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"Pattern of Conduct" Examples

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

With this general, but not controlling, guidance on the meaning of "pattern of conduct," it seems fairly certain that a single act or incident would not qualify as a pattern. Two or more acts or incidents may begin to seem more like a pattern.

For example, while one late night verbally harassing phone call might be emotionally jarring to the recipient, it alone cannot be the basis for a charge of harassment and a resulting criminal prosecution. What is less clear is whether two such calls might constitute a pattern. At some point with two or more calls a pattern does begin to emerge. As is customary, law enforcement and/or the district attorney's office must use their discretion in determining when to investigate and/or prosecute.

Perhaps a smaller number of instances of conduct, initially appearing to be consistent with harassment or stalking, might instead and more appropriately result in charges for a different offense, such as criminal trespass, §30-14-1, criminal damage to property, §30-15-1, or inappropriate use of a telephone, §30-20-12. In some instances law enforcement may initially charge an accused with these other offenses but after further investigation and communication between law enforcement and the district attorney's office the defendant may eventually also be charged with stalking or harassment.

A pattern of conduct can consist of repeated actions of a similar nature or several actions each of a different nature. It is important to realize that a "pattern of conduct" does not necessarily and exclusively have to refer to the repetition of a single action, such as only multiple harassing phone calls or only repeated surveillance. While those types of "single form" stalking and harassment cases may sometimes arise, other cases involving a "pattern of conduct" may involve varied actions by the accused against the victim.

For example, a defendant might be charged with harassment based on the totality of the following: several inappropriate phone calls, one uninvited visit to the victim's house, and dozens of text messages. In that example, while the methods of harassment were varied, when viewed in their totality, law enforcement or the prosecutor might conclude that they show a "pattern of conduct" rising to the level of criminal harassment.

In an actual reported appellate case, the following facts supported a guilty verdict for an aggravated stalking charge and several other charges: harassing phone calls and letters, placement of harassing signs around the neighborhood, keying of a car including scratching of the word "whore" on the car, and driving by the victim's house. See State v. Gutierrez, 2007-NMSC-33, ¶¶3-5. Another reported appellate case involved actions including strange telephone messages, repeated hang-up calls, staring at the victim throughout an entire meeting, whispering her name throughout one meeting, grabbing her by the arm, waiting and watching for her outside the meeting location, leaving a note at her house, walking in her neighborhood, and knocking on her door. See State v. Anderson, 2001-NMCA-27 ¶¶2-3. While the defendant's conviction for aggravated stalking was overturned on a deadly weapon issue, during trial the defendant himself conceded that he committed harassment and suggested that the jury might properly convict him of stalking. See, Anderson at ¶8.

It is also important to keep in mind that a "pattern of conduct" is not limited to actions which on their face a reasonable person would consider frightening, "creepy" or "weird." The common perception among the public might be that harassment and stalking involve only strange, obviously offensive actions done in a stealth-like manner. Certainly, some methods of stalking and harassment do involve such actions and only such actions.

However, the pattern of conduct can be such that, on its face or upon an initial review, it appears to be positive, innocent, and even friendly behavior. An example of that would be where a woman telephones a man in the morning, identifies herself, says "hello" and wishes him a good day at work. On its face, that seems like nothing more than innocent, friendly, perhaps even flirtatious, behavior. However, further investigation reveals that the woman also calls the man at work to make sure he arrived safely and, on days he is absent from work, she calls him at home to make sure he is not ill and in need of assistance. Finally, the investigation reveals that the woman has made dozens of these uninvited "warm wishes" calls to the man over the course of weeks or months. Under those circumstances, what was initially seen as innocent, friendly banter can instead actually be a pattern of conduct perhaps rising to the level of criminal harassment.