State of Iowa v. Christopher Raymond Lindell

IN THE SUPREME COURT OF IOWA
No. 11–0770
Filed March 8, 2013
STATE OF IOWA,
Appellant,
vs.
CHRISTOPHER RAYMOND LINDELL,
Appellee.
Appeal from the Iowa District Court for Scott County, Thomas G.
Reidel (motion for bill of particulars) and John D. Telleen (motion to
dismiss), Judges.
The State appeals from the district court’s grant of a motion for a
bill of particulars and a motion to dismiss. REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS.
Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant
Attorney General, Michael J. Walton, County Attorney, and Jay
Sommers, Assistant County Attorney, for appellant.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey,
Assistant Appellate Defender, for appellee.
2
ZAGER, Justice.
This appeal centers on the question of whether a previous
conviction for stalking under Iowa Code section 708.11 can be used to
establish a course of conduct for a subsequent stalking violation. We
find the legislature intended that for purposes of determining whether an
offense is a second or subsequent offense of stalking, prior violations of
the stalking statute can be considered as evidence of the course of
conduct necessary for a prosecution for stalking as a second or
subsequent offense. We further find that the rule of lenity does not
apply, as Lindell had sufficient notice that his conduct could give rise to
additional criminal liability. Therefore, we reverse the district court and
remand for further proceedings.
I. Background Facts and Proceedings.
The facts in this case are not in dispute. Christopher Raymond
Lindell and A.C. were involved in a romantic relationship. In May 2010,
A.C. attempted to break all ties with Lindell. Based on events occurring
in April 2010, A.C. obtained an order of protection against Lindell in Polk
County, Iowa, on April 26, 2010. At some point, A.C. moved to Scott
County. However, in violation of the protective order, Lindell continued
to make contact with A.C. These contacts included leaving a
handwritten note and flowers on her car in June 2010; hang-up calls on
July 4, 6, 9, and 11, 2010; a personal contact on July 4, 2010; and being
at A.C.’s residence and damaging her automobile tires and other property
on July 11, 2010. As a result of these contacts, A.C. obtained an
additional order of protection in Scott County on July 11, 2010. A final
incident occurred on August 23, 2010, when Lindell contacted A.C. twice
by telephone. All of these incidents form the basis of the prior trial
3
information charging Lindell with stalking, criminal mischief, and other
charges.
On December 15, 2010, Lindell pled guilty to stalking, first offense,
with protective order, in violation of Iowa Code section 708.11, and
fourth-degree criminal mischief, in violation of Iowa Code section 716.1
(2009), for crimes committed against A.C. On January 20, 2011, Lindell
received a deferred judgment on the stalking charge.1 The court also
continued the no-contact order for the protection of A.C.
On January 25, 2011, Lindell parked his vehicle in an area where
he could look directly into the office where A.C. was working. When A.C.
made eye contact with Lindell, he drove away. She immediately reported
this contact to law enforcement. During the investigation, Lindell
admitted he had been at that location but claimed he had a legitimate
reason for being there.
In response to this incident, Christopher Lindell was charged by
amended trial information with stalking, second offense, or, alternatively,
stalking in violation of a protective order, in violation of Iowa Code
sections 708.11(3)(b)(1) and 708.11(3)(b)(4).
Lindell filed a motion for a bill of particulars, arguing the State had
not alleged sufficient facts in its trial information and minutes of
testimony to support a violation of the stalking statute, as the State had
only detailed one incident of harassment in its minutes of testimony. In
its ruling on Lindell’s motion for a bill of particulars, the district court
ordered that the State must “file a bill of particulars specifically stating
the two or more occasions that constitute the course of conduct under
Iowa Code section 708.11.” The district court required that the two or
1Lindell received a deferred judgment, but for purposes of the stalking statute, it
is the equivalent of a conviction. See Iowa Code § 708.11(4) (2009).
4
more occasions “shall be separate from those alleged in the Minutes of
Testimony in [Lindell’s prior conviction].”
In response, the State submitted additional minutes of testimony,
detailing stalking incidents that had formed the factual basis for Lindell’s
prior conviction for stalking, but failed to file a bill of particulars in
response to the court’s order. Lindell then filed a motion to dismiss,
alleging the State had failed to state at least one additional incident of
harassing behavior, despite the court’s order to do so. Thus, the trial
information failed to contain sufficient facts to establish the necessary
elements of the crime of stalking.
The State argued it had cured its defect by supplementing the
minutes of testimony with information regarding Lindell’s prior
convictions. Lindell asserts that double jeopardy principles preclude the
State from using the prior incidents to establish the course of conduct
required in the current stalking charge. Specifically, Lindell argued that
the use of the previous incidents, for which he was convicted, to prove
the required course of conduct, would violate the Double Jeopardy
Clause. The district court granted the motion to dismiss. The State
appealed the decision of the district court. We retained the appeal.
II. Scope of the Review.
We review double jeopardy claims de novo, due to their
constitutional nature. State v. Kramer, 760 N.W.2d 190, 193–94 (Iowa
2009). To the extent the issue involves the interpretation of a statute,
this court reviews for correction of errors at law. In re Det. of Johnson,
805 N.W.2d 750, 753 (Iowa 2011).
III. Discussion and Analysis.
A. Double Jeopardy. Lindell asserts the State is putting him in
jeopardy for conduct for which he has already been convicted and
5
punished. Specifically, he alleges the State is charging he violated Iowa
Code section 708.11 by committing acts which also served as the basis
for a prior conviction. The State alleges that Lindell’s interpretation of
the statute would allow those who have stalked a victim before to engage
in “one free stalk” of that victim, so long as it occurs after a conviction.
1. Iowa constitutional claim. As an initial matter, the State argues
that the double jeopardy provision of the Iowa constitution does not
apply. We agree. Unlike some other constitutional provisions, Iowa’s
double jeopardy provision is distinct from the Federal Double Jeopardy
Clause, merely requiring that “[n]o person shall after acquittal, be tried
for the same offence.” Iowa Const. art. I, § 12. As Lindell was not
acquitted, we need not evaluate his claims based on Iowa’s double
jeopardy provision.
