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Court of Appeals construes “directed at” element of stalking statute

State v. Korry L. Ardell, 2017AP381-CR, District 1, 3/6/18 (not recommended for publication); case activity (including briefs)

Ardell was convicted of stalking in violation of § 940.32(2) for sending emails about N., a woman he had dated, to a former employer of N. (¶¶3-20). The court of appeals rejects his arguments that, under the plain language of the statute: 1) conduct or statements regarding N. but directed at a third party were irrelevant absent proof Ardell either intended such information to be passed on to the alleged victim or intended the third party to harass the alleged victim based on the information; and 2) the jury instructions failed to apprise the jury that the state had to prove that intent before they could convict him.

As relevant here, the first element of stalking, § 940.32(2)(a), requires the state to prove the defendant “intentionally engages in a course of conduct directed at a specific person” that would cause a reasonable person under the same circumstances as N. to suffer serious emotional distress or fear bodily injury. While Ardell concedes a course of conduct as defined under § 940.32(1)(a)7. can include contacting or communicating with a victim directly or indirectly, he argues the “intentionally … directed at” language demands proof of his subjective intent that the defendant’s acts be relayed to the victim. He bolsters this argument by reference to other jurisdictions that have so found. (¶¶29-33).

Using a dictionary to define “directed at” as “to engage in or launch hostilely” and to “focus” on (¶31), the court of appeals says it reads the statute differently:

¶34     …. First we note that the cases Ardell cites are not controlling precedent here and, more importantly, all are factually distinguishable in that all involve digital or social media postings. Second, nothing in the plain words of the statute requires that the communications be “intended to be transmitted to” the victim, and nothing in the statute requires the State to prove that the defendant subjectively intended the communications to go to the victim.

¶35     The statute does include an “intent” component (“intentionally engages in a course of conduct”), a mens rea element common to criminal statutes in order to preclude criminal liability for unintentional conduct. There is no question that Ardell intentionally sent the emails. The statute also requires that he “knows or should know” that the conduct “will cause the specific person to suffer serious emotional distress[.]” See Wis. Stat. § 940.32(2)(b). The legislature’s use of “should know” makes that element an objective standard, not a subjective one.

¶36     Ardell’s argument conflates the requirement that he “intentionally engaged in a course of conduct” with the requirement that the course of conduct be “directed at” N. The requirements are distinct. His attempt to import the “intentionally” requirement into the other element is not consistent with the rest of the language of the statute, in which the legislature expressly made the test an objective one. And he too narrowly defines “directed at” as we explain above. As to the intent to cause distress element, we conclude that there was ample evidence here from which a jury could reasonably conclude from an objective viewpoint that Ardell intended the communications to the third party to be conveyed to N. and cause her emotional distress. For example, he explicitly stated in both 2014 emails that he accused the principal of working with N. to obtain the restraining order. He clearly believed they still were in contact with each other. He explicitly threatened to engage in public protests at the principal’s school in response to her “conspiring” with N. From these facts alone, the jury could reasonably conclude he emailed the principal believing N. would be told or find out and that this demonstrated, objectively, that he intended to cause N. emotional stress.

The court’s statutory analysis is marred by two glaring missteps. First, the court fails to properly apply the “intent” component of the element. It limits intent to the “course of conduct” component, and says Ardell conflates that with the “directed at” component when they are really “distinct.” Not so. Under § 939.23(3), “intentionally” means the actor must have had a purpose to do the specified result (here, cause a reasonable person under the same circumstances as N. to suffer serious emotional distress or fear bodily injury) or been aware that his conduct was practically certain to cause that result. The statute also provides that to act “intentionally” the actor “must have knowledge of those facts which are necessary to make his or her conduct criminal and which are set forth after the word ‘intentionally.’” Applied to § 940.32(2)(a), that means the “directed at” component must also be intentional, and that’s where Ardell’s subjective intent requirement comes from. Ardell isn’t “conflat[ing]” two “distinct” requirements or “attempt[ing] to import the ‘intentionally’ requirement into the other element”; instead, the requirement is already there, and the court is failing to understand or apply the clear dictates of § 939.23(3).

The court also missteps in its reliance on § 940.32(2)(b) for its conclusion that the element in sub. (2)(a) is objective, not subjective. The two paragraphs are separate elements, both of which must be proven beyond a reasonable doubt. To import (b)’s objective standard into (a) makes (b) mostly, if not entirely, superfluous.

Having rejected Ardell’s argument about the need for proof of his subjective intent, the court holds there was no error in the admission of the evidence of his communications with a former coworker of N.’s and no error in the jury instruction. (¶¶22, 36-37, 41-45). The court also rejects Ardell’s argument that the language in the course of conduct definition, § 940.32(1)(a)7., that covers communicating to or with an employer or coworker of the victim doesn’t cover former employers or coworkers. It does so based on the overarching purpose of the stalking statute as revealed by legislative history. Thus, the fact that the person Ardell sent emails to was no longer working with N. didn’t preclude his conviction. (¶¶25, 38-40).

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