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ASHEVILLE - A burly security guard watched over workers at Olsten Staffing Services in Asheville on Wednesday, a day after a gunman invaded the company’s small storefront branch in Arden.

911 call

In a collision of domestic and workplace violence, sheriff’s deputies said Billy Ray Byrd, 32, walked into the office carrying a .22-caliber rifle, argued with his wife, and then shot her in the head. Sheriff’s deputies have charged Byrd, who did not work at Olsten Staffing, with two counts of assault with a deadly weapon with intent to kill, one for causing serious injury. He was also charged with violating a domestic violence restraining order and assault by pointing a gun.

Carrie Byrd was in critical but stable condition Wednesday at Mission Hospitals.

For business owners such as Peggy Yarborough, who owns a furniture store in Asheville, the shooting shows the importance - and difficulty - of dealing with security and personal relationships in a small business.

“It’s that check system of saying you just can’t get too comfortable,” Yarborough said. Her security checks include a guard who patrols her shopping center after dark. In the past, she had a silent alarm for employees who were threatened.

Asheville police Sgt. Daryl Fisher, who has studied domestic violence in Asheville, said employers’ awareness of the problem can protect workers who are victims at home.

Carrie Byrd had a temporary restraining order against her husband, who she said had assaulted and verbally abused her.

Byrd’s co-workers knew her husband and tried to stop him when he came in the business with a gun, said Julie Kepple, spokeswoman for the Buncombe County Sheriff’s Department. Kepple said she did not know whether Byrd’s co-workers knew about her allegations of domestic violence.

Victoria Mitchell, a spokeswoman for Olsten Staffing, said the company kept employees’ security in mind when choosing office locations. They also provided counseling services through an employee assistance program, though Mitchell did not know whether Byrd used the program.

“Let me just say that this is a very unique situation,” Mitchell said.

Fisher said domestic violence offenders rarely assault their victims at the victims’ workplaces in Asheville. But the violence does not have to happen in the workplace to affect it.

One in six domestic violence victims report lost time from work, according to a 2003 report by the Centers for Disease Control. Each year, domestic violence victims miss an estimated 9.5 million days of work or other activity, the report stated.

Kathleen Schoen coordinates a program in Colorado called Make it Your Business, which combats the “it’s-none-of-my- business” attitude of employers, urging them to advocate for, not ignore, employees who are domestic violence victims.

A 2002 study by Liz Claiborne Inc. found that 50 percent of the corporate leaders they surveyed said domestic violence had a harmful effect on their organization’s insurance and medical costs, and one-third said their company’s bottom-line performance had been damaged.

Studies also have shown that people who commit domestic violence use company resources to threaten or check up on their victims.
“It’s your business when it affects your productivity,” Schoen said. “It’s your business when it affects your safety, not only of this employee (the victim) but of other employees.”

Schoen’s program recommends a three-step process for helping domestic violence victims: recognize, respond and refer.

Employers need not only to be able to recognize the signs of domestic violence, but also to create an environment in which workers feel like they can ask for help.

“The basic thing we try to emphasize is creating a culture where it is OK to talk about it,” Schoen said.

Employers can respond to domestic violence by showing care and concern and creating a plan for how to protect the worker. Schoen recommended that employers get to know domestic violence workers and police officers ahead of time so they have someone to turn to when an employee needs help. Bosses have to realize they cannot solve domestic violence problems alone.

“We’re not asking businesses to be social workers,” Schoen said. Companies that provide an employee assistance program can refer workers there.

“I would say that it does perform a very . necessary service,” Mitchell said.. “It’s important in terms of people being able to perform their job and having a good work-life balance.”

For small businesses that cannot provide benefits like an EAP, knowing community domestic violence resources and having a trusting work environment are critical. Yarborough, who owns Yesterday’s Tree in south Asheville, said the women who work in her store are like family to each other.

“I do think in small businesses you find a great support system,” Yarborough said.

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Penal Code §646.9 defines stalking as:

“Any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, of his or her immediate family….”

The Elements of Stalking

The prosecutor must prove the following three elements to obtain a stalking conviction under Penal Code §646.9:

1. A Person willfully, maliciously, and repeatedly followed or harassed another person.

Penal Code §646.9(e) defines harassed as a “knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose. This course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress and must actually cause substantial emotional distress.”

Course of conduct is defined as a “pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.” Constitutionally protected activity is not included within the meaning of course of conduct. Repeatedly is defined as “on more than one occasion.”

2.That person following or harassing made a credible threat.

Penal Code §646.9(g) has redefined the term credible threat to encompass not only a verbal or written threat, including that performed through the use of an electronic communication device (i.e. fax, e-mail, pagers, etc.), but also “a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her immediate family and made with 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 his or her safety or the safety of his or her immediate family.” Their threat does not need to be direct.

