State v. Schleiermacher
| Decision Date | 28 May 1996 |
| Docket Number | No. 78072,78072 |
| Citation | 924 S.W.2d 269 |
| Parties | STATE of Missouri, Respondent, v. Russell SCHLEIERMACHER, Appellant. |
| Court | Missouri Supreme Court |
Karl L. Madden, Jr., Moberly, for appellant.
Stephanie M. Charde, Assistant Prosecuting Attorney, Randolph County, Moberly, for respondent.
Defendant Russell Schleiermacher was convicted of two counts of violating a full order of protection. § 455.085.8. 1 He was sentenced to three months in the county jail on one count and fined $250 on the other count. Defendant claims § 455.085.8 together with § 455.010 are unconstitutionally vague. In addition, he challenges the information and certain instructions given to the jury. This Court has jurisdiction. Mo. Const. art. V, § 3. Although the Court finds the statutes constitutional, because of instructional error and a faulty information as to one count, the convictions are reversed and the case remanded.
Defendant was charged with six counts of violating the order of protection. At trial, the state dismissed one count. A jury found defendant not guilty of three counts. However, he was convicted under counts II and III. The evidence offered in support of counts II and III is recited in a light most favorable to the jury verdict. State v. Shurn, 866 S.W.2d 447, 455 (Mo. banc 1993), cert. denied --- U.S. ----, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994).
Defendant separated from his wife, Lorrie, on October 4, 1993. The two were divorced in March of the following year. Just after the separation, on October 18, Lorrie sought and obtained an ex parte order of protection pursuant to § 455.035. A full order of protection was entered November 2, 1993. The full order of protection provided in part, "[Defendant] shall not stalk, abuse, threaten to abuse, molest or disturb the peace of petitioner wherever petitioner may be...."
Prior to their separation, defendant and Lorrie's relationship had been deteriorating. On numerous occasions, defendant threatened to kill Lorrie, including an occasion when he put a gun to her head. In addition, he had threatened to and did try to take the couple's son, telling Lorrie that he could drop off the face of the earth and that she would never see the boy again. During the marriage, defendant had pushed Lorrie and had locked her in the bathroom. When the children attempted to call for help, defendant pulled the telephone off the wall. These events precipitated her obtaining the order of protection. However, within a few days after the order was obtained, she witnessed defendant driving slowly by her house. These events frightened Lorrie.
Officer Stuck, of the Huntsville police department, observed the defendant driving down the street adjacent to Lorrie's residence on December 6, 1993. The officer noted nothing unusual about defendant's driving. On December 8, 1993, Lorrie's mother was on her way to Lorrie's residence at about 6:15 a.m. Lorrie's mother observed defendant parked in a vacant lot a half block from the residence. She confronted him. He claimed to be sitting in the lot so he could see his son. At least inferentially, the lot was close enough to Lorrie's residence that defendant could observe the child coming to or going from her residence.
The dispositive issue here is the propriety of the verdict directing instructions, designated instructions 6 and 7, given in support of counts II and III. Counts II and III of the information charged that defendant violated § 455.085 "by repeatedly driving by and lingering near [Lorrie's] residence ... at various times of the day and night" (count II) and "by lingering near [Lorrie's] residence by parking in a vacant lot up the street from [her] residence and sitting in his truck...." (count III). Both counts were charged as class A misdemeanors.
The class A offense of violating a full order of protection under the adult abuse law, as charged in this case, requires a finding that the defendant either abused or stalked the victim. Abuse may occur in a number of ways, either by assault, battery, coercion, harassment, sexual assault or unlawful imprisonment. § 455.010(1)(a)-(f). Stalking may occur either by repeatedly harassing another person or following with the intent of harassing another person. § 455.010(10). The facts in this case only support a violation of the protective order through abuse or stalking by harassment.
Abuse by harassment is defined as follows:
"Abuse" includes but is not limited to the occurrence of any of the following acts ...
. . . . .
