State of Iowa v. Christopher Raymond Lindell

IOWA, Appellant, Raymond Christopher LINDELL,

Appellee.

No. 11-0770.

Supreme of Iowa. Court

March Miller, General, Attorney

Thomas J. Mullins, Attorney Gen- Darrel L. Assistant Walton, eral, Attorney, County Michael J. Sommers, Jay County Assistant Attor- ney, appellant. for Smith, Appellate Mark Defend- C. er, Lucey, Appel- Martha J. Assistant Defender, appellee. late for ZAGER, Justice. appeal

This centers on the previous conviction for whether 708.11 can be under Iowa Code section of conduct for a used to establish a course subsequent stalking violation. We find purposes intended that for an offense is a sec- determining whether stalking, pri- subsequent ond or offense of stalking statute can be or violations of the evidence of the course of considered as necessary prosecution for a conduct subsequent a second or offense. as lenity that the rale of does We further find Lindell had sufficient notice apply, rise to addition- give that his conduct could Therefore, we reverse liability. al criminal further working. eye court and remand for When A.C. made district contact proceedings. Lindell, he drove away. She immedi- ately reported this contact to law enforce- Background Facts and Proceed-

I. During the investigation, ment. ings. had admitted he been at that but location dispute. in this case The facts are not in had a legitimate claimed he for reason Raymond Christopher Lindell and A.C. being there. in relationship.

were involved a romantic incident, response Christopher In to this all May attempted In A.C. to break charged by Lindell in- was amended trial Lindell. Based on occur- ties with events offense, or, stalking, formation with second April an ring in A.C. obtained order in alternatively, stalking pro- violation of a against Lindell in protection Polk Coun- order, in tective violation of Iowa Code Iowa, ty, April point, on 2010. At some 708.11(3)(6)(1) 708.11(3)(6)(4). sections and However, to in County. A.C. moved Scott Lindell filed motion for a bill partic- order, protective violation of the Lindell ulars, arguing alleged the State had not to continued make contact with A.C. These in sufficient facts its trial and information leaving included contacts handwritten testimony support minutes of a violation 2010; note flowers on her car in and June statute, of the as the State had 4, 6, 11, 2010; hang-up July calls on only one incident of in detailed harassment 2010; personal July contact on testimony. ruling its minutes of In on its being damaging at A.C.’s residence and for a bill of particulars, Lindell’s motion her automobile tires and other on property court State district ordered that July 2010. con- As result of these bill of tacts, particulars must “file a specifically obtained an additional order of A.C. two stating the or more that occasions County July Scott protection constitute the course of conduct under August 2010. A final incident occurred on 23, 2010, Iowa section 708.11.” when Lindell Code The district contacted A.C. required court that the two or more occa- by telephone. twice All of incidents these separate alleged sions from prior form the basis of the informa- “shall be those trial charging stalking, tion Lindell with crimi- of Testimony the Minutes in [Lindell’s mischief, charges. prior nal and other conviction].” 15, 2010, pled On December Lindell response, the State addi- submitted offense, guilty stalking, pro- first detailing testimony, tional minutes order, in violation tective of Iowa Code fac- stalking incidents had formed the 708.11, fourth-degree section criminal tual Lindell’s for prior basis for conviction mischief, in violation of section Iowa Code failed to file a stalking, particu- but bill of (2009), against 716.1 for crimes committed to the court’s Lin- response lars order. 20, 2011, January A.C. On Lindell received dismiss, alleging dell a motion to then filed judgment a deferred on the had failed to state at one State least The court the no- charge.1 also continued behavior, of harassing additional incident protection contact order for the A.C. Thus, despite the court’s order to do so. suffi- January On Lindell his the trial information failed to contain parked necessary an area look cient establish the ele- vehicle in where he could facts to crime directly stalking. into the office where A.C. was ments of the judgment, equivalent received a but a conviction. Code 1. Lindell deferred See Iowa statute, purposes of the 708.11(4) (2009). it is the Clause, merely requiring that “[n]o it had cured its defect argued The State the same be tried for acquittal, testimo- shall after the minutes of by supplementing Const, I, § art. 12. As Lindell’s Iowa regarding offence.” ny with information acquitted, we need Lindell asserts Lindell was not convictions. prior on Iowa’s double preclude his claims based jeopardy principles evaluate double incidents using jeopardy provision. from required course of conduct establish the jeop Scope of federal charge. Specifically, current Jeopardy The Double ardy protection. previous that the use of argued States Constitution Clause United convicted, incidents, for which he was subject for no shall “be states that conduct, course of required prove put jeopar to be twice the same offense Jeopardy the Double Clause. would violate Const, amend. V. dy of life or limb.” U.S. the motion to granted court The district binds the The Fourteenth Amendment appealed the decision The State dismiss. Jeopardy the Double Clause. states to retained the court. We of the district 784, 794, 89 Maryland, v. 395 U.S. Benton appeal. 707, 2056, 2062, 23 L.Ed.2d 716 S.Ct. Franzen, 714, (1969); 495 N.W.2d State v. Scope the Review. II. (Iowa 1993). Jeopardy The Double 715 jeopardy double We review finality and to serves to create Clause novo, to their constitutional claims de due overreaching. State prevent prosecutorial Kramer, 190, v. 760 N.W.2d nature. State (Iowa 564, Burgess, 639 N.W.2d 568 v. (Iowa 2009). To the extent 193-94 2001). purpose “The of this clause is of a stat interpretation issue involves (1) against: prosecution a second protect ute, for correction of this court reviews (2) acquittal; after for the same offense Johnson, law. In re Det. 805 errors at for the same offense prosecution second 2011). (Iowa 750, 753 N.W.2d (3) conviction; multiple punish after offense.” Id. ments for the same Analysis. III. Discussion analysis hing Jeopardy. jeopardy asserts 3. Double A. Double core, At dou jeopardy legislative him in intent. its putting the State is es already analysis legis which he has been what the jeopardy conduct for ble asks McKettrick, Specifically, he v. 480 punished. convicted and lature intended. State (Iowa 1992). he violated alleges charging the State is The central N.W.2d by committing being Iowa section 708.11 sub question Code is whether Lindell as the basis for a acts which also served for the same ject prosecution to a second alleges that conviction. The State been previously for which he had offense interpretation the statute Lindell’s being pun he is convicted and whether a vic- those who have stalked would allow note again for the same offense. We ished in “one free stalk” of engage tim before to legislature, that it is the “and victim, long as it occurs after so and defines prosecution, which establishes conviction. Few, are im any, if limitations offenses. Jeopardy Clause on posed by the Double claim. As an