2. Scope of federal double jeopardy protection. The Double
Jeopardy Clause of the United States Constitution states that no person
shall “be subject for the same offense to be twice put in jeopardy of life or
limb.” U.S. Const. amend. V. The Fourteenth Amendment binds the
states to the Double Jeopardy Clause. Benton v. Maryland, 395 U.S.
784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969); State v.
Franzen, 495 N.W.2d 714, 715 (Iowa 1993). The Double Jeopardy
Clause serves to create finality and to prevent prosecutorial overreaching.
State v. Burgess, 639 N.W.2d 564, 568 (Iowa 2001). “The purpose of this
clause is to protect against: (1) a second prosecution for the same offense
after acquittal; (2) a second prosecution for the same offense after
conviction; and (3) multiple punishments for the same offense.” Id.
3. Double jeopardy analysis hinges on legislative intent. At its
core, double jeopardy analysis asks what the legislature intended. State
v. McKettrick, 480 N.W.2d 52, 57 (Iowa 1992). The central question is
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whether Lindell is being subject to a second prosecution for the same
offense for which he had previously been convicted and whether he is
being punished again for the same offense. We note that it is the
legislature, “and not the prosecution, which establishes and defines
offenses. Few, if any, limitations are imposed by the Double Jeopardy
Clause on the legislative power to define offenses.” Sanabria v. United
States, 437 U.S. 54, 69, 98 S. Ct. 2170, 2181, 57 L. Ed. 2d 43, 57
(1978).
In considering a double jeopardy claim within the multiple
punishments context, we are guided by the general principle
that the question of what punishments are constitutionally
permissible is no different from the question of what
punishments the legislature intended to be imposed.
McKettrick, 480 N.W.2d at 57. Both the State, citing Missouri v. Hunter,
459 U.S. 359, 366–68, 103 S. Ct. 673, 678–79, 74 L. Ed. 2d 535, 542–44
(1983), and Lindell, citing McKettrick, 480 N.W.2d at 57, agree that the
crux of the analysis of whether Lindell’s right to be free from double
jeopardy has been violated is a determination of what the legislature
intended when it enacted the stalking statute.
B. Intent of the Legislature. We have consistently stated that
the purpose of statutory interpretation is to determine legislative intent.
See, e.g., In re Estate of Bockwoldt, 814 N.W.2d 215, 223 (Iowa 2012).
“We give words their ordinary and common meaning by
considering the context within which they are used, absent a
statutory definition or an established meaning in the law.
We also consider the legislative history of a statute, including
prior enactments, when ascertaining legislative intent.
When we interpret a statute, we assess the statute in its
entirety, not just isolated words or phrases.”
Id. (quoting Doe v. Iowa Dep’t of Human Servs., 786 N.W.2d 853,
858 (Iowa 2010)) (citations omitted).
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In ascertaining legislative intent, we consider “the statute’s subject
matter, the object to be accomplished, the purpose to be served,
underlying policies, remedies provided, and the consequences of the
various interpretations.” State v. Dohlman, 725 N.W.2d 428, 431 (Iowa
2006) (citation and internal quotation marks omitted). We also consider
the legislative history of a statute when determining legislative intent. Id.
at 431–32. Finally, we construe criminal statutes strictly and resolve
doubts in favor of the accused. State v. Adams, 810 N.W.2d 365, 369
(Iowa 2012).
1. Elements of Iowa’s stalking law. The State has charged Lindell
with stalking, a violation of Iowa Code section 708.11. Three elements
must occur to constitute stalking.
a. The person purposefully engages in a course of
conduct directed at a specific person that would cause a
reasonable person to fear bodily injury to, or the death of,
that specific person or a member of the specific person’s
immediate family.
b. The person has knowledge or should have
knowledge that the specific person will be placed in
reasonable fear of bodily injury to, or the death of, that
specific person or a member of the specific person’s
immediate family by the course of conduct.
c. The person’s conduct induces fear in the specific
person of bodily injury to, or the death of, the specific person
or a member of the specific person’s immediate family.
Iowa Code § 708.11(2).
Lindell argued, and the district court agreed, that the State did not
originally allege facts sufficient to prove the elements of stalking in the
instant case. The State originally alleged that Lindell had committed
only a single act supporting the stalking charge. Specifically, the State
alleged that Lindell parked his vehicle in front of Astra Furniture, where
A.C. worked as a bookkeeper, and looked through the window into the
8
office where she was working. When she looked up and made eye
contact with him, he drove away. No other incident was detailed in the
minutes of testimony.
Paragraph (a) of the stalking statute requires a “course of
conduct.” Iowa Code § 708.11(2)(a). Iowa’s stalking statute defines
“course of conduct” as “repeatedly maintaining a visual or physical
proximity to a person without legitimate purpose or repeatedly conveying
oral or written threats, threats implied by conduct, or a combination
thereof, directed at or toward a person.” Id. § 708.11(1)(b). Further, the
statute defines “repeatedly” as “on two or more occasions.” Id.
§ 708.11(1)(d).
2. Using elements of one crime to prove another. When an issue of
possible double punishment presents itself, we often begin our double
jeopardy analysis by examining the Blockburger elements test. See
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L.
Ed. 306, 309 (1932). However, we have typically used the Blockburger
elements test in cases in which “two offenses charged under separate
statutory provisions constitute the same offense for double jeopardy
purposes.” State v. Schmitz, 610 N.W.2d 514, 515–16 (Iowa 2000); see,
e.g., Burgess, 639 N.W.2d at 568–70 (analyzing whether theft by
deception and theft by misappropriation are the same offense for
purposes of double jeopardy).
