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Exercise 3 - Stalking

Tutorial on the crimes of stalking and harassment for New Mexico judges

The defendant is charged with stalking under §30-3A-3 and harassment under §30-3A-2. The stalking is based on ten separate instances where the victim observed the defendant peering into her windows by crouching directly underneath them after dark. Each time, the defendant ran away once the victim caught him looking. The harassment charge is based on four separate instances where the victim observed the defendant crouching on her lawn and staring into her windows, which were about ten feet away. Each time, the defendant ran away once the victim caught him looking. The jury convicts the defendant of both stalking and harassment. Prior to sentencing, the defendant files a motion asserting that his constitutional right to be free from double jeopardy will be violated if he is given multiple punishments for his convictions for stalking and harassment.

How should the judge rule on the motion?

A. Deny the motion because different patterns of conduct were used by the prosecution to prove both stalking and harassment.
Answer A is incorrect. Although there were slight variations in the defendant's conduct (for stalking, crouching directly underneath windows, and for harassment, crouching about ten feet away from windows), the basic conduct was unitary in nature such that the same acts were used to prove both stalking and harassment--specifically, crouching to avoid detection while staring into windows at night, then running away when caught. See State v. Duran, 1998-NMCA-153, ¶¶14, 16. Resolution of the double jeopardy argument requires a determination as to whether either the harassment statute or stalking statute requires proof of one or more elements which the other statute does not. Duran, ¶16. Please select another answer.
B. Deny the motion because although the stalking and harassment convictions were based on similar conduct by the defendant, the two crimes of stalking and harassment are directed at protecting totally different social norms and addressing different social evils.
Answer B is incorrect. The argument about whether the stalking and harassment statutes address different social norms and different social evils was rejected in State v. Duran, 1998-NMCA-153, ¶¶20, 21, 26. The elements required in the stalking and harassment statutes overlap in part in that each requires a pattern of conduct which would cause a significant emotional response in a reasonable person. "While it is clear that stalking may be committed in several alternative ways, where both harassment and stalking are charged against the same defendant and the two offenses arise out of the same unitary conduct, the offense of harassment is subsumed into the offense of stalking." Id. at ¶26. Please select another answer.
C. Grant the motion because the prosecution relied on identical acts by the defendant involving the same course of conduct to prove both stalking and harassment and double jeopardy principles prohibit multiple punishments.
Answer C is correct! In State v. Duran, 1998-NMCA-153, ¶26, the court noted that although stalking can be committed in several ways, where both stalking and harassment charges are filed against the same defendant and the two offenses stem from the same unitary conduct, the offense of harassment is subsumed into stalking. Double jeopardy does not allow for multiple punishments where the prosecution relies on identical acts of a defendant involving the same course of conduct (peering into windows from crouched positions either right underneath the window or ten feet away) to prove both harassment and stalking. Duran, ¶29.
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