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New Mexico Case Law

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

New Mexico has relatively little case law on the statutes pertaining to stalking and harassment. The following cases from the state's Supreme Court and Court of Appeals have interpreted the statutes relating to stalking and harassment or are instructive for providing examples of what might constitute a pattern of conduct that falls within the statutes.

Constitutionality of Harassment Statute, §30-3A-2

State v. Duran, 1998-NMCA-153, ¶32: Section 30-3A-2 defining "harassment" is not unconstitutionally vague. The record "demonstrates the existence of facts from which the jury could reasonably find that defendant's acts and intent were to annoy or seriously alarm [the victim]." Furthermore, "a person of ordinary intelligence would have known that such behavior was unlawful and would inflict substantial emotional distress upon the victim."

Double Jeopardy

State v. Gonzales, 1997-NMCA-039, ¶¶14-15: The prohibition against double jeopardy was not violated where the defendant was criminally charged with and convicted of stalking and harassment following his being found in contempt of a Domestic Violence Protective Order and sentenced as a result. "Comparing the elements of the protective order violation to the statutory elements of the criminal offenses, the court found that each offense contains at least one element that the other does not." Therefore, "we conclude that double jeopardy was not a bar to the subsequent prosecution for stalking and harassment."

State v. Duran, 1998-NMCA-153, ¶29: Where the prosecution "relies on identical acts of an accused involving the same course of conduct to prove both the offenses of harassment and of stalking, double jeopardy provisions preclude multiple punishment. In such case the offense of harassment is subsumed into the offense of misdemeanor stalking."

On-Record Lower Court Trials and District Court Appeals

State ex rel., Schwartz v. Sanchez, 1997-NMSC-021: This case has application only to on-record limited jurisdiction courts, the sole one currently being Metropolitan Court in Albuquerque. The defendant was charged with harassment under §30-3A-2 of the Harassment and Stalking Act. "Harassment" is specifically listed in the Family Violence Protection Act definitions of "domestic abuse" under §40-13-2(C). The Supreme Court concluded that all actions involving domestic abuse, as defined in the Family Violence Protection Act, should be tried on-record in Metropolitan Court. Given that, appeals of such cases to the Second Judicial District Court would involve the review of the lower court's handling of the case, not a de novo trial before a district court judge. Thus, victims need testify only once against the accused in a domestic abuse case.

Prosecution's Burden of Proof

State v. Anderson, 2001-NMCA-027, ¶¶32, 35: This opinion analyzes what nexus the prosecution must prove between the defendant's possession of an instrument (here, a stick determined by the jury to be a deadly weapon) and the commission of aggravated stalking. The court held that the prosecution failed to prove an essential element of aggravated stalking under §30-3A-3.1(A)(3) (possession of deadly weapon). Under the "deadly weapon" form of aggravated stalking, where the instrument in question is not listed specifically under the "deadly weapon" definition, §30-1-12(B), the jury must be instructed that (1) the defendant must have possessed the instrument with the intent to use it as weapon, and 2) the instrument is one that, if so used, could inflict dangerous wounds. (Note that UJI 14-333 on aggravated stalking was modified based on the Anderson holding.)

Examples of Stalking or Harassment

State v. Gutierrez, 2007-NMSC-033, ¶¶3-5: The facts in this case provide examples of aggravated stalking and harassment for which the defendant was charged and convicted. (Note: Issues on appeal are not directly related to either the application or interpretation of New Mexico statutes on stalking or harassment.)