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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.

Evidentiary Issues

Federal—Second Circuit

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. 


State v. Dickie, 2012 Alas. App. LEXIS 116

The defendant appealed his stalking conviction because he claimed that the state failed to show that his contact with the victims was nonconsensual. Under the Alaska stalking code, a person commits the crime of stalking when the person “knowingly engages in a course of conduct that recklessly places another person in fear of death or physical injury, or in fear of death or physical injury of a family member.” The term course of conduct is defined as “repeated acts of nonconsensual contact involving the victim or a family member.” Nonconsensual contact is defined as “any contact with another person that is initiated or continued without that person’s consent, that is beyond the scope of the consent provided by that person, or that is in disregard of that person’s expressed desire that the contact be avoided or discontinued.” The defendant argued that the phrase “without that person’s consent” should require an element of coercion or force. The court held that the legislature did not specifically provide that “without the person’s consent” include an element of coercion or force. Therefore, the legislative intent was to not require force or coercion to be part of the definition of nonconsensual contact. Thus, the state was not required to prove that the nonconsensual contact included an element of force or coercion under the stalking code.


People v. Cecil, 2012 Cal. App. Unpub. LEXIS 2906
The Court upheld the defendant’s conviction for stalking. The defendant was charged and convicted of sexual assault of the victim. After serving his six year sentence, the defendant contacted the victim by telephone and yelled obscenities and threatened to kill her for sending him to prison. He then followed up by sending her a threatening letter in the mail. Under the California stalking law, § 646.9(a), "any person who . . . willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety . . . is guilty of the crime of stalking . . . ." The statutory definition of “harasses” under § 646.9(e), is "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." Under §646.9(f), “Course of conduct” is defined as "two or more acts occurring over a period of time, however short, evidencing a continuity of purpose.” Under §646.9(g), “Credible threat” includes a verbal threat or "a threat implied by a pattern of conduct" that is "made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety . . . 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."  "It is not necessary to prove that the defendant had the intent to actually carry out the threat."* Here, the defendant's words were intended to frighten the victim and convince her that he intended to kill her because she had sent him to prison for rape. The victim was no less frightened simply because the death threat was delivered over the phone as opposed to in person. The defendant knew where the victim lived and how to find her. At the time of the threat, the victim did not know that the defendant was out of state.  Accordingly, the defendant's threat conveyed an immediate prospect of execution. The conviction for stalking was thus upheld.

*§ 646.9(g); see also People v. Carron (1995) 37 Cal.App.4th 1230, 1238-1240. A conviction under §646.9 requires proof that the defendant, (1) with the apparent ability to carry out the threat, (2) has willfully, maliciously and repeatedly harassed the victim (3) with the intent to place the victim in reasonable fear for her/his safety and (4) has, in fact, caused the victim to reasonably fear for his/her safety." (People v. Norman (1999) 75 Cal.App.4th 1234, 1239; accord, People v. Ewing (1999) 76 Cal.App.4th 199, 210.) 

People v. Cook, 2012 Cal. App. Unpub. LEXIS 3217
Appellant appealed his stalking conviction because the court allowed other acts of evidence to be presented. The other acts included prior physical abuse of the victim and numerous letters that were written to the victim. Evidence of prior criminal acts is normally inadmissible to show a defendant’s disposition to commit such acts, however, there is in exception to this in cases of domestic violence and sexual offenses. Stalking is considered an act of domestic violence, therefore it can be used to prove propensity to commit the crime of making criminal threats. The court noted that this case required the jury to look at the totality of the victim and defendant’s relationship in order to understand the fear that the victim was feeling. Specifically the court stated, "In the Court's view, a case like this really involves the totality of a relationship. It's impossible to glean the intent and the fear of the relative parties by taking a single portion of a long relationship in a vacuum. There are stalking cases, threats cases in which somebody might leave a single rose on a doorstep, and to you or I that might be seen as one act, perhaps even a friendly act, but to somebody who's been stalked and threatened and has a history with another, depending on the context, just a simple act like that can be a horrifying threat, depending on their prior relationship and what the meaning of all those things is. It would be unjust to excise this long relationship . . . and admit only letters that [the defendant] technically wrote to his son and require the People to prove a reasonable fear on the part of [the victim] based on what in a vacuum might seem innocuous. Another way to look at it is if one has a long history of stalking, abuse and violence, and is sentenced to prison for that, he's not entitled to wipe the slate clean and start over and have to build an entire new set of circumstances before he can be brought to justice again. All of those things are not erased from the mind of the alleged victim. In this case, [the victim’s] fear can be expressed by the People by referencing the long history between her and [the defendant.] On balance, with some sort of limiting instruction and the high degree of probative value, the Court's view is that Evidence Code § 352 should not preclude the admission of [the uncharged offenses.]"

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.


State v. Lindell, 2012 Iowa App. LEXIS 533

The defendant was convicted of stalking and his probation was revoked because he violated a no contact order that was entered at sentencing. The defendant asserted that there was no substantial evidence that he violated the no-contact order. The defendant drove by the victim’s place of employment and stared at her for 5-10 seconds through a large glass window. This conduct scared the victim who contacted the police. The court found that this conduct was substantial evidence that the defendant did in fact violate the no-contact order.


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. McCalpin, 85 So.3d 891 (2012).

