Five Ways Prosecutors Upgrade Stalking Charges

Aggravated stalking charges blindside many defendants. Unlike other family violence defendants, such as assault defendants, many stalking defendants do not believe they did anything wrong. Additionally, the possible upgrades in Georgia’s aggravated stalking law are rather obscure.

Furthermore, aggravated stalking carries a maximum ten years in prison. That’s an awful long time behind bars for what is essentially a nonviolent offense. Moreover, domestic violence offenses carry significant collateral consequences.

An assertive Marietta criminal defense attorney usually makes a big difference. A lawyer must attack the state’s case on both a factual and legal level. Prosecutors have the burden of proof in both areas. If an attorney creates reasonable doubt in either area, the defendant is not guilty as a matter of law.

Frequently, attorneys resolve criminal matters out of court. Commonly, if the evidence is weak, prosecutors agree to reduce the charges from aggravated to simple stalking. Misdemeanor stalking charges are much easier to deal with that felony charges.

Basic Elements

A preliminary note here. Like many domestic violence offenses, aggravated stalking requires a complaining witness. The alleged victim’s testimony is almost always sufficient.

Witness accounts during trial often vary from the statements they gave first responders. Most judges are willing to excuse minor inconsistencies, unless there is a parallel case in family court. Some people will say almost anything to get a leg up in these proceedings. That possibility is usually enough to create reasonable doubt. In these situations, the witness could be telling the entire truth. However, it’s impossible to be sure, and that’s what the law requires.

There are four basic elements in a stalking charge: contact in violation of a court order without the complainant’s consent and with the intent to intimidate and/or harass the complainant.

“Contact” could mean electronic communications, like phone calls or e-mails. It could also mean following or watching the alleged victim.

Contact means actual contact. A virulent social media post, unless it is something like a direct message tweet, is not contact. Likewise, asking someone to deliver a note is not contact, especially if the person does not deliver it.

On a similar note, surveilling and following cannot be coincidental. Frequently, divorcing spouses live in the same neighborhood or work at the same place. The defendant might be in the same place at the same time as the alleged victim, but that’s usually not contact per the aggravated stalking law.

“Harassment and intimidation,” in this context, is a pattern of conduct. However, the pattern could predate the order. Assume Robert follows Stephanie to work and Stephanie gets a court order. Thereafter, Robert parks outside Stephanie’s house. Although Robert only committed one act after the order, that act was part of a pattern of conduct.

Possible Upgrades

In addition to the basic elements of stalking, prosecutors must prove one of the following elements, beyond a reasonable doubt.

Displaying a Deadly Weapon

Knives and guns are obviously deadly weapons. And, there is a difference between brandishing and displaying.

But most aggravated stalking cases involve other types of deadly weapons, like golf clubs or baseball bats. These things could be deadly weapons, depending on how they are used.

Frequently, alleged victims see defendants with such objects, think “I know what s/he’s capable of,” and are understandably frightened. Aggressive prosecutors normally seize upon such details and upgrade charges. But unless the defendant brandished the “deadly weapon,” such charges often do not hold up in court. Additionally, many jurors prefer to see additional facts, such as a verbal threat of imminent serious bodily harm.

Under Eighteen

This aggravating circumstance is relatively straightforward. The alleged victim was eighteen at the time of the incident, or the alleged victim was younger. Things get a bit tricky if the pattern is an issue. If Stephanie was 17 when Robert followed her and 18 when Robert staked out her house, a Marietta criminal defense attorney could argue that the state did not meet the age requirement.

There is also a reverse “Romeo and Juliet” exception. Many times, there is a defense to statutory rape charges if the defendant and alleged victim were fewer than two years apart. Somewhat similarly, in aggravated stalking cases, the defendant must be at least five years older than the alleged victim.

Prior Conviction

There is a seven-year lookback period. Additionally, this upgrade only applies to convictions. If the defendant was arrested and received pretrial diversion, prosecutors must look elsewhere if they want to charge the defendant with aggravated stalking.

Credible Threat of Serious Injury

Roughly contemporaneously with the stalking, the defendant must threaten the alleged victim or the alleged victim’s immediate family with death or bodily injury. The threat must be credible. If the defendant threatens to shoot the alleged victim’s mother yet the defendant does not own a gun, the threat is real, but it is not imminent and credible.

Willful Violation of Court Order

These matters almost always involve the aforementioned parallel proceedings. Civil judges frequently issues restraining orders before trial and permanent injunctions after trial.

Normally, prosecutors must produce either the original court order or a certified copy of it. Anything less might not satisfy the best evidence rule. Obtaining the requisite document is usually a simple matter for prosecutors, but they often skip this step.

Additionally, the state must establish actual knowledge of the contents of the order. If the judge issued the order and the defendant was not present, the defendant did not receive actual knowledge. On a related note, if the defendant’s lawyer signed the order, but not the defendant, there could be a question as to actual notice.

Aggressive prosecutors usually upgrade stalking charges whenever they think they have the opportunity to do so. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.