COA holds that stalking does not require State to prove conduct served no legitimate purpose in a decision recommended for publication.
State v. Stetson Okeefe Grant, 2024AP901, 11/3/26, District III (recommended for publication); case activity
In a decision recommended for publication, the COA held that “stalking” under Wis. Stat. 940.32 does not require the State to prove that the defendant’s conduct served no legitimate purpose.
One of the definitions of “harassment,” to obtain a restraining order under Wis. Stat. § 813.125, is “[e]ngaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose.” Wis. Stat. § 813.125(1)(am)4.b. (emphasis added). The crime of stalking, as defined in § 940.32(2), requires that the acts directed at a specific person cause the person to “suffer serious emotional distress or induce fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household.” Wis. Stat. § 940.32(2)(c). To “suffer serious emotional distress” is defined as feeling “terrified, intimidated, threatened, harassed or tormented.” Wis. Stat. § 940.32(1)(d).
At his trial for stalking his ex-wife, Stetson Okeefe Grant asked the circuit court to modify the pattern jury instruction for stalking, Wis JI-Criminal 1284, to include the definition of harassment from the civil harassment restraining order statute to require the State to prove that his harassment served no legitimate purpose. He argued that his conduct — which included incessantly calling and texting his ex-wife, coming to her house uninvited with the intent to reconcile with her, refusing to leave until she changed her mind about a divorce, and threatening to kill himself — served the legitimate purpose of attempting to convince his wife to reconcile their marriage. (¶¶ 3,7). The circuit court denied Grant’s request to modify the jury instruction because the stalking statute does not define “harassment” and the term is intended to be used in its general sense. The circuit court recognized, however, that Grant was not prevented from arguing that his conduct was not harassing or would cause a reasonable person to feel harassed. (¶ 12). Grant was convicted of stalking and renewed his argument regarding the jury instruction on appeal.
The COA considered that stalking under Wis. Stat. § 940.32(2) requires the State to prove that: (a) the actor intentionally engaged in a course of conduct directed at a specific person that would cause a reasonable person under the same circumstances to suffer serious emotional distress; (b) the actor knows or should know that at least one of the acts that constitute the course of conduct will cause the specific person to suffer serious emotional distress; and (c) the actor’s acts cause the specific person to suffer serious emotional distress. Thus, the COA remarked, both the perpetrator’s and the victim’s mental states are elements of stalking, which “narrows application of the statute from what would otherwise be legitimate behavior to only behavior that is intended to and does actually cause the victim to feel terrified, intimidated, threatened, harassed, or tormented or to fear bodily injury or death. (¶ 17).
Although the standard jury instruction for stalking does not define “harassment,” the COA determined it accurately and completely stated the law because what it means to feel “harassed” for purposes of determining whether the alleged victim suffered severe emotional distress was “readily ascertainable via the jurors’ common knowledge or a basic dictionary definition.” (¶ 19) (citing Wis. Stat. § 990.01(1) stating that all words and phrases in a statute should be construed according to their common and approved usage).
The COA noted that the civil restraining order statute, in addition to defining “harassment” as acts which harass or intimidate and serve no legitimate purpose, also characterizes “harassment” as engaging in an act that would constitute stalking under § 940.32. (¶ 20) (citing Wis. Stat. § 813.125(1)am)4.a.). “Thus, in order to obtain an injunction for harassment, a victim can show either that the perpetrator’s conduct met the two-step ‘harassment plus no-legitimate purpose’ test or by showing the conduct met the elements of a number of crimes, including stalking.” (¶ 20).
The COA concluded: “[B]y creating multiple distinct paths for obtaining a harassment injunction, the legislature determined that stalking is itself harassment, and, if proven, stalking can never be committed for a ‘legitimate purpose.’” (¶ 21).