Exercise 9

The defendant is charged with harassment based on allegations he made two phone calls to his neighbor. He is alleged to have intimidated her in the first call and annoyed her in the second call, both involving a neighborhood association issue. Counsel files a pretrial motion to dismiss the case due to insufficient evidence of a pattern of conduct to justify a charge of harassment under §30-3A-2. In support of the motion, counsel presents an affidavit from the defendant's neighbor which states that aside from those two calls, the two of them never discussed the issue again and that she considers him a good neighbor.

How should the judge rule on the motion to dismiss?

A. Deny the motion and proceed with the harassment case because a pattern of conduct was shown by the several calls made by the defendant about the dispute.

Answer A is incorrect. No specific number of instances of conduct is required to determine that a "pattern of conduct" exists for harassment purposes. However, since the court is dealing with a charge of harassment based on only two instances of phone contact between otherwise good neighbors, the court could reasonably conclude that the prosecution lacks evidence to show a harassing pattern of conduct causing substantial emotional distress, as required under §30-3A-2.

B. Grant the motion and dismiss the harassment case because the allegations suggest a telephone use offense rather than a harassment offense.

Answer B is correct! No specific number of instances of conduct is required to determine that a "pattern of conduct" exists for harassment purposes. However, the court is faced with only two instances of phone contact between otherwise good neighbors. Given the scant number of calls, it may be reasonable to grant the motion to dismiss. The allegations might support prosecution for inappropriate use of the telephone under §30-20-12 rather than harassment.