                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 42486

STATE OF IDAHO,                                     )
                                                    )
                                                             Boise, February 2015 Term
     Plaintiff-Respondent,                          )
                                                    )
                                                             2015 Opinion No. 39
v.                                                  )
                                                    )
                                                             Filed: April 8, 2015
DESIREE B. ELIASEN,                                 )
                                                    )
                                                             Stephen W. Kenyon, Clerk
     Defendant-Appellant.                           )
                                                    )

       Appeal from the District Court of the Sixth Judicial District, State of Idaho,
       Bannock County. Hon. Rick Carnaroli, Magistrate Judge. Hon. Stephen S. Dunn,
       District Judge.

       District court decision upholding second degree stalking conviction is affirmed.

       Nevin, Benjamin, McKay & Bartlett, LLP, Boise, for appellant.            Dennis A.
       Benjamin argued.

       Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent.
       Jessica Lorello, Deputy Attorney General, argued.

                          __________________________________

J. JONES, Justice
        This case comes to the Idaho Supreme Court from a petition for review of a Court of
Appeals decision. This case arose after a jury found Desiree Eliasen guilty of misdemeanor
stalking. Following the jury’s verdict, Eliasen moved the magistrate court for a judgment of
acquittal, which the magistrate court denied. Eliasen subsequently appealed to the Bannock
County district court, asserting the State failed to prove the misdemeanor stalking elements
beyond a reasonable doubt. Specifically, Eliasen argued the State failed to prove she engaged in
“repeated acts” constituting a “course of conduct” under the statute. The district court upheld the
jury’s verdict and Eliasen appealed.
       The Idaho Court of Appeals affirmed, and Eliasen then petitioned this Court for review.
On review, Eliasen argues that there was insufficient evidence to show that she was guilty of
misdemeanor stalking because she did not engage in separate instances of stalking. Instead,

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Eliasen asserts that her conduct was one continuous act and therefore insufficient to satisfy the
“course of conduct” element under the misdemeanor stalking statute. We affirm the district
court’s decision upholding the jury’s verdict.
                   I.    FACTUAL AND PROCEDURAL BACKGROUND
       On October 7, 2008, Eliasen was charged with one count of second degree stalking under
Idaho Code section 18-7906. The victim was a Pocatello police officer’s wife. On Friday,
September 26, 2008, the victim left her home with her three-year-old daughter to run errands,
including dropping off a donation at the Pocatello Goodwill store and stopping at Fred Meyer.
As the victim pulled out of her driveway, she noticed a brown Chevy Blazer stopped in the
middle of the road, pointing east. The victim stopped in the driveway momentarily to wait for the
Blazer to proceed down the street. When the Blazer did not move, the victim backed out of her
driveway and headed west.
       The victim then noticed that the Blazer made a U-turn and started to head west, back
towards the victim’s home. Once the victim realized that the Blazer went past her home without
stopping, the victim stopped paying attention to the Blazer’s location. The victim traveled
several blocks and made four turns before reaching the Goodwill store. As the victim pulled into
the Goodwill parking lot, she noticed the Blazer turn in behind her. The victim parked, exited the
vehicle, and carried her donations to the door where a Goodwill employee took the donations
from her. During this time, the Blazer parked in the Goodwill parking lot but no one exited the
vehicle.
       The victim got back into her vehicle and proceeded to exit the Goodwill parking lot,
stopping at a traffic light. At that point, the victim became concerned because she noticed that
the Blazer was directly behind her at the light. When the light changed, the victim turned and the
Blazer followed her. Instead of proceeding to Fred Meyer as intended, the victim made a right
hand turn and the Blazer followed. At this time the victim became frightened and attempted to
call her husband. The first call was unsuccessful, but the victim successfully contacted her
husband on the second try and they decided she should meet him at the police station. The victim
also communicated the Blazer’s license plate number to her husband, who discovered that the
vehicle was registered to Eliasen. The victim made three more turns and the Blazer followed her
through each turn. It was not until the victim turned in front of the police station that the Blazer
ceased following her.