1. Iowa constitutional power to define offenses.” legislative matter, argues that initial the State States, v. 437 U.S. Sanabria United the Iowa con- jeopardy provision 57 L.Ed.2d 98 S.Ct. agree. We Un- apply. stitution does not provisions, like other constitutional some claim considering jeopardy a double provision is dis-

Iowa’s double context, multiple punishments within the Jeopardy Double tinct from the Federal guided by general we are principle islative intent. Id. at Finally, 431-32. we that the question punishments of what construe strictly criminal statutes and re- constitutionally are permissible is no dif- solve doubts in favor of the accused. State punish- ferent from the of what Adams, (Iowa legislature ments the im- intended to be 2012). posed. 1. Elements Iowa’s McKettrick, 480 at N.W.2d 57. Both the law. The State charged has Lindell with State, Hunter, citing Missouri v. 459 U.S. stalking, a violation of Iowa Code section 359, 366-68, 673, 678-79, 103 S.Ct. 708.11. Three elements must occur to con (1983), Lindell, L.Ed.2d 542-44 stalking. stitute McKettrick, citing agree N.W.2d a. The purposefully engages that the crux analysis of whether in a course of conduct directed at a right Lindell’s jeop to be free from double specific person that would cause a rea- ardy has been violated is a determination to, sonable to fear bodily injury of what the intended when it of, specific or the death person or a enacted the statute. specific member of the person’s immedi- B. Legislature. Intent of ate family. consistently We have pur- stated that the person b. The knowledge has or pose statutory of interpretation is to deter- should have knowledge specific that the See, mine legislative intent. In re e.g., placed will be in reasonable fear Bockwoldt, Estate 814 N.W.2d 223 of to, of, bodily injury of or the death (Iowa 2012). specific person or a member of spe- the give “We their ordinary words and com- person’s cific family by immediate meaning by mon considering the context course of conduct. used, they within which are absent a person’s c. The conduct induces fear statutory definition or an established to, in the specific person bodily injury of meaning in the law. We also consider of, or the death the specific person or a statute, legislative history of a in- member of the specific person’s immedi- enactments, cluding prior when ascer- family. ate taining legislative intent. we in- When statute,

terpret a we assess the statute 708.11(2). § Iowa Code entirety, in its just not isolated words or argued, Lindell and the district court phrases.” agreed, that the State originally did not (quoting Id. Doe v. Dep’t Iowa Human allege prove facts sufficient to the ele- Servs., (Iowa 2010)) 858 ments of in the instant case. (citations omitted). originally alleged that Lindell had only single committed a act ascertaining legislative supporting in tent, we subject stalking charge. Specifically, consider “the statute’s the State al- matter, object accomplished, leged to be that Lindell his parked vehicle served, purpose Furniture, underlying policies, front of Astra where A.C. provided, remedies consequences and the a bookkeeper, worked as and' looked interpretations.” various State v. through the window into the office where Dohlman, (Iowa 2006) working. N.W.2d she was up When she looked (citation quotation him, and internal eye marks and made contact with he drove omitted). legislative away. We also consider the No other incident was detailed in history of a statute when determining leg- testimony. the minutes of are two offenses (a) whether there determine statute

