IS VIOLATION OF A PFA A LESSER INCLUDED OFFENSE OF STALKING?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
State v. Sinzogan, 2017, 388 P.3d 176, 53 Kan.App.2d 324, review granted in part
This case addresses the following issue:
Is violation of a PFA a lesser included offense of stalking?
Sinzogan was charged with stalking and violation of a protection from stalking order based on his actions at a Hutchinson mall on October 15, 2013. The victim, H.G., was Sinzogan’s ex-wife. Both Sinzogan and H.G. agreed they were in the parking lot; however, their accounts of what occurred differed. Id. at 178.
According to H.G., she was in the mall parking lot with a friend when Sinzogan approached them wanting to talk. Id. Although H.G. indicated she did not want to talk, Sinzogan was insistent and would not let her go, at one point grabbing her wrist. He kept telling H.G. he loved her and wanted to be with her, scaring H.G. because he was acting irrationally. Id. After H.G. told Sinzogan she did not love him, he got back in his car and left.
Sinzogan’s testimony focused on his marital relationship with the victim. Sinzogan testified he went to the mall to meet a new friend and recognized H.G.’s vehicle in the parking lot. As a result, he met his friend inside the mall and immediately left. Id.
Sinzogan moved for acquittal, arguing, in part, violation of a protective order and stalking were multiplicitous, but the district court denied his motion. Id. The defendant was convicted of both counts which he then appealed.
“Sinzogan argues his convictions for violating a protective order and stalking are multiplicitous and one of the convictions must be vacated. Multiplicity occurs when more than one count of a charging document results from a single offense; it violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution because it creates the potential for multiple punishments for the same crime.” Id.
Violation of a protective order is knowingly violating “a protection from stalking order issued pursuant to K.S.A. 60–31a05 or 60–31a06, and amendments thereto.” Id. at 179.
Stalking is: “After being served with, or otherwise provided notice of, any protective order included in K.S.A. 21–3843, prior to its repeal or K.S.A. 2015 Supp. 21–5924, and amendments thereto, that prohibits contact with a targeted person, recklessly engaging in at least one act listed in subsection (f)(1) that violates the provisions of the order and would cause a reasonable person to fear for such person’s safety, or the safety of a member of such person’s immediate family and the targeted person is actually placed in such fear.” Id.
Proving stalking pursuant to K.S.A. 2015 Supp. 21–5427(a)(3) requires proof the defendant violated a protective order. Id. Seemingly, violation of a protective order is a lesser included crime of stalking pursuant to K.S.A. 2015 Supp. 21–5427(a)(3). Id. However, the statutes require different culpable mental states. “Violation of a protective order requires the offense be committed knowingly.” Id. “In contrast, stalking only requires proof the defendant recklessly violated the protective order.” Id.
The court held that the culpable mental state for violation of a protective order—knowingly—is higher than the culpable mental state for stalking by violating a protective order—recklessly. Id. at 180. Violation of a protective order is not a lesser included offense of stalking. Id. The convictions were affirmed.