               IN THE SUPREME COURT OF IOWA
                               No. 11–0770

                           Filed March 8, 2013


STATE OF IOWA,

      Appellant,

vs.

CHRISTOPHER RAYMOND LINDELL,

      Appellee.


      Appeal from the Iowa District Court for Scott County, Thomas G.

Reidel (motion for bill of particulars) and John D. Telleen (motion to

dismiss), Judges.



      The State appeals from the district court’s grant of a motion for a

bill of particulars and a motion to dismiss.          REVERSED AND

REMANDED FOR FURTHER PROCEEDINGS.



      Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant
Attorney General, Michael J. Walton, County Attorney, and Jay

Sommers, Assistant County Attorney, for appellant.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey,

Assistant Appellate Defender, for appellee.
                                    2

ZAGER, Justice.

      This appeal centers on the question of whether a previous

conviction for stalking under Iowa Code section 708.11 can be used to

establish a course of conduct for a subsequent stalking violation.     We

find the legislature intended that for purposes of determining whether an

offense is a second or subsequent offense of stalking, prior violations of

the stalking statute can be considered as evidence of the course of

conduct necessary for a prosecution for stalking as a second or

subsequent offense.    We further find that the rule of lenity does not
apply, as Lindell had sufficient notice that his conduct could give rise to

additional criminal liability. Therefore, we reverse the district court and

remand for further proceedings.

      I. Background Facts and Proceedings.

      The facts in this case are not in dispute. Christopher Raymond

Lindell and A.C. were involved in a romantic relationship. In May 2010,

A.C. attempted to break all ties with Lindell. Based on events occurring

in April 2010, A.C. obtained an order of protection against Lindell in Polk

County, Iowa, on April 26, 2010.     At some point, A.C. moved to Scott

County. However, in violation of the protective order, Lindell continued

to make contact with A.C.          These contacts included leaving a

handwritten note and flowers on her car in June 2010; hang-up calls on

July 4, 6, 9, and 11, 2010; a personal contact on July 4, 2010; and being

at A.C.’s residence and damaging her automobile tires and other property

on July 11, 2010.     As a result of these contacts, A.C. obtained an

additional order of protection in Scott County on July 11, 2010. A final

incident occurred on August 23, 2010, when Lindell contacted A.C. twice
by telephone.   All of these incidents form the basis of the prior trial
                                            3

information charging Lindell with stalking, criminal mischief, and other

charges.

       On December 15, 2010, Lindell pled guilty to stalking, first offense,

with protective order, in violation of Iowa Code section 708.11, and

fourth-degree criminal mischief, in violation of Iowa Code section 716.1

(2009), for crimes committed against A.C. On January 20, 2011, Lindell

received a deferred judgment on the stalking charge.1                  The court also

continued the no-contact order for the protection of A.C.

       On January 25, 2011, Lindell parked his vehicle in an area where
he could look directly into the office where A.C. was working. When A.C.

made eye contact with Lindell, he drove away. She immediately reported

this contact to law enforcement.                During the investigation, Lindell

admitted he had been at that location but claimed he had a legitimate

reason for being there.

       In response to this incident, Christopher Lindell was charged by

amended trial information with stalking, second offense, or, alternatively,

stalking in violation of a protective order, in violation of Iowa Code

sections 708.11(3)(b)(1) and 708.11(3)(b)(4).

       Lindell filed a motion for a bill of particulars, arguing the State had

not alleged sufficient facts in its trial information and minutes of

testimony to support a violation of the stalking statute, as the State had

only detailed one incident of harassment in its minutes of testimony. In

its ruling on Lindell’s motion for a bill of particulars, the district court

ordered that the State must “file a bill of particulars specifically stating

the two or more occasions that constitute the course of conduct under

Iowa Code section 708.11.” The district court required that the two or

       1Lindell received a deferred judgment, but for purposes of the stalking statute, it
is the equivalent of a conviction. See Iowa Code § 708.11(4) (2009).
                                       4

more occasions “shall be separate from those alleged in the Minutes of

Testimony in [Lindell’s prior conviction].”

      In response, the State submitted additional minutes of testimony,

detailing stalking incidents that had formed the factual basis for Lindell’s

prior conviction for stalking, but failed to file a bill of particulars in

response to the court’s order.       Lindell then filed a motion to dismiss,

alleging the State had failed to state at least one additional incident of

harassing behavior, despite the court’s order to do so. Thus, the trial

information failed to contain sufficient facts to establish the necessary
elements of the crime of stalking.

      The State argued it had cured its defect by supplementing the

minutes   of   testimony   with   information    regarding   Lindell’s   prior

convictions. Lindell asserts that double jeopardy principles preclude the

State from using the prior incidents to establish the course of conduct

required in the current stalking charge. Specifically, Lindell argued that

the use of the previous incidents, for which he was convicted, to prove

the required course of conduct, would violate the Double Jeopardy

Clause.   The district court granted the motion to dismiss.       The State

appealed the decision of the district court. We retained the appeal.

      II. Scope of the Review.

      We review double jeopardy claims de novo, due to their

constitutional nature. State v. Kramer, 760 N.W.2d 190, 193–94 (Iowa

2009). To the extent the issue involves the interpretation of a statute,

this court reviews for correction of errors at law. In re Det. of Johnson,

805 N.W.2d 750, 753 (Iowa 2011).

      III. Discussion and Analysis.
      A. Double Jeopardy. Lindell asserts the State is putting him in

jeopardy for conduct for which he has already been convicted and
                                       5

punished. Specifically, he alleges the State is charging he violated Iowa

Code section 708.11 by committing acts which also served as the basis

for a prior conviction. The State alleges that Lindell’s interpretation of

the statute would allow those who have stalked a victim before to engage

in “one free stalk” of that victim, so long as it occurs after a conviction.

         1. Iowa constitutional claim. As an initial matter, the State argues

that the double jeopardy provision of the Iowa constitution does not

apply.     We agree.   Unlike some other constitutional provisions, Iowa’s

double jeopardy provision is distinct from the Federal Double Jeopardy
Clause, merely requiring that “[n]o person shall after acquittal, be tried

for the same offence.”      Iowa Const. art. I, § 12.    As Lindell was not

acquitted, we need not evaluate his claims based on Iowa’s double

jeopardy provision.