Paragraph re- provision each only or one is whether Iowa of conduct.” a “course requires the other does of a fact which 708.11(2)(a). quires proof stalking stat- § Iowa’s Code not.”). is, course, being charged “re- of conduct” as “course ute defines violating subsequent with a count physical or maintaining a visual peatedly statute, thus, typical Blockbur- same legitimate without proximity to Further, appropriate. ger analysis is conveying oral or repeatedly purpose Blockburger meet the even if two statutes threats, implied by con- threats written test, to be the legislative intent continues thereof, duct, directed at or a combination 708.11(1)(6). jeopardy anal- paramount piece of double § Id. person.” or toward Bullock, N.W.2d State v. ysis. See Further, “repeatedly” defines the statute (“Even (Iowa 2002) though a occasions.” “on two or more Blockburger 708.11(1)(&). may crime meet so-called offenses, may it test for lesser-included one crime Using elements of legislative if separately punished still be of possible When an issue prove another. is other- multiple punishments intent for itself, presents we of- punishment indicated.”). Thus, the traditional wise analysis by jeopardy our double begin ten applica- test has no Blockburger elements Blockburger elements test. examining the analysis. tion to our States, 284 U.S. Blockburger See United 3. Previous acts as evidence course 182, 76 L.Ed. 52 S.Ct. However, Blockburger does conduct. (1932). However, typically we have its traditional application beyond have here elements test Blockburger used the in this case is use. The central charged un- in which “two offenses cases Lin- proof can use whether the State consti- separate statutory provisions der engaged in an action previously dell had for double tute the same offense that would specific person “directed at a Schmitz, State v. 610 N.W.2d purposes.” bodily a reasonable to fear cause (Iowa 2000); see, e.g., Burgess, 515-16 of, to, specific injury or the death that (analyzing whether 639 N.W.2d at 568-70 specific per- or a member of the by deception by misappro- theft and theft family” immediate to establish that son’s purposes offense for priation are same in again engaging he was once a course jeopardy). of double conduct as described stat- used to evaluate Blockburger typically is .ll(2)(a). 708.1(6), §§ ute. See Iowa Code a lesser-included whether one offense is legislature that the intended the We find E.g., offense. State v. offense of another to be the actus reus of this crime (Iowa Abrahamson, 746 N.W.2d of whether behavior and that the 2008) (“Under Blockburger analysis, of conduct is part act was of a course this whether two the court would determine evidentiary intended as an one. by comparing the offenses were the ‘same’ cases, and the cases of other required for each of- Our proof elements of fense.”). states, prior crimes proof establish that Blockburger, proof of one Under E.g., if it is relevant. State v. may to two dif- is admissible element be used establish (Iowa 2008) Helmers, ferent crimes. 284 U.S. at 52 S.Ct. at (“The bad acts to establish mens applicable (proof at 309 rule 76 L.Ed. admissible); v. Roe that, Commonwealth where the same act or transaction rea is 472, 474 Pa.Super. 691 A.2d faro, of two distinct statu- constitutes a violation (1997) (“[P]rior may admissible to acts tory applied the test to be provisions, prove provid- intent course of conduct the wake of five unrelated murders of probative their ed value is out- California, women who had been stalked in weighed by prejudicial impact.”). their passed California the first state anti-stalk- Inst, ing legislation in 1990. Nat’l of Jus- have previously applied Blockburger

We tice, Justice, Dep’t Project U.S. to De- beyond the traditional elements test. velop a Model Anti-Stalking Schmitz, Code 610 N.W.2d at 516-17. (Oct.1993), States http:// available at Schmitz, Blockburger analyze we used www.popcenter.org/problems/stalking/ separately charged situation where three PDFs/NIJ_Stalking_1993.pdf [hereafter offenses—which the defendant claimed Project to actually Develop were a Model part Anti-Stalking of the same offense— states, Twenty-nine Iowa, were violations of the statutory provision. including Code]. Id. The passed anti-stalking defendant Schmitz faced three laws followed different theft charges involving by eighteen control additional states and the Dis- property. over stolen Id. at 517. We said trict of Columbia in 1993. Id. at & nn. evaluate, the key factor for us to based on statute, thus, original 7-8. Iowa’s preced- Blockburger guidance, was whether an ed the Model Anti-Stalking publish- Code nature, act is “of a continuous such that it ed the Department of Justice punishable.” is a course of conduct which is (1993); § § See Iowa Code 708.11 id. 3.7 Id. at 516-17. (making 1, 1992); July acts effective Pro- ject Develop a Model Anti-Stalking explicitly statute is Code 12. course of conduct statute. Iowa Code 708.11(2)(a). Thus, § analysis our turns Shortly Department after the of Justice determining legislature whether the in published Code, its Model Anti-Stalking tended for the “two or more occasions” Iowa revised its statute and language to indicate that the actus reus adopted much of language pro- the same explicitly requires two or more occasions posed by the model code into Iowa’s stalk- offense, for each or whether language ing law. See 1994 Iowa Acts ch. 1093 adopted was to establish that the initial (codified (1995)); at Iowa Code 708.11 may incident have been merely an inno Project Develop a Model Anti-Stalking cent encounter. Since is a cumu Specifically, Code 43^4. the legislature offense, lative overlap proof “a mere adopted a slightly-modified definition of prosecutions between two does not estab “course of conduct” and a verbatim defini- lish a double violation.” United tion of “repeatedly” from the Model Anti- Felix, 378, 386, 112 States v. 503 U.S. S.Ct. Code, Stalking as well as adopting most of 1377, 1382, 118 (1992). L.Ed.2d the recommendations the model code Thus, determination, to make our we designed protect stalking to victims. Id. history evaluate the of adoption the of These definitions were in effect generally, laws and in Iowa specif- and the alleged stalking time of the ically. § incidents here. See Iowa 708.11 Code (2009). 4. History stalking laws. Iowa’s of

stalking statute was first enacted in 1992. Acts, (codified legislative

1992 Iowa ch. When we ascertain at Iowa (1993)). intent, § among purpose Code 708.11 Iowa was we consider the statute’s the first object states to enact a and the it was intended statute to accom following Dohlman, increased national awareness of plish. 725 N.W.2d at 431. to protect stalking need victims. language Since the of the statute was de- the stalker’s obses- passes as time and Model Anti-Stalk directly from the