(d) "Harassment", engaging in a purposeful or knowing course of conduct involving more than one incident that alarms or causes distress to another person and serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress and must actually cause substantial emotional distress to the petitioner. Such conduct might include but is not limited to:
. . . . .
b. Peering in the window or lingering outside the residence of another; but does not include constitutionally protected activity.
When submitting the class A misdemeanor of violation of a full order of protection where the state relies on proof of abuse by harassment, the jury must be instructed that it shall find the defendant guilty if proved beyond a reasonable doubt (1) that a valid court order was in effect prohibiting defendant from abusing the victim, (2) that the order had been served on or read to the defendant, and (3) that defendant purposely or knowingly harassed the victim by engaging in a course of conduct involving more than one incident, which must be specifically described in the instruction, thereby causing substantial emotional distress to the victim. The word "harassed" must be defined in the instruction to mean to engage in a course of conduct directed at a specific person that causes substantial emotional distress and serves no legitimate purpose, and would cause a reasonable person to suffer substantial emotional distress. The course of conduct described may include following the victim to public places or peering in the window or lingering outside the victim's residence. Compare MAI-CR3d 319.40.
Stalking is also defined in the statute:
"Stalking" is when a person purposefully and repeatedly harasses or follows with the intent of harassing another person. As used in this subdivision, "harasses" means to engage in a course of conduct directed at a specific person that serves no legitimate purpose, that would cause a reasonable person to suffer substantial emotional distress. As used in this subdivision, "course of conduct" means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct".
An instruction properly submitting the class A misdemeanor of violating an adult abuse order where the state relies on stalking by harassment 2 requires that the jury shall find the defendant guilty if it believes beyond a reasonable doubt (1) that a valid order was in effect prohibiting the defendant from stalking the victim, (2) that the order had been served on or read to the defendant, and (3) that the defendant repeatedly and purposely harassed the victim by engaging in a course of conduct, which must be specifically described in the instruction. The word "harassed" must be defined in the instruction to mean a course of conduct involving a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose directed at a specific person and serves no legitimate purpose and would cause a reasonable person to suffer substantial emotional distress. Compare MAI-CR3d 319.40.
Both instructions 6 and 7 purport to be patterned after MAI-CR3d 332.52 and provide in relevant part as follows:
As to Count II, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about November 2, 1993, the Circuit Court of Randolph County entered an order prohibiting defendant from stalking, abusing and threatening to abuse [Lorrie] wherever she may be, and
Second, that on November 3, 1993, the Randolph County Circuit Clerk's office presented a copy of that order to the defendant, and
Third, that on or about December 6, 1993, in the County of Randolph, State of Missouri, the defendant violated that order by repeatedly driving by and lingering near [Lorrie's] residence located at 103 West Mulberry, Huntsville, MO, at various times of the day and night, knowing that such conduct would cause alarm or distress to [Lorrie] and such conduct served no legitimate purpose.
then you will find the defendant guilty of violation of order of protection.
. . . . .
As to Count III, if you find and believe from the evidence beyond a reasonable doubt:
First, that on or about November 2, 1993, the Circuit Court of Randolph County entered an order prohibiting defendant from stalking, abusing and threatening to abuse [Lorrie] wherever she may be, and
Second, that on November 3, 1993, the Randolph County Circuit Clerk's office presented a copy of that order to the defendant, and
Third, that on or about December 8, 1993, in the County of Randolph, State of Missouri, the defendant violated that order by lingering near [Lorrie's] residence by parking in a vacant lot up the street from [Lorrie's] residence and sitting in his truck, knowing that such conduct would cause alarm or distress to [Lorrie] and such conduct served no legitimate purpose.
then you will find the defendant guilty of violation of order or protection.
As is readily apparent from reading the relevant portions of instructions No. 6 and No. 7, both are deficient in a number of respects, notwithstanding a superficial compliance with MAI-CR3d 332.52. Most notably, neither...
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