Blockburger is typically used to evaluate whether one offense is a
lesser-included offense of another offense. E.g., State v. Abrahamson,
746 N.W.2d 270, 274 (Iowa 2008) (“Under the Blockburger analysis, the
court would determine whether two offenses were the ‘same’ by
comparing the elements of proof required for each offense.”). Under
Blockburger, proof of one element may be used to establish two different
9
crimes. 284 U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at 309 (“The
applicable rule is that, where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one is whether each
provision requires proof of a fact which the other does not.”). Lindell is,
of course, being charged with a subsequent count of violating the same
statute, and thus, a typical Blockburger analysis is not appropriate.
Further, even if two statutes meet the Blockburger test, legislative intent
continues to be the paramount piece of a double jeopardy analysis. See
State v. Bullock, 638 N.W.2d 728, 732 (Iowa 2002) (“Even though a crime
may meet the so-called Blockburger test for lesser-included offenses, it
may still be separately punished if legislative intent for multiple
punishments is otherwise indicated.”). Thus, the traditional Blockburger
elements test has no application to our analysis.
3. Previous acts as evidence of course of conduct. However,
Blockburger does have application here beyond its traditional use. The
central question in this case is whether the State can use proof that
Lindell had previously engaged in an action “directed at a specific person
that would cause a reasonable person to fear bodily injury to, or the
death of, that specific person or a member of the specific person’s
immediate family” to establish that he was once again engaging in a
course of conduct as described in the stalking statute. See Iowa Code
§§ 708.1(b), .11(2)(a). We find that the legislature intended the actus
reus of this crime to be the stalking behavior and that the question of
whether this act was part of a course of conduct is intended as an
evidentiary one.
Our cases, and the cases of other states, establish that proof of
prior crimes is admissible if it is relevant. E.g., State v. Helmers, 753
10
N.W.2d 565, 570 (Iowa 2008) (proof of prior bad acts to establish mens
rea is admissible); Commonwealth v. Roefaro, 691 A.2d 472, 474 (Pa.
Super. Ct. 1997) (“[P]rior acts may be admissible to prove intent and
course of conduct provided that their probative value is not outweighed
by their prejudicial impact.”).
We have previously applied Blockburger beyond the traditional
elements test. Schmitz, 610 N.W.2d at 516–17. In Schmitz, we used
Blockburger to analyze a situation where three separately charged
offenses—which the defendant claimed were actually part of the same
offense—were violations of the statutory provision. Id. The defendant in
Schmitz faced three different theft charges involving control over stolen
property. Id. at 517. We said the key factor for us to evaluate, based on
the Blockburger guidance, was whether an act is “of a continuous nature,
such that it is a course of conduct which is punishable.” Id. at 516–17.
The stalking statute is explicitly a course of conduct statute. Iowa
Code § 708.11(2)(a). Thus, our analysis turns on determining whether
the legislature intended for the “two or more occasions” language to
indicate that the actus reus explicitly requires two or more occasions for
each offense, or whether that language was adopted to establish that the
initial incident may have been merely an innocent encounter. Since
stalking is a cumulative offense, “a mere overlap in proof between two
prosecutions does not establish a double jeopardy violation.” United
States v. Felix, 503 U.S. 378, 386, 112 S. Ct. 1377, 1382, 118 L. Ed. 2d
25, 34 (1992).
Thus, to make our determination, we evaluate the history of the
adoption of stalking laws generally, and in Iowa specifically.
4. History of stalking laws. Iowa’s stalking statute was first
enacted in 1992. 1992 Iowa Acts, ch. 1179 (codified at Iowa Code
11
§ 708.11 (1993)). Iowa was among the first states to enact a stalking
statute following increased national awareness of the need to protect
stalking victims. In the wake of five unrelated murders of women who
had been stalked in California, California passed the first state anti-
stalking legislation in 1990. Nat’l Inst. of Justice, U.S. Dep’t of Justice,
Project to Develop a Model Anti-Stalking Code for States 12 (Oct. 1993),
available at http://www.popcenter.org/problems/stalking/PDFs/NIJ_
Stalking_1993.pdf [hereafter Project to Develop a Model Anti-Stalking
Code]. Twenty-nine states, including Iowa, passed anti-stalking laws in
1992, followed by eighteen additional states and the District of Columbia
in 1993. Id. at 12 & nn.7–8. Iowa’s original statute, thus, preceded the
Model Anti-Stalking Code published by the Department of Justice in
1993. See Iowa Code § 708.11 (1993); id. § 3.7 (making acts effective
July 1, 1992); Project to Develop a Model Anti-Stalking Code 12.
Shortly after the Department of Justice published its Model Anti-
Stalking Code, the Iowa legislature revised its statute and adopted much
of the same language proposed by the model code into Iowa’s stalking
law. See 1994 Iowa Acts ch. 1093 (codified at Iowa Code § 708.11
(1995)); Project to Develop a Model Anti-Stalking Code 43–44. Specifically,
the legislature adopted a slightly-modified definition of “course of
conduct” and a verbatim definition of “repeatedly” from the Model Anti-
Stalking Code, as well as adopting most of the recommendations in the
model code designed to protect stalking victims. Id. These definitions
were in effect in 2010 and 2011, the time of the alleged stalking incidents
here. See Iowa Code § 708.11 (2009).
When we ascertain legislative intent, we consider the statute’s
purpose and the object it was intended to accomplish. Dohlman, 725
N.W.2d at 431. Since the language of the statute was derived directly
12
from the Model Anti-Stalking Code, we look to the comments from the
model code to aid us in determining legislative intent. This is not a novel
way for us to interpret legislative intent in situations where our
legislators have not given us clear guidance in the form of stated
legislative findings or purpose. “In the absence of instructive Iowa
legislative history, we look to the comments and statements of purpose
contained in [uniform acts] to guide our interpretation of the comparable
provision of [an Iowa act.]” In re Marriage of Shanks, 758 N.W.2d 506,
512 (Iowa 2008); see, e.g., Mulhern v. Catholic Health Initiatives, 799
N.W.2d 104, 115 (Iowa 2011) (“Our court has relied on the drafter’s
comments to the Uniform Act in construing the Iowa act.”); State v.