The credible threat made by the stalker must be against the personal safety of the victim or the victim’s immediate family. The current test of credible threat is 1) whether or not a reasonable person would fear for his or her safety, or the safety of his or her immediate family; 2) did the victim believe the suspect would carry out the threat, and 3) did this threat actually cause substantial emotional distress to the victim.

3. The person who made the threat did so with the specific intent to place the other person in reasonable fear for his or her safety or the safety of the immediate family of such person(s).

The specific intent element is satisfied if the suspect intended to place the victim in fear; intent to actually carry out the threat is not required. Therefore, incarceration is not a defense in stalking cases.

Sentencing

Under Penal Code §646.9(a), a first-time convicted stalker can be sentenced up to three years in state prison, even if there is no restraining order in effect. However, if there is a restraining order or any other protective court order in effect, he or she could be sentenced up to four years in state prison.

If the defendant was previously convicted of stalking (§646.9), criminal threats (§422), domestic battery (§273.5), or a felony violation of a restraining order, a five-year sentence can be imposed.

Other provisions of Penal Code §646.9 provide that the sentencing court may issue a restraining order against the defendant that is valid for up to ten years, requires that the stalker participate in counseling and, in certain cases, register as a sex offender. The court may also order that the defendant receive mental health treatment while incarcerated.

Questions that should be asked in building a stalking case:

When did the harassment first start? Get time, date, location of each incident, the exact words used by the suspect, and the nature of the conduct that the victim felt was personally threatening or threatening towards others.
Does the victim believe that the suspect will carry out the threat? If yes, why? Establish a basis for the victim’s fears. Establish who the victim believes may be the target of the stalker.
Was anyone else present when the conduct or threats took place? (Get the witnesses’ names, addresses, and phone numbers.)
Has the victim filed previous police reports against the suspect? When and where?
What is the victim’s current relationship with the suspect? When was the last time the suspect met with or contacted the victim? Has the victim initiated any contact with the suspect since the stalking conduct began? If so, why?
Does the victim have physical evidence of the stalking, such as phone messages, letters, gifts, etc.?
Is there a valid restraining order against the suspect? When was it obtained? Why was it obtained? Does the victim have a copy of her affidavit supporting the issuance of the restraining order? Get a copy of the restraining order and all supporting documents, including the proof of service.
Investigating officers should bring any audio tapes or letters when they come to the District Attorney’s Office for a filing. Threats should be evaluated in the context in which they were made. Often it is not what is said, but how it is said that can make or break a case.

California Penal Code §422

Penal Code §422 defines a criminal threat as:

“Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, in so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety….”

Elements of a Criminal Threat

The prosecutor must prove the following four elements to obtain a criminal threat conviction under Penal Code §422:

1. A person willfully threatened to commit a crime which if committed would result in death or great bodily injury to another person.

The principle difference between a criminal threat and stalking is that a criminal threat is truly a crime of words rather than conduct. Act such, §422 does not require a pattern of conduct: one threat is sufficient. However, the threat must be one of death or great bodily injury against the victim or the victim’s immediate family.

2.The person who made the threat did so with the specific intent that the statement be taken as a threat.

The law does not require that the suspect had the intent to carry out the threat, only that the suspect intended the statement to be taken as a threat. The context and the circumstances under which the statement was uttered as important. The meaning of the threat must be gleaned from the words and all the surrounding circumstances.

3.The threatening statement, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat.

Although the statute states that the threat must be “unequivocal, unconditional, and specific,” case law has held that the language of the statute does not mean that the suspect must be standing in front of the victim with a weapon in his or her hand when he or she makes the threat. The courts have held that there does not have to be a showing threat the suspect had the immediate ability to carry out the threat, nor does the statute require a time or specific manner of execution. Rather, the statue requires that the words used be of an immediate prospect of execution. The threat may be conveyed either face-to-face to the victim by the suspect or by letter, fax, e-mail, telephone, through third parties, or any other form of communication. Conditional threats are true threats if their context and surrounding circumstances reasonably convey to the victim that the threat is intended.

4.The threatening statement caused the other person reasonably to be in sustained fear for his or her own safety or his or her immediate family’s safety.

Sustained fear is defined as “a period of time that extends beyond what is momentary, fleeting, or transitory.” Fifteen minutes of fear may be more than sufficient to constitute “sustained fear.”

Sentencing

The crime of making a criminal threat is a wobbler. That means it can be prosecuted either as a misdemeanor or a felony. A defendant who is convicted of this crime as a felony can be sentenced up to three years in the state prison. A misdemeanor conviction is punishable up to one year in the county jail. Conviction of a felony criminal threat is a strike under the state’s “three strikes” law.

Should you have any questions or require support from the District Attorney’s Stalking and Threat Assessment Team, please call: (213) 974-5985. Visit our Internet Web site at: http://da.co.la.ca.us

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