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The mission of the Stalking Resource Center is to enhance the ability of professionals, organizations, and systems to effectively respond to stalking.

Double Jeopardy


Colorado

People v. Herron, 2010 Colo. App. LEXIS 1509

Defendant’s first charge for stalking occurred when he approached the victim in the exercise room at her apartment complex, asked her personal questions, and said that he had been watching her. He later showed up in close proximity to her apartment and lingered when she asked him to leave. The defendant was charged with credible threat stalking under § 18-3-602(1)(a), C.R.S. 2010 and emotional distress stalking under § 18-3-602(1)(c) and was sentenced to two concurrent 12-year prison terms. On appeal, the defendant argued that the two stalking convictions constituted multiple punishments for the same offense and should be barred by the Double Jeopardy Clause. The legislatively defined unit of prosecution for stalking is a continuous course of conduct by which one “repeatedly follows, approaches, contacts, or places another under surveillance.” Because the defendant’s course of conduct directed at the victim amounted to a single crime, the court concluded that it could not charge him with two stalking convictions. According to the court, stalking can occur only when there is conduct comprising two or more occurrences of the specified acts. In turn, to be charged with two stalking convictions, the defendant would have had to stalk the victim, in a separate transaction that is factually distinct from the first, on at least two more occasions. The defendant’s judgment and sentence were vacated, and the case was remanded to the trial court with directions to correct defendant’s conviction and sentence for a single count of stalking.


Idaho

State v. Stewart, 234 P.3d 707 (2010)

The defendant filed a motion to dismiss based on double jeopardy arguing that he could not be charged for the crime of stalking as a misdemeanor and stalking as a felony as the elements of both crimes were the same. The Idaho Supreme Court examined the double jeopardy issue and determined that the lower court had not examined it properly. The Court determined that misdemeanor stalking was not a separate offense from felony stalking, rather it was a lesser included offense of felony stalking—the felony stalking statute incorporates the misdemeanor stalking statute by reference. In order to be charged with felony stalking, the defendant must have first been convicted of misdemeanor stalking and then must have committed a new course of conduct which would be in violation of either a restraining order, a condition of parole or probation, or the defendant had a prior conviction (within seven years) of either misdemeanor stalking or felony stalking. In order to be charged with felony stalking, the defendant must have committed a new course of conduct which was separate from the course of conduct in the underlying misdemeanor conviction.


Missouri

State v. Smith, 370 S.W.3d 891 (2012)

The defendant was charged and convicted of aggravated stalking and several counts of violating a protection order. He argued that he could not be charged with both these crimes because it was a double jeopardy violation. Under Missouri code §556.041, “when the same conduct of a person may establish the commission of more than one offense he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if… one offense is included in the other.” An offense is included when “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” An offense is a lesser included offense if it is impossible to commit the greater without necessarily committing the lesser. In determining whether one offense is included in another, the court applied a “same elements” test established in Blockburger v. United States, 284 U.S. 299 (1932). Under this test, the court compares the elements of each offense. If the comparison establishes that they do not each have an element that the other offense lacks, the guarantee against double jeopardy bars the prosecution of the second offense. Under §565.225.2, a person commits the crime of aggravated stalking “if he or she purposely, through his or her course of conduct, harasses or follows with the intent of harassing another person, and... at least one of the acts constituting the course of conduct is in violation of an order of protection and the person has received actual notice of such order.” Under §455.085.2, a person commits the crime of violating an order of protection where “a party against whom a protective order has been entered and who has notice of such order entered, has committed an act of abuse in violation of such order.” By comparing these two statutes, the court found that the offense of violating a protective order is included in the offense of aggravated stalking because proof of the same conduct is required to sustain both convictions. It is impossible to commit aggravated stalking without violating the order of protection. Therefore, the court dismissed the defendant’s convictions for violating an order of protection.


Texas

State v. Avilez, 333 S.W.3d 661 (2010) 

The defendant was convicted of violating a protective order and stalking. The defendant argued that his convictions violated the Double Jeopardy clauses of the Texas and U.S. Constitutions because stalking is a lesser-included offense of violation of a protective order. The court held that a conviction for violation of a protective order and a conviction for stalking are different crimes. Under Texas law, violation of a protective order requires proof that the defendant “(1) one time, (2) intentionally or knowingly violated that order, (3) by committing family violence or another specified action, by communicating with or threatening a protected person, or by going to or near the home or workplace of a protected person.” A conviction for stalking requires proof that the defendant “(1) on more than one occasion and pursuant to the same scheme or course of conduct directed at another person, (2) knowingly, (3) engaged in behavior that (a) he knows or reasonably believes the other person will regard as threatening, (b) caused the other person or a member of the other person’s family or household to fear bodily injury, death, or that an offense will be committed against that person’s property, and (c) would cause a reasonable person to fear bodily injury, death, or that an offense will be committed against the person’s property.” When compared together, each offense includes an element not included in the other. Violation of a protective order requires proof of a protective order, but stalking does not. Stalking requires proof that the defendant engaged in certain prohibited behaviors on more than one occasion, but violation of a protective order may be proven with only one instance of misbehavior. Thus, violation of a protective order and stalking are not the same offense and Double Jeopardy does not preclude multiple punishments.


Utah

Coombs v. Dietrich, 2011 Utah App. LEXIS 134

An ex-husband was granted a civil stalking injunction against his ex-wife’s new husband after several altercations between the two. On three separate occasions, usually involving custody discussions or retrieval of personal property, the husband caused the ex-husband to fear for his personal safety and suffer emotional distress by making verbal threats that eventually escalated to physical violence. In order to find that the husband had committed the crime of stalking, the court had to find that he had engaged in a course of conduct, comprised of two or more instances, which would cause a reasonable person in the ex-husband’s position to fear for his safety. The district court inferred a pattern of behavior from the three incidents to issue the civil stalking injunction. The husband appealed, arguing that two out of the three altercations would not cause a reasonable person to fear for his safety. The court denied this argument, reasoning that the statute, Utah Code Ann. § 76-5-106.5, does not require that each act or incident independently cause a reasonable person to fear for his safety. Rather, where the husband engaged in a course of conduct that was growing worse, the cumulative effect of the husband’s conduct made the issuance of an injunction proper.

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