rived Code, from grows. to the comments with the victim we look sion ing determining us in model code to aid 49-50. way is not a novel intent. This legislative Anti-Stalking Code also The Model intent interpret legislative for us to in situ- penalties increased recommended have not legislators where our situations protec- where a stalker violates ations in the form guidance us clear given “severe and recommended tive order “In findings purpose. or legislative stated available [sentencing] [be] enhancements legislative Iowa the absence of instructive has in which the defendant in instances look to the comments history, we felony previous or committed purpose [uni contained statements victim within a against offense the same interpretation our guide form to acts] Project De- years.” number of to certain provision of Iowa comparable [an act.]” Shanks, Anti-Stalking velop 758 N.W.2d a Model Code Marriage In re (Iowa see, 2008); argued, e.g., Mulhern v. of the model code The authors Initiatives, 799 N.W.2d reasonable mechanisms “Appropriate Catholic Health 2011) (“Our (Iowa 104, 115 court has relied be incor- managing the stalker should the drafter’s comments to Uniform sentencing schemes porated into states’ act.”); the Iowa State v. construing Act in threat to the vic- potential to reduce the (Iowa 2000) Olsen, 346, 348-49 618 N.W.2d adopted legislature tim.” Id. The Iowa Ongoing the Model Criminal Con (using Iowa both of these recommendations. legislative intent for duct Act to discern 708.11(3)(6 )(1), Additionally, § Code statute); conduct ongoing Iowa’s criminal enacted amendments to our Hogrefe, ability stalking statute to increase its (Iowa 1996) (using the Penal Code Model consequences of prevent the serious interpret a state criminal statute mod See, e.g., behavior. id. escalating code). after the The authors eled 708.11(3) to in- (amending statute Project encouraged develop states to penalties). crease law enforce charges continuum of to assist further of the model code authors intervening at various ment officials warned, encouraged felony further clas stages and forms of egregious for more sification country’s with domestic experience This Project Develop a Model stalking. produced indisputable evi- violence has Anti-Stalking Code 46. ignoring poten- dence of risks obsessive, may unpredict- failing in these cases or

Stalkers tial for violence able, They violent. often potentially early possible to intervene as increasingly serious commit series behavior toward change the victimizer’s acts, may suddenly vio- which become his victim....

lent, injury in the victim’s and result time, behavior ... Over the stalker’s death.... may threatening consequences have life for the victim. ... the release of governing Policies apparent ... notice or rea- Without parole or probation convicted stalkers on son, may turn behavior [the stalker’s] into account that some stalk- should take rapidly. violent they once may dangerous ers be more Anti-Stalking Project Develop to a Model that stalk- prison, are released from and into violence 92. ing behavior often escalates Code urging multidisciplinary ap-

While statute. Project See to Develop a Model proach problem stalking, to the the au- Anti-Stalking Code 49-50. noted,

thors further A.C. an protection obtained order of The uncertain motives and intentions 26, 2010, Polk County April on then ob- suspected stalker and his obses- tained another one in County July Scott on unpredictable sive and behavior place 11, 2010. The State alleged that Lindell great bodily injury his victim at risk of violated either or one both of the protec- death, psychological as well as trau- tive orders six discrete begin- incidents ma. ning July on 2010. Lindell “made con- tact” July with on July July A.C.

A principal objective of an anti-stalk- 9, 2010. The speak record does not ing strategy as to suspect- is to intervene in a the content of all of those How- stalking ed contacts. stalking before the victim is ever, one of the person. contacts was in injured or killed. 11, 2010, On July Lindell was outside Project Develop to a Model Anti-Stallcing A.C.’s residence at 2:00 a.m. ap- and was Code prehended a short away. distance Prior to fact, Stalking, predicate is often a apprehension, Lindell flattened A.C.’s Note, violence. Wiggins, Belinda Stalking tires, damaged her landscaping, and de- Humans: Is There a Need Federaliza- stroyed .23, her August birdhouse. On' tion Anti-Stalking Laws in Order 2010, he made two separate “hang-up” Stalking?, Prevent Recidivism in Syra- A.C., phone calls to one from his own 1067,1073 cuse L.Rev. cellphone cellphone and one from the aof percent Whereas two of stalking victims 15, 2010, friend. On December killed, are thirty-six percent three to offense, pled guilty stalking, first stalking victims become victims of as- order, protective and to criminal mischief battery sault and which perma- include fourth degree, for crimes committed disfigurement. Using nent current vic- against He judg- A.C. received a deferred rates, 28,000 timization stalking victims ment probation pleas. his The murdered, 500,000 will be and over precipitated incident which the stalking, stalking victims will be victims of assault offense, charge second occurred on Janu- battery year. each ary days sentencing. five after Though Id. jail, Victims often become so Lindell did not serve time in traumatized that it his multiple spanned affects areas of their documented behavior lives. months, over six with some degree esca- Undoubtedly, lation. it was intent of answer, then, we must legislature prevent type long- this whether the legislature give intended to frighten term that serves to convicted stalker one “free” opportunity to victim and threatens to escalate as the in_ “purposefully engage[] [any] con- grows. stalker’s obsession specific person duct directed at a would cause reasonable to fear interpretation This is consistent with to, bodily injury of, or the death that spe- other states that have similar cific or a member of that specific Though laws. was not a Urrutia, person’s family.” immediate See Iowa factor Commonwealth v. 708.11(2)(<z). Code This “one free Pennsylvania Superior interpreted Court stalk” is not a reasonable interpretation enacting the intent of the legislature’s intent in enacting this statute similar to Iowa’s. 439 (1995). incident, State did use the same one 653 A.2d