Olsen, 618 N.W.2d 346, 348–49 (Iowa 2000) (using the Model Ongoing
Criminal Conduct Act to discern legislative intent for Iowa’s ongoing
criminal conduct statute); State v. Hogrefe, 557 N.W.2d 871, 877 (Iowa
1996) (using the Model Penal Code to interpret a state criminal statute
modeled after the code). The authors of the Project encouraged states to
develop a continuum of charges to assist law enforcement officials in
intervening at various stages and further encouraged felony classification
for more egregious forms of stalking. Project to Develop a Model Anti-
Stalking Code 46.
Stalkers may be obsessive, unpredictable, and potentially
violent. They often commit a series of increasingly serious
acts, which may become suddenly violent, and result in the
victim’s injury or death. . . .
....
. . . Policies governing the release of convicted stalkers
on probation or parole should take into account that some
stalkers may be more dangerous once they are released from
prison, and that stalking behavior often escalates into
violence as time passes and the stalker’s obsession with the
victim grows.
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Id. at 49–50.
The Model Anti-Stalking Code also recommended increased
penalties in situations where a stalker violates a protective order and
recommended “severe [sentencing] enhancements [be] available in
instances in which the defendant has committed a previous felony or
stalking offense against the same victim within a certain number of
years.” Project to Develop a Model Anti-Stalking Code 50. The authors of
the model code argued, “Appropriate and reasonable mechanisms for
managing the stalker should be incorporated into states’ sentencing
schemes to reduce the potential threat to the victim.” Id. The Iowa
legislature adopted both of these recommendations. Iowa Code
§708.11(3)(b)(1), (4). Additionally, our legislature enacted amendments to
the stalking statute to increase its ability to prevent the serious
consequences of escalating stalking behavior. See, e.g., id. § 708.11(3)
(amending the statute to increase penalties).
The authors of the model code further warned,
This country’s experience with domestic violence has
produced indisputable evidence of the risks of ignoring the
potential for violence in these cases or failing to intervene as
early as possible to change the victimizer’s behavior toward
his victim. . . .
. . . Over time, the stalker’s behavior may have life
threatening consequences for the victim.
. . . Without notice or apparent reason, [the stalker’s]
behavior may turn violent rapidly.
Project to Develop a Model Anti-Stalking Code 92.
While urging a multidisciplinary approach to the problem of
stalking, the authors further noted,
The uncertain motives and intentions of the suspected
stalker and his obsessive and unpredictable behavior place
14
his victim at great risk of bodily injury or death, as well as
psychological trauma.
A principal objective of an anti-stalking strategy is to
intervene in a suspected stalking before the stalking victim is
injured or killed.
Project to Develop a Model Anti-Stalking Code 69.
Stalking, in fact, is often a predicate to violence. Belinda Wiggins,
Note, Stalking Humans: Is There a Need for Federalization of Anti-Stalking
Laws in Order to Prevent Recidivism in Stalking?, 50 Syracuse L. Rev.
1067, 1073 (2000).
Whereas two percent of stalking victims are killed, three to
thirty-six percent of stalking victims become victims of
assault and battery which include permanent disfigurement.
Using current victimization rates, 28,000 stalking victims
will be murdered, and over 500,000 stalking victims will be
victims of assault and battery each year.
Id. Victims often become so traumatized that it affects multiple areas of
their lives. Id.
The question we must answer, then, is whether the legislature
intended to give a convicted stalker one “free” opportunity to
“purposefully engage[] in. . . .[any] conduct directed at a specific person
that would cause a reasonable person to fear bodily injury to, or the
death of, that specific person or a member of that specific person’s
immediate family.” See Iowa Code § 708.11(2)(a). This “one free stalk” is
not a reasonable interpretation of the legislature’s intent in enacting this
statute. See Project to Develop a Model Anti-Stalking Code 49–50.
A.C. obtained an order of protection in Polk County on April 26,
2010, then obtained another one in Scott County on July 11, 2010. The
State alleged that Lindell violated either one or both of the protective
orders in six discrete incidents beginning on July 4, 2010. Lindell “made
contact” with A.C. on July 4, July 6, and July 9, 2010. The record does
15
not speak as to the content of all of those contacts. However, one of the
contacts was in person. On July 11, 2010, Lindell was outside A.C.’s
residence at 2:00 a.m. and was apprehended a short distance away.
Prior to apprehension, Lindell flattened A.C.’s tires, damaged her
landscaping, and destroyed her birdhouse. On August 23, 2010, he
made two separate “hang-up” phone calls to A.C., one from his own
cellphone and one from the cellphone of a friend. On December 15,
2010, Lindell pled guilty to stalking, first offense, with protective order,
and to criminal mischief fourth degree, for crimes committed against A.C.
He received a deferred judgment and probation on his pleas. The
incident which precipitated the stalking, second offense, charge occurred
on January 25, 2011, five days after sentencing. Though Lindell did not
serve time in jail, his documented stalking behavior spanned over six
months, with some degree of escalation. Undoubtedly, it was the intent
of the legislature to prevent this type of long-term stalking that serves to
frighten the victim and threatens to escalate as the stalker’s obsession
grows.
This interpretation is consistent with other states that have similar
stalking laws. Though double jeopardy was not a factor in
Commonwealth v. Urrutia, the Pennsylvania Superior Court interpreted
the intent of the legislature in enacting a stalking statute similar to
Iowa’s. 653 A.2d 706, 708 (Pa. Super. Ct. 1995). The Urrutia court
explained, “Pennsylvania enacted a stalking statute because of the
growing perceived need to provide increased protection against certain
types of predatory behavior. . . . The legislative scheme . . . was an
attempt to interrupt as early as possible the escalating cycle of violence.”
Id. Pennsylvania’s Superior Court became even more outspoken when
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another defendant raised the double jeopardy argument in much the
same way Lindell has raised it in this case.
