Following a jury trial, David Wayne Kilby appeals his conviction for stalking1 and making harassing phone calls.2 He challenges the sufficiency of the evidence and also argues that the trial court erred in denying his motion for new trial that asserted claims of “newly discovered” evidence and ineffective assistance of counsel. We hold that the evidence sustained the conviction, that Kilby knew of the “newly discovered” evidence before trial, and that evidence supported the trial court’s findings underlying its conclusion that Kilby failed to show ineffective assistance. Accordingly, we affirm. 1. When reviewing a defendant’s challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State .3 We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia .4
So viewed, the evidence shows that Kilby lived with his girlfriend for some years until she moved out in late 2005. They nevertheless continued a sporadic relationship until the last week of September 2006, when she told him the relationship was over and that she no longer wished to have contact with him. He refused to accept this, telling her that the relationship was not over until he said it was over. Despite her insistent demand for no contact, from September 28 until October 13, 2006, he repeatedly and frequently called her on her cell phone while she was at work, during which he would become irate, threaten her, tell her she would “pay” for what she had done, and use profanity to upset her. On several occasions, she put the call on the speaker phone so that her co-workers could corroborate his abusive, angry language. She taped two of the threatening conversations, which audio tapes were played for the jury. Another phone call occurred while she was a passenger in a co-worker’s car on a business matter, during which he announced he knew she was in that car thus indicating he was following her and interrogated her about her activities. Finally, during this same time period, Kilby parked near the now ex-girlfriend’s workplace or drove his vehicle into the parking lot of her workplace while she was at work, even though he had no business reason for being anywhere near her workplace. These phone calls and appearances at her workplace and his following her caused the ex-girlfriend great distress and made her fear for her life.