Pa.Super. in two counties “Pennsylva- prosecutions explained, court evidence The Urrutia at 355. because of of conduct. Id. stalking a statute establish a course nia enacted in- provide need to the use of evidence growing perceived argued Daker types of against certain protection creased the evidence and made up” one trial “used legislative The behavior.... predatory trial. Id. at it inadmissible at the second interrupt as attempt noted, however, ... was an scheme 356. The court escalating cycle of early possible the as nature, is, a very its stalking As Pennsylvania’s Superior Id. violence.” crime, interpretation Daker’s cumulative outspoken when became even more Court jeopardy would eviscerate of double jeop- raised the double another defendant statute, leaving stalking purpose of way in much the same ardy argument stalking begin free to would-be stalkers it in this case. Lindell has raised following a victim with a clean slate their a dou Roefaro, the defendant raised cannot believe stalking conviction. We prior his convic ble concern after such result. intended a course help were used to establish tions Id. conviction. Roe of conduct for his current Wyoming Supreme agreed Court The Subsequent at 474-75. faro, 691 A.2d Georgia Appeals, quoting with the Court convictions, com prior the defendant these opinion. verbatim in its language the above violating the mitted one additional action— State, (Wyo. P.3d Snow v. leaving items on the no-contact order and 2009). continued, The court Snow Id. at 474. The porch. victim’s sister’s appel- that the conclude that the fact We court held that these convic Roefaro a punished violating protec- lant was for were as evidence to tions admissible prohibit being did not his also tion order conduct, in a “prove acting a course of despite the felony stalking, punished manner.” Id. at 475. When Roe- similar upon which the fact that the conduct a violation of the faro claimed this was violation was based be- protection order jeopardy, prohibition against double which the stated, part upon came of the conduct court stalking conviction was based. felony argument is a ludicrous that mis- This states and contorts the law of double Lindell, at 512. As with Snow had ... to absurd re- jeopardy and leads against previ- crimes his victim committed sults. charged stalking. with If we being ous to previous to hold that evidence of

were natural, yet wholly ... Taken to its in a convictions could not be used extent, this rationale illogical essentially giving and absurd charge, we would ‘free provide charges anyone would one pass free from following prior stalking convic- behavior engage stalk’ chose to who laws, tion. other such as crimi- that also violated felony property destruc- nal mischief or Id. at 474-75. tion, they as had been convicted long Georgia Appeals further Court time the stalk- charges prior to the those stalking statutes purpose articulated the brought. ing charge was State, Ga.App. in Daker v. of Ala- Appeals Though the case is The Court Criminal S.E.2d 354 that “in order to show ease be bama also held factually distinct from the instant case, in a than course of conduct charges cause the new involved more

XX prior The Ohio legislature of a defendant’s convic has written admission Ohio’s concerning the stalking bad acts stalking tions statute specifically “pat to define not a violation of a victim does constitute including tern conduct” as “two or more protection jeop against defendant’s time, closely or actions incidents related State, 78, ardy.” 915 Jones v. So.2d 83 prior whether or not there has been a State, (citing Mims v. (Ala.Crim.App.2005) any of conviction based on those actions or (Ala.Crim.App. So.2d 515-16 816 incidents.” Ohio Rev.Code Ann. 2001)). The also dealt Mims court 2903.211(D)(1)(2010). § Though Iowa’s than stalking for crimes other convictions has not explicitly statute made it clear that testimony “the specifically found that prior convictions could be considered bad prior acts—even [defendant’s] determining there whether is course of might already for which have those he conduct, the Appeals Ohio Court of held prosecuted admitted properly been —was legislature’s intent to use evidence was necessary to establish course of pat convictions to demonstrate a 816 conduct So.2d at [defendant].” of conduct tern did not violate the Double 516. Jeopardy Clause of the Federal Constitu Only sympathize Idaho appears to some- 2002-L-101, State v. Nos. Werfel, tion. although with Lindell’s position, what 2002-L-102, (Ohio 2003 22994981 WL *2-3 Stewart, 149 234 Idaho P.3d 2003) Ct.App. (unpublished Dec. opin (2010), point. In precisely 707 ion). proper A analysis should focus on Stewart, the Supreme Idaho Court found Hunter, legislative intent. See U.S. at in order to its statute violate forbid- 679, 74 103 S.Ct. at L.Ed.2d at 543 ding a course of “where the conduct ac- (“The question punishments of what are constituting the are in viola- tions offense constitutionally permissible is no different order,” of a tion no contact all of the punishment from the of what must the issuance actions occur after Legislative im Branch intended protective order. at 714-15. The Id. Reed, State v. posed.”); Stewart court made its decision based on (Iowa 2000); Taylor, 596 State v. statutory felony stalking. its definition of (Iowa 1999); N.W.2d State v. Hick similar,2 Though the two statutes are (Iowa man, 1998); N.W.2d of the all instances of here oc- McKettrick, 480 at 57. N.W.2d protective curred after the issuance two orders, attempts distinguish While Lindell making factually this distin- case factually, guishable. these and other cases the salient pertinent part, provides: person the Idaho Code 1. The commits while subject to restrictions contained in a crimi- person 1. A the crime of commits degree person injunction, protective the first if the nal or civil order or violates Code, 18-7906, section and: any Idaho prohibits or order which other court (a) constituting victim, actions offense person contact and the between the temporary restraining are in violation of a subject or while to restrictions contained in order, order, protection no contact order or protective a criminal or civil order or in- thereof; injunction, any combination junction prohib- or other court order which or.... person its contact between and another § Code Ann. Idaho 18-7905 against person has whom com- 708.11(3) Similarly, pro- Iowa Code section public mitted a offense. vides: 708.11(3)( n ) (2009) Iowa Code b. A who commits violation of this commits a class section felony following apply: "D” any if consistently have raised concerns re- point other states have Commentators is that garding allowing prosecutors fragment existing similar statutes as interpreted charges, charges when those particularly victim and as to the protect opposed the are in trials. Anne E.g., raised successive See, e.g., free stalk.” Dak concept of “one Poulin, Jeopardy Bowen Double Protec- er, 856-57; Roefaro, 548 S.E.2d Prosecution: A Pro- tion Successive see, People But v. e.g., A.2d at 474-75. from Geo. L.J. 1191— posed Approach, 92 Herron, (Colo.App. 251 P.3d 2010) (“[F]or to be defendant convicted case, By the fragmenting prosecu- its followed, ap to have he had stalking, tion the likelihood that the de- enhances contacted, proached, or surveiled vic [the higher fendant will receive sentence two To be tim] on at least occasions. First, for the prosecu- three reasons. offense, he of a second convicted period tion can extend its control over act, separate would have had to so in a bringing by the defendant successive factually from transaction that is distinct Second, prosecution the prosecutions. occasions.”). first, the two more on at least may employ successive related convic- analysis Since driven is tions higher to realize a cumulative sen- intent, exclusively by legislative we con Finally, prosecution tence. the can interpretation clude that Lindell’s is not guilty plea sometimes obtain a and se- legislatures with the intent of consistent cure a in the prose- base sentence first with the adopting statutes conformance cution, press higher and then for sen- Anti-Stalking Model Code. tence prosecution. in a later prosecutorial 5. Increased omitted). discretion. (footnote Id. at 1194-95 rejected interpreta- We an previously have purposes One of Dou- primary partially tion concern of a statute due to Jeopardy finality ble is to create Clause interpretation would result prevent prosecutorial overreaching. piecemeal as a of avoid- prosecution means Burgess, at 568. 639 N.W.2d It seems ing comply speedy the need the legislature single clear intended for a Abrahamson, trial rule. N.W.2d at such, prosecuted course of conduct to be as adopt interpreta- If we were to and then to allow a convicted stalker to we urges, encourag- tion Lindell could be repeated prosecutions avoid for that same conduct, ing prosecutors prosecutor to withhold an on a occurrence course of based deciding multiple prosecution from the initial to ensure that to create two-instance interpretation, counts. Under protected victim would continue to be for prosecuted could have been four or escalating from violence after potentially Treating more initial counts. each in- “wiped the stalker’s slate has been clean.” part stance of the evidence determine opening We be for could also the door a course instead of as the actus of conduct in a someone involved discrete series of prevent prosecutorial reus over- helps prosecuted events to be several courses reaching, preserving while intent of each by defining conduct set of occur- protecting victims independent rences as an violation of the stalking. Thus, this theory, statute. under Lindell’s