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       Eliasen was subsequently charged with second degree stalking. On December 12, 2008,
Eliasen moved to dismiss, arguing there was insufficient evidence to support the stalking charge
because she only engaged in a single incident of following the victim that did not rise to a
“course of conduct” as required under Idaho Code section 18-7906. The magistrate court denied
the motion, concluding that the conduct in the police report could be interpreted as two separate
events constituting a course of conduct. Eliasen filed a renewed motion to dismiss, which the
magistrate court also denied.
       The case proceeded to a jury trial on April 10, 2009. After the State rested its case,
Eliasen moved for a judgment of acquittal based on the State’s presentation of evidence. Eliasen
argued that the State failed to establish multiple events to make a prima facie case for stalking.
The magistrate court denied the motion, determining that a prima facie case had been made, and
that the jury would need to decide whether there were multiple acts to constitute a course of
conduct. The magistrate court noted: “I believe the definition of course of conduct that’s
underneath the [stalking] statute can be as little as two acts until the Supreme Court or the Court
of Appeals straightens me out on that view, that’s the view of this Court.”
       The jury convicted Eliasen of second degree stalking and on April 28, 2008, the
magistrate court imposed a jail sentence and a fine, suspended a portion of the jail time, and
placed Eliasen on two years of probation.
       Eliasen appealed to the district court. At issue on appeal was whether the State presented
sufficient evidence at trial to prove every element of stalking beyond a reasonable doubt. The
district court framed the issue as an appeal of Eliasen’s I.C.R. 29 motion for acquittal. On August
6, 2013, the district court concluded that there was substantial and competent evidence to support
the guilty verdict. The district court reasoned that under the terms of the statute, a minimum of
two prohibited contacts must occur for the conduct to be considered stalking. At issue then, was
the factual question of whether there was more than one instance of contact in this case.
       The district court concluded “that a change in the nature of the conduct that a defendant
in a stalking case engages in creates a sufficient break in the events to demonstrate a course of
conduct through repeated acts of nonconsensual contact with the victim.” Based on that
reasoning, the district court found that there were four instances of prohibited conduct: (1)
appearing at the victim’s residence; (2) following the victim to Goodwill; (3) conducting
surveillance at Goodwill; and (4) following the victim nearly the entire way to the police station.

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Consequently, the district court concluded substantial and competent evidence supported the
verdict and therefore affirmed Eliasen’s conviction.
          Eliasen appealed and the Court of Appeals affirmed. The Court of Appeals concluded
that substantial and competent evidence supported the conclusion that Eliasen’s actions
constituted a course of conduct under the statute. The Court of Appeals reasoned that Eliasen’s
conduct constituted at least two instances of nonconsensual contact: (1) appearing at the victim’s
residence; and (2) conducting a U-turn and following the victim. Eliasen petitioned this Court for
review.
                                        II.     ISSUE ON APPEAL
1. Whether substantial and competent evidence supports the jury’s verdict.
                                 III.         STANDARD OF REVIEW
          On a petition for review, this Court gives serious consideration to the Court of Appeals’
views, but directly reviews the lower court’s decision. State v. Purdum, 147 Idaho 206, 207, 207
P.3d 182, 183 (2009). When a defendant appeals a decision the district court made while acting
in its intermediate appellate capacity, this Court directly reviews the district court’s decision.
State v. Loomis, 146 Idaho 700, 702, 201 P.3d 1277, 1279 (2009).
          Under I.C.R. 29, the district court may set aside a jury verdict and enter judgment of
acquittal “if the evidence is insufficient to sustain a conviction.” That is because the Fourteenth
Amendment of the United States Constitution guarantees the right to due process, and the U.S.
Supreme Court has held that as a part of that due process, “no person shall be made to suffer the
onus of a criminal conviction except upon sufficient proof—defined as evidence necessary to
convince a trier of fact beyond a reasonable doubt of the existence of every element of the
offense.” State v. Goggin, 157 Idaho 1, 5, 333 P.3d 112, 116 (2014). However, “[a]ppellate
review of the sufficiency of the evidence is limited in scope.” Id.
          The relevant inquiry is not whether this Court would find the defendant guilty beyond a
reasonable doubt, but whether “after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” State v. Adamcik, 152 Idaho 445, 460, 272 P.3d 417, 432 (2012)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)) (emphasis in original).
          Thus, “the only inquiry for this Court is whether there is substantial evidence upon which
a reasonable jury could have found that the State met its burden of proving the essential