In Roefaro, the defendant raised a double jeopardy concern after
his prior convictions were used to help establish a course of conduct for
his current conviction. Roefaro, 691 A.2d at 474–75. Subsequent to
these prior convictions, the defendant committed one additional action—
violating the no-contact order and leaving items on the victim’s sister’s
porch. Id. at 474. The Roefaro court held that these prior convictions
were admissible as evidence to “prove a course of conduct, of acting in a
similar manner.” Id. at 475. When Roefaro claimed this was a violation
of the prohibition against double jeopardy, the court stated,
This is a ludicrous argument that misstates and contorts the
law of double jeopardy and . . . leads to absurd results.
....
. . . Taken to its natural, yet wholly illogical and
absurd extent, this rationale would provide a person with
one ‘free stalk’ following a prior stalking conviction.
Id. at 474–75.
The Georgia Court of Appeals further articulated the purpose of
stalking statutes in Daker v. State, 548 S.E.2d 354 (Ga. Ct. App. 2001).
Though the case is factually distinct from the instant case because the
new charges involved more than one incident, the State did use the same
evidence in prosecutions in two counties to establish a course of
conduct. Id. at 355. Daker argued that the use of evidence in one trial
“used up” the evidence and made it inadmissible at the second trial. Id.
at 356. The court noted, however,
As stalking is, by its very nature, a cumulative crime,
Daker’s interpretation of double jeopardy would eviscerate
the purpose of the stalking statute, leaving would-be stalkers
free to begin stalking their victim with a clean slate following
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a stalking conviction. We cannot believe the legislature
intended such result.
Id.
The Wyoming Supreme Court agreed with the Georgia Court of
Appeals, quoting the above language verbatim in its opinion. Snow v.
State, 216 P.3d 505, 511 (Wyo. 2009). The Snow court continued,
We conclude that the fact that the appellant was punished
for violating a protection order did not prohibit his also being
punished for felony stalking, despite the fact that the
conduct upon which the protection order violation was based
became part of the conduct upon which the felony stalking
conviction was based.
Id. at 512. As with Lindell, Snow had committed crimes against his
victim previous to being charged with stalking. If we were to hold that
evidence of previous convictions could not be used in a stalking charge,
we would essentially be giving a free pass from stalking charges to
anyone who chose to engage in stalking behavior that also violated other
laws, such as criminal mischief or felony property destruction, as long as
they had been convicted of those charges prior to the time the stalking
charge was brought.
The Court of Criminal Appeals of Alabama also held that “in order
to show a course of conduct in a stalking case, the admission of a
defendant’s prior convictions for bad acts concerning the stalking victim
does not constitute a violation of a defendant’s protection against double
jeopardy.” Jones v. State, 915 So. 2d 78, 83 (Ala. Crim. App. 2005)
(citing Mims v. State, 816 So. 2d 509, 515–16 (Ala. Crim. App. 2001)).
The Mims court also dealt with convictions for crimes other than stalking
specifically and found that “the testimony of the [defendant’s] prior bad
acts—even those for which he might have already been prosecuted—was
18
properly admitted and was necessary to establish a course of conduct by
the [defendant].” 816 So. 2d at 516.
Only Idaho appears to sympathize somewhat with Lindell’s
position, although State v. Stewart, 234 P.3d 707 (Idaho 2010), is not
precisely on point. In Stewart, the Idaho Supreme Court found that in
order to violate its statute forbidding a course of conduct “where the
actions constituting the offense are in violation of a no contact order,” all
of the actions must occur after the issuance of the protective order. Id.
at 714–15. The Stewart court made its decision based on its statutory
definition of felony stalking. Id. Though the two statutes are similar,2 all
of the instances of stalking here occurred after the issuance of two
protective orders, making this case factually distinguishable.
The Ohio legislature has written Ohio’s stalking statute specifically
to define “pattern of conduct” as including “two or more actions or
incidents closely related in time, whether or not there has been a prior
conviction based on any of those actions or incidents.” Ohio Rev. Code
2In pertinent part, the Idaho Code provides:
1. A person commits the crime of stalking in the first degree if the
person violates section 18–7906, Idaho Code, and:
(a) The actions constituting the offense are in violation of a
temporary restraining order, protection order, no contact order or
injunction, or any combination thereof; or . . . .
Idaho Code Ann. § 18–7905 (2004).
Similarly, Iowa Code section 708.11(3) provides:
b. A person who commits stalking in violation of this section
commits a class “D” felony if any of the following apply:
1. The person commits stalking while subject to restrictions
contained in a criminal or civil protective order or injunction, or any
other court order which prohibits contact between the person and the
victim, or while subject to restrictions contained in a criminal or civil
protective order or injunction or other court order which prohibits
contact between the person and another person against whom the
person has committed a public offense.
Iowa Code § 708.11(3)(b) (2009)
19
Ann. § 2903.211(D)(1)(2010). Though Iowa’s statute has not explicitly
made it clear that prior convictions could be considered in determining
whether there is a course of conduct, the Ohio Court of Appeals held that
the legislature’s intent to use evidence of prior convictions to
demonstrate a pattern of conduct did not violate the Double Jeopardy
Clause of the Federal Constitution. State v. Werfel, Nos. 2002–L–101,
2002–L–102, 2003 WL 22994981 *2–3 (Ohio Ct. App. Dec. 22, 2003)
(unpublished opinion). A proper analysis should focus on legislative
intent. See Hunter, 459 U.S. at 368, 103 S. Ct. at 679, 74 L. Ed. 2d at
543 (“The question of what punishments are constitutionally permissible
is no different from the question of what punishment the Legislative
Branch intended to be imposed.”); State v. Reed, 618 N.W.2d 327, 336
(Iowa 2000); State v. Taylor, 596 N.W.2d 55, 57 (Iowa 1999); State v.
Hickman, 576 N.W.2d 364, 368 (Iowa 1998); McKettrick, 480 N.W.2d at
57.
While Lindell attempts to distinguish these and other cases
factually, the salient point is that other states have consistently
interpreted similar statutes as existing to protect the victim and as
opposed to the concept of “one free stalk.” See, e.g., Daker, 548 S.E.2d
at 356–57; Roefaro, 691 A.2d at 474–75. But see, e.g., People v. Herron,
251 P.3d 1190, 1194 (Colo. App. 2010) (“[F]or defendant to be convicted
of stalking, he had to have followed, approached, contacted, or surveiled
[the victim] on at least two occasions. To be convicted of a second
stalking offense, he would have had to so act, in a separate transaction
that is factually distinct from the first, on at least two more occasions.”).