original prosecution Lenity. included six C. The Rule of We construe —which independent have been strictly occurrences—could criminal statutes resolve for three different violations of the stalk- of the accused. doubts in favor (Iowa 1999). Schultz, 60, 62 ing statute. Further, Here, recognize the legislative “[w]e where the history is construing enhanced principle statute reason comments to the model based, code on which ably light plain, purpose of its Iowa’s statute is some is it is easier to legislative determine intent than with the lenity, times tension rule of Further, typical in Iowa. Lindell was which criminal directs that statutes are to subject to two orders of protection. He strictly in favor of construed the ac was on notice give his behavior could rise Hearn, 577, cused.” State v. to additional criminal liability. The rule of (Iowa 2011). While the precise scope lenity does not apply. ascertain, of the rule lenity of is difficult to recognized we have that the United States Disposition. IV. has, Supreme years, Court in recent “em relatively braced a narrow We conclude the intent of the legislature view of the in enacting Iowa Code section 708.11 was rule.” Id. at 586. what Under is fre unambiguous. clear and (in The quently approach” termed the “Moskal did not intend to allow a stalker to contin- case), the light leading “the of pattern ue a of stalking behavior and be sufficiently whether a statute is ‘ambigu protected under jeop- the shield of double lenity ous’ to invoke the rule of is confront ardy. Since the Double Jeopardy Clause only ed after the court has exhausted all does not act as a restraint legislative on interpretive techniques, including consider power, statute, applied the ation legislative history and other ex case, this does not violate the Jeop- Double trinsic Id. (citing evidence.” Moskal v. Further, ardy Clause. gave statute States, United 498 U.S. 111 S.Ct. fair notice to Lindell that his conduct could 461, 465, 112 (1990)). 449, L.Ed.2d We potentially give liability. rise to criminal further noted that the United States Su Thus, lenity apply. the rule of would not preme Court has established that the rule AND REMANDED REVERSED FOR lenity applied is to be exclusively in FURTHER PROCEEDINGS. “grievous ambiguity.” cases of Id. Essen tially, we Supreme noted United States justices All except concur lenity Court tends view rule of as a MANSFIELD, J„ CADY, C.J., and “tie breaker in cases where there is no APPEL, J., who dissent. for choosing among plausible basis inter pretations of a statute.” Id. MANSFIELD, (dissenting). Justice I respectfully dissent and would affirm