         2. Scope of federal double jeopardy protection.         The Double

Jeopardy Clause of the United States Constitution states that no person

shall “be subject for the same offense to be twice put in jeopardy of life or

limb.”    U.S. Const. amend. V.     The Fourteenth Amendment binds the

states to the Double Jeopardy Clause.        Benton v. Maryland, 395 U.S.

784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707, 716 (1969); State v.

Franzen, 495 N.W.2d 714, 715 (Iowa 1993).             The Double Jeopardy

Clause serves to create finality and to prevent prosecutorial overreaching.

State v. Burgess, 639 N.W.2d 564, 568 (Iowa 2001). “The purpose of this

clause is to protect against: (1) a second prosecution for the same offense

after acquittal; (2) a second prosecution for the same offense after

conviction; and (3) multiple punishments for the same offense.” Id.

         3. Double jeopardy analysis hinges on legislative intent.      At its
core, double jeopardy analysis asks what the legislature intended. State

v. McKettrick, 480 N.W.2d 52, 57 (Iowa 1992). The central question is
                                        6

whether Lindell is being subject to a second prosecution for the same

offense for which he had previously been convicted and whether he is

being punished again for the same offense.           We note that it is the

legislature, “and not the prosecution, which establishes and defines

offenses. Few, if any, limitations are imposed by the Double Jeopardy

Clause on the legislative power to define offenses.” Sanabria v. United

States, 437 U.S. 54, 69, 98 S. Ct. 2170, 2181, 57 L. Ed. 2d 43, 57

(1978).

      In considering a double jeopardy claim within the multiple
      punishments context, we are guided by the general principle
      that the question of what punishments are constitutionally
      permissible is no different from the question of what
      punishments the legislature intended to be imposed.

McKettrick, 480 N.W.2d at 57. Both the State, citing Missouri v. Hunter,

459 U.S. 359, 366–68, 103 S. Ct. 673, 678–79, 74 L. Ed. 2d 535, 542–44

(1983), and Lindell, citing McKettrick, 480 N.W.2d at 57, agree that the

crux of the analysis of whether Lindell’s right to be free from double

jeopardy has been violated is a determination of what the legislature

intended when it enacted the stalking statute.

      B. Intent of the Legislature.         We have consistently stated that

the purpose of statutory interpretation is to determine legislative intent.
See, e.g., In re Estate of Bockwoldt, 814 N.W.2d 215, 223 (Iowa 2012).

      “We give words their ordinary and common meaning by
      considering the context within which they are used, absent a
      statutory definition or an established meaning in the law.
      We also consider the legislative history of a statute, including
      prior enactments, when ascertaining legislative intent.
      When we interpret a statute, we assess the statute in its
      entirety, not just isolated words or phrases.”

Id. (quoting Doe v. Iowa Dep’t of Human Servs., 786 N.W.2d 853,
858 (Iowa 2010)) (citations omitted).
                                     7

      In ascertaining legislative intent, we consider “the statute’s subject

matter, the object to be accomplished, the purpose to be served,

underlying policies, remedies provided, and the consequences of the

various interpretations.” State v. Dohlman, 725 N.W.2d 428, 431 (Iowa

2006) (citation and internal quotation marks omitted). We also consider

the legislative history of a statute when determining legislative intent. Id.

at 431–32.     Finally, we construe criminal statutes strictly and resolve

doubts in favor of the accused. State v. Adams, 810 N.W.2d 365, 369

(Iowa 2012).
      1. Elements of Iowa’s stalking law. The State has charged Lindell

with stalking, a violation of Iowa Code section 708.11. Three elements

must occur to constitute stalking.

            a. The person purposefully engages in a course of
      conduct directed at a specific person that would cause a
      reasonable person to fear bodily injury to, or the death of,
      that specific person or a member of the specific person’s
      immediate family.

             b. The person has knowledge or should have
      knowledge that the specific person will be placed in
      reasonable fear of bodily injury to, or the death of, that
      specific person or a member of the specific person’s
      immediate family by the course of conduct.

            c. The person’s conduct induces fear in the specific
      person of bodily injury to, or the death of, the specific person
      or a member of the specific person’s immediate family.

Iowa Code § 708.11(2).

      Lindell argued, and the district court agreed, that the State did not

originally allege facts sufficient to prove the elements of stalking in the

instant case.    The State originally alleged that Lindell had committed

only a single act supporting the stalking charge. Specifically, the State
alleged that Lindell parked his vehicle in front of Astra Furniture, where

A.C. worked as a bookkeeper, and looked through the window into the
                                    8

office where she was working.      When she looked up and made eye

contact with him, he drove away. No other incident was detailed in the

minutes of testimony.

      Paragraph (a) of the stalking statute requires a “course of

conduct.”   Iowa Code § 708.11(2)(a).    Iowa’s stalking statute defines

“course of conduct” as “repeatedly maintaining a visual or physical

proximity to a person without legitimate purpose or repeatedly conveying

oral or written threats, threats implied by conduct, or a combination

thereof, directed at or toward a person.” Id. § 708.11(1)(b). Further, the
statute defines “repeatedly” as “on two or more occasions.”            Id.

§ 708.11(1)(d).

      2. Using elements of one crime to prove another. When an issue of

possible double punishment presents itself, we often begin our double

jeopardy analysis by examining the Blockburger elements test.         See

Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L.

Ed. 306, 309 (1932). However, we have typically used the Blockburger

elements test in cases in which “two offenses charged under separate

statutory provisions constitute the same offense for double jeopardy

purposes.” State v. Schmitz, 610 N.W.2d 514, 515–16 (Iowa 2000); see,

e.g., Burgess, 639 N.W.2d at 568–70 (analyzing whether theft by

deception and theft by misappropriation are the same offense for

purposes of double jeopardy).

