentence investigation. She stated that on June 18 Rex Rice, her mother's live-in boyfriend, had beaten her mother so severely that emergency resuscitation procedures were required. Rice had also beaten appellant in the past. Appellant remained at the hospital with her mother for three days, when her mother left the hospital against the doctor's advice and returned to Rice. On the morning of the stabbing, Rice and appellant argued, culminating in Rice kicking appellant out of the house, although her mother remained.

Appellant and Ernest Collins then proceeded to Stewart's home. Stewart gave appellant money for food, but requested that appellant turn over her car keys. Appellant claims that Stewart, who was confined to a wheelchair, was unclothed from the waist down the entire time, and that he also asked for sex in exchange for the money. She also alleges that they had been having sexual relations since she was fifteen. Appellant took the money outside to Collins, who was waiting in the car. When appellant returned to the home, Stewart had concealed the car keys. An argument ensued, concluding with appellant pulling Stewart from the wheelchair and stabbing him to death with a pocketknife. She covered the body with an afghan, found her car keys, took a diamond ring and some cash, and left.

When appellant was brought back to the Knox Circuit Court for re- sentencing after her eighteenth birthday, she asked the court to find that she was a domestic violence victim, and therefore not required to serve the statutorily mandated amount of her sentence before being eligible for parole.

The trial court denied her motion. This appeal followed.

Appellant asserts that the language "with regard to the offenses involving the death of the victim" is broad enough to encompass a situation in which a person, acting under emotions incited by an immediately preceding act of domestic violence, commits an act of violence against a third person. She claims that the violent encounter with Rice on the morning of Stewart's death caused her to kill Stewart while acting under extreme emotional disturbance; thus she was a victim of domestic violence "with regard" to the crime committed.

Appellant's reasoning is based on an incomplete reading of the statute.

The trial court found that appellant was a witness to acts of domestic violence committed against her mother by Rex Rice. The Commonwealth concedes in its brief to this Court that appellant was in fact a victim of domestic violence committed not only by Rice, but also by appellant's mother. But as the trial court stated in its order denying appellant's motion, "[t]he defendant did not kill Rex Rice, she killed Ned Stewart."

As the Commonwealth notes, such an all- encompassing interpretation of the domestic violence victim exception could lead to the absurdity of benefitting the domestic abuser who kills his victim, allowing the abuser to later claim that the crime was committed "with regard" to the domestic abuse. The statutes provide leniency for the domestic violence victim who strikes back at an abuser by removing the "violent offender" status from the offense and allowing that the offender be eligible for parole. They do not, however, afford that leniency to a victim who takes action against a third party.

Alternatively, appellant asserts that she was also a victim of domestic violence at the hands of Ned Stewart, claiming that their sexual relationship and her occasional work as housekeeper for him made them an "unmarried couple", and further alleging that Stewart raped and sexually abused her. This claim on appeal directly contradicts appellant's argument to the trial court. In her motion for the trial court to reconsider its determination that she was not a victim of domestic violence and abuse, appellant stated the following:
Although the domestic violence and abuse was carried out against her, and against her family was by Rex Rice, and others, certainly, her victimization by Ned Stewart for an extended period of time is a factor in which the Court should consider. Although it is not domestic abuse as defined by statute, it certainly was a criminal offense, at least prior to her 16th birthday for Mr. Stewart to have engaged in any sexual relations with her of which there is ample evidence that he did....

The argument presented to this Court--that appellant was a victim of domestic abuse at the hands of Stewart--was not made to the trial court. In fact, it stands in stark contrast to the argument made below. An appellate court will not consider a theory unless it has been raised before the trial court and that court has been given an opportunity to consider the merits of the theory.

The order of the Knox Circuit Court is affirmed.

ALL CONCUR.
Ky.App.,1998.
Shelton v. Com.
992 S.W.2d 849



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