United States v. Curley, 2011 U.S. App. LEXIS 8442
Defendant attached a GPS to his estranged wife’s car, violating a protection order prohibiting him from stalking or harassing her. The defendant was convicted of two counts of interstate stalking with intent to harass the victim and to place her under surveillance with the intent to harass, intimidate, and cause substantial emotional distress under 18 U.S.C. § 2261A. He was also convicted of one count of interstate violation of a protection order under and 18 U.S.C. § 2262(a)(1). The defendant was sentenced to concurrent sixty-month terms of imprisonment. He appealed, arguing that the trial court used inadmissible evidence under Fed. R. Evid. 404(b) to infer his intent and his wife’s reasonable fear, including the defendant’s prior abuse as well as a traffic stop that led police to find rifles, ammunition, a bulletproof vest, a ski mask, and a last will and testament in the defendant’s vehicle. The defendant’s last will and testament left all of his belongings to his children and requested that his sister take care of them. The prosecution used this information to infer intent to murder his wife since she had sole custody of the children at the time. The government also argued that the traffic stop was sufficiently connected to the charged acts because they involved the same assailant, victim, and purpose. Intent was an element of both the stalking and protection order counts. While the wife’s fear was only an element of the stalking count, it was relevant to the protective order count because the jury could not convict the defendant on the protective order count unless he had committed stalking under state law. The second circuit has upheld the admission of subsequent act evidence to prove a state of mind only when it so closely paralleled the charged conduct that it was probative regardless of the temporal difference. The court concluded that the traffic stop, which occurred 14 months after he was charged with stalking, lacked the necessary parallel to the charged acts. In turn, the court found that the district court abused its discretion by admitting evidence of the traffic stop to infer intent and therefore vacated the judgment. The case was remanded for a new trial.
People v. Crigler, 2011 Cal. App. Unpub. LEXIS 5420
Defendant repeatedly sent his former girlfriend text messages that frightened her and made her fear for her life and her safety. He was charged with stalking under Pen. Code § 646.9 subd. (a) and sentenced to two years in prison. He appealed and argued that the evidence was insufficient to support his conviction. In particular, he contended that he had not made a credible threat with the intent to place the victim in reasonable fear for her safety. Penal Code section 646.9 defines “credible threat” as a verbal or written threat, including that performed through the use of an electronic communication device, or 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. Furthermore, intent can be inferred from circumstantial evidence. Although the defendant characterized his texts as merely annoying or bizarre behavior that was not a credible threat, the court disagreed. It considered the defendant’s violent history with the victim, terrorization of her children, and the threatening text messages to infer credible threat and intent. The defendant’s second argument was that evidence of his prior history of violence with the victim was inadmissible. Under Evidence Code Section 1101, subdivision (a), evidence of a person’s prior conduct is generally inadmissible to prove the person’s conduct on a certain occasion, but section 1109, subdivision (a)(1) provides an exception when the defendant is accused of an offense involving domestic violence. The court determined that the prior conduct constituted an offense involving domestic violence as did the charged act of stalking. The conviction and sentence were affirmed.
People v. Highshaw, 2011 Cal. App. Unpub. LEXIS 3404 (2011)
The defendant argued that he should not have been convicted of felony stalking because the state failed to prove that he made a credible threat. Under §646.9, the elements of felony stalking are “willfully, maliciously, and repeatedly following or willfully and maliciously harassing another person; (2) making a credible threat; and (3) intending to place the victim in reasonable fear for her or his safety.” The court stated that “a credible threat included a threat implied by a pattern of conduct” and that the “entire factual context including the surrounding events must be considered.” In this case, the facts clearly showed that a credible threat was implied by the conduct of the defendant—defendant followed the victim incessantly, he continued to contact the victim even though the victim would avoid him, he parked his car where the victim could see/hear him masturbating, and he grabbed the victim and pulled him toward his car and when the victim got away, the defendant said, “I’m going to get you. Watch. I’m going to get you.”
People v. Houze, 2011 Cal. App. Unpub. LEXIS 2102 (2011)
The defendant was convicted of stalking. The defendant contended that it was an abuse of discretion to allow evidence of uncharged prior crimes. The uncharged acts were very similar to the acts that the defendant was convicted of, but the victim was a different person. The court stated that evidence of a defendant’s other crimes or misconduct is admissible to prove intent provided its relevance outweighs its potential prejudicial effect. The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant probably had the same intent in each instance. In this case, the court held that the uncharged acts were very similar to the acts the defendant was convicted of, and the degree of similarity was relevant to show that the defendant knew that he was placing the victim in fear, and that he intended to cause fear through his pattern of harassing behavior. The evidence also did not present any risk of undue prejudice to the defendant. The defendant’s conduct in the uncharged crimes was not more inflammatory than his conduct in the charged case.
Hervey v. State, 2011 Ga. App. LEXIS 165 (2011)
The defendant was convicted of criminal attempt to commit aggravated stalking by going to his children’s school in violation of a family protective order. In the past, the defendant had threatened to kidnap the children and take them to his native country of Panama. The defendant was sentenced to five years in prison. The defendant appealed his conviction arguing that the evidence did not show a pattern of harassing and intimidating behavior as required by the aggravated stalking statute. OCGA § 16-5-91(a) defines aggravated stalking as when a “person, in violation of a . . . permanent protective order. . . follows, places under surveillance, or contacts another person . . . without the consent of the other person for the purpose of harassing and intimidating the other person.” The phrase “harassing and intimidating” is defined in the stalking statute OCGA § 16-5-90(a)(1) as “a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family.” The defendant argued that the evidence at trial only showed a single violation of the protective order which was legally insufficient to establish the required pattern of harassing and intimidating behavior. The defendant’s argument was based on the holding in State v. Burke, 287 Ga. 377(2010), where the court rejected the state’s argument that it need only prove a single violation of a protective order to establish aggravated stalking. However, the evidence in the current case showed that the defendant made many threats, on multiple occasions, to take the children away to Panama. These numerous threats coupled with the violation of the protective order were sufficient evidence of harassing and intimidating behavior. The defendant’s conviction and sentence were affirmed.