      Blockburger is typically used to evaluate whether one offense is a

lesser-included offense of another offense.   E.g., State v. Abrahamson,

746 N.W.2d 270, 274 (Iowa 2008) (“Under the Blockburger analysis, the

court would determine whether two offenses were the ‘same’ by
comparing the elements of proof required for each offense.”).      Under

Blockburger, proof of one element may be used to establish two different
                                     9

crimes.   284 U.S. at 304, 52 S. Ct. at 182, 76 L. Ed. at 309 (“The

applicable rule is that, where the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one is whether each

provision requires proof of a fact which the other does not.”). Lindell is,

of course, being charged with a subsequent count of violating the same

statute, and thus, a typical Blockburger analysis is not appropriate.

Further, even if two statutes meet the Blockburger test, legislative intent

continues to be the paramount piece of a double jeopardy analysis. See
State v. Bullock, 638 N.W.2d 728, 732 (Iowa 2002) (“Even though a crime

may meet the so-called Blockburger test for lesser-included offenses, it

may still be separately punished if legislative intent for multiple

punishments is otherwise indicated.”). Thus, the traditional Blockburger

elements test has no application to our analysis.

      3. Previous acts as evidence of course of conduct.         However,

Blockburger does have application here beyond its traditional use. The

central question in this case is whether the State can use proof that

Lindell had previously engaged in an action “directed at a specific person

that would cause a reasonable person to fear bodily injury to, or the

death of, that specific person or a member of the specific person’s

immediate family” to establish that he was once again engaging in a

course of conduct as described in the stalking statute. See Iowa Code

§§ 708.1(b), .11(2)(a).   We find that the legislature intended the actus

reus of this crime to be the stalking behavior and that the question of

whether this act was part of a course of conduct is intended as an

evidentiary one.
      Our cases, and the cases of other states, establish that proof of

prior crimes is admissible if it is relevant. E.g., State v. Helmers, 753
                                    10

N.W.2d 565, 570 (Iowa 2008) (proof of prior bad acts to establish mens

rea is admissible); Commonwealth v. Roefaro, 691 A.2d 472, 474 (Pa.

Super. Ct. 1997) (“[P]rior acts may be admissible to prove intent and

course of conduct provided that their probative value is not outweighed

by their prejudicial impact.”).

      We have previously applied Blockburger beyond the traditional

elements test.   Schmitz, 610 N.W.2d at 516–17.       In Schmitz, we used

Blockburger to analyze a situation where three separately charged

offenses—which the defendant claimed were actually part of the same
offense—were violations of the statutory provision. Id. The defendant in

Schmitz faced three different theft charges involving control over stolen

property. Id. at 517. We said the key factor for us to evaluate, based on

the Blockburger guidance, was whether an act is “of a continuous nature,

such that it is a course of conduct which is punishable.” Id. at 516–17.

      The stalking statute is explicitly a course of conduct statute. Iowa

Code § 708.11(2)(a). Thus, our analysis turns on determining whether

the legislature intended for the “two or more occasions” language to

indicate that the actus reus explicitly requires two or more occasions for

each offense, or whether that language was adopted to establish that the

initial incident may have been merely an innocent encounter.        Since

stalking is a cumulative offense, “a mere overlap in proof between two

prosecutions does not establish a double jeopardy violation.”      United

States v. Felix, 503 U.S. 378, 386, 112 S. Ct. 1377, 1382, 118 L. Ed. 2d

25, 34 (1992).

      Thus, to make our determination, we evaluate the history of the

adoption of stalking laws generally, and in Iowa specifically.
      4. History of stalking laws.       Iowa’s stalking statute was first

enacted in 1992.     1992 Iowa Acts, ch. 1179 (codified at Iowa Code
                                    11

§ 708.11 (1993)).   Iowa was among the first states to enact a stalking

statute following increased national awareness of the need to protect

stalking victims. In the wake of five unrelated murders of women who

had been stalked in California, California passed the first state anti-

stalking legislation in 1990. Nat’l Inst. of Justice, U.S. Dep’t of Justice,

Project to Develop a Model Anti-Stalking Code for States 12 (Oct. 1993),

available at http://www.popcenter.org/problems/stalking/PDFs/NIJ_

Stalking_1993.pdf [hereafter Project to Develop a Model Anti-Stalking

Code]. Twenty-nine states, including Iowa, passed anti-stalking laws in
1992, followed by eighteen additional states and the District of Columbia

in 1993. Id. at 12 & nn.7–8. Iowa’s original statute, thus, preceded the

Model Anti-Stalking Code published by the Department of Justice in

1993.    See Iowa Code § 708.11 (1993); id. § 3.7 (making acts effective

July 1, 1992); Project to Develop a Model Anti-Stalking Code 12.

        Shortly after the Department of Justice published its Model Anti-

Stalking Code, the Iowa legislature revised its statute and adopted much

of the same language proposed by the model code into Iowa’s stalking

law.    See 1994 Iowa Acts ch. 1093 (codified at Iowa Code § 708.11

(1995)); Project to Develop a Model Anti-Stalking Code 43–44. Specifically,

the legislature adopted a slightly-modified definition of “course of

conduct” and a verbatim definition of “repeatedly” from the Model Anti-

Stalking Code, as well as adopting most of the recommendations in the

model code designed to protect stalking victims. Id. These definitions

were in effect in 2010 and 2011, the time of the alleged stalking incidents

here. See Iowa Code § 708.11 (2009).

        When we ascertain legislative intent, we consider the statute’s
purpose and the object it was intended to accomplish.        Dohlman, 725

N.W.2d at 431. Since the language of the statute was derived directly
                                    12

from the Model Anti-Stalking Code, we look to the comments from the

model code to aid us in determining legislative intent. This is not a novel

way for us to interpret legislative intent in situations where our

legislators have not given us clear guidance in the form of stated

legislative findings or purpose.    “In the absence of instructive Iowa

legislative history, we look to the comments and statements of purpose

contained in [uniform acts] to guide our interpretation of the comparable

provision of [an Iowa act.]” In re Marriage of Shanks, 758 N.W.2d 506,

512 (Iowa 2008); see, e.g., Mulhern v. Catholic Health Initiatives, 799
N.W.2d 104, 115 (Iowa 2011) (“Our court has relied on the drafter’s

comments to the Uniform Act in construing the Iowa act.”); State v.

