A. Aggravated stalking consists of stalking perpetrated by a person:

(1) who knowingly violates a permanent or temporary order of protection issued by a court, except that mutual violations of such orders may constitute a defense to aggravated stalking;

(2) in violation of a court order setting conditions of release and bond;

(3) when the person is in possession of a deadly weapon; or

(4) when the victim is less than sixteen years of age.

B. Whoever commits aggravated stalking is guilty of a fourth degree felony. Upon a second or subsequent conviction, the offender is guilty of a third degree felony.

C. In addition to any punishment provided pursuant to the provisions of this section, the court shall order a person convicted of aggravated stalking to participate in and complete a program of professional counseling at his own expense.

History: Laws 1997, ch. 10, § 4.

Effective dates. — Laws 1997, ch. 10, § 8 made the Harassment and Stalking Act effective July 1, 1997.

Proof of intent. — Although aggravated stalking need not be construed as requiring, like aggravated assault, some use of a weapon, it is reasonable to construe the aggravated stalking statute as requiring some intent to use a weapon not specifically named or specifically described in 30-1-12B NMSA 1978 as a weapon. State v. Anderson, 2001-NMCA-027, 130 N.M. 295, 24 P.3d 327.

Jury instruction. — Under an aggravated stalking charge, when the object or instrument in question is an unlisted one that falls within the catchall language of 30-1-12B NMSA 1978, the jury must be instructed (1) that the defendant must have possessed the object or instrument with the intent to use it as a weapon, and (2) the object or instrument is one that, if so used, could inflict dangerous wounds. State v. Anderson, 2001-NMCA-027, 130 N.M. 295, 24 P.3d 327.

The aggravated stalking statute is not unconstitutionally vague. State v. Smile, 2009-NMCA-064, 146 N.M. 525, 212 P.3d 413, cert. quashed, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180.

The aggravated stalking statute requires only one act in furtherance of a pattern of stalking. State v. Smile, 2009-NMCA-064, 146 N.M. 525, 212 P.3d 413, cert. quashed, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180.

Sufficient evidence. — Where the victim of the defendant's stalking attempted to end the relationship between the defendant and the victim; the defendant threatened to kill the victim and to damage the victim's car, left threatening letters in the victim's mailbox and made threatening phone calls to the victim's father; the victim obtained a temporary restraining order against the defendant; before the TRO was served, the defendant appeared at the victim's apartment with Ninja-style knives, told police officers that the defendant was at the apartment to put the fear of God into the victim; when the TRO was served on the defendant, the defendant stated that a piece of paper would not stop the defendant from inflicting pain and fear on the victim; and the victim found a copy of the TRO in the door of the apartment with a threatening message written by the defendant, the evidence was sufficient to support the defendant's conviction of aggravated stalking. State v. Smile, 2009-NMCA-064, 146 N.M. 525, 212 P.3d 413, cert. quashed, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180.