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Stalking, § 940.32: Sufficiency of Evidence

State v. Carl Ralph Eichorn, 2010 WI App 70; for Eichorn: Melissa Fitzsimmons, SPD, Milwaukee Appellate; BiC; Resp.; Reply

Evidence was sufficient to support stalking conviction, though the requisite “course of conduct” occurred over short span of time:

¶9     In sum, there is more than sufficient evidence under our standard of review to support beyond a reasonable doubt Eichorn’s stalking conviction. Although Eichorn refers us to cases where the stalking persisted over a long time, and what happened here spanned apparently fewer than fifteen minutes, the statute, as we have seen, specifically provides that stalking may be “a series of 2” acts over a “short” time if the acts “show a continuity of purpose.” Wis. Stat. § 940.32(1)(a). Eichorn’s acts reveal beyond a reasonable doubt his “continuity of purpose” to, as he testified, take “a long shot” that she might go with him. We affirm.

Elements discussed in some detail, ¶8. Eichorn asked a 17-year-old girl (Vivian) at a school bus stop to get in his car; she refused, got on her bus, and when she got off a few minutes later, Eichorn was there, and suggested he could take her the rest of the way home, ¶¶3-4. That’s it. If the evidence seems thin, that’s because it is. But still enough. Where’s the “threat” element? Here, says the court:

The next element is that Eichorn “kn[e]w[] or should [have] know[n] that at least one of the acts that constitute the course of conduct will cause the specific person to suffer serious emotional distress.” See Wis. Stat. § 940.32(2)(b). Here, too, there is more than enough evidence in the Record to prove beyond a reasonable doubt that at the very least Eichorn should have known that approaching Vivian L. at the bus stop (whether he believed she was seventeen, eighteen, nineteen, twenty, or older) where she was alone and a stranger to him, and then pestering or cajoling her to get into his car would cause her to “feel terrified, intimidated, threatened, [or] harassed.” See § 940.32(1)(d). Additionally, Eichorn either knew or should have known that following Vivian L.’s bus to try to get her into his car again after she had vociferously rebuffed him the first time at the bus stop would terrify her, especially since he had ostensibly driven away when she rebuffed him at the bus stop. See ibid.

Vivian certainly felt terrified: did she overreact? The court suggests it is applying an objective test (“a similarly situated victim would not only be frightened because of the initial approach at the bus stop but would be even more terrified by the realization that the person had followed her bus during the four-to-five minute trip”), but more by fiat. In so many words, the court indicates that you take a stalking victim as you find her (think: “eggshell” skull tort victim). And yet, as the court indeed notes, the statute expressly requires “a reasonable person under the same circumstances to suffer serious emotional distress.” Was Eichorn an obnoxious boor or dangerous predator? The court apparently thought the latter. Was Vivian overly delicate? The court of appeals didn’t think so. What do you think? Better still: how would you have convinced a jury that her reaction was extreme, because that was Eichorn’s only real chance? In case you were wondering, Eichorn got a 4-year prison sentence, 22 months’ confinement.

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