Exercise 2 - Harassment

The defendant is charged with harassment under §30-3A-2 based on ten late night instances where the victim observed him pacing outside her residence, staring into her window. Each time she caught sight of the defendant, he would stop pacing, face her window head-on and stare directly at her until she looked away. The defendant would then "always disappear," according to the victim. She also advised police that the repeated pacing, staring and sudden disappearances caused her to be very fearful. The defendant argues his conduct was merely innocent, routine activity of getting daily exercise, which sometimes involved pacing and running in place. The defendant's attorney files a motion to dismiss arguing that §30-3A-2 is unconstitutionally vague in failing to adequately define harassing conduct, thereby failing to give fair warning regarding what is not appropriate conduct.

How should the judge rule on the motion to dismiss?

A. Grant the motion due to the lack of specificity in §30-3A-2 regarding what types of activity constitute a pattern conduct.

Answer A is incorrect. In State v. Duran, 1998-NMCA-153, ¶32, the Court of Appeals disagreed that §30-3A-2 was unconstitutionally vague in its definition of harassment. The court concluded that the defendant had failed to show that §30-3A-2 was unconstitutional given that the record contained facts from which the fact finder could reasonably find that the defendant's acts and intent were to annoy or seriously alarm the intended victim. Furthermore, the court stated that someone of ordinary intelligence would have known that such behavior was unlawful and would inflict substantial emotional distress. The Duran analysis appears applicable to the facts in this scenario. Please select another answer.

B. Deny the motion because an ordinary person exercising common sense would have known that the defendant's pattern of conduct was unlawful and would inflict substantial emotional distress on the victim.

Answer B is correct! In State v. Duran, 1998-NMCA-153, ¶32, the Court of Appeals disagreed that §30-3A-2 was unconstitutionally vague in its definition of harassment. The court concluded that the defendant had failed to show §30-3A-2 was unconstitutional given that the record contained facts from which the fact finder could reasonably find that the defendant's acts and intent were to annoy or seriously alarm the intended victim. Furthermore, the court stated that someone of ordinary intelligence would have known that such behavior was unlawful and would inflict substantial emotional distress. The Duran analysis appears applicable to the facts in this scenario.

C. Grant the motion because the victim could have avoided the distress she suffered simply by closing her curtain.

Answer C is incorrect. In dealing with an argument alleging §30-3A-2 is unconstitutionally vague, the focus is on the statute in light of the facts of the case and the conduct which the statute prohibits. See State v. Duran, 1998-NMCA-153, ¶31 (holding §30-3A-2 not unconstitutionally vague). Therefore, whether the victim could have taken measures to prevent the defendant from staring into her window should not be considered by the court when dealing with the argument about unconstitutionality. Please select another answer.