Since double jeopardy analysis is driven exclusively by legislative intent,
we conclude that Lindell’s interpretation is not consistent with the intent
of legislatures adopting statutes in conformance with the Model Anti-
Stalking Code.
20
5. Increased prosecutorial discretion. We have previously rejected
an interpretation of a statute partially due to concern that the
interpretation would result in piecemeal prosecution as a means of
avoiding the need to comply with the speedy trial rule. Abrahamson, 746
N.W.2d at 277. If we were to adopt the interpretation Lindell urges, we
could be encouraging prosecutors to withhold an occurrence from the
initial prosecution to ensure that a victim would continue to be protected
from potentially escalating violence after the stalker’s slate has been
“wiped clean.” We could also be opening the door for someone involved
in a discrete series of events to be prosecuted for several courses of
conduct by defining each set of occurrences as an independent violation
of the statute. Thus, under this theory, Lindell’s original prosecution—
which included six independent occurrences—could have been for three
different violations of the stalking statute.
Commentators have raised concerns regarding allowing
prosecutors to fragment charges, particularly when those charges are
raised in successive trials. E.g., Anne Bowen Poulin, Double Jeopardy
Protection from Successive Prosecution: A Proposed Approach, 92 Geo. L.J.
1183, 1191–96 (2004).
By fragmenting its case, the prosecution enhances the
likelihood that the defendant will receive a higher sentence
for three reasons. First, the prosecution can extend its
period of control over the defendant by bringing successive
prosecutions. Second, the prosecution may employ
successive related convictions to realize a higher cumulative
sentence. Finally, the prosecution can sometimes obtain a
guilty plea and secure a base sentence in the first
prosecution, and then press for a higher sentence in a later
prosecution.
Id. at 1194–95 (footnote omitted).
One of the primary purposes of the Double Jeopardy Clause is to
create finality and prevent prosecutorial overreaching. Burgess, 639
21
N.W.2d at 568. It seems clear the legislature intended for a single course
of conduct to be prosecuted as such, and then to allow a convicted
stalker to avoid repeated prosecutions for that same course of conduct,
based on a prosecutor deciding to create multiple two-instance counts.
Under that interpretation, Lindell could have been prosecuted for four or
more initial counts. Treating each instance as part of the evidence to
determine a course of conduct instead of as the actus reus helps prevent
prosecutorial overreaching, while preserving the intent of the legislature
in protecting victims of stalking.
C. The Rule of Lenity. We construe criminal statutes strictly
and resolve doubts in favor of the accused. State v. Schultz, 604 N.W.2d
60, 62 (Iowa 1999).
Further, “[w]e recognize the principle of construing a statute
reasonably in light of its plain purpose is sometimes in tension with the
rule of lenity, which directs that criminal statutes are to be strictly
construed in favor of the accused.” State v. Hearn, 797 N.W.2d 577, 585
(Iowa 2011). While the precise scope of the rule of lenity is difficult to
ascertain, we have recognized that the United States Supreme Court has,
in recent years, “embraced a relatively narrow view of the rule.” Id. at
586. Under what is frequently termed the “Moskal approach” (in light of
the leading case), “the question of whether a statute is sufficiently
‘ambiguous’ to invoke the rule of lenity is confronted only after the court
has exhausted all interpretive techniques, including consideration of
legislative history and other extrinsic evidence.” Id. (citing Moskal v.
United States, 498 U.S. 103, 108, 111 S. Ct. 461, 465, 112 L. Ed. 2d
449, 458 (1990)). We further noted that the United States Supreme
Court has established that the rule of lenity is to be applied exclusively
in cases of “grievous ambiguity.” Id. Essentially, we noted the United
States Supreme Court tends to view the rule of lenity as a “tie breaker in
22
cases where there is no basis for choosing among plausible
interpretations of a statute.” Id.
Though we recognized in Hearn that our cases “tend to be
conclusory, less than nuanced, and arguably inconsistent” with regard to
the rule of lenity, we also acknowledged that part of the problem in
applying the rule is that “extrinsic legislative history in Iowa is generally
sparse.” Id. However, we recognize that where the legislative intent is
clear, “we see no appreciable risk that a defendant would be without fair
notice that [his] conduct . . . could give rise to additional criminal
liability.” Id.
Here, where the legislative history is enhanced by the comments to
the model code on which Iowa’s statute is based, it is easier to determine
legislative intent than is typical in Iowa. Further, Lindell was subject to
two orders of protection. He was on notice his behavior could give rise to
additional criminal liability. The rule of lenity does not apply.
IV. Disposition.
We conclude the intent of the legislature in enacting Iowa Code
section 708.11 was clear and unambiguous. The legislature did not
intend to allow a stalker to continue a pattern of stalking behavior and
be protected under the shield of double jeopardy. Since the Double
Jeopardy Clause does not act as a restraint on legislative power, the
stalking statute, as applied in this case, does not violate the Double
Jeopardy Clause. Further, the statute gave fair notice to Lindell that his
conduct could potentially give rise to criminal liability. Thus, the rule of
lenity would not apply.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
All justices concur except Mansfield, J., Cady, C.J., and Appel, J.,
who dissent.
23
#11–0770, State v. Lindell
MANSFIELD, Justice (dissenting).
I respectfully dissent and would affirm the district court.
The Double Jeopardy Clause of the United States Constitution
provides that no person shall “be subject for the same offence to be twice
put in jeopardy of life or limb.” U.S. Const. amend. V. In this case,
Christopher Lindell was originally charged with stalking A.C. based on a
number of incidents that occurred during the June–August 2010 time
period. “Stalking” involves a “course of conduct,” in other words, “two or
more occasions” of “maintaining a visual or physical proximity to a
person without legitimate purpose or . . . conveying oral or written
threats, threats implied by conduct, or a combination thereof, directed at
or toward a person” that “induce[] fear in the specific person of bodily
injury to, or the death of, the specific person.” See Iowa Code § 708.11
(2009). On December 15, 2010, Lindell pled guilty to that charge of
stalking.