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elements” of the charged crimes “beyond a reasonable doubt.” Id. In other words, this Court
reviews a trial court’s ruling on a motion for acquittal for substantial evidence. Goggin, 157
Idaho at 4, 333 P.3d at 115. Evidence is substantial if a reasonable trier of fact would accept it
and rely upon it in determining whether a disputed point of fact has been proven. State v.
Severson, 147 Idaho 694, 712, 215 P.3d 414, 432 (2009). In conducting its analysis, “the Court is
required to consider the evidence in the light most favorable to the State,” but will not substitute
its “judgment for that of the jury on issues of witness credibility, weight of the evidence, or
reasonable inferences to be drawn from the evidence.” Adamcik, 152 Idaho at 460, 272 P.3d at
432. The Court exercises free review over questions of law. Goggin, 157 Idaho at 4, 333 P.3d at
115.
                                        IV.    ANALYSIS
       Eliasen asks this Court to vacate her second degree stalking conviction and remand with
instructions to enter a judgment of acquittal because there was insufficient evidence at trial to
support the jury’s verdict.
       Idaho Code section 18-7906 defines the crime of stalking in the second degree, or
misdemeanor stalking, as “knowingly and maliciously . . . Engag[ing] in a course of conduct that
seriously alarms, annoys or harasses the victim and is such as would cause a reasonable person
substantial emotional distress. . . .” I.C. § 18-7906(1)(a) (emphasis added). The statute defines
“course of conduct” as “repeated acts of nonconsensual contact involving the victim or a family
or household member of the victim. . . .” I.C. § 18-7906(2)(a). The statute then defines
“nonconsensual contact:”
       (c) “Nonconsensual contact” means any contact with the victim that is initiated or
       continued without the victim’s consent, that is beyond the scope of the consent
       provided by the victim, or that is in disregard of the victim’s expressed desire that
       the contact be avoided or discontinued. “Nonconsensual contact” includes, but is
       not limited to:
               (i) Following the victim or maintaining surveillance, including by
               electronic means, on the victim;
               (ii) Contacting the victim in a public place or on private property;
               (iii) Appearing at the workplace or residence of the victim;
               (iv) Entering onto or remaining on property owned, leased or occupied by
               the victim;




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               (v) Contacting the victim by telephone or causing the victim’s telephone
               to ring repeatedly or continuously regardless of whether a conversation
               ensues;
               (vi) Sending mail or electronic communications to the victim; or
               (vii) Placing an object on, or delivering an object to, property owned,
               leased or occupied by the victim.
I.C § 18-7906(c). The parties agree that “repeated acts” requires more than one instance of
contact. Thus, we must determine whether substantial and competent evidence supports the
conclusion that Eliasen’s conduct amounted to more than one instance of “nonconsensual
contact.”
       The district court held that substantial, competent evidence supported the conclusion that
Eliasen’s actions constituted a course of conduct as defined under the statute. In so holding, the
district court found that Idaho Code section 18-7906 was unambiguous and that “‘repeated acts’
can only be interpreted as meaning that one act is not enough.” Instead, the district court
reasoned, the statute’s plain language provides that a “course of conduct” requires more than one
instance of nonconsensual conduct. Applying the statute’s plain language, the district court
concluded that there was sufficient evidence for the jury to find that Eliasen engaged in more
than one type of nonconsensual conduct. The district court reasoned that a change in the nature
of the conduct “creates a sufficient break in the events to demonstrate a course of conduct
through repeated acts of nonconsensual contact with the victim.” Consequently, the district court
identified four instances of prohibited conduct Eliasen engaged in: (1) appearing at the victim’s
residence; (2) following the victim to Goodwill; (3) conducting surveillance on the victim while
the victim conducted her business at Goodwill; and (4) following the victim from the Goodwill
store nearly the entire way to the police station. The district court concluded that these facts were
substantial and competent evidence to support the conclusion that Eliasen engaged in repeated
acts of nonconsensual contact with the victim as required under the statute.
       Eliasen argues the district court’s conclusion is contrary to the statute’s plain language
and would lead to absurd results. Eliasen argues that under the district court’s interpretation of
the statute, a witness’ behavior in changing directions or pausing momentarily determines
criminal liability, which is an absurd result. Eliasen contends that the natural reading of the
statute is that there can only be a new act of nonconsensual contact when there is a break in the
original nonconsensual contact, and that a change in the nature of the contact is irrelevant.