Olsen, 618 N.W.2d 346, 348–49 (Iowa 2000) (using the Model Ongoing

Criminal Conduct Act to discern legislative intent for Iowa’s ongoing

criminal conduct statute); State v. Hogrefe, 557 N.W.2d 871, 877 (Iowa

1996) (using the Model Penal Code to interpret a state criminal statute

modeled after the code). The authors of the Project encouraged states to

develop a continuum of charges to assist law enforcement officials in

intervening at various stages and further encouraged felony classification

for more egregious forms of stalking.     Project to Develop a Model Anti-

Stalking Code 46.

      Stalkers may be obsessive, unpredictable, and potentially
      violent. They often commit a series of increasingly serious
      acts, which may become suddenly violent, and result in the
      victim’s injury or death. . . .

            ....

            . . . Policies governing the release of convicted stalkers
      on probation or parole should take into account that some
      stalkers may be more dangerous once they are released from
      prison, and that stalking behavior often escalates into
      violence as time passes and the stalker’s obsession with the
      victim grows.
                                    13

Id. at 49–50.

      The Model Anti-Stalking Code also recommended increased

penalties in situations where a stalker violates a protective order and

recommended “severe [sentencing] enhancements [be] available in

instances in which the defendant has committed a previous felony or

stalking offense against the same victim within a certain number of

years.” Project to Develop a Model Anti-Stalking Code 50. The authors of

the model code argued, “Appropriate and reasonable mechanisms for

managing the stalker should be incorporated into states’ sentencing
schemes to reduce the potential threat to the victim.”       Id.    The Iowa

legislature adopted both of these recommendations.                 Iowa Code

§708.11(3)(b)(1), (4). Additionally, our legislature enacted amendments to

the stalking statute to increase its ability to prevent the serious

consequences of escalating stalking behavior. See, e.g., id. § 708.11(3)

(amending the statute to increase penalties).

      The authors of the model code further warned,

      This country’s experience with domestic violence has
      produced indisputable evidence of the risks of ignoring the
      potential for violence in these cases or failing to intervene as
      early as possible to change the victimizer’s behavior toward
      his victim. . . .

            . . . Over time, the stalker’s behavior may have life
      threatening consequences for the victim.

           . . . Without notice or apparent reason, [the stalker’s]
      behavior may turn violent rapidly.

Project to Develop a Model Anti-Stalking Code 92.

      While urging a multidisciplinary approach to the problem of

stalking, the authors further noted,

            The uncertain motives and intentions of the suspected
      stalker and his obsessive and unpredictable behavior place
                                          14
      his victim at great risk of bodily injury or death, as well as
      psychological trauma.

            A principal objective of an anti-stalking strategy is to
      intervene in a suspected stalking before the stalking victim is
      injured or killed.

Project to Develop a Model Anti-Stalking Code 69.

      Stalking, in fact, is often a predicate to violence. Belinda Wiggins,

Note, Stalking Humans: Is There a Need for Federalization of Anti-Stalking

Laws in Order to Prevent Recidivism in Stalking?, 50 Syracuse L. Rev.

1067, 1073 (2000).

      Whereas two percent of stalking victims are killed, three to
      thirty-six percent of stalking victims become victims of
      assault and battery which include permanent disfigurement.
      Using current victimization rates, 28,000 stalking victims
      will be murdered, and over 500,000 stalking victims will be
      victims of assault and battery each year.

Id. Victims often become so traumatized that it affects multiple areas of

their lives. Id.

      The question we must answer, then, is whether the legislature

intended    to     give   a   convicted   stalker   one   “free”   opportunity   to

“purposefully engage[] in. . . .[any] conduct directed at a specific person

that would cause a reasonable person to fear bodily injury to, or the

death of, that specific person or a member of that specific person’s
immediate family.” See Iowa Code § 708.11(2)(a). This “one free stalk” is

not a reasonable interpretation of the legislature’s intent in enacting this

statute. See Project to Develop a Model Anti-Stalking Code 49–50.

      A.C. obtained an order of protection in Polk County on April 26,

2010, then obtained another one in Scott County on July 11, 2010. The

State alleged that Lindell violated either one or both of the protective

orders in six discrete incidents beginning on July 4, 2010. Lindell “made
contact” with A.C. on July 4, July 6, and July 9, 2010. The record does
                                     15

not speak as to the content of all of those contacts. However, one of the

contacts was in person. On July 11, 2010, Lindell was outside A.C.’s

residence at 2:00 a.m. and was apprehended a short distance away.

Prior to apprehension, Lindell flattened A.C.’s tires, damaged her

landscaping, and destroyed her birdhouse.            On August 23, 2010, he

made two separate “hang-up” phone calls to A.C., one from his own

cellphone and one from the cellphone of a friend.           On December 15,

2010, Lindell pled guilty to stalking, first offense, with protective order,

and to criminal mischief fourth degree, for crimes committed against A.C.
He received a deferred judgment and probation on his pleas.                    The

incident which precipitated the stalking, second offense, charge occurred

on January 25, 2011, five days after sentencing. Though Lindell did not

serve time in jail, his documented stalking behavior spanned over six

months, with some degree of escalation. Undoubtedly, it was the intent

of the legislature to prevent this type of long-term stalking that serves to

frighten the victim and threatens to escalate as the stalker’s obsession

grows.

      This interpretation is consistent with other states that have similar

stalking   laws.    Though    double      jeopardy    was   not   a   factor    in

Commonwealth v. Urrutia, the Pennsylvania Superior Court interpreted

the intent of the legislature in enacting a stalking statute similar to

Iowa’s.    653 A.2d 706, 708 (Pa. Super. Ct. 1995).         The Urrutia court

explained, “Pennsylvania enacted a stalking statute because of the

growing perceived need to provide increased protection against certain

types of predatory behavior. . . .     The legislative scheme . . . was an

attempt to interrupt as early as possible the escalating cycle of violence.”
Id. Pennsylvania’s Superior Court became even more outspoken when
                                    16

another defendant raised the double jeopardy argument in much the

same way Lindell has raised it in this case.