Though recognized we Hearn that our the district court. conclusory, cases “tend to be less than nuanced, arguably inconsistent” with The Jeopardy Double Clause of the regard to lenity, the rule of we also ac- States provides United Constitution that knowledged that part problem in no person subject shall “be for the same applying the rule that legisla- “extrinsic offence to be twice of life put jeopardy Const, history generally tive in Iowa is sparse.” or limb.” amend. V. In this U.S. However, recognize we that where the case, Christopher originally Lindell was clear, legislative intent is “we no ap- see charged A.C. based on preciable risk that a defendant would be during number of incidents that occurred fair without notice that conduct ... [his] June-August period. 2010 time give conduct,” could rise to criminal additional liabili- “Stalking” involves a “course of words, ty.” Id. or other “two more occasions” guilty. Id. at S.Ct. proximity physical a visual or “maintaining Later, returned to at 192. he was legitimate purpose L.Ed.2d without threats, charged Id. There he was or written East conveying ... oral Cleveland. conduct, car or a combina- to a theft of the pled guilty with and implied threats thereof, per- toward a day at or 29th of November.” tion directed “on or about the specific fear in 53 L.Ed.2d at Id. at 97 S.Ct. at “induce[] son” of, to, or the death bodily injury the defen- Supreme Court held See Iowa Code person.” specific objection to the dant’s double On December 708.11 been sus- should have prosecution second charge of stalk- to that pled guilty Lindell explained: tained. The Court ing. correctly holding joyriding After himself subsequently put same offense un- and auto theft are the January again Clause, to A.C. proximity Jeopardy der the Double with charged Lindell 2011. The State con- Appeals nevertheless Ohio Court attempted and to use stalking once more Brown could be cluded that Nathaniel the June-August plus 2010 incidents the crimes because the convicted of both 25, as the January 2011 incident single him focused on different charges against charge. basis for the new a 9-day joyride. We hold parts of his Jeopardy view. The Double different correctly court con- I believe the district guarantee a fragile is not such Clause to a that this would amount double cluded can avoid its limitations prosecutors that Stalking requires a jeopardy violation. dividing a by simple expedient the conduct, but there was no second course of temporal into a or single crime series a new inci- only single course of conduct— Ohio stat- spatial applicable units. The question: harassment. Ask this dent of utes, in this as written and as construed case, could Assuming no earlier criminal case, operation of a make the theft and after prosecuted the have Lindell single Although a offense. single car 25, 2011, separate counts January for two au- the Wickliffe and East Cleveland the consisting of events —one may per- have had different thorities 2010 and the other 2010-August from June offense, it was still spectives on Brown’s 2010- of the events from June consisting law. Ac- only one offense under Ohio 25, January 2011 plus 2010 the August specification of different cordingly, clearly I the answer is no. incident? think charges on which dates in the two Accordingly, Jeopardy the Double Clause convicted cannot alter Brown was prosecutions here. See bars the successive jeopardy twice in placed fact that he was Ohio, Brown v. 432 U.S. 97 S.Ct. of the for the same offense violation 2226, 187, 2221, 53 L.Ed.2d 194-95 Amendments. Fifth and Fourteenth controlling prec- me the Brown seems to 2227, 169-70, case, at 53 a Id. at 97 S.Ct. edent. In that the defendant stole omitted). (citations on November 29. L.Ed.2d at 196-97 car in East Cleveland 2223, footnote, 162, acknowledged, “We at 53 L.Ed.2d at a Court Id. at 97 S.Ct. if the Ohio in would have a different case caught driving He that car was joyriding being Legislature provided After had on December 8. Id. Wickliffe Wickliffe, day each in which separate defendant offense for apprehended in the own- operated motor vehicle is without “joyriding” (taking charged was 170 n. con- er’s consent.” Id. at S.Ct. the car without the owner’s operating sent) 8,” at 196 n. 8. pled and 2227 n. 53 L.Ed.2d “on or about December here”); State, complains we situation here. Daker v. I think have the same (2001) requires conduct for a Ga.App. Iowa course of 548 S.E.2d conviction, consisting (“Daker of two' or prosecuted altogether was dif just incidents. But as there was more County. ferent incidents in Cobb The fact Brown, joyride/theft regardless only one evidence County of the Fulton inci prosecutions fact that the two fo- during was dents admitted Cobb Coun on different time there was periods, cused result.”); ty trial change does not course here. The inci- only one of conduct Roefaro, v. 456 Pa.Super. Commonwealth triggered prose- second dent that Lindell’s (1997) 691 A.2d (“[Ajppel- 474-75 did not a course of con- cution amount to lant was twice tried convicted for ac duct in itself and had to be tacked onto the arising separate tions out of and distinct which earlier course of conduct for predicates.”); factual see also Snow already pled been prosecuted had State, (find (Wyo.2009) P.3d guilty. ing no bar to simulta The out-of-state cases relied on prosecution neous and convictions of the majority generally distinguish- are violating protection defendant for both prosecution in- able because second because stalking, order the former entirely an course of separate volved con- was not a lesser-included offense of the subject duct that had not been the of a latter). This different case is because the prosecution. criminal Those courts only new conduct is sufficient when com merely rightly admitting concluded that with prior bined the conduct for which prosecuted of the previously evidence con- prosecuted.3 Lindell had already been jeopardy princi- duct not violate double did by my colleagues, As noted an Idaho ples, long unpro- as there sufficient so was seems to case indicate the circum- support secuted conduct to the new here amount a stances would double State, charges. See Mims v. 816 So.2d Stewart, See jeopardy violation. State v. 509, (Ala.Crim.App.2001) (concluding 516 (2010). 383, 707, P.3d 149 Idaho 234 713 prove any that “no evidence was offered to Fox, But it is not a In v. the loner. State prior prosecution or conviction” specific of Appeals North Carolina Court confront- prosecution presented and “the far more the situation where the defendant had of a ed evidence course of conduct establish- a appellant’s following stalking been convicted of for ing harassing previously and than appellant February-March White the evidence the 2009 series of incidents. 382, Felix, by activity States v. cited for the Oklahoma as well. at 3. United also ma Id. 1380, distinguishable grounds. 112 jority, is the same S.Ct. at 118 L.Ed.2d at 31. The on 378, 1377, Supreme United Court See U.S. 112 S.Ct. 118 L.Ed.2d States found no dou- 503 case, jeopardy arising ble In that defendant en violation out of the Okla- 25 separate prosecution gaged methamphetamine manu homa trial, the Missouri "[a]t because facturing any way and did not in activities in Oklahoma later Government 380, 1379-80, prosecute Id. at S.Ct. at Felix for Oklahoma metham- Missouri. 112 transactions; phetamine simply at it introduced 118 L.Ed.2d 30. When defendant was conduct, prosecuted those acts evidence for the Missouri transactions as un- ”[i]n 387, 404(b).” at intent der Rule at 112 S.Ct. order establish Felix’s criminal Id. contrast, Here, Missouri, respect to the 118 L.Ed.2d 34. items delivered at 2010-August a introduced evidence that Felix the June 2010 conduct was Government stalking methamphetamine necessary component of the second had manufactured merely going charge; Oklahoma earlier in Id. at 112 it was not to be evi- 1987.” govern at 31. The intent under Iowa S.Ct. 118 L.Ed.2d at dence defendant’s 5.404(fc). subsequently prosecuted Rule ment the defendant of Evidence 16 of stalk separate episodes guilty of two (N.C.Ct.App.2011). 674

See 721 S.E.2d acts); more involving two or ing,” each again prosecuted was He then (Tenn. 26, 35-36 Vigil, State v. February 65 S.W.3d from the incidents based on subsequent (barring events. a second plus Crim.App.2001) 2009-March the sec jeopardy grounds vacated Id. at 676-77. The court on double prosecution on before conviction the record noting ond and that “[f]rom People Similarly, Id. at 678. an event grounds. us, indication that there is no Herron, (Colo.App.2010), v. P.3d 1190 in February before the occurred said: Appeals Court Colorado the continuous course to break cident

Thus, convicted of of to be constituted the for defendant conduct followed, ap- have he had to No. which stalking, charged in Case fense as contacted, Ms. R or surveiled February proached, from the events covered To be convict- 1997”). two occasions. on at least January offense, he would ed of second Schmitz, v. discuss My colleagues act, transac- separate in a have had to so precedent. See agree which I is a relevant from the factually distinct tion that (Iowa 2000). However, 610 N.W.2d 514 first, two more occasions. on at least I my colleagues, believe contrary Herron, 1194; see also at 251 P.3d jeop- finding of double Schmitz supports (Fla. State, So.2d Vazquez Schmitz, was the defendant ardy here. stalk (vacating second Dist.Ct.App.2007) Id. counts of theft. charged with three jeopardy grounds on double ing conviction the defen- Each count was based on for the charging document where “[t]he (an item separate of a possession dant’s appellant which stalking charge on simple wheels/tires) four jacket, aquarium, alleges that previously convicted was a different loca- been stolen from that had 19, 2002, appellant ‘re 18 and November Id. The thefts had time. tion at a different harassed, [sic], telephone peatedly apart. to ten months occurred seven ” the second Ms. Atencio’ threatened violation, we jeopardy finding In no double “ ‘between 11—16— alleged information “continuing that theft is not emphasized knowingly, appellant 12-4-02’ ‘did 02 and conduct,” a “course of based on offense” maliciously, repeatedly and follow willfully, against Schmitz charge that each theft ” Atencio); Eichelberger Ms. or harass’ of facts.” “proof different required State, (Fla.Dist.Ct.App. So.2d 361 949 way factors cut the other Those 517-18. 2007) (finding stalking prosecu a second of- Stalking a course of conduct here. Jeopardy Clause tion violated the Double fense, present in the prove allege or establish where the state “did not it must use conduct case the State and the one course of conduct the end of stalking. already to convict Lindell used conduct”); Peckin a new course of start of wanted to relieve the If the State, 1241 paugh v. 743 N.E.2d having prove State from the burden (“[I]n Indiana, a defen (Ind.Ct.App.2001) to obtain of conduct order second course counts separate convicted of may dant conviction, it could have a second respec victim if the same way Ohio in the same the offense defined upon which the tive series of incidents done, including has into dis are based can be divided charges conviction, new incident of plus just one series.”); People v. separate tinct and See Ohio Rev.Code Ann. White, Mich.App. harassment. 2903.211(D)(1) (West, through Westlaw (1995) no double (finding 881-82 of the 129th and statewide issues “pleaded 2012 laws where the defendant violation (2011-2012)). 714.2(2)- Our general assembly GA bined theft. §§ See Iowa Code did do this. We must consider (3), “[w]hat scenario, .3. Similar to the foregoing legislature] has made the allowable [the majority opinion results in Lindell’s prosecution.” unit of Bell v. United being “twice put jeopardy” for his ac- States, 620, 621, U.S. S.Ct. tions from through June 2010 August 2010. (1955) (citation 99 L.Ed. and in- Const, See U.S. amend. V. I believe this omitted). quotation ternal marks violates the Fifth and Fourteenth Amend- sum, Jeopardy Double Clause ments to the United States Constitution. prohibits the State from using the same reasons, foregoing For the I respectfully all part conduct as of the basis for two dissent. convictions of the same By way offense. of analogy, suppose an individual works at

an office kept CADY, where cash is in a locked C.J., APPEL, J., join this opens drawer. She the drawer and steals opinion. 1,May opens on and then the drawer

$750 May By

and steals majori- $500

ty’s logic, she could be convicted of third- $500)

degree (property theft exceeding May 1 theft and then later be convict- second-degree

ed of theft (property ex- $1000)

ceeding for the May 1/May com-

Case Details

Case Name: State of Iowa v. Christopher Raymond Lindell

Court Name: Supreme Court of Iowa

Date Published: Mar 8, 2013

Citation: 828 N.W.2d 1

Docket Number: 11–0770

Court Abbreviation: Iowa