Exercise 6 - Aggravated Stalking
Tutorial on the crimes of stalking and harassment for New Mexico judges
The defendant is charged with aggravated stalking under §30-3A-3.1(A)(4) for making an obscene phone call to a 15-year old student of his in which he threatened violence if she told anyone about the call. The defendant files a motion with the district court to dismiss the aggravated stalking charge based on two grounds: mistake of fact in that he reasonably thought the student was 18 years old; and insufficient evidence to support a conviction.
How should the judge rule on the motion to dismiss?
- A. Grant the motion based on the mistake of fact argument about the student's age because §30-3A-3.1(A)(4) requires the victim to be less than 16 years old.
- Answer A is incorrect. Granting the motion is the correct answer, but not based on the defendant's mistake of fact argument. No where, either implicitly or explicitly, does the aggravated stalking statute require that the defendant in fact affirmatively know that the victim is less than 16 years old. However, since a single obscene phone call does not constitute a pattern of conduct, insufficient evidence exists to support a conviction. Please select another answer.
- B. Deny the motion because §30-3A-3.1 does not require that the defendant in fact know the exact age of the victim.
- Answer B is incorrect. Nowhere, either implicitly or explicitly, does the aggravated stalking statute require that the defendant in fact affirmatively know that the victim is less than 16 years old. However, since a single obscene phone call does not constitute a pattern of conduct, insufficient evidence exists to support a conviction. Please select another answer.
- C. Grant the motion on the insufficient evidence argument because the basis for the aggravated stalking charge is a single harassing phone call.
- Answer C is correct! Under §30-3A-3.1(A), aggravated stalking consists of stalking perpetrated in one of several specific situations or against a victim less than 16 years of age. Although under the stalking statute harassing a person can constitute stalking, it must be a pattern of conduct which is harassing. A single, obscene phone call, even to a person under 16 years of age, does not constitute a pattern of conduct and thus would not rise to the level of aggravated stalking.