Lindell subsequently put himself in proximity to A.C. again on
January 25, 2011. The State charged Lindell with stalking once more
and attempted to use the June–August 2010 incidents plus the single
January 25, 2011 incident as the basis for the new charge.
I believe the district court correctly concluded that this would
amount to a double jeopardy violation. Stalking requires a course of
conduct, but there was no second course of conduct—only a single new
incident of harassment. Ask this question: Assuming no earlier criminal
case, could the State have prosecuted Lindell after January 25, 2011, for
two separate counts of stalking—one consisting of the events from June
2010–August 2010 and the other consisting of the events from June
2010–August 2010 plus the January 25, 2011 incident? I think the
24
answer is clearly no. Accordingly, the Double Jeopardy Clause bars the
successive prosecutions here. See Brown v. Ohio, 432 U.S. 161, 166, 97
S. Ct. 2221, 2226, 53 L. Ed. 2d 187, 194–95 (1977).
Brown seems to me the controlling precedent. In that case, the
defendant stole a car in East Cleveland on November 29. Id. at 162, 97
S. Ct. at 2223, 53 L. Ed. 2d at 192. He was caught driving that car in
Wickliffe on December 8. Id. After being apprehended in Wickliffe, the
defendant was charged with “joyriding” (taking or operating the car
without the owner’s consent) “on or about December 8,” and pled guilty.
Id. at 162, 97 S. Ct. at 2224, 53 L. Ed. 2d at 192. Later, he was returned
to East Cleveland. Id. There he was charged with and pled guilty to a
theft of the car “on or about the 29th day of November.” Id. at 163, 97 S.
Ct. at 2224, 53 L. Ed. 2d at 192. The Supreme Court held the
defendant’s double jeopardy objection to the second prosecution should
have been sustained. The Court explained:
After correctly holding that joyriding and auto theft are
the same offense under the Double Jeopardy Clause, the
Ohio Court of Appeals nevertheless concluded that Nathaniel
Brown could be convicted of both crimes because the
charges against him focused on different parts of his 9-day
joyride. We hold a different view. The Double Jeopardy
Clause is not such a fragile guarantee that prosecutors can
avoid its limitations by the simple expedient of dividing a
single crime into a series of temporal or spatial units. The
applicable Ohio statutes, as written and as construed in this
case, make the theft and operation of a single car a single
offense. Although the Wickliffe and East Cleveland
authorities may have had different perspectives on Brown’s
offense, it was still only one offense under Ohio law.
Accordingly, the specification of different dates in the two
charges on which Brown was convicted cannot alter the fact
that he was placed twice in jeopardy for the same offense in
violation of the Fifth and Fourteenth Amendments.
Id. at 169–70, 97 S. Ct. at 2227, 53 L. Ed. 2d at 196–97 (citations
omitted). In a footnote, the Court acknowledged, “We would have a
25
different case if the Ohio Legislature had provided that joyriding is a
separate offense for each day in which a motor vehicle is operated
without the owner’s consent.” Id. at 170 n.8, 97 S. Ct. at 2227 n.8, 53 L.
Ed. 2d at 196 n.8.
I think we have the same situation here. Iowa requires a course of
conduct for a stalking conviction, consisting of two or more incidents.
But just as there was only one joyride/theft in Brown, regardless of the
fact that the two prosecutions focused on different time periods, there
was only one course of conduct here. The incident that triggered
Lindell’s second prosecution did not amount to a course of conduct in
itself and had to be tacked onto the earlier course of conduct for which
Lindell had already been prosecuted and pled guilty.
The out-of-state stalking cases relied on by the majority are
generally distinguishable because the second prosecution involved an
entirely separate course of conduct that had not been the subject of a
prior criminal prosecution. Those courts rightly concluded that merely
admitting evidence of the previously prosecuted conduct did not violate
double jeopardy principles, so long as there was sufficient unprosecuted
conduct to support the new charges. See Mims v. State, 816 So. 2d 509,
516 (Ala. Crim. App. 2001) (concluding that “no evidence was offered to
prove any specific prior prosecution or conviction” and “the prosecution
presented far more evidence of a course of conduct establishing the
appellant’s following and harassing White than the evidence the
appellant complains of here”); Daker v. State, 548 S.E.2d 354, 357 (Ga.
Ct. App. 2001) (“Daker was prosecuted for altogether different incidents
in Cobb County. The fact that evidence of the Fulton County incidents
was admitted during the Cobb County trial does not change the result.”);
Commonwealth v. Roefaro, 691 A.2d 472, 474–75 (Pa. Super. Ct. 1997)
26
(“[A]ppellant was twice tried and convicted for actions arising out of
separate and distinct factual predicates.”); see also Snow v. State, 216
P.3d 505, 511 (Wyo. 2009) (finding no double jeopardy bar to
simultaneous prosecution and convictions of the defendant for both
violating a protection order and stalking, because the former was not a
lesser-included offense of the latter). This case is different because the
new conduct is sufficient only when combined with the prior conduct for
which Lindell had already been prosecuted.3
As noted by my colleagues, an Idaho case seems to indicate that
the circumstances here would amount to a double jeopardy violation.
See State v. Stewart, 234 P.3d 707, 713 (Idaho 2010). But it is not a
loner. In State v. Fox, the North Carolina Court of Appeals confronted
the situation where the defendant had previously been convicted of
stalking for a February–March 2009 series of incidents. See 721 S.E.2d
673, 674 (N.C. Ct. App. 2011). He then was prosecuted again for
stalking based on the incidents from February 2009–March 2009 plus
subsequent events. Id. at 676–77. The court vacated the second
conviction on double jeopardy grounds. Id. at 678. Similarly, in People
3United States v. Felix, also cited by the majority, is distinguishable on the same
grounds. See 503 U.S. 378, 112 S. Ct. 1377, 118 L. Ed. 2d 25 (1992). In that case, the
defendant engaged in separate methamphetamine manufacturing activities in
Oklahoma and later in Missouri. Id. at 380, 112 S. Ct. at 1379–80, 118 L. Ed. 2d at 30.