Nicholson v. State, 2011 Ind. App. LEXIS 729
The defendant was convicted of felony stalking under Ind. Code § 35-45-10-5(b)(l)(B)(i). The conviction was based on one obscene telephone call in 2008, which occurred after the defendant had previously made over 350 obscene phone calls to the family in 2006. The defendant had not made any phone calls between 2006 and the most recent call in 2008. Although the court considered the defendant’s conduct in 2006 as evidence of stalking, it held that one obscene phone call was insufficient to constitute repeated or continuing harassment as required by the statute. However, the evidence was sufficient to support a conviction for harassment under Ind. Code § 35-45-10-2. In turn, the court reversed the stalking conviction and entered judgment only for harassment.
Commonwealth v. Kahrim, 2011 Mass. App. Unpub. LEXIS 311 (2011)
The defendant was convicted of various crimes, including stalking. On appeal, defendant argued that he was prejudiced by the admission of evidence of prior bad acts. The court explained that evidence of prior bad acts, though inadmissible to demonstrate bad character or the propensity to commit the crime charged, is admissible “to show a common scheme or course of conduct, a pattern of operation, absence of accident or mistake, intent, or motive.” In this case, the court held that evidence of the defendant’s prior bad acts was admissible to show the hostile nature of the relationship between the defendant and the victim and to show a common pattern or course of conduct toward the victim. The defendant also argued that the trail court erred by allowing a phone conversation between the victim and the defendant’s mother to be admitted into evidence because it was hearsay. The court held that even though this evidence was hearsay and inadmissible, it did not prejudice the defendant because there was already an overwhelming amount of evidence of stalking in this case.
State v. Pegelow, 809 N.W.2d 245 (2012)
The defendant posted nude photos of his ex-girlfriend in the men’s restroom at her place of employment. The defendant was charged under the following section of the Minnesota statute on Harassment and Stalking §609.749 “(2)(a) A person who harasses another by committing any of the following acts is guilty of a gross misdemeanor: (1) directly or indirectly manifests a purpose or intent to injure the person, property, or rights of another by the commission of an unlawful act.” The court held that the state did not prove that the defendant committed an unlawful act. The court stated that the plain language of the statute requires evidence of an unlawful act; it is not enough to just establish that the conduct meets the definition of harassment. The state was required to introduce some evidence that would show that the defendant’s act of posting the nude photographs was an unlawful act in and of itself.
State v. Berhardt, 2011 Mo. App. LEXIS 249
The defendant was convicted of aggravated stalking and sentenced to nine years after appearing at his doctor’s house on multiple occasions in possession of a firearm and communicating a credible threat by displaying a weapon with the intent of placing the doctor in fear for his safety. Aggravated stalking is defined as purposely harassing or following with the intent of harassing another person and making a credible threat. “Credible threat” is defined as threat communicated with the intent 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 family, or household members. The doctor’s son watched the defendant park in front of their house several times over the period of a night, and during one of the stops, saw the defendant loading a gun. On appeal, the defendant contended that the court could not infer from the evidence that he intended to “communicate” a threat to the doctor because he made a conscious decision not to disturb them and never stepped foot on their property. The court, basing its reasoning on Alexander v. State, 864 S.W.2d 354, 357 (Mo.App. 1993), concluded that a threat need not be received by its intended recipient before it could be deemed communicated, as it was sufficient that the threat reached an intermediary. By shifting and parking several times in front of the doctor’s house in the middle of the night, loading his gun, and stepping out of the car with it, the defendant successfully made himself and his weapon known to the doctor’s son. The defendant’s conviction and sentence were affirmed.
Singh v. Greene, 2011 U.S. Dist. LEXIS 54417
The defendant was convicted of various crimes, including stalking in the third degree. After the couple’s break-up, the defendant began a months-long pattern of threatening behavior, including calling the victim, showing up at her work and home, and setting her family’s car on fire. The defendant eventually set the family’s apartment on fire, which killed the victim’s sister. He was sentenced to 28 years to life in prison. On appeal, the defendant argued that the trial court erred by excluding psychiatric evidence showing defendant’s mild retardation. Under N.Y. Penal Law § 120.14, a menacing charge requires a finding that the defendant intended to place the victim “in reasonable fear of physical injury, serious physical injury, or death,[,]” and the stalking charge, § 120.50(3), required an intent to “harass, annoy, or alarm” the victim. The court denied the appeal, explaining that even if the exclusion of psychiatric evidence was improper under state law, the error did not deprive the defendant of a fair trial. It would have done little, if anything, to rebut the weighty evidence that he had violently stalked and harassed the victim. The defendant’s conviction and sentence were affirmed.
State v. Conner, 795 N.W.2d 750 (2011)
The defendant was charged with stalking her ex-boyfriend and his new girlfriend. The complaint alleged a course of conduct which included evidence of other crimes, wrongs or acts in a separate case against the defendant stemming from similar conduct against the same victims. The court held that the complaint was sufficient because the prior acts were evidence of a continued course of conduct and the complaint stated an offense to which the defendant was able to plead or prepare a defense.
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