      In Roefaro, the defendant raised a double jeopardy concern after

his prior convictions were used to help establish a course of conduct for

his current conviction.   Roefaro, 691 A.2d at 474–75.      Subsequent to

these prior convictions, the defendant committed one additional action—

violating the no-contact order and leaving items on the victim’s sister’s

porch. Id. at 474. The Roefaro court held that these prior convictions

were admissible as evidence to “prove a course of conduct, of acting in a
similar manner.” Id. at 475. When Roefaro claimed this was a violation

of the prohibition against double jeopardy, the court stated,

      This is a ludicrous argument that misstates and contorts the
      law of double jeopardy and . . . leads to absurd results.

            ....

             . . . Taken to its natural, yet wholly illogical and
      absurd extent, this rationale would provide a person with
      one ‘free stalk’ following a prior stalking conviction.

Id. at 474–75.

      The Georgia Court of Appeals further articulated the purpose of

stalking statutes in Daker v. State, 548 S.E.2d 354 (Ga. Ct. App. 2001).

Though the case is factually distinct from the instant case because the

new charges involved more than one incident, the State did use the same

evidence in prosecutions in two counties to establish a course of

conduct. Id. at 355. Daker argued that the use of evidence in one trial

“used up” the evidence and made it inadmissible at the second trial. Id.

at 356. The court noted, however,

      As stalking is, by its very nature, a cumulative crime,
      Daker’s interpretation of double jeopardy would eviscerate
      the purpose of the stalking statute, leaving would-be stalkers
      free to begin stalking their victim with a clean slate following
                                    17
      a stalking conviction.    We cannot believe the legislature
      intended such result.

Id.

      The Wyoming Supreme Court agreed with the Georgia Court of

Appeals, quoting the above language verbatim in its opinion. Snow v.

State, 216 P.3d 505, 511 (Wyo. 2009). The Snow court continued,

      We conclude that the fact that the appellant was punished
      for violating a protection order did not prohibit his also being
      punished for felony stalking, despite the fact that the
      conduct upon which the protection order violation was based
      became part of the conduct upon which the felony stalking
      conviction was based.

Id. at 512.    As with Lindell, Snow had committed crimes against his

victim previous to being charged with stalking. If we were to hold that

evidence of previous convictions could not be used in a stalking charge,

we would essentially be giving a free pass from stalking charges to

anyone who chose to engage in stalking behavior that also violated other

laws, such as criminal mischief or felony property destruction, as long as

they had been convicted of those charges prior to the time the stalking

charge was brought.

      The Court of Criminal Appeals of Alabama also held that “in order

to show a course of conduct in a stalking case, the admission of a
defendant’s prior convictions for bad acts concerning the stalking victim

does not constitute a violation of a defendant’s protection against double

jeopardy.”    Jones v. State, 915 So. 2d 78, 83 (Ala. Crim. App. 2005)

(citing Mims v. State, 816 So. 2d 509, 515–16 (Ala. Crim. App. 2001)).

The Mims court also dealt with convictions for crimes other than stalking

specifically and found that “the testimony of the [defendant’s] prior bad

acts—even those for which he might have already been prosecuted—was
                                            18

properly admitted and was necessary to establish a course of conduct by

the [defendant].” 816 So. 2d at 516.

       Only Idaho appears to sympathize somewhat with Lindell’s

position, although State v. Stewart, 234 P.3d 707 (Idaho 2010), is not

precisely on point. In Stewart, the Idaho Supreme Court found that in

order to violate its statute forbidding a course of conduct “where the

actions constituting the offense are in violation of a no contact order,” all

of the actions must occur after the issuance of the protective order. Id.

at 714–15. The Stewart court made its decision based on its statutory
definition of felony stalking. Id. Though the two statutes are similar,2 all

of the instances of stalking here occurred after the issuance of two

protective orders, making this case factually distinguishable.
       The Ohio legislature has written Ohio’s stalking statute specifically
to define “pattern of conduct” as including “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.” Ohio Rev. Code

       2In   pertinent part, the Idaho Code provides:
       1. A person commits the crime of stalking in the first degree if the
       person violates section 18–7906, Idaho Code, and:
              (a) The actions constituting the offense are in violation of a
       temporary restraining order, protection order, no contact order or
       injunction, or any combination thereof; or . . . .
Idaho Code Ann. § 18–7905 (2004).
       Similarly, Iowa Code section 708.11(3) provides:
             b. A person who commits stalking in violation of this section
       commits a class “D” felony if any of the following apply:
               1. The person commits stalking while subject to restrictions
       contained in a criminal or civil protective order or injunction, or any
       other court order which prohibits contact between the person and the
       victim, or while subject to restrictions contained in a criminal or civil
       protective order or injunction or other court order which prohibits
       contact between the person and another person against whom the
       person has committed a public offense.
Iowa Code § 708.11(3)(b) (2009)
                                           19

Ann. § 2903.211(D)(1)(2010).         Though Iowa’s statute has not explicitly
made it clear that prior convictions could be considered in determining
whether there is a course of conduct, the Ohio Court of Appeals held that
the   legislature’s   intent    to   use    evidence    of   prior   convictions   to
demonstrate a pattern of conduct did not violate the Double Jeopardy
Clause of the Federal Constitution.             State v. Werfel, Nos. 2002–L–101,
2002–L–102, 2003 WL 22994981 *2–3 (Ohio Ct. App. Dec. 22, 2003)
(unpublished opinion).         A proper analysis should focus on legislative
intent. See Hunter, 459 U.S. at 368, 103 S. Ct. at 679, 74 L. Ed. 2d at
543 (“The question of what punishments are constitutionally permissible
is no different from the question of what punishment the Legislative
Branch intended to be imposed.”); State v. Reed, 618 N.W.2d 327, 336
(Iowa 2000); State v. Taylor, 596 N.W.2d 55, 57 (Iowa 1999); State v.
Hickman, 576 N.W.2d 364, 368 (Iowa 1998); McKettrick, 480 N.W.2d at
57.
      While Lindell attempts to distinguish these and other cases
factually, the salient point is that other states have consistently
interpreted similar statutes as existing to protect the victim and as
opposed to the concept of “one free stalk.” See, e.g., Daker, 548 S.E.2d
at 356–57; Roefaro, 691 A.2d at 474–75. But see, e.g., People v. Herron,
251 P.3d 1190, 1194 (Colo. App. 2010) (“[F]or defendant to be convicted
of stalking, he had to have followed, approached, contacted, or surveiled
[the victim] on at least two occasions.             To be convicted of a second
stalking offense, he would have had to so act, in a separate transaction
that is factually distinct from the first, on at least two more occasions.”).
Since double jeopardy analysis is driven exclusively by legislative intent,
we conclude that Lindell’s interpretation is not consistent with the intent
of legislatures adopting statutes in conformance with the Model Anti-
Stalking Code.
                                      20

