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Intent and "Pattern of Conduct"

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

Many criminal offenses require "specific intent" on the part of the accused regarding his or her actions. Generally speaking, specific intent is a state of mind in which the actor intends certain criminal consequences or desires a specific result of his or her actions. Specific intent is more than merely intending to commit a prohibited act.

For example, aggravated battery under §30-3-5 is a specific intent crime because the statutory elements require that the defendant's unlawful touching or application of force to the victim be done with "intent to injure that person or another." Another example is forgery, which under §30-16-10 which requires the specific intent by the defendant to take certain actions with the "intent to injure or defraud." Thus, in specific intent crimes, the focus is not simply on whether the accused's actions fit within the statutory elements of the crime. Rather, in addition to that, the accused must have taken such actions with a specific state of mind.

Harassment is a specific intent crime under §30-3A-2 in that the accused must knowingly (i.e., be consciously aware of what he or she is doing) pursue a pattern of conduct that is intended (i.e., conduct is pursued with the idea or mindset to in fact cause such a reaction) to annoy, seriously alarm or terrorize another individual.

Stalking is a specific intent crime under §30-3A-3 in that the accused must knowingly (i.e., be consciously aware of what they are doing) pursue a pattern of conduct intending (i.e., conduct is pursued with the idea or mindset to in fact cause such a reaction) to either place another person in reasonable apprehension of death, bodily harm, sexual assault, confinement or restraint or cause fear for the victim's own safety or that of household members. Finally, since aggravated stalking under §30-3A-3 is essentially a more serious form of stalking, it is also a specific intent crime.

"[T]he existence of [specific] intent must be corroborated by objective facts. Specific intent, however, can seldom be proven by direct evidence: [Intent] must be proved by the reasonable inferences shown by the evidence and the surrounding circumstances. If there are reasonable inferences and sufficient circumstances then the issue of intent becomes a question of fact for the jury." See State v. Green, 861 P.2d 954, 961.

It is rare in any specific intent criminal case that there is direct evidence of the defendant's intent. For example, how often do we hear of a robbery where the defendant states to the victim "I am threatening you with physical violence because that's the method I have chosen to get you to hand me your wallet!"?

Given that criminal defendants rarely state the intentions behind their actions, an accused's intent for pursuing a pattern of conduct can be proven with direct evidence, circumstantial evidence, or both. An example of direct evidence of intent in a harassment case would be where the defendant, waiting outside the victim's workplace, tells her as she passes "I hope that every time you see me out here it scares you out of your mind!" The defendant's statement during the surveillance directly communicates that his intention in so doing is to frighten the other person.

An example of circumstantial evidence of the required intent in a harassment case would be evidence that the number of late night, no-conversation calls increased in number each time the recipient responded by crying and voicing pleas for the calls to stop, as compared to simply hanging up silently. Based on that circumstantial evidence of increased numbers of calls after emotional reactions from the recipient, the judge or jury might reasonably conclude that the defendant's intent was in fact to seriously terrorize the person.