When the defendant was prosecuted for the Missouri conduct, “[i]n order to establish
Felix’s criminal intent with respect to the items delivered in Missouri, the Government
introduced evidence that Felix had manufactured methamphetamine in Oklahoma
earlier in 1987.” Id. at 381, 112 S. Ct. at 1380, 118 L. Ed. 2d at 31. The government
subsequently prosecuted the defendant for the Oklahoma activity as well. Id. at 382,
112 S. Ct. at 1380, 118 L. Ed. 2d at 31. The United States Supreme Court found no
double jeopardy violation arising out of the Oklahoma prosecution because “[a]t the
Missouri trial, the Government did not in any way prosecute Felix for the Oklahoma
methamphetamine transactions; it simply introduced those transactions as prior acts
evidence under Rule 404(b).” Id. at 387, 112 S. Ct. at 1383, 118 L. Ed. 2d at 34. Here,
by contrast, the June 2010–August 2010 conduct was a necessary component of the
second stalking charge; it was not merely going to be evidence of the defendant’s intent
under Iowa Rule of Evidence 5.404(b).
27
v. Herron, 251 P.3d 1190 (Colo. App. 2010), the Colorado Court of
Appeals said:
Thus, for defendant to be convicted of stalking, he had to
have followed, approached, contacted, or surveiled Ms. R on
at least two occasions. To be convicted of a second stalking
offense, he would have had to so act, in a separate
transaction that is factually distinct from the first, on at
least two more occasions.
Herron, 251 P.3d at 1194; see also Vazquez v. State, 953 So. 2d 569, 571
(Fla. Dist. Ct. App. 2007) (vacating a second stalking conviction on
double jeopardy grounds where “[t]he charging document for the simple
stalking charge on which appellant was previously convicted alleges that
on November 18 and 19, 2002, appellant ‘repeatedly telephone [sic],
harassed, and threatened Ms. Atencio’ ” and the second information
alleged that “ ‘between 11–16–02 and 12–4–02’ appellant ‘did knowingly,
willfully, maliciously, and repeatedly follow or harass’ ” Ms. Atencio);
Eichelberger v. State, 949 So. 2d 358, 361 (Fla. Dist. Ct. App. 2007)
(finding a second stalking prosecution violated the Double Jeopardy
Clause where the state “did not allege or establish the end of one course
of conduct and the start of a new course of conduct”); Peckinpaugh v.
State, 743 N.E.2d 1238, 1241 (Ind. Ct. App. 2001) (“[I]n Indiana, a
defendant may be convicted of separate counts of stalking the same
victim if the respective series of incidents upon which the charges are
based can be divided into distinct and separate series.”); People v. White,
536 N.W.2d 876, 881–82 (Mich. Ct. App. 1995) (finding no double
jeopardy violation where the defendant “pleaded guilty of two separate
episodes of stalking,” each involving two or more acts); State v. Vigil, 65
S.W.3d 26, 35–36 (Tenn. Crim. App. 2001) (barring a second stalking
prosecution on double jeopardy grounds and noting that “[f]rom the
record before us, there is no indication that an event occurred before the
28
February 18, 1997 incident to break the continuous course of conduct
that constituted the stalking offense as charged in Case No. 23386,
which covered the events from February 1996 to January 1997”).
My colleagues discuss State v. Schmitz, which I agree is a relevant
precedent. See 610 N.W.2d 514 (Iowa 2000). However, contrary to my
colleagues, I believe Schmitz supports a finding of double jeopardy here.
In Schmitz, the defendant was charged with three counts of theft. Id. at
515. Each count was based on the defendant’s possession of a separate
item (an aquarium, a jacket, and four wheels/tires) that had been stolen
from a different location at a different time. Id. The thefts had occurred
seven to ten months apart. Id. In finding no double jeopardy violation,
we emphasized that theft is not a “continuing offense” based on a “course
of conduct,” and that each theft charge against Schmitz required
different “proof of facts.” Id. at 517–18. Those factors cut the other way
here. Stalking is a course of conduct offense, and to prove stalking in
the present case the State must use conduct that it already used to
convict Lindell of stalking.
If the legislature wanted to relieve the State from the burden of
having to prove a second course of conduct in order to obtain a second
stalking conviction, it could have defined the offense in the same way
Ohio has done, as including a prior stalking conviction, plus just one
new incident of harassment. See Ohio Rev. Code Ann. § 2903.211(D)(1)
(West, Westlaw through 2012 laws and statewide issues of the 129th GA
(2011–2012)). Our general assembly did not do this. We must consider
“[w]hat [the legislature] has made the allowable unit of prosecution.” Bell
v. United States, 349 U.S. 81, 81, 75 S. Ct. 620, 621, 99 L. Ed. 905, 909
(1955) (citation and internal quotation marks omitted).
29
In sum, the Double Jeopardy Clause prohibits the State from using
the same conduct as all or part of the basis for two convictions of the
same offense. By way of analogy, suppose an individual works at an
office where cash is kept in a locked drawer. She opens the drawer and
steals $750 on May 1, and then opens the drawer and steals $500 on
May 2. By the majority’s logic, she could be convicted of third-degree
theft (property exceeding $500) for the May 1 theft and then later be
convicted of second-degree theft (property exceeding $1000) for the May
1/May 2 combined theft. See Iowa Code §§ 714.2(2)–(3), .3. Similar to
the foregoing scenario, the majority opinion results in Lindell’s being
“twice put in jeopardy” for his actions from June 2010 through August
2010. See U.S. Const. amend. V. I believe this violates the Fifth and
Fourteenth Amendments to the United States Constitution.
For the foregoing reasons, I respectfully dissent.
Cady, C.J., and Appel, J., join this opinion.