      5. Increased prosecutorial discretion. We have previously rejected
an interpretation of a statute partially due to concern that the
interpretation would result in piecemeal prosecution as a means of
avoiding the need to comply with the speedy trial rule. Abrahamson, 746
N.W.2d at 277. If we were to adopt the interpretation Lindell urges, we
could be encouraging prosecutors to withhold an occurrence from the
initial prosecution to ensure that a victim would continue to be protected
from potentially escalating violence after the stalker’s slate has been
“wiped clean.” We could also be opening the door for someone involved
in a discrete series of events to be prosecuted for several courses of
conduct by defining each set of occurrences as an independent violation
of the statute. Thus, under this theory, Lindell’s original prosecution—
which included six independent occurrences—could have been for three
different violations of the stalking statute.
      Commentators       have     raised   concerns   regarding   allowing
prosecutors to fragment charges, particularly when those charges are
raised in successive trials. E.g., Anne Bowen Poulin, Double Jeopardy
Protection from Successive Prosecution: A Proposed Approach, 92 Geo. L.J.
1183, 1191–96 (2004).

             By fragmenting its case, the prosecution enhances the
      likelihood that the defendant will receive a higher sentence
      for three reasons. First, the prosecution can extend its
      period of control over the defendant by bringing successive
      prosecutions.     Second, the prosecution may employ
      successive related convictions to realize a higher cumulative
      sentence. Finally, the prosecution can sometimes obtain a
      guilty plea and secure a base sentence in the first
      prosecution, and then press for a higher sentence in a later
      prosecution.

Id. at 1194–95 (footnote omitted).
      One of the primary purposes of the Double Jeopardy Clause is to
create finality and prevent prosecutorial overreaching.     Burgess, 639
                                      21

N.W.2d at 568. It seems clear the legislature intended for a single course
of conduct to be prosecuted as such, and then to allow a convicted
stalker to avoid repeated prosecutions for that same course of conduct,
based on a prosecutor deciding to create multiple two-instance counts.
Under that interpretation, Lindell could have been prosecuted for four or
more initial counts. Treating each instance as part of the evidence to
determine a course of conduct instead of as the actus reus helps prevent
prosecutorial overreaching, while preserving the intent of the legislature
in protecting victims of stalking.
      C. The Rule of Lenity.         We construe criminal statutes strictly
and resolve doubts in favor of the accused. State v. Schultz, 604 N.W.2d
60, 62 (Iowa 1999).
      Further, “[w]e recognize the principle of construing a statute
reasonably in light of its plain purpose is sometimes in tension with the
rule of lenity, which directs that criminal statutes are to be strictly
construed in favor of the accused.” State v. Hearn, 797 N.W.2d 577, 585
(Iowa 2011). While the precise scope of the rule of lenity is difficult to
ascertain, we have recognized that the United States Supreme Court has,
in recent years, “embraced a relatively narrow view of the rule.” Id. at
586. Under what is frequently termed the “Moskal approach” (in light of
the leading case), “the question of whether a statute is sufficiently
‘ambiguous’ to invoke the rule of lenity is confronted only after the court
has exhausted all interpretive techniques, including consideration of
legislative history and other extrinsic evidence.”    Id. (citing Moskal v.
United States, 498 U.S. 103, 108, 111 S. Ct. 461, 465, 112 L. Ed. 2d
449, 458 (1990)).     We further noted that the United States Supreme
Court has established that the rule of lenity is to be applied exclusively
in cases of “grievous ambiguity.” Id. Essentially, we noted the United
States Supreme Court tends to view the rule of lenity as a “tie breaker in
                                        22

cases    where    there    is   no   basis   for   choosing   among   plausible
interpretations of a statute.” Id.
        Though we recognized in Hearn that our cases “tend to be
conclusory, less than nuanced, and arguably inconsistent” with regard to
the rule of lenity, we also acknowledged that part of the problem in
applying the rule is that “extrinsic legislative history in Iowa is generally
sparse.” Id. However, we recognize that where the legislative intent is
clear, “we see no appreciable risk that a defendant would be without fair
notice that [his] conduct . . . could give rise to additional criminal
liability.” Id.
        Here, where the legislative history is enhanced by the comments to
the model code on which Iowa’s statute is based, it is easier to determine
legislative intent than is typical in Iowa. Further, Lindell was subject to
two orders of protection. He was on notice his behavior could give rise to
additional criminal liability. The rule of lenity does not apply.
        IV. Disposition.
        We conclude the intent of the legislature in enacting Iowa Code
section 708.11 was clear and unambiguous.              The legislature did not
intend to allow a stalker to continue a pattern of stalking behavior and
be protected under the shield of double jeopardy.             Since the Double
Jeopardy Clause does not act as a restraint on legislative power, the
stalking statute, as applied in this case, does not violate the Double
Jeopardy Clause. Further, the statute gave fair notice to Lindell that his
conduct could potentially give rise to criminal liability. Thus, the rule of
lenity would not apply.
        REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
        All justices concur except Mansfield, J., Cady, C.J., and Appel, J.,
who dissent.
                                    23
                                                       #11–0770, State v. Lindell
MANSFIELD, Justice (dissenting).

      I respectfully dissent and would affirm the district court.