                                                 6
Eliasen argues that the evidence was not legally sufficient to support the jury’s conclusion that
she engaged in “repeated acts” constituting a “course of conduct” as required under Idaho Code
section 19-7906. Rather, Eliasen asserts that she only engaged in a single occurrence of non-
consensual contact between herself and the victim by following the victim to Goodwill, pausing
briefly, and continuing to follow the victim out of the Goodwill parking lot, all without breaking
off the nonconsensual contact. Thus, Eliasen argues this one continuous instance of
nonconsensual contact cannot constitute a “course of conduct” as defined under the statute.
          Viewing the evidence in the light most favorable to the State, we conclude there is
substantial evidence in the record to support Eliasen’s conviction. The interpretation of a statute
“must begin with the literal words of the statute; those words must be given their plain, usual,
and ordinary meaning; and the statute must be construed as a whole. If the statute is not
ambiguous, this Court does not construe it, but simply follows the law as written.” Verska v.
Saint Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 893, 265 P.3d 502, 506 (2011) (quoting State v.
Schwartz, 139 Idaho 360, 362, 79 P.3d 719, 721 (2003)) (citations omitted). “We have
consistently held that where statutory language is unambiguous, legislative history and other
extrinsic evidence should not be consulted for the purpose of altering the clearly expressed intent
of the legislature.” City of Sun Valley v. Sun Valley Co., 123 Idaho 665, 667, 851 P.2d 961, 963
(1993).
          The statute’s plain language identifies a non-exclusive list of conduct that constitutes
“nonconsensual contact.” That list includes following or maintaining surveillance of the victim,
and appearing at the victim’s residence. In this case, evidence from the record shows that Eliasen
sat outside the victim’s home, waited for the victim to pull out of her driveway, made a U-turn
and followed the victim to the Goodwill store, and then continued to follow the victim for
several blocks before turning off just before the police station. Based on this evidence, Eliasen
committed at least two nonconsensual acts identified in the statute: first by appearing at the
victim’s residence, and second by following the victim to the Goodwill store. We hold this is
substantial evidence for the jury to conclude that Eliasen engaged in repeated acts constituting a
course of conduct under Idaho Code section 19-7906. Accordingly, the district court did not err
in affirming the jury’s verdict.
                                       V.    CONCLUSION



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           For the foregoing reasons, we affirm the district court’s decision upholding Eliasen’s
second degree stalking conviction.
           Justices EISMANN and HORTON CONCUR.


BURDICK, Chief Justice, dissenting.
           I respectfully dissent from the majority because I believe that Eliasen’s actions amounted
to a single course of conduct, rather than repeated acts of nonconsensual contact. I agree with the
majority in that the statute identifies examples of conduct that may constitute stalking. However,
I part ways with the majority as to the extent of the temporal break that is required before the
conduct identified in the statute can amount to “repeated acts.” Under the majority’s analysis, an
individual can be convicted of second degree stalking—an offense that carries with it a sentence
of up to one year in jail or a $1,000 fine, or both—any time that individual parks outside the
victim’s house and immediately begins to follow the victim once the victim leaves the house.
Therefore, even the most innocent conduct could amount to stalking under the majority’s
interpretation. I believe it is more appropriate to require two or more isolated instances of
conduct with an appreciable and identifiable temporal break in between them before an
individual’s course of conduct can constitute “repeated acts of nonconsensual contact” under the
statute.
           Requiring a distinct and identifiable break in the defendant’s conduct would provide
juries with a workable rule that would be easier to apply than a rule requiring juries to dissect the
nature of the defendant’s conduct to determine whether it amounted to repeated acts.
Accordingly, requiring isolated incidents with a temporal break in between would lead to more
consistent and predictable results. Applying such a rule to these facts, had Eliasen appeared on a
subsequent occasion and followed the victim again, even if it was a brief period after the first
incident, it would have created an appreciable temporal break in her conduct sufficient to
establish “repeated acts” under the statute.
           However, that was not the case here. Instead, Eliasen’s conduct is better viewed as one
continuous and indivisible act of following the victim rather than two or more isolated incidents
that had an appreciable and identifiable temporal break between them. Indeed, Eliasen parked
outside the victim’s house and immediately began following the victim after she pulled out of
her driveway. At no point was there an appreciable temporal break in her contact with the victim.

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Therefore, in my opinion, Eliasen’s conduct is better viewed as a single instance of
nonconsensual contact rather than repeated acts of nonconsensual contact.
       Because I believe that “repeated acts” requires two or more isolated incidents of
nonconsensual contact with an appreciable temporal break in between, I cannot join in the
majority’s analysis.


       Justice W. JONES CONCURS.




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