                  IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 41428

STATE OF IDAHO,                                  )     2014 Opinion No. 57
                                                 )
       Plaintiff-Respondent,                     )     Filed: July 24, 2014
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
DESIREE B. ELIASEN,                              )
                                                 )
       Defendant-Appellant.                      )
                                                 )

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

       Intermediate appellate decision of the district court affirming magistrate’s
       judgment of conviction for second degree stalking, affirmed.

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

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Desiree B. Eliasen appeals from the decision of the district court in its appellate capacity
affirming the magistrate’s judgment entered upon a jury verdict finding her guilty of second
degree stalking, Idaho Code § 18-7906. She claims there was insufficient evidence to support
her conviction.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Eliasen was charged with one count of second degree stalking. The victim is the wife of
a police officer and they have two young children. As the victim and her three-year-old daughter
left their residence to run errands, she noticed a brown Chevy Blazer stopped on the road across
from her home. After waiting for the Blazer to proceed down the street, which it ultimately did
not, the victim backed out of her driveway. The Blazer then made a U-turn and followed her to
the Goodwill store, which entailed traveling several blocks and making four turns. The victim

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exited her vehicle at the Goodwill store and carried her donations to the door.         She then
proceeded to exit the parking lot and when she stopped at a traffic light, she became concerned
the Blazer was still following her. When the light changed, the victim turned and the Blazer
followed her. Instead of proceeding to Fred Meyer, she made another turn and the Blazer
continued to follow her.
       The victim became frightened and tried to reach her husband.           Her first call was
unsuccessful, but she was able to reach him on her second phone call and they decided she
should go to the police station to meet him. It was not until the victim turned in front of the
police station that the Blazer stopped following her and continued to go straight. The victim
reported the license plate number.
       After being charged with second degree stalking, Eliasen filed a motion to dismiss,
arguing she had only followed the victim on one occasion and that the statute requires a “course
of conduct” as an essential element. The magistrate court denied the motion, holding that the
police report could be interpreted as demonstrating two separate events, distinguished by the
victim stopping at the Goodwill store. Thereafter, the State filed a complaint and Eliasen filed a
renewed motion to dismiss, which was also denied.
       At trial, Eliasen unsuccessfully moved for a judgment of acquittal. A jury convicted
Eliasen of second degree stalking. Eliasen appealed to the district court. The only issue she
pursued on appeal was whether the State presented sufficient evidence to prove the material
elements of the offense beyond a reasonable doubt. The district court found the magistrate’s
ruling was supported by substantial and competent evidence in the record. The district court
upheld the jury verdict and affirmed the judgment of the magistrate.
       Eliasen timely appeals to this Court arguing there is insufficient evidence to support her
conviction.
                                               II.
                                          ANALYSIS
       When reviewing the decision of a district court sitting in its appellate capacity, our
standard of review is the same as expressed by the Idaho Supreme Court:
       The Supreme Court reviews the trial court (magistrate) record to determine
       whether there is substantial and competent evidence to support the magistrate’s
       findings of fact and whether the magistrate’s conclusions of law follow from
       those findings. If those findings are so supported and the conclusions follow


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        therefrom and if the district court affirmed the magistrate’s decision, we affirm
        the district court’s decision as a matter of procedure.

Pelayo v. Pelayo, 154 Idaho 855, 858-59, 303 P.3d 214, 217-18 (2013) (quoting Bailey v. Bailey,
153 Idaho 526, 529, 284 P.3d 970, 973 (2012)). Thus, the appellate courts do not review the
decision of the magistrate court. Bailey, 153 Idaho at 529, 284 P.3d at 973. Rather, we are
procedurally bound to affirm or reverse the decisions of the district court. State v. Korn, 148
Idaho 413, 415 n.1, 224 P.3d 480, 482 n.1 (2009).
        Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt
will not be overturned on appeal where there is substantial evidence upon which a reasonable
trier of fact could have found that the prosecution sustained its burden of proving the essential
elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383, 385, 957
P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct.
App. 1991). We will not substitute our view for that of the trier of fact as to the credibility of the
witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn
from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v. Decker, 108 Idaho 683,
684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light
most favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957 P.2d at 1101; Knutson,
121 Idaho at 104, 822 P.2d at 1001.
        Under the applicable statute, a person “commits the crime of stalking in the second
degree if the person knowingly and maliciously . . . [e]ngages 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).   Eliasen claims there is insufficient
evidence to support her conviction. Specifically, she argues that the district court erred in
finding there was sufficient evidence to conclude her behavior constituted a “course of conduct”
as required by the statute.        The statute defines “course of conduct” as “repeated acts of
nonconsensual contact involving the victim or a family or household member of the victim,
provided however, that constitutionally protected activity is not included within the meaning of
this definition” I.C. § 18-7906(2)(a). The statute further provides that “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;

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               (iii) Appearing at the workplace or residence of the victim;
               (iv) Entering onto or remaining on property owned, leased or occupied by
       the victim;
               (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(2)(c). Eliasen argues the district court’s ruling is erroneous because while the
type of prohibited contact may have changed, there was only a single occurrence of
nonconsensual contact between her and the victim because there was no break in the contact.
Therefore, she claims the evidence was insufficient to show “repeated acts of nonconsensual
contact.” The State argues the district court was correct because the statute does not require a
break in contact, only that there be “repeated acts of nonconsensual contact.”
         In finding that there were “repeated acts,” the district court reasoned that Eliasen
engaged in more than one of the types of prohibited contact: conducting surveillance of the
victim, following the victim, and appearing at her residence. It found there were actually four
specific instances of prohibited conduct: (1) appearing at the victim’s residence; (2) following
her to Goodwill; (3) conducting surveillance on the victim while she was at Goodwill; and
(4) following her from Goodwill to the police station.
       Eliasen argues the district court’s analysis converting a change in the nature of the
contact into separate instances of contact is contrary to the plain language of the statute. Eliasen
asserts there cannot be “repeated acts of nonconsensual contact” because there can only be a new
act if there is a break in the original contact. She cites State v. Anderson, 145 Idaho 99, 175 P.3d
788 (2008), for the position that “[t]he rule of lenity states that criminal statutes must be strictly
construed in favor of defendants.” Id. at 103, 175 P.3d at 792. However, where the language of
a statute is plain and unambiguous, this Court must give effect to the statute as written, without
engaging in statutory construction. State v. Reyes, 139 Idaho 502, 505, 80 P.3d 1103, 1106 (Ct.
App. 2003).
       There is substantial and competent evidence in the record to support the conclusion that
Eliasen’s actions constituted a course of conduct, and that in this case, there are “repeated acts of
nonconsensual contact.” We need not determine whether Eliasen’s conduct constituted more
than two instances of nonconsensual contact. Eliasen committed a nonconsensual contact by


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appearing at the victim’s residence and another when she conducted a U-turn and followed the
victim. Therefore, the evidence is sufficient to support her conviction.
                                               III.
                                         CONCLUSION
       There is sufficient evidence to support Eliasen’s conviction for second degree stalking.
Therefore, we affirm the district court’s appellate decision affirming the magistrate’s judgment
of conviction and sentence.
       Chief Judge GUTIERREZ and Judge LANSING CONCUR.




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