      The Double Jeopardy Clause of the United States Constitution

provides that no person shall “be subject for the same offence to be twice

put in jeopardy of life or limb.”   U.S. Const. amend. V.     In this case,

Christopher Lindell was originally charged with stalking A.C. based on a

number of incidents that occurred during the June–August 2010 time

period. “Stalking” involves a “course of conduct,” in other words, “two or

more occasions” of “maintaining a visual or physical proximity to a

person without legitimate purpose or . . . conveying oral or written

threats, threats implied by conduct, or a combination thereof, directed at

or toward a person” that “induce[] fear in the specific person of bodily

injury to, or the death of, the specific person.” See Iowa Code § 708.11

(2009).     On December 15, 2010, Lindell pled guilty to that charge of

stalking.

      Lindell subsequently put himself in proximity to A.C. again on

January 25, 2011. The State charged Lindell with stalking once more

and attempted to use the June–August 2010 incidents plus the single

January 25, 2011 incident as the basis for the new charge.
      I believe the district court correctly concluded that this would

amount to a double jeopardy violation.      Stalking requires a course of

conduct, but there was no second course of conduct—only a single new

incident of harassment. Ask this question: Assuming no earlier criminal

case, could the State have prosecuted Lindell after January 25, 2011, for

two separate counts of stalking—one consisting of the events from June

2010–August 2010 and the other consisting of the events from June
2010–August 2010 plus the January 25, 2011 incident?            I think the
                                    24

answer is clearly no. Accordingly, the Double Jeopardy Clause bars the

successive prosecutions here. See Brown v. Ohio, 432 U.S. 161, 166, 97

S. Ct. 2221, 2226, 53 L. Ed. 2d 187, 194–95 (1977).

      Brown seems to me the controlling precedent. In that case, the

defendant stole a car in East Cleveland on November 29. Id. at 162, 97

S. Ct. at 2223, 53 L. Ed. 2d at 192. He was caught driving that car in

Wickliffe on December 8. Id. After being apprehended in Wickliffe, the

defendant was charged with “joyriding” (taking or operating the car

without the owner’s consent) “on or about December 8,” and pled guilty.
Id. at 162, 97 S. Ct. at 2224, 53 L. Ed. 2d at 192. Later, he was returned

to East Cleveland. Id. There he was charged with and pled guilty to a

theft of the car “on or about the 29th day of November.” Id. at 163, 97 S.

Ct. at 2224, 53 L. Ed. 2d at 192.          The Supreme Court held the

defendant’s double jeopardy objection to the second prosecution should

have been sustained. The Court explained:

             After correctly holding that joyriding and auto theft are
      the same offense under the Double Jeopardy Clause, the
      Ohio Court of Appeals nevertheless concluded that Nathaniel
      Brown could be convicted of both crimes because the
      charges against him focused on different parts of his 9-day
      joyride. We hold a different view. The Double Jeopardy
      Clause is not such a fragile guarantee that prosecutors can
      avoid its limitations by the simple expedient of dividing a
      single crime into a series of temporal or spatial units. The
      applicable Ohio statutes, as written and as construed in this
      case, make the theft and operation of a single car a single
      offense.     Although the Wickliffe and East Cleveland
      authorities may have had different perspectives on Brown’s
      offense, it was still only one offense under Ohio law.
      Accordingly, the specification of different dates in the two
      charges on which Brown was convicted cannot alter the fact
      that he was placed twice in jeopardy for the same offense in
      violation of the Fifth and Fourteenth Amendments.

Id. at 169–70, 97 S. Ct. at 2227, 53 L. Ed. 2d at 196–97 (citations
omitted).   In a footnote, the Court acknowledged, “We would have a
                                   25

different case if the Ohio Legislature had provided that joyriding is a

separate offense for each day in which a motor vehicle is operated

without the owner’s consent.” Id. at 170 n.8, 97 S. Ct. at 2227 n.8, 53 L.

Ed. 2d at 196 n.8.

      I think we have the same situation here. Iowa requires a course of

conduct for a stalking conviction, consisting of two or more incidents.

But just as there was only one joyride/theft in Brown, regardless of the

fact that the two prosecutions focused on different time periods, there

was only one course of conduct here.        The incident that triggered
Lindell’s second prosecution did not amount to a course of conduct in

itself and had to be tacked onto the earlier course of conduct for which

Lindell had already been prosecuted and pled guilty.

      The out-of-state stalking cases relied on by the majority are

generally distinguishable because the second prosecution involved an

entirely separate course of conduct that had not been the subject of a

prior criminal prosecution. Those courts rightly concluded that merely

admitting evidence of the previously prosecuted conduct did not violate

double jeopardy principles, so long as there was sufficient unprosecuted

conduct to support the new charges. See Mims v. State, 816 So. 2d 509,

516 (Ala. Crim. App. 2001) (concluding that “no evidence was offered to

prove any specific prior prosecution or conviction” and “the prosecution

presented far more evidence of a course of conduct establishing the

appellant’s following and harassing White than the evidence the

appellant complains of here”); Daker v. State, 548 S.E.2d 354, 357 (Ga.

Ct. App. 2001) (“Daker was prosecuted for altogether different incidents

in Cobb County. The fact that evidence of the Fulton County incidents
was admitted during the Cobb County trial does not change the result.”);

Commonwealth v. Roefaro, 691 A.2d 472, 474–75 (Pa. Super. Ct. 1997)
                                           26

(“[A]ppellant was twice tried and convicted for actions arising out of

separate and distinct factual predicates.”); see also Snow v. State, 216

P.3d 505, 511 (Wyo. 2009) (finding no double jeopardy bar to

simultaneous prosecution and convictions of the defendant for both

violating a protection order and stalking, because the former was not a

lesser-included offense of the latter). This case is different because the

new conduct is sufficient only when combined with the prior conduct for

which Lindell had already been prosecuted.3

       As noted by my colleagues, an Idaho case seems to indicate that
the circumstances here would amount to a double jeopardy violation.