Defendant was convicted of felony stalking. The defendant passed several cars on the highway and followed the victim’s vehicle very closely from behind. He then followed the victim into a parking lot and parked very closely behind her vehicle so that she could not pull out of her spot. His car was almost touching the victim’s car. He continued to stare at the victim in the parking lot, even when the victim’s mother asked him what he wanted. He finally left when the victim asked a male friend to come out and help. Under the Mississippi stalking code §97-3-107, “any person who purposefully engages in a course of conduct directed at a specific person, or who makes a credible threat, and who knows or should know that the conduct would cause a reasonable person to fear for his or her own safety, to fear the safety of another person, or to fear damage or destruction of his or her property, is guilty of the crime of stalking.” Course of conduct means a “pattern of conduct composed of a series of two or more acts over a period of time, however short, evidencing a continuity of purpose and that would cause a reasonable person to fear for his or her own safety, to fear for the safety of another person, or to fear damage or destruction of his or her property.” In this case, the defendant’s conduct was composed of a series of acts over a short period of time that evinced a continuity of purpose – he passed several cars at a high rate of speed and began to follow the victim very closely; he continued to follow the victim as she pulled off the highway into a parking lot; he parked directly behind the victim so that she could not move her car; and he continued to stare at her even as the victim’s mother addressed him. The court found that this conduct constitutes a knowing and willful course of conduct and qualifies as stalking.


S.D. v. Wallace, 364 S.W. 3d 252; 2012 Mo. App. LEXIS 419
Appellant appealed the issuance of an Order of Protection obtained by petitioner. Appellant asserted that her alleged conduct did not constitute stalking as required by the “Adult Abuse Act” because there was no substantial evidence that appellant’s conduct would have caused a reasonable person in petitioner’s situation to fear physical harm. Petitioner alleged in the application for the Order of Protection that on numerous occasions, appellant drove by her in her car and stared at her and gave her dirty looks. However, in the application, petitioner did not check the box that appellant placed or attempted to place her in apprehension of immediate physical harm. The court found that proof of stalking involves both a subjective and an objective component.  Under the state stalking statute, in order to prove stalking, the offender must have (1) purposely and repeatedly; (2) engaged in an unwanted course of conduct; (3) that caused alarm to the petitioner; (4) when it was reasonable in the petitioner’s situation to have been alarmed by the conduct. Under the state stalking statute, “alarm” means to cause fear of danger of physical harm. In this case, the petitioner failed to show that the appellant said anything or made any gestures, or otherwise communicated any specific thing to the petitioner that would cause a reasonable person to believe that he or she was in danger of physical harm from appellant. Thus, the necessary elements of stalking were not met.

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.

New York

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. Willett, 2012 Ohio App. LEXIS 899

The defendant sought review of his conviction of menacing by stalking based on insufficient evidence because the state failed to prove that he engaged in a pattern of conduct or that he knowingly caused the victim to believe that he would cause her mental distress. Under the stalking code R.C. 2903.211(A)(1), “no person by engaging in a pattern of conduct shall knowingly cause another person to believe that the offender will cause physical harm to the other person or cause mental distress to the other person.” Pattern of conduct means “two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents.” In this case, there was a clear knowing pattern of conduct that caused the victim to feel mental distress and fear that the defendant would cause her physical harm. The defendant first sent the victim a pornographic text message on her cell phone. Then from the same number, he sent her a request to view a vacant house at night (the victim was a realtor). The victim was not listed as the realtor for that particular house. The victim contacted the police and asked them to be present when she showed the house to the defendant. The defendant canceled this appointment. He then set up another appointment to see the house with the victim. This time he did appear and the police questioned him and searched him. Upon searching the defendant, the police found scissors and two pairs of electrical zip ties connected in a way that they could be used as hand cuffs. The police also found the cell phone that was used to send the pornographic text message. The victim testified that upon receiving the pornographic text message, she was very disturbed. She also testified that when she received the request to view the house from the same number, she was petrified that someone wanted to kill her.

Retterer v. Little, 2012 Ohio App. LEXIS 108

Appellant appealed the granting of a stalking protection order on the basis that there was insufficient evidence to grant the order. Appellant contended that there was no evidence of a pattern of conduct. In order to obtain a Civil Stalking Protection Order (CSPO), the petitioner must show by a preponderance of the evidence that the respondent engaged in a violation of R.C. 2903.211, Ohio’s menacing by stalking statute. The petitioner must also show that the respondent engaged in a pattern of conduct which he or she knew would cause the petitioner to believe that he or she will cause physical harm or mental distress. Under R.C. 2903.211(D)(1), a pattern of conduct is defined as “two or more actions or incidents closely related in time, whether or not there has been a prior conviction based on any of those actions or incidents.” The court explained that “closely related in time” must be determined on a case-by-case basis since it is undefined in the statute. In determining what constitutes a pattern of conduct, the trier of fact should consider the evidence in the context of all the circumstances of the case. Therefore, depending on the individual case, a pattern of conduct can arise out of two incidents occurring on the same day, or it may consist of two or more intermittent actions or incidents occurring over a period of years. In this case, the pattern of conduct covered a period of five years. The appellant engaged in conduct that was neither random nor remote. Even though the incidents spanned five years, the entire context of the case showed a clear pattern of conduct that was engaged in to cause mental distress and fear of physical harm.


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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