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Stalking, § 940.32: Notice of Charge, “Course of Conduct” / Elevation from Class I to H Felony Status

State v. Janet A. Conner, 2011 WI 8, affirming 2009 WI App 143; for Conner: Stephen E. Mays; case activity; Conner BiC; State Resp.; Reply

Stalking, § 940.32 – Notice of Charge, “Course of Conduct”

Stalking requires proof of, among other elements, a “course of conduct” which “means a series of 2 or more acts carried out over time, however short or long, that show a continuity of purpose[.]” Conceding sufficient notice as to one of the required acts, Conner argues that she was deprived of notice as to this element “because the State was improperly allowed at trial to expand the scope of the offense to a course of conduct spanning five years,” ¶22. The test is whether the complaint and information together enable the defendant to plead and prepare a defense, and assert an ensuing conviction or acquittal as a bar to further prosecution, ¶25. The charge was lodged in 2005, and involved numerous acts (both charged and uncharged) going back to 2000; therefore, “the challenge presented here most closely resembles those in which the alleged lack of notice arises from the complaint’s lack of specificity about when in a long period of time the alleged crime took place,” id.

¶28  The complaint in Conner’s case suffers from neither of the problems present in George and Kaufman.  Unlike the faulty charging documents in George, for example, the complaint here, with its incorporated documents, listed 27 dates on which specific acts occurred.  And unlike the incomplete complaint in Kaufman,[18] which failed to give notice of a continuing violation, the complaint against Conner alleged a “course of conduct” and alleged that “the basis for the complainant’s charge is contained in the attached police reports . . . , the Property Crime Non-consent Statement signed by James Gainor and Rhonda Sugden and the factual basis contained in the attached Motion to Introduce Evidence of Other Crimes, Wrongs or Acts . . . [in a separate case], all of which are incorporated into this Complaint by this reference and attachments.”  It is, of course, true that in a stalking case, the acts alleged as part of the course of conduct need not be chargeable as individual criminal offenses.  See State v. Warbelton, 2009 WI 6, ¶36, 315 Wis. 2d 253, 759 N.W.2d 557 (“[S]talking statutes criminalize what otherwise would be legitimate behavior based upon the fact that the behavior induces fear . . . .” (quoting Nat’l Inst. of Justice, U.S. Dep’t of Justice, Project to Develop a Model Anti-Stalking Code for States 49 (1993))).

Stalking, the court stresses, is a “continuous crime,” and therefore under George, conviction or acquittal necessarily covers the “whole period” of time encompassing the alleged series of acts, ¶¶30-31.

In sum, the charge is sustainable “(b)ecause the complaint charged a course of conduct and incorporated documents listing detailed acts along with specific dates on which they allegedly occurred,” ¶32.

The sticking point appears to be that the 27 other alleged incidents weren’t distinctly charged as part of the “series of acts” element. Instead, the State initially sought to introduce these incidents as other-acts evidence and only at the last moment successfully made them part of its elemental proof. The dissent explains the problem concisely:

¶68  Under these circumstances I cannot conclude that a list of acts set forth in a motion relating to another case against Conner and relating to the admission of other acts evidence against Conner gave Conner notice that the State was relying on the numerous acts specified in the motion to prove the 2005 underlying charge of stalking.

Stalking – Elevation from Class I to H Felony Status

A Class I violation is elevated to Class H if “the present violation occurs within 7 years after the prior conviction” (involving the same victim). Conner argues that all the acts in the “course of conduct” element must have occurred after the prior conviction; the court rejects the argument.

¶47  As to the application of the statute’s language about requiring that “the present violation” have occurred “within seven years after the prior conviction,” we hold that it was properly applied in this case because, in this case, the “present violation” was a continuing course of conduct that included the acts on November 30, 2005, and that occurred within seven years after the 2003 convictions for crimes involving the same victim.  Contrary to Conner’s assertions, the statute does not specify how many acts in that course of conduct must take place after the prior conviction.  Such a reading is at odds with the context of the statute in which it appears, which defines stalking as acts “carried out over time, however short or long, that show a continuity of purpose.”  Further, the list of acts the statute defines as stalking conduct makes clear that even if we read the statute as Conner suggests, the conviction in this case would still be proper because a properly instructed jury could reasonably find that evidence showed that on November 30, 2005, Conner carried out more than one act constituting stalking behavior, and those acts were within seven years after the 2003 conviction involving the same victim.

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