See State v. Stewart, 234 P.3d 707, 713 (Idaho 2010). But it is not a

loner. In State v. Fox, the North Carolina Court of Appeals confronted

the situation where the defendant had previously been convicted of

stalking for a February–March 2009 series of incidents. See 721 S.E.2d

673, 674 (N.C. Ct. App. 2011).               He then was prosecuted again for

stalking based on the incidents from February 2009–March 2009 plus

subsequent events.          Id. at 676–77.        The court vacated the second

conviction on double jeopardy grounds. Id. at 678. Similarly, in People

       3United  States v. Felix, also cited by the majority, is distinguishable on the same
grounds. See 503 U.S. 378, 112 S. Ct. 1377, 118 L. Ed. 2d 25 (1992). In that case, the
defendant engaged in separate methamphetamine manufacturing activities in
Oklahoma and later in Missouri. Id. at 380, 112 S. Ct. at 1379–80, 118 L. Ed. 2d at 30.
When the defendant was prosecuted for the Missouri conduct, “[i]n order to establish
Felix’s criminal intent with respect to the items delivered in Missouri, the Government
introduced evidence that Felix had manufactured methamphetamine in Oklahoma
earlier in 1987.” Id. at 381, 112 S. Ct. at 1380, 118 L. Ed. 2d at 31. The government
subsequently prosecuted the defendant for the Oklahoma activity as well. Id. at 382,
112 S. Ct. at 1380, 118 L. Ed. 2d at 31. The United States Supreme Court found no
double jeopardy violation arising out of the Oklahoma prosecution because “[a]t the
Missouri trial, the Government did not in any way prosecute Felix for the Oklahoma
methamphetamine transactions; it simply introduced those transactions as prior acts
evidence under Rule 404(b).” Id. at 387, 112 S. Ct. at 1383, 118 L. Ed. 2d at 34. Here,
by contrast, the June 2010–August 2010 conduct was a necessary component of the
second stalking charge; it was not merely going to be evidence of the defendant’s intent
under Iowa Rule of Evidence 5.404(b).
                                    27

v. Herron, 251 P.3d 1190 (Colo. App. 2010), the Colorado Court of

Appeals said:

      Thus, for defendant to be convicted of stalking, he had to
      have followed, approached, contacted, or surveiled Ms. R on
      at least two occasions. To be convicted of a second stalking
      offense, he would have had to so act, in a separate
      transaction that is factually distinct from the first, on at
      least two more occasions.

Herron, 251 P.3d at 1194; see also Vazquez v. State, 953 So. 2d 569, 571

(Fla. Dist. Ct. App. 2007) (vacating a second stalking conviction on

double jeopardy grounds where “[t]he charging document for the simple
stalking charge on which appellant was previously convicted alleges that

on November 18 and 19, 2002, appellant ‘repeatedly telephone [sic],

harassed, and threatened Ms. Atencio’ ” and the second information

alleged that “ ‘between 11–16–02 and 12–4–02’ appellant ‘did knowingly,

willfully, maliciously, and repeatedly follow or harass’ ” Ms. Atencio);

Eichelberger v. State, 949 So. 2d 358, 361 (Fla. Dist. Ct. App. 2007)

(finding a second stalking prosecution violated the Double Jeopardy

Clause where the state “did not allege or establish the end of one course

of conduct and the start of a new course of conduct”); Peckinpaugh v.

State, 743 N.E.2d 1238, 1241 (Ind. Ct. App. 2001) (“[I]n Indiana, a

defendant may be convicted of separate counts of stalking the same

victim if the respective series of incidents upon which the charges are

based can be divided into distinct and separate series.”); People v. White,

536 N.W.2d 876, 881–82 (Mich. Ct. App. 1995) (finding no double

jeopardy violation where the defendant “pleaded guilty of two separate

episodes of stalking,” each involving two or more acts); State v. Vigil, 65

S.W.3d 26, 35–36 (Tenn. Crim. App. 2001) (barring a second stalking
prosecution on double jeopardy grounds and noting that “[f]rom the

record before us, there is no indication that an event occurred before the
                                    28

February 18, 1997 incident to break the continuous course of conduct

that constituted the stalking offense as charged in Case No. 23386,

which covered the events from February 1996 to January 1997”).

      My colleagues discuss State v. Schmitz, which I agree is a relevant

precedent. See 610 N.W.2d 514 (Iowa 2000). However, contrary to my

colleagues, I believe Schmitz supports a finding of double jeopardy here.

In Schmitz, the defendant was charged with three counts of theft. Id. at

515. Each count was based on the defendant’s possession of a separate

item (an aquarium, a jacket, and four wheels/tires) that had been stolen
from a different location at a different time. Id. The thefts had occurred

seven to ten months apart. Id. In finding no double jeopardy violation,

we emphasized that theft is not a “continuing offense” based on a “course

of conduct,” and that each theft charge against Schmitz required

different “proof of facts.” Id. at 517–18. Those factors cut the other way

here. Stalking is a course of conduct offense, and to prove stalking in

the present case the State must use conduct that it already used to

convict Lindell of stalking.

      If the legislature wanted to relieve the State from the burden of

having to prove a second course of conduct in order to obtain a second

stalking conviction, it could have defined the offense in the same way

Ohio has done, as including a prior stalking conviction, plus just one

new incident of harassment. See Ohio Rev. Code Ann. § 2903.211(D)(1)

(West, Westlaw through 2012 laws and statewide issues of the 129th GA

(2011–2012)). Our general assembly did not do this. We must consider

“[w]hat [the legislature] has made the allowable unit of prosecution.” Bell

v. United States, 349 U.S. 81, 81, 75 S. Ct. 620, 621, 99 L. Ed. 905, 909
(1955) (citation and internal quotation marks omitted).
                                   29

     In sum, the Double Jeopardy Clause prohibits the State from using

the same conduct as all or part of the basis for two convictions of the

same offense.   By way of analogy, suppose an individual works at an

office where cash is kept in a locked drawer. She opens the drawer and

steals $750 on May 1, and then opens the drawer and steals $500 on

May 2. By the majority’s logic, she could be convicted of third-degree

theft (property exceeding $500) for the May 1 theft and then later be

convicted of second-degree theft (property exceeding $1000) for the May

1/May 2 combined theft. See Iowa Code §§ 714.2(2)–(3), .3. Similar to
the foregoing scenario, the majority opinion results in Lindell’s being

“twice put in jeopardy” for his actions from June 2010 through August

2010. See U.S. Const. amend. V. I believe this violates the Fifth and

Fourteenth Amendments to the United States Constitution.

     For the foregoing reasons, I respectfully dissent.

     Cady, C.J., and Appel, J., join this opinion.
