2013 (September Term)
United States v. Gutierrez, 73 M.J. 172 (the elements of the offense of stalking under Article 120a, UCMJ, are: (1) that the accused wrongfully engaged in a course of conduct directed at a specific person that would cause a reasonable person to fear death or bodily harm, including sexual assault, to himself or herself or a member of his or her immediate family; (2) that the accused had knowledge, or should have had knowledge, that the specific person would be placed in reasonable fear of death or bodily harm to himself or herself or a member of his or her immediate family; and (3) that the accused’s acts induced reasonable fear in the specific person of death or bodily harm to himself or herself or to a member of his or her immediate family).
(Article 120a, UCMJ, defines a course of conduct as a repeated maintenance of visual or physical proximity to a specific person; or a repeated conveyance of verbal threats, written threats, or threats implied by conduct or a combination of such threats, directed at or towards a specific person; the term “repeated” is defined as two or more occasions of such conduct).
(the offense of stalking contemplates consideration of evidence which covers the entire course of alleged unlawful conduct directed toward the victim; in this case, the record contains evidence of three distinct occasions of stalking conduct, as well as a pattern of repeated telephone calls and text messages from which the jury could have inferred both objective and subjective awareness of fear of bodily harm or sexual assault; viewing the evidence in the light most favorable to the government, a rational trier of fact could have found beyond a reasonable doubt that appellant’s conduct constituted stalking as defined by Article 120a, UCMJ, and thus the evidence of stalking was legally sufficient; although appellant was acquitted of a rape specification charged in the first occasion of stalking, the panel could have independently considered the evidence supporting that incident while deliberating on the stalking charge; without question, the evidence before the panel as to the first incident could have been found by the members to establish that appellant engaged in conduct directed at the victim that would cause a reasonable person to fear death or bodily harm, including sexual assault; the evidence was also sufficient to establish that appellant either knew or should have known that such conduct would place the victim in reasonable fear of bodily harm or sexual assault, and the panel could also have concluded that appellant’s conduct induced reasonable fear in the victim; in addition, with respect to the pattern of repeated telephone calls and test messages, although the contents of these messages were not overtly threatening when viewed in isolation, they were evidence of repeated unwelcome conduct; when viewed in the context of appellant’s earlier conduct, they constituted a repeated conveyance of threats implied by conduct as envisioned by Article 120a(a)(b)(1)(B), which created a link among the three discrete incidents of stalking conduct; the panel could have independently considered these phone calls and messages when determining whether a course of stalking conduct existed).