3. KEY STATUTORY ELEMENTS IN STALKING AND HARASSMENT CASES

Presumption of Innocence and Burden of Proof

As with every criminal offense, the prosecution bears the burden of proof in stalking and harassment cases. That burden is "beyond a reasonable doubt" with respect to each essential element of the offense.

Furthermore, as in every criminal case, the law presumes a defendant in a stalking or harassment prosecution to be innocent unless the fact finder, judge or jury, is satisfied beyond a reasonable doubt of the defendant's guilt. See Uniform Jury Instruction (UJI) 14-5060 (presumption of innocence statement). The presumption of innocence is one of the cornerstones of our criminal justice system.

UJI 14-5060 defines "reasonable doubt" as "a doubt based upon reason and common sense – the kind of doubt that would make a reasonable person hesitate to act in the graver and more important affairs of life." Thus, the state's burden is to prove guilt beyond a reasonable doubt only, not beyond all possible doubt.

"Pattern of Conduct"

Under New Mexico's Harassment and Stalking Act, harassment, stalking and aggravated stalking each, in part, consist of the defendant "knowingly pursuing a pattern of conduct…." §§ 30-3A-2 (Harassment); 30-3A-3 (Stalking); 30-3A-3.1 (Aggravated Stalking).

However, the Act does not contain a definition of "pattern of conduct." Likewise other New Mexico statutes and case law do not appear to define this term. Thus, it may be helpful to look elsewhere for guidance as to the meaning of 'pattern of conduct.'

The plain meaning of the words "pattern" and "conduct" can be seen in their dictionary definitions. Miriam Webster defines pattern in several ways, two of which seem relevant: (1) "a reliable sample of traits, acts, tendencies, or other observable characteristics of a person," and (2) "frequent or widespread incidence." Miriam Webster defines conduct as "the act, manner, or process of carrying on."

Stalking statutes from other states, while not controlling, may provide additional insight. A few states define the term "pattern of conduct" in their stalking statutes. For example, the Ohio stalking statute defines the term as follows:

"Pattern of conduct" means 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.… ORC Ann. §2903.211.D(1).

As another example, Louisiana's stalking statute contains the following definition:

"Pattern of conduct" means a series of acts over a period of time, however short, evidencing an intent to inflict a continuity of emotional distress upon the person…. La. R.S. 14:40